Borrower The term “Borrower” as used herein shall include any new or successor corporation, association, partnership (general or limited), limited liability company, joint venture, trust or other individual or organization formed as a result of any merger, reorganization, sale, transfer, devise, gift or bequest of Borrower or any interest in Borrower.
Designation of Lead Borrower as Borrowers’ Agent (a) Each Borrower hereby irrevocably designates and appoints the Lead Borrower as such Borrower’s agent to obtain Credit Extensions, the proceeds of which shall be available to each Borrower for such uses as are permitted under this Agreement. As the disclosed principal for its agent, each Borrower shall be obligated to each Credit Party on account of Credit Extensions so made as if made directly by the applicable Credit Party to such Borrower, notwithstanding the manner by which such Credit Extensions are recorded on the books and records of the Lead Borrower and of any other Borrower. In addition, each Loan Party other than the Borrowers hereby irrevocably designates and appoints the Lead Borrower as such Loan Party’s agent to represent such Loan Party in all respects under this Agreement and the other Loan Documents.
Loan Parties Set forth on Schedule 5.20(b) is a complete and accurate list of all Loan Parties, showing as of the Closing Date, or as of the last date such Schedule was required to be updated in accordance with Sections 6.02, 6.13 and 6.14, (as to each Loan Party) (i) the exact legal name, (ii) any former legal names of such Loan Party in the four (4) months prior to the Closing Date, (iii) the jurisdiction of its incorporation or organization, as applicable, (iv) the type of organization, (v) the jurisdictions in which such Loan Party is qualified to do business, (vi) the address of its chief executive office, (vii) the address of its principal place of business, (viii) its U.S. federal taxpayer identification number or, in the case of any non-U.S. Loan Party that does not have a U.S. taxpayer identification number, its unique identification number issued to it by the jurisdiction of its incorporation or organization, (ix) the organization identification number, (x) ownership information (e.g., publicly held or if private or partnership, the owners and partners of each of the Loan Parties) and (xi) the industry or nature of business of such Loan Party.
Information Regarding Borrower and Guarantors Prompt written notice (and in any event within thirty (30) days prior thereto) of any change (i) in the Borrower or any Guarantor’s corporate name or in any trade name used to identify such Person in the conduct of its business or in the ownership of its Properties, (ii) in the location of the Borrower or any Guarantor’s chief executive office or principal place of business, (iii) in the Borrower or any Guarantor’s identity or corporate structure or in the jurisdiction in which such Person is incorporated or formed, (iv) in the Borrower or any Guarantor’s jurisdiction of organization or such Person’s organizational identification number in such jurisdiction of organization, and (v) in the Borrower or any Guarantor’s federal taxpayer identification number.
BORROWERS BODY SHOP OF AMERICA, INC., a Florida corporation By: /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: President and Chief Executive Officer CATALOGUE VENTURES, INC., a Florida corporation By: /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: Chief Executive Officer GUARANTORS: BODY CENTRAL ACQUISITION CORP., a Delaware corporation By: /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: President and Chief Executive Officer RINZI AIR, L.L.C., a Florida limited liability company By: /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: President and Chief Executive Officer ADMINISTRATIVE AGENT: DYMAS FUNDING COMPANY, LLC, as Administrative Agent By: Dymas Capital Management Company, LLC, its Manager By: /s/ Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx Title: Managing Director LENDERS: XXXXXXXXX FINANCIAL CAYMAN LTD., as a Lender By: Xxxxxxxxx Financial LLC, as Collateral Manager By: /s/ Xxxxxxxxxxx Xxx Name: Xxxxxxxxxxx Xxx Title: Managing Director NEWSTAR SHORT-TERM FUNDING LLC, as a Lender By: NewStar Financial, Inc., its Designated Manager By: /s/ P. Xxxxx Xxxxxxxxx Name: NewStar Financial Title: Managing Director NEWSTAR LLC 2005-1, as a Lender By: NewStar Financial, Inc., its Sole Member By: /s/ P. Xxxxx Xxxxxxxxx Name: NewStar Financial Title: Managing Director A3 FUNDING LP, as a Lender By: A3 Fund Management LLC, its General Partner By: /s/ Alexander J, Xxxxxxxx Name: Xxxxxxxxx X. Xxxxxxxx Title: Vice President A4 FUNDING LP, as a Lender By: A4 Fund Management, Inc., its General Partner By: /s/ Alexander J, Xxxxxxxx Name: Xxxxxxxxx X. Xxxxxxxx Title: Vice President ABLECO FINANCE LLC, as a Lender By: /s/ Alexander J, Xxxxxxxx Name: Xxxxxxxxx X. Xxxxxxxx Title: Senior Vice President NATIONAL CITY BANK, as a Lender By: /s/ Xxxxxxxx Xxxxx Name: Xxxxxxxx Xxxxx Title: Portfolio Manager CAPITALSOURCE FINANCE LLC, as a Lender By: Name: Title: EXHIBIT A TO WAIVER AND THIRD AMENDMENT TO FINANCING AGREEMENT Dated as of January 25, 2008 DESIGNATED DEFAULTS None, except:
Loan Party Documents On or before the Closing Date, Company shall, and shall cause each other Loan Party to, deliver to Lenders (or to Administrative Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender and its counsel) the following with respect to Company or such Loan Party, as the case may be, each, unless otherwise noted, dated the Closing Date:
Replacement of Borrower From time to time and subject to the successor Borrower's meeting the eligibility requirements set forth in Section 6.9 of the Intercreditor Agreement applicable to the Subordination Agent, upon the effective date and time specified in a written and completed Notice of Replacement Subordination Agent in substantially the form of Annex VI attached hereto (a "Notice of Replacement Subordination Agent") delivered to the Liquidity Provider by the then Borrower, the successor Borrower designated therein shall be substituted for as the Borrower for all purposes hereunder.
Real Estate Collateral The Borrowers shall, and shall cause their respective Subsidiaries to, deliver to the Collateral Agent as soon as practicable and in any event within 90 calendar days after the Incremental Loan Funding Date (or such longer period as the Collateral Agent may agree in its sole discretion), (a) an amendment to each Mortgage encumbering the Mortgaged Properties in form suitable for recording that shall provide such Mortgage remains in full force and effect and continues to secure the Obligations, as amended by this Incremental Amendment, which mortgage amendment shall be in form and substance reasonably acceptable to the Collateral Agent and its counsel in all respects, (b) endorsements to the mortgagee’s title insurance policies reflecting the amendment to the insured Mortgage as well as a date down endorsement in respect of each of the Mortgaged Properties, reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Collateral Agent, (c) a customary opinion of local counsel in each jurisdiction in which a Mortgage Property is located for the benefit of the Collateral Agent with respect to the enforceability of the Mortgages as amended, together with such other opinions as the Collateral Agent shall require, and in form and substance reasonably acceptable to the Collateral Agent and (d) such further documents, instruments, acts or agreements as the Collateral Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided that if and to the extent that on or prior to the Incremental Loan Funding Date the Borrowers deliver to the Collateral Agent (x) an opinion of local counsel in form and substance reasonably acceptable to the Collateral Agent affirming that no amendment to an existing Mortgage is necessary for such Mortgage to remain in full force and effect and to secure the Obligations, as modified by the transactions contemplated by this Incremental Amendment, as well as (y) a title report (or title update) showing no Liens, other than Liens permitted by the applicable Mortgage, have arisen with respect to such property since the date of the latest title policy or date-down endorsement, then the Collateral Agent will accept such deliveries in lieu of the requirements set forth in clauses (a) through (d) of this sentence with respect to such property. All of the actions referenced above shall be taken, and documents referenced above shall be delivered, at the sole expense of the Borrowers, including any recording charges, taxes, or other associated costs related thereto.
Co-Borrowers Borrowers are jointly and severally liable for the Obligations and Bank may proceed against one Borrower to enforce the Obligations without waiving its right to proceed against any other Borrower. This Agreement and the Loan Documents are a primary and original obligation of each Borrower and shall remain in effect notwithstanding future changes in conditions, including any change of law or any invalidity or irregularity in the creation or acquisition of any Obligations or in the execution or delivery of any agreement between Bank and any Borrower. Each Borrower shall be liable for existing and future Obligations as fully as if all of the Credit Extensions were advanced to such Borrower. Bank may rely on any certificate or representation made by any Borrower as made on behalf of, and binding on, all Borrowers, including without limitation advance request forms and compliance certificates. Each Borrower appoints each other Borrower as its agent with all necessary power and authority to give and receive notices, certificates or demands for and on behalf of all Borrowers, to act as disbursing agent for receipt of any Credit Extensions on behalf of each Borrower and to apply to Bank on behalf of each Borrower for any Credit Extension, any waivers and any consents. This authorization cannot be revoked, and Bank need not inquire as to one Borrower’s authority to act for or on behalf of another Borrower.
Management of Collateral Subject to the other terms and conditions of this Agreement, each Priority Secured Creditor shall have the exclusive right to manage, perform and enforce the terms of the applicable Obligation Documents with respect to its Priority Collateral, to exercise and enforce all privileges and rights thereunder according to its sole discretion and the exercise of its sole business judgment, including the exclusive right to take or retake control or possession of such Priority Collateral and to hold, prepare for sale, process, Dispose of, or liquidate such Priority Collateral and to incur expenses in connection with such Disposition and to exercise all the rights and remedies of a secured lender under the UCC of any applicable jurisdiction. In conducting any public or private sale under the UCC of its Priority Collateral, the Priority Secured Creditor shall give the Junior Secured Creditor such notice (a “UCC Notice”) of such sale as may be required by the applicable UCC; provided, however, that 10 days’ notice shall be deemed to be commercially reasonable notice. Except as specifically provided in this Section 3.2 or Section 3.4 below, notwithstanding any rights or remedies available to a Junior Secured Creditor under any of the applicable Obligation Documents, applicable law or otherwise, no Junior Secured Creditor shall, directly or indirectly, take any Enforcement Action with respect to Collateral that, as to such Junior Secured Creditor, is Non-Priority Collateral; provided that, subject at all times to the provisions of Section 2, upon the expiration of the applicable Standstill Period, a Junior Secured Creditor (other than any Existing Notes Creditor) may take any Enforcement Action as to such Collateral (provided that it gives the Priority Secured Creditor at least 10 Business Days written notice prior to taking such Enforcement Action); provided, further, that notwithstanding the expiration of the Standstill Period or anything herein to the contrary, in no event shall any Junior Secured Creditor take any Enforcement Action or exercise or continue to exercise any such rights or remedies, or commence or petition for any such action or proceeding (including any foreclosure action or proceeding or any Insolvency Proceeding) as to its Non-Priority Collateral if either (i) an Insolvency Proceeding occurs and is continuing or (ii) the Priority Secured Creditor shall have commenced the enforcement or exercise of any rights or remedies with respect to more than a de minimis portion of such Non-Priority Collateral, or with respect to any of such Non-Priority Collateral as to which the Junior Secured Creditor has commenced an Enforcement Action, as applicable, or commenced any such action or proceeding (including, without limitation, any of the following (if undertaken and pursued to consummate a Disposition of such Collateral within a commercially reasonable time): the solicitation of bids from third parties to conduct the liquidation of all or any material portion of such Collateral, the engagement or retention of sales brokers, marketing agents, investment bankers, accountants, auctioneers or other third parties for the purpose of valuing, marketing, promoting or selling all or any material portion of such Collateral, the notification of account debtors to make payments to the Priority Secured Creditor or its agents, the initiation of any action to take possession of all or any material portion of such Collateral or the commencement of any legal proceedings or actions against or with respect to the foreclosure and sale of all or any material portion of such Collateral), or the diligent attempt in good faith to vacate any stay prohibiting an Enforcement Action with respect to all or any material portion of such Collateral or diligently attempting in good faith to vacate any stay prohibiting an Enforcement Action.
