AMENDMENT NO. 3 AND WAIVER TO CREDIT AGREEMENT
Exhibit 10.2
Execution Version
AMENDMENT NO. 3 AND WAIVER TO CREDIT AGREEMENT
This AMENDMENT NO. 3 AND WAIVER TO CREDIT AGREEMENT, dated as of May 11, 2020 (this “Amendment”), is entered into by and among, inter alia, CENTRIC BRANDS INC. (f/k/a DIFFERENTIAL BRANDS GROUP INC.), a Delaware corporation (“Borrower”), each other Loan Party, the Lenders signatory hereto, ARES CAPITAL CORPORATION, as the administrative agent (the “Administrative Agent”), ACF XXXXX I LP, as the revolving agent (the “Revolving Agent”) and as the collateral agent (the “Collateral Agent”) and HPS INVESTMENT PARTNERS, LLC, as documentation agent (the “Documentation Agent”; the Documentation Agent together with the Administrative Agent, the Collateral Agent and the Revolving Agent, the “Agents”; the Agents together with the Lenders, the “Lender Parties”). All capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Amended Credit Agreement (as defined below).
WITNESSETH
WHEREAS, the Borrower and the Lender Parties are party to that certain First Lien Credit Agreement, dated as of October 29, 2018 (as amended by (i) that certain Amendment No. 1 and Waiver to Credit Agreement, dated as of April 17, 2019, and (ii) that certain Amendment No. 2 and Waiver to Credit Agreement, dated as of April 20, 2020 (“Amendment No. 2”)) (the “Credit Agreement”; the Credit Agreement as amended by this Amendment, the “Amended Credit Agreement”);
WHEREAS, the Borrower has requested that the Lender Parties agree to amend the Credit Agreement to, among other things, (i) permit the incurrence of the 2020 Term Loans (as defined below) under the Amended Credit Agreement and (ii) permit the Borrower to amend the PNC Securitization Documents in accordance with the Eighth Amendment to RPA (as defined below);
WHERES, the Borrower has requested that the Lender Parties agree to extend the requirement in Amendment No. 2 to deliver a Restructuring Term Sheet (as defined in Amendment No. 2) to the Administrative Agent on or prior to 11:59 p.m. (New York City time) on May 11, 2020 to on or prior to 11:59 p.m. (New York City time) on May 18, 2020 (the “Restructuring Term Sheet Extension”);
WHEREAS, the Agents and the Lender Parties signatory hereto, which constitute Required Lenders, agree to amend certain provisions of the Credit Agreement described below, in each case, subject to the terms and conditions set forth herein and in the Amended Credit Agreement;
WHEREAS, the Borrower is requesting the establishment of a new Tranche of Term Loans in the form of 2020 Term Loans in an aggregate principal amount of $20,000,000 (the “2020 Term Loans”), in each case, subject to the terms and conditions set forth herein and in the Amended Credit Agreement;
WHEREAS, each Person party hereto whose name is set forth on Schedule I hereto under the heading “2020 Term Lender” (the “2020 Term Lenders”) has agreed to make the 2020 Term Loans on the Third Amendment Effective Date to the Borrower in an aggregate principal amount set forth on Schedule I hereto under the heading “2020 Term Commitment” (the “2020 Term Commitments”) subject to the terms and conditions set forth herein and in the Amended Credit Agreement.
NOW THEREFORE, in consideration of the foregoing recitals, mutual agreements contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment to Credit Agreement. As of the Third Amendment Effective Date, subject to the satisfaction of the conditions precedent set forth in Section 5 of this Amendment, the Credit
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Agreement is hereby (i) amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the underlined text (indicated textually in the same manner as the following example: underlined text) as set forth in the pages attached hereto as Exhibit A and (ii) restated in its entirety to read as set forth in such Exhibit A after giving effect to such textual deletions and additions.
SECTION 2. 2020 Term Loans.
(a) Each 2020 Term Lender party hereto hereby agrees to provide its 2020 Term Commitment, as set forth on Schedule I annexed hereto, on the terms and subject to the conditions set forth in this Amendment and the Amended Credit Agreement.
(b) Each 2020 Term Lender that is not a Lender prior to the execution of this Amendment (the “New Lenders”) acknowledges and agrees that upon its execution of this Amendment and the making of 2020 Term Commitments and 2020 Term Loans hereunder, such New Lender shall become a “Lender”, “Term Lender” and “2020 Term Lender” under, and for all purposes of, the Amended Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender, Term Lender and 2020 Term Lender thereunder. Each New Lender (i) confirms that it has received a copy of the Amended Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, or any other New Lender or any other Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Amended Credit Agreement; and (iii) appoints and authorizes the Administrative Agent and/or the Collateral Agent, to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent and the Collateral Agent, respectively, by the terms thereof, together with such powers as are reasonably incidental thereto.
SECTION 3. Amendment No. 2 Matters. Subject to the occurrence of the Third Amendment Effective Date, the Required Lenders hereby consent to (i) the Restructuring Term Sheet Extension and each reference to “May 11, 2020” in Amendment No. 2 shall be replaced with “May 18, 2020”, and (ii) the Eighth Amendment to RPA.
SECTION 4. Representations and Warranties of Borrower. In order to induce the Lender Parties signatory hereto to enter into this Amendment and for the 2020 Term Lenders to provide the 2020 Term Commitment and 2020 Term Loans, the Borrower hereby represents and warrants that:
(a) Organization; Power; Qualification. The Borrower and each of the Subsidiaries (a) is a limited liability company, unlimited liability company, corporation or partnership duly organized, validly existing and in good standing (or, if applicable in a foreign jurisdiction, enjoys the equivalent status under the laws of any jurisdiction of organization outside the United States) under the laws of the jurisdiction of its organization, (b) has all requisite corporate or other organizational power and authority to own its property and assets and to carry on its business as now conducted, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect (c) is qualified to do business in each jurisdiction and licensed and, as applicable, in good standing under the laws of each jurisdiction where such qualification or license or, if applicable, good standing is required, except where the failure so to qualify would not reasonably be expected to have a Material Adverse Effect, (d) has the corporate or other organizational power and authority to execute, deliver and perform its obligations under this Amendment,
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each of the Loan Documents and each other agreement or instrument contemplated thereby to which it is or will be a party and, in the case of the Borrower, to borrow and otherwise obtain credit under the Credit Agreement and (e) has all requisite governmental licenses, authorizations, consents and approvals to own its property and assets and to carry on its business as now conducted, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect.
(b) Authorization; Enforceability. The Borrower and each of the Loan Parties has the power and has taken all necessary action, corporate or otherwise, to authorize it to execute, deliver, and perform its obligations under this Amendment and to consummate the transactions contemplated hereby. This Amendment has been duly executed and delivered by the Borrower and each of the Loan Parties, and this Amendment (and the Credit Agreement as modified hereby) is the legal, valid and binding obligation of the Borrower and each of the Loan Parties, enforceable in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair dealing.
(c) No Conflicts, Etc. The execution, delivery, and performance of this Amendment in accordance with its terms and the consummation of the transactions contemplated hereby do not and will not (i) violate (A) any provision of law, statute, rule or regulation, (B) the certificate or articles of incorporation or other constitutive documents (including any limited liability company or operating agreements) or by-laws of the Borrower or any other Loan Parties, (C) any applicable order of any court or any rule, regulation or order of any Governmental Authority or (D) any provision of any indenture, certificate of designation for preferred stock, agreement or other instrument to which the Borrower or any other Loan Party is a party or by which any of them or any of their property is or may be bound, or (ii) result in or require the creation or imposition of any Lien upon or with any assets or property of Borrower or any Loan Party.
(d) Liabilities. Except as (i) set forth in the financial statements and reports delivered to the Administrative Agent pursuant to Section 5.04(c) of the Credit Agreement for the fiscal month ending January 31, 2020 (the “January 2020 Financials”), (ii) disclosed in writing to the Administrative Agent, or (iii) disclosed in a public filing with the SEC, as of the Third Amendment Effective Date, there are no material liabilities of the Borrower or any of its Subsidiaries of any kind, whether accrued, contingent, absolute, determined, determinable or otherwise, and there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a liability other than the potential impact associated with the COVID-19 pandemic (the breadth and extent of which are unknown as of the date hereof).
(e) Accuracy of Representations; No Event of Default. After giving effect to this Amendment, (a) the representations and warranties of the Borrower set forth herein (including with respect to the recitals herein) and the Loan Documents that are qualified by materiality are true and correct, and the representations and warranties that are not so qualified shall be true and correct in all material respects, in each case on and as of the date hereof and after giving effect to this Amendment, as applicable, with the same effect as though made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties that are qualified by materiality shall be true and correct, and the representations and warranties that are not so qualified shall be true and correct in all material respects, as of such earlier date) and (b) as of the date hereof after giving effect to this Amendment, no Default or Event of Default exists.
SECTION 5. Conditions Precedent to Effectiveness. This Amendment and the obligation of the 2020 Term Lenders to make 2020 Term Loans shall be effective upon the date (such date, the “Third
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Amendment Effective Date”) that each of the following conditions is satisfied:
(a) The Administrative Agent shall have received a counterpart signature page of this Amendment duly executed by (i) each Agent, (ii) the Borrower and each of the other Loan Parties, (iii) the Majority Lenders under each of the existing Revolving Credit Facility and Term Facility and (iv) the 2020 Term Lenders;
(b) The Agents shall have received a copy of a duly executed amendment to the Second Lien Credit Agreement, which shall be in form and substance satisfactory to the Agents;
(c) The Agents shall have received a copy of a duly executed amendment to the PNC Securitization Documents, which shall be in form and substance satisfactory to the Agents (the “Eighth Amendment to RPA”);
(d) The Agents shall have received a copy of a duly executed amendment to the Agreement Among Lenders, which shall be in form and substance satisfactory to the Agents;
(e) The Administrative Agent shall have received a duly executed Borrowing Request by the Borrower;
(f) Prior to the Third Amendment Effective Date, the Agents and the Lenders shall have received all documentation and other information required by bank regulatory authorities or reasonably requested by any Agent or any Lender under or in respect of applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and including a duly executed W-9 tax form (or such other applicable IRS tax form) of the Borrower.
(g) The Administrative Agent shall have received a certificate from the secretary or other responsible officer of each Loan Party (i) certifying to and attaching resolutions authorizing the transactions contemplated by the Amendment and, in the case of the Borrower, the borrowing of 2020 Term Loans, which shall be in form and substance satisfactory to the Administrative Agent, (ii) certifying that the Organizational Documents of such Loan Party have not been amended, amended and restated or otherwise modified since the Closing Date (or attaching such amendments or other modifications), and (iii) attaching a certificate of good standing (to the extent such concept or a similar concept exists under the laws of such Loan Party’s jurisdiction of organization) of such Loan Party as of a recent date from the Secretary of State (or other similar official) of the jurisdiction or organization of such Loan Party; and
(h) The Borrower shall have paid all reasonable and documented out-of-pocket fees and expenses of the Agents and the 2020 Term Lenders to the extent (i) invoiced on or prior to the date hereof and (ii) required to be paid pursuant to Section 9.05(a) of the Credit Agreement.
SECTION 6. Reference to and Effect Upon the Loan Documents.
(a) Except as expressly modified hereby, all terms, conditions, covenants, representations and warranties contained in the Credit Agreement and the other Loan Documents, and all rights of the Lender Parties and all of the Obligations, shall remain in full force and effect. The Borrower and each other Loan Party signatory hereto hereby confirms that no Loan Party has any right of setoff, recoupment or other offset or any defense, claim or counterclaim with respect to any of the Obligations, the Credit Agreement or any other Loan Document.
(b) From and after the Third Amendment Effective Date, (i) the term “Agreement” in the Credit Agreement, and all references to the Credit Agreement in any Loan Document, shall mean the Credit
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Agreement as amended hereby and (ii) the term “Loan Documents” in the Credit Agreement and the other Loan Documents shall include, without limitation, this Amendment and any agreements, instruments and other documents executed and/or delivered in connection herewith.
(c) This Amendment shall not be deemed or construed to be a satisfaction, reinstatement, novation or release of the Credit Agreement or any other Loan Document.
SECTION 7. Reaffirmation and Confirmation. Each of the Loan Parties as debtor, grantor, pledgor, guarantor, assignor, or in other any other similar capacity in which such Loan Party grants liens or security interests in its property or otherwise acts as accommodation party or guarantor, as the case may be, hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of the Loan Documents to which it is a party (after giving effect hereto, and including, for the avoidance of doubt, with respect to the 2020 Term Loans), (ii) to the extent such Loan Party granted liens on or security interests in any of its property pursuant to any such Loan Document as security for or otherwise guaranteed the Borrower’s Obligations under or with respect to the Loan Documents, ratifies and reaffirms such guarantee and grant of security interests and liens and confirms and agrees that such security interests and liens hereafter secure all of the Obligations as amended hereby and (iii) acknowledges and agrees that each New Lender (and any successor or permitted assignee thereof) is a “Lender”, “Term Lender”, “2020 Term Lender” and a “Secured Party” for all purposes under the Loan Documents to which such Loan Party is a party. Each of the Loan Parties hereby consents to this Amendment and acknowledges that each of the Loan Documents remains in full force and effect as amended hereby and is hereby ratified and reaffirmed. The execution of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent or Lenders or serve to effect a novation of the Obligations.
SECTION 8. General Release. In consideration of the willingness of the Agents and the Lender Parties to enter into this Amendment, each Loan Party hereby fully, finally unconditionally and irrevocably releases and forever discharges the Agents, the Lenders and the Agents’, and the Lenders’ respective predecessors, successors, assigns, officers, managers, directors, employees, agents, attorneys, representatives, and Affiliates (hereinafter all of the above collectively referred to as the “Lender Group”), from any and all claims, counterclaims, demands, damages, debts, suits, liabilities, actions and causes of action of any nature whatsoever, including, without limitation, all claims, demands, and causes of action for contribution and indemnity, whether arising at law or in equity, whether known or unknown, whether liability be direct or indirect, liquidated or unliquidated, whether absolute or contingent, foreseen or unforeseen, and whether or not heretofore asserted, which any Loan Party, on or prior to the date hereof, may have or claim to have against any of the Lender Group in any way related to or connected with this Amendment, the Credit Agreement, the other Loan Documents and the transactions governed thereby, in each case related to claims otherwise arising on or prior to the date hereof.
SECTION 9. Governing Law; Miscellaneous.
(a) Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(b) Jurisdiction; Service of Process; Consent to Venue; Waiver of Jury Trial. The provisions of Sections 9.13 and 9.17 of the Credit Agreement are hereby incorporated as if set forth herein, mutatis mutandis.
SECTION 10. Headings. Section headings used herein are for convenience of reference only, are not part of this Amendment and are not to affect the construction of, or to be taken into consideration in interpreting, this Amendment.
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SECTION 11. Severability. The illegality or unenforceability of any provision of this Amendment or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Amendment or any instrument or agreement required hereunder.
SECTION 12. Notices. All notices, requests, and demands to or upon the respective parties hereto shall be given in accordance with Section 9.01 of the Credit Agreement.
SECTION 13. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which, when taken together, shall constitute but one contract, and shall become effective as provided in Section 5 of this Amendment. Delivery of an executed counterpart to this Amendment by facsimile (or other electronic) transmission pursuant to procedures approved by the Administrative Agent shall be as effective as delivery of a manually signed original.
(signature pages follow)
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their duly authorized officers as of the day and year first above written.
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BORROWER: |
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CENTRIC BRANDS INC. |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
[Signature Page to Amendment No. 3 and Waiver to Credit Agreement]
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Acknowledged and Agreed: |
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SUBSIDIARY LOAN PARTIES: |
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DBG HOLDINGS SUBSIDIARY, INC. |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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INNOVO WEST SALES, INC. |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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XXXXXX CLOTHING HOLDINGS, INC. |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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HC ACQUISITION HOLDINGS, INC. |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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DFBG SWIMS, LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
[Signature Page to Amendment No. 3 and Waiver to Credit Agreement]
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RG PARENT LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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XXXXXX XXXXXX HOLDINGS, LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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XXXXXX XXXXXX DESIGNS, LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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XXXXXX XXXXXX RETAIL LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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RGH GROUP LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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XXXXX XXXXXXXX IP, LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
[Signature Page to Amendment No. 3 and Waiver to Credit Agreement]
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AMERICAN MARKETING ENTERPRISES INC. |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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BRIEFLY STATED HOLDINGS INC. |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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BRIEFLY STATED, INC. |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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CENTRIC JEWELRY INC. |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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KHQ INVESTMENT LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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KHQ ATHLETICS LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
[Signature Page to Amendment No. 2 and Waiver to Credit Agreement]
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XXXXXXX HANDBAGS AND ACCESSORIES, LTD. |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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CENTRIC ACCESSORIES GROUP LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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CENTRIC SOCKS LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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VZI INVESTMENT CORP. |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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CENTRIC-BCBG LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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CENTRIC-BCBG RETAIL LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
[Signature Page to Amendment No. 2 and Waiver to Credit Agreement]
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CENTRIC DENIM USA, LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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CENTRIC BEAUTY LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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ADDED EXTRAS LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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LOTTA LUV BEAUTY LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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CENTRIC WEST LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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F&T APPAREL LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
[Signature Page to Amendment No. 2 and Waiver to Credit Agreement]
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CENTRIC DENIM RETAIL LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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CENTRIC BRANDS HOLDING LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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XXXXXX CLOTHING, LLC |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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DBG SUBSIDIARY INC. |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx Title: Chief Financial Officer |
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AGENTS: |
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ARES CAPITAL CORPORATION, as |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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ACF XXXXX I LP, as Collateral Agent and as Revolving Agent |
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By: |
/s/ Xxxx Cascade |
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Name: Xxxx Cascade Title: Duly Authorized Signatory |
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HPS INVESTMENT PARTNERS, LLC, as Documentation Agent |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Ares Capital Corporation, |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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Ares Capital CP Funding LLC, |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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CADEX Credit Financing, LLC, |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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ARES CENTRE STREET PARTNERSHIP, L.P., |
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By: Ares Centre Street GP, Inc., as general partner |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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Ares Jasper Fund Holdings, LLC, |
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By: Ares Capital Management LLC, as servicer |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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Ares ND CSF Holdings LLC, |
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By: Ares Capital Management LLC, as servicer |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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Ares Credit Strategies Insurance Dedicated Fund
Series of SALI Multi-Series Fund, L.P., |
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By: Ares Management LLC, its investment subadvisor |
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By: Ares Capital Management LLC, as subadvisor |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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Ares Senior Direct Lending Parallel Fund (U), L.P., as Lender |
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By: Ares Capital Management LLC, its investment manager |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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Ares Senior Direct Lending Parallel Fund (U) B, L.P., |
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By: Ares Capital Management LLC, its investment manager |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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AC AMERICAN FIXED INCOME IV, L.P., |
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By: Ares Capital Management LLC, its investment manager |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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Federal Insurance Company, |
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By: Ares Capital Management LLC, its investment manager |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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SC ACM Private Debt Fund L.P., as Lender |
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By: Ares Capital Management LLC, its investment advisor |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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Nationwide Life Insurance Company, |
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By: Ares Capital Management LLC, its investment manager |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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Nationwide Mutual Insurance Company, |
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By: Ares Capital Management LLC, its investment manager |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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Great American Life Insurance Company, |
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By: Ares Capital Management LLC, its investment manager |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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Great American Insurance Company, as Lender |
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By: Ares Capital Management LLC, its investment advisor |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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Bowhead IMC LP, |
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By: Ares Capital Management LLC, its investment manager |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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AN Credit Strategies Fund, L.P., |
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By: Ares Capital Management LLC, its investment manager |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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Ares European Credit Strategies Fund VIII (XXXX), L.P., |
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By: Ares Management Limited, its investment manager |
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By: Ares Capital Management LLC, its subadvisor |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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Diversified Loan Fund – Private Debt A S.a.r.l., as Lender |
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By: Ares Management Limited, its portfolio manager By: Ares Capital Management LLC, its subadvisor |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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SDL Finance 1 LP, |
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By: Ares Capital Management LLC, as servicer |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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SDL Finance 2 LP, |
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By: Ares Capital Management LLC, as servicer |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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CION ARES DIVERSIFIED CREDIT FUND, |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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Ares Senior Direct Lending Master Fund Designated Activity Company, as Lender |
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By: Ares Capital Management LLC, its investment manager |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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Ares Senior Direct Lending Parallel Fund (L), L.P., |
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By: Ares Capital Management LLC, its investment manager |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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Ares SDL Holdings (U) Inc., |
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By: Ares Capital Management LLC, its investment manager |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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ARES JASPER FUND, L.P., as Lender |
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By: Ares Capital Management LLC, its investment manager |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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ARES ND CREDIT STRATEGIES FUND LLC |
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By: Ares Capital Management LLC, its account manager |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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ARES DIRECT FINANCE I LP, |
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By: Ares Capital Management LLC, its investment manager |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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Ares CSIDF Holdings LLC, as Lender, |
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By: |
/s/ Xxxxxxxx Xxxxxxxxx |
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Name: Xxxxxxxx Xxxxxxxxx Title: Authorized Signatory |
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ARES JASPER FUND, L.P., as Lender |
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By: Ares Capital Management LLC, its investment manager |
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By: |
/s/ |
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Name: Title: |
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ARES ND CREDIT STRATEGIES FUND LLC |
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By: Ares Capital Management LLC, its account manager |
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By: |
/s/ |
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Name: Title: |
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ARES DIRECT FINANCE I LP, |
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By: Ares Capital Management LLC, its investment manager |
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By: |
/s/ |
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Name: Title: |
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Ares CSIDF Holdings LLC, as Lender, |
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By: |
/s/ |
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Name: Title: |
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Ares Commercial Finance LP, as Lender, |
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By: Ares Commercial Finance Management LP, as manager |
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By: |
/s/ Xxxx Cascade |
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Name: Xxxx Cascade Title: Duly Authorized Signatory |
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ACF XXXXX I LP, as Lender, |
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By: |
/s/ Xxxx Cascade |
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Name: Xxxx Cascade Title: Duly Authorized Signatory |
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Aiguilles Rouges Sector B Investment Fund, L.P., as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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AXA Equitable Life Insurance Company, as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Brickyard Direct Holdings, L.P., as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Brickyard Direct Lending Fund, L.P., as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Cactus Direct Holdings, L.P., as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Cactus Direct Lending Fund, L.P., As Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Falcon Credit Fund, L.P., as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Lincoln Investment Solutions, Inc., as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Xxxxxx Street Direct Lending Fund, L.P., as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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NDT Senior Loan Fund, L.P., As Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Pacific Indemnity Company, as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Philadelphia Indemnity Insurance Company, as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Private Loan Opportunities Lending Fund, L.P., as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Red Cedar Fund 2016, L.P., As Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Red Cedar Holdings, L.P., |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Reliance Standard Life Insurance Company, as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Safety National Casualty Corporation, as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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SLF 2016 Institutional Holdings II, L.P., as Lender |
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By: HPS Investment Partners, LLC, its Service Provider |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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SLF 2016 Institutional Holdings, L.P. as Lender |
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By: HPS Investment Partners, LLC, its Service Provider |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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SLF 2016-L Holdings, L.P., as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Specialty Loan Fund – CX – 2, L.P., as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Specialty Loan Fund 2016, L.P., as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Specialty Loan Fund 2016-L, L.P., as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Specialty Loan Ontario Fund 2016, L.P. as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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Swiss Capital HPS Private Debt Fund L.P., as Lender |
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By: HPS Investment Partners, LLC, as Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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CST Specialty Loan Fund, L.P., as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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SLF CX-2 Holdings B, L.P. as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
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SLF CX-2 Holdings, L.P., as Lender |
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By: HPS Investment Partners, LLC, its Investment Manager |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx Title: Managing Director |
Conformed ThroughExhibit A to Amendment No. 23
FIRST LIEN CREDIT AGREEMENT
Dated as of October 29, 2018,
As amended by Amendment No. 1 and Waiver to Credit Agreement,
dated as of April 17, 2019
As amended by Amendment No. 2 and Waiver to Credit Agreement,
dated as of April 20, 2020
As amended by Amendment No. 3 and Waiver to Credit Agreement,
dated as of May 11, 2020
Among
DIFFERENTIAL BRANDS GROUP INC.,
as Borrower,
THE LENDERS PARTY HERETO,
and
ARES CAPITAL CORPORATION
as Joint Lead Arranger, Bookrunner and Administrative Agent
ACF XXXXX I LP
as Revolving Agent and Collateral Agent
and
HPS INVESTMENT PARTNERS, LLC
as Joint Lead Arranger, Bookrunner and Documentation Agent
Table of Contents
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Page |
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ARTICLE I |
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DEFINITIONS |
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SECTION 1.01 Defined Terms |
2 |
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SECTION 1.02 Terms Generally |
77 82 |
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SECTION 1.03 Pro Forma Calculations |
78 83 |
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SECTION 1.04 Currency Translation |
79 84 |
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SECTION 1.05 Letter of Credit Amounts |
79 84 |
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SECTION 1.06 Limited Condition Acquisitions |
79 84 |
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ARTICLE II |
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THE CREDITS |
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SECTION 2.01 Commitments |
80 85 |
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SECTION 2.02 Loans and Borrowings |
81 86 |
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SECTION 2.03 Requests for Term Borrowings |
81 87 |
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SECTION 2.04 Revolving Borrowing Procedures and Settlements |
82 89 |
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SECTION 2.05 Letters of Credit. |
88 95 |
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SECTION 2.06 Collections. |
95 102 |
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SECTION 2.07 Interest Elections |
96 102 |
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SECTION 2.08 Termination and Reduction of Commitments |
97 104 |
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SECTION 2.09 Repayment of Loans; Evidence of Debt |
98 105 |
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SECTION 2.10 Repayment of Loans |
98 105 |
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SECTION 2.11 Prepayment of Loans |
100 107 |
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SECTION 2.12 Fees |
102 109 |
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SECTION 2.13 Interest |
104 112 |
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SECTION 2.14 Alternate Rate of Interest |
105 113 |
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SECTION 2.15 Increased Costs |
106 114 |
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SECTION 2.16 Break Funding Payments |
107 115 |
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SECTION 2.17 Taxes |
108 116 |
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SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-offs |
112 120 |
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SECTION 2.19 Mitigation Obligations; Replacement of Lenders |
114 122 |
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SECTION 2.20 [Reserved] |
115 123 |
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SECTION 2.21 Illegality |
115 123 |
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SECTION 2.22 Cash Collateral |
116 124 |
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SECTION 2.23 Defaulting Lenders |
116 125 |
i
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ARTICLE III |
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REPRESENTATIONS AND WARRANTIES |
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SECTION 3.01 Organization; Powers |
119 127 |
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SECTION 3.02 Authorization |
119 128 |
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SECTION 3.03 Enforceability |
120 128 |
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SECTION 3.04 Governmental Approvals |
120 128 |
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SECTION 3.05 Financial Statements |
120 129 |
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SECTION 3.06 No Material Adverse Effect |
121 130 |
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SECTION 3.07 Title to Properties; Possession Under Leases |
122 130 |
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SECTION 3.08 Subsidiaries |
122 131 |
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SECTION 3.09 Litigation; Commercial Tort Claims; Compliance with Laws |
123 131 |
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SECTION 3.10 Federal Reserve Regulations |
124 132 |
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SECTION 3.11 Investment Company Act |
124 132 |
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SECTION 3.12 Use of Proceeds |
124 132 |
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SECTION 3.13 Tax Returns |
124 133 |
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SECTION 3.14 No Material Misstatements |
125 133 |
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SECTION 3.15 Employee Benefit Plans |
125 134 |
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SECTION 3.16 Environmental Matters |
126 134 |
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SECTION 3.17 Security Documents |
127 135 |
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SECTION 3.18 Location of Real Property |
128 136 |
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SECTION 3.19 Solvency |
128 136 |
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SECTION 3.20 Labor Matters |
128 137 |
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SECTION 3.21 Insurance |
129 137 |
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SECTION 3.22 Inventory Matters |
129 138 |
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SECTION 3.23 Material Agreements; No Violation |
129 138 |
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SECTION 3.24 [Reserved]. |
130 138 |
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SECTION 3.25 PATRIOT Act, etc. |
130 138 |
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SECTION 3.26 Sanctions Laws |
130 138 |
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SECTION 3.27 Anti-Corruption Laws and Sanctions |
131 139 |
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SECTION 3.28 Compliance With Collateral and Guarantee Requirement |
131 139 |
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ARTICLE IV |
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CONDITIONS OF LENDING |
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SECTION 4.01 All Credit Events |
131 140 |
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SECTION 4.02 Closing Date |
132 141 |
ii
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ARTICLE V |
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AFFIRMATIVE COVENANTS |
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SECTION 5.01 Existence; Businesses and Properties |
136 145 |
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SECTION 5.02 Insurance |
137 146 |
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SECTION 5.03 Taxes |
138 147 |
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SECTION 5.04 Financial Statements, Reports, etc. |
138 147 |
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SECTION 5.05 Litigation and Other Notices |
142 151 |
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SECTION 5.06 Compliance with Laws |
143 152 |
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SECTION 5.07 Maintaining Records; Inspections, Field Exams and Appraisals. |
143 152 |
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SECTION 5.08 Payment of Obligations |
144 153 |
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SECTION 5.09 Use of Proceeds |
144 153 |
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SECTION 5.10 Compliance with Environmental Laws |
144 153 |
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SECTION 5.11 Further Assurances; Additional Security |
144 153 |
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SECTION 5.12 Fiscal Year; Accounting |
146 155 |
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SECTION 5.13 [Reserved]. |
146 155 |
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SECTION 5.14 Lender Meetings |
146 155 |
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SECTION 5.15 Securitization Matters.. |
146 155 |
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SECTION 5.16 Compliance with Anti-Corruption Laws |
147 156 |
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SECTION 5.17 Post-Closing Matters |
147 156 |
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SECTION 5.18 Location of Collateral |
147 156 |
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SECTION 5.19 [Reserved]. |
148 156 |
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SECTION 5.20 Compliance with Collateral and Guarantee Requirement |
148 157 |
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SECTION 5.21 Collateral Reporting. |
148 157 |
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ARTICLE VI |
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NEGATIVE COVENANTS |
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SECTION 6.01 Indebtedness |
149 158 |
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SECTION 6.02 Liens |
153 162 |
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SECTION 6.03 Sale and Lease-Back Transactions |
158 168 |
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SECTION 6.04 Investments, Loans and Advances |
158 168 |
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SECTION 6.05 Mergers, Consolidations, Sales of Assets and Acquisitions |
162 172 |
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SECTION 6.06 Dividends and Distributions |
165 175 |
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SECTION 6.07 Transactions with Affiliates |
166 177 |
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SECTION 6.08 Business of the Borrower and the Subsidiaries |
168 179 |
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SECTION 6.09 Limitation on Modifications and Payments of Indebtedness; |
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Modifications of Certificate of Incorporation, By-Laws and Certain Other |
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Agreements; etc. |
169 179 |
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SECTION 6.10 Financial Maintenance Covenants |
171 183 |
iii
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SECTION 6.11 . Beginning with the fiscal quarter ending on March 31, 2019, except |
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with the written consent of the Required Lenders, permit: |
171 183 |
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SECTION 6.12 Limitations on Change in Fiscal Periods |
173 185 |
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ARTICLE VII |
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EVENTS OF DEFAULT |
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SECTION 7.01 Events of Default |
174 185 |
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SECTION 7.02 Exclusion of Certain Subsidiaries |
177 188 |
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ARTICLE VIII |
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THE AGENTS |
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SECTION 8.01 Appointment and Authority |
177 188 |
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SECTION 8.02 Rights as a Lender |
178 189 |
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SECTION 8.03 Exculpatory Provisions |
178 189 |
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SECTION 8.04 Reliance by Administrative Agent and Revolving Agent |
179 190 |
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SECTION 8.05 Delegation of Duties |
179 191 |
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SECTION 8.06 Resignation of the Administrative Agent, Revolving Agent |
180 191 |
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SECTION 8.07 Non-Reliance on Administrative Agent and Other Lenders |
181 192 |
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SECTION 8.08 No Other Duties, Etc |
181 192 |
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SECTION 8.09 Administrative Agent May File Proofs of Claim |
181 193 |
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SECTION 8.10 Collateral Agreement |
182 193 |
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SECTION 8.11 Withholding Tax |
183 194 |
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SECTION 8.12 Certain ERISA Matters. |
183 195 |
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ARTICLE IX |
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MISCELLANEOUS |
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SECTION 9.01 Notices |
184 196 |
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SECTION 9.02 Survival of Agreement |
186 198 |
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SECTION 9.03 Binding Effect |
187 198 |
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SECTION 9.04 Successors and Assigns |
187 198 |
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SECTION 9.05 Expenses; Indemnity |
195 207 |
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SECTION 9.06 Right of Set-off |
197 209 |
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SECTION 9.07 Payments Set Aside |
197 210 |
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SECTION 9.08 Applicable Law |
198 210 |
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SECTION 9.09 Waivers; Amendment |
198 210 |
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SECTION 9.10 Interest Rate Limitation |
202 214 |
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SECTION 9.11 [Reserved] |
202 214 |
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SECTION 9.12 Entire Agreement |
202 214 |
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SECTION 9.13 WAIVER OF JURY TRIAL |
202 214 |
iv
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SECTION 9.14 Severability |
203 215 |
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SECTION 9.15 Counterparts |
203 215 |
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SECTION 9.16 Headings |
203 215 |
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SECTION 9.17 Jurisdiction; Consent to Service of Process |
203 215 |
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SECTION 9.18 Confidentiality |
204 216 |
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SECTION 9.19 Direct Website Communications |
205 217 |
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SECTION 9.20 Release of Liens and Guarantees |
206 219 |
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SECTION 9.21 Power of Attorney |
207 219 |
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SECTION 9.22 PATRIOT Act Notice |
207 220 |
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SECTION 9.23 No Advisory or Fiduciary Relationship |
208 220 |
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SECTION 9.24 Acknowledgement and Consent to Bail-In of EEA Financial Institutions |
208 221 |
v
Exhibits and Schedules
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Exhibit A |
Form of Assignment and Acceptance |
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Exhibit B |
Form of Borrowing Base Certificate |
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Exhibit C |
Form of Borrowing Request |
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Exhibit D |
Form of Collateral Agreement |
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Exhibit E |
Form of Guaranty Agreement |
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Exhibit F |
Tax Compliance Certificates |
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Schedule A-1 |
Authorized Persons |
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Schedule A-2 |
Revolving Agent’s Account |
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Schedule D-1 |
Designated Account |
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Schedule E |
Existing Letters of Credit |
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Schedule F |
Existing Earn Out Obligations |
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Schedule G |
Xxxxxx Notes |
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Schedule 1.01(b) |
Immaterial Subsidiaries |
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Schedule 1.01(g) |
Subsidiary Loan Parties |
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Schedule 2.01 |
Commitments and Lenders |
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Schedule 3.01 |
Organization and Good Standing |
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Schedule 3.04 |
Governmental Approvals |
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Schedule 3.05(b) |
Liabilities/Long-Term Obligations |
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Schedule 3.07(b) |
Possession under Leases |
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Schedule 3.08(a) |
Subsidiaries |
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Schedule 3.08(c) |
Subscriptions |
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Schedule 3.09(a) |
Litigation and Commercial Tort Claims |
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Schedule 3.13 |
Taxes |
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Schedule 3.15 |
Employee Benefit Plans |
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Schedule 3.16 |
Environmental Matters |
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Schedule 3.18 |
Real Property |
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Schedule 3.20 |
Labor Matters |
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Schedule 3.21 |
Insurance |
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Schedule 3.23 |
Material Agreements |
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Schedule 5.17 |
Post-Closing Matters |
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Schedule 5.18 |
Inventory Locations |
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Schedule 6.01 |
Indebtedness |
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Schedule 6.02(a) |
Liens |
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Schedule 6.04 |
Investments; Intercompany Loans |
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Schedule 6.07 |
Transactions with Affiliates |
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Schedule 6.09(c) |
Contractual Encumbrances and Restrictions |
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Schedule 9.01(a)(i) |
Loan Party Notice Information |
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Schedule 9.01(a)(ii) |
Administrative Agent and Collateral Agent Notice Information |
vi
This FIRST LIEN CREDIT AGREEMENT, dated as of October 29 2018, (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”), is made by among, DIFFERENTIAL BRANDS GROUP INC., a Delaware corporation (the “Borrower”), the Lenders (as hereinafter defined) from time to time party hereto, ARES CAPITAL CORPORATION, as administrative agent (together with any successor administrative agent appointed pursuant hereto, in such capacity, the “Administrative Agent”), ACF XXXXX I LP as revolving agent (together with any successor revolving agent appointed pursuant hereto, in such capacity, the “Revolving Agent”) for the Revolving Lenders and ACF XXXXX I LP as collateral agent (together with any successor collateral agent appointed pursuant hereto, in such capacity, the “Collateral Agent”) for all Lenders.
WHEREAS, pursuant to the Acquisition Agreement, the Borrower will acquire (the “Closing Date Acquisition”) 100% of the Equity Interests of Centric Brands Holding LLC, a Delaware limited liability company (the “Acquired Business”);
WHEREAS, the Borrower has requested that the Lenders extend credit in the form of (a) Term Loans on the Closing Date in an aggregate principal amount equal to $645,000,000 and (b) subject to the terms and conditions set forth herein, Revolving Loans at any time and from time to time on and after the Closing Date and prior to the Maturity Date in an aggregate principal amount at any one time outstanding (when taken together with the face amount of Letters of Credit and Swing Line Loans then outstanding) not to exceed $200,000,000; provided that the aggregate principal amount of Revolving Loans and Letters of Credit made on the Closing Date, shall not exceed $25,000,000, which shall solely be used (i) to fund a portion of the acquisition consideration for the Acquired Business, (ii) to satisfy working capital needs of the Borrower and its Subsidiaries, (iii) to satisfy working capital adjustments pursuant to the Acquisition Agreement and (iv) to finance the payment of the license agreement consent fees on the Closing Date (the “Closing Date Revolver Cap”); but in any event not to collectively exceed the Maximum Revolver Amount. The proceeds of the Term Loans may be used on the Closing Date solely to fund consideration for the Closing Date Acquisition and fees, costs and expenses incurred in connection with the Transactions. The proceeds of the Revolving Loans may be used on the Closing Date to fund the consideration for the Closing Date Acquisition, fees, costs and expenses incurred in connection with Transactions and working capital needs of the Borrower and its Subsidiaries, working capital adjustments pursuant to the Acquisition Agreement and to finance the payment of the license agreement consent fees pursuant to the Acquisition Agreement and after the Closing Date to provide for ongoing working capital needs and other general corporate purposes of the Borrower and its Subsidiaries;
WHEREAS, concurrently herewith, the Borrower is entering into the Second Lien Credit Agreement to incur second lien term loans, the proceeds of which will be used in accordance with the Second Lien Credit Agreement to fund consideration for the Closing Date Acquisition and fees, costs and expenses incurred in connection with the Transactions and will be subject to the terms of the First-Second Intercreditor Agreement;
WHEREAS, the Borrower and each other Loan Party desire to secure all of the Obligations by granting to the Collateral Agent, for the benefit of the Secured Parties, a security
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interest in and Lien upon substantially all of the property and assets of the Borrower and the other Loan Parties, subject to the limitations described herein and in the Security Documents;
WHEREAS, the Lenders are willing to extend such credit to the Borrower, and the Issuing Banks are willing to issue Letters of Credit for the account of the Borrower, in each case on the terms and subject to the conditions set forth herein; and
WHEREAS, the future name of Borrower will be Centric Brands Inc. and this Agreement is being executed prior to such name change becoming effective.
NOW, THEREFORE, in consideration of the above premises and the agreements hereinafter set forth, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings specified below:
“2018 Term Loans” shall mean the Term Loans outstanding immediately prior to the Third Amendment Effective Date and the funding of the 2020 Term Loans.
“2018 Term Lender” shall mean any Lender that holds 2018 Term Loans.
“2020 Term Commitment” shall mean, with respect to each 2020 Term Lender, the commitment, if any, of such 2020 Term Lender to make 2020 Term Loans on the Third Amendment Effective Date pursuant to the Third Amendment. The aggregate amount of the 2020 Term Lenders’ 2020 Term Commitments as of the Third Amendment Effective Date (immediately prior to termination on such date pursuant to Section 2.08(a)(iii)) is $20,000,000.
“2020 Term Lender” shall mean any Lender with a 2020 Term Commitment or an outstanding 2020 Term Loan.
“2020 Term Loan” shall mean any term loan made by the 2020 Term Lenders to the Borrower pursuant to pursuant to the Third Amendment.
“2020 Term Loan Maturity Date” shall mean May 25, 2020.
“ABR” shall mean, for any day, a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the Prime Rate in effect on such date, (c) the Eurocurrency Base Rate (after giving effect to any Eurocurrency Base Rate “floor”) (which rate shall be calculated based on an Interest Period of one month) plus 1.00% and (d) with respect to the 2018 Term Loans, 2.50%; provided that, if the ABR determined based on the foregoing is less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Any
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change in the ABR due to a change in the Prime Rate, the Federal Funds Rate or the Eurocurrency Base Rate shall be effective as of the opening of business on the effective day of such change in the Prime Rate, the Federal Funds Rate or the Eurocurrency Base Rate, respectively.
“ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.
“ABR Loan” shall mean any ABR Term Loan or any ABR Revolving Loan.
“ABR Revolving Borrowing” shall mean a Borrowing comprised of ABR Revolving Loans.
“ABR Revolving Loan” shall mean any Revolving Loan bearing interest at a rate determined by reference to the ABR in accordance with the provisions of Article II.
“ABR Term Loan” shall mean any Term Loan bearing interest at a rate determined by reference to the ABR in accordance with the provisions of Article II.
ABR Term Loan Borrowing” shall mean a Borrowing comprised of ABR Term Loans.
“ACF” shall mean ACF XXXXX I LP.
“Acquisition” and “Acquisitions” shall mean, with respect to any Person, (a) the acquisition by such Person, in a single transaction or in a series of related transactions, of all or substantially all of the property of another Person, or any division, line of business or other business unit of another Person or (b) at least a majority of the voting Equity Interests of another Person, in each case whether or not involving a merger or consolidation with such other Person and whether for cash, property, services, assumption of Indebtedness, securities or otherwise; provided that the acquisition of assets and the assumption of liabilities in connection with entering into licensing agreements in the ordinary course of business shall not be deemed an “Acquisition”.
“Acquisition Agreement” shall mean that certain Purchase and Sale Agreement, dated as of June 27, 2018, by and among the Borrower, Global Brands Group Holdings Limited (“GBG”) and GBG USA Inc. (the “Seller”), as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Acquisition Consideration” shall mean the purchase consideration paid by the Borrower and its Subsidiaries for any Permitted Business Acquisition, whether paid in cash or by exchange of properties or otherwise and whether payable at or prior to the consummation of such Permitted Business Acquisition or deferred for payment at any future time, whether or not any such future payment is subject to the occurrence of any contingency, and includes any and all payments by Borrower or any Subsidiary representing the purchase price and any assumptions of Indebtedness; provided that Acquisition Consideration shall exclude (a) any consideration paid in the form of Equity Interests (other than Disqualified Stock) issued to the applicable seller, (b) any cash consideration paid to the applicable seller that was financed with the proceeds of any
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issuance of (or contributions in respect of) Equity Interests (other than Disqualified Stock) on or prior to the Closing Date (other than any proceeds from the Equity Contribution), (c) any consideration paid in connection with the Existing Earn Out Obligations and (d) all fees, costs and expenses paid or payable in connection with the structuring, negotiation, documentation or consummation of such Permitted Business Acquisition.
“Acquisition Representations” shall mean the representations and warranties made by the Seller and GBG in the Acquisition Agreement which are material to the interests to the Lenders, but solely to the extent that the Borrower has the right to terminate its obligations under the Acquisition Agreement or not to consummate the transactions contemplated by the Acquisition Agreement as a result of a breach of (or the inability to make) such representations or warranties.
“Additional Amounts” shall have the meaning assigned to such term in definition of “Pricing Grid”.