as the Lead Borrower
as Administrative Agent, Collateral Agent and Swing Line Lender
Section | Page | |||
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS | 1 | |||
1.01 Defined Terms | 1 | |||
1.02 Other Interpretive Provisions | 42 | |||
1.03 Accounting Terms | 43 | |||
1.04 Rounding | 43 | |||
1.05 Times of Day | 43 | |||
1.06 Letter of Credit Amounts | 43 | |||
1.07 Currency Equivalents Generally | 44 | |||
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS | 44 | |||
2.01 Committed Loans; Reserves | 44 | |||
2.02 Borrowings, Conversions and Continuations of Committed Loans | 46 | |||
2.03 Letters of Credit | 48 | |||
2.04 Swing Line Loans | 55 | |||
2.05 Prepayments | 58 | |||
2.06 Termination or Reduction of Commitments | 59 | |||
2.07 Repayment of Loans | 60 | |||
2.08 Interest | 60 | |||
2.09 Fees | 60 | |||
2.10 Computation of Interest and Fees | 61 | |||
2.11 Evidence of Debt | 61 | |||
2.12 Payments Generally; Administrative Agent’s Clawback | 62 | |||
2.13 Sharing of Payments by Lenders | 63 | |||
2.14 Settlement Amongst Lenders | 64 | |||
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY; APPOINTMENT OF LEAD BORROWER | 64 | |||
3.01 Taxes | 64 | |||
3.02 Illegality | 66 | |||
3.03 Inability to Determine Rates | 66 | |||
3.04 Increased Costs; Reserves on LIBO Rate Loans | 67 | |||
3.05 Compensation for Losses | 68 | |||
3.06 Mitigation Obligations; Replacement of Lenders | 69 | |||
3.07 Survival | 69 | |||
3.08 Designation of Lead Borrower as Borrowers’ Agent | 69 | |||
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS | 70 | |||
4.01 Conditions of Initial Credit Extension | 70 | |||
4.02 Conditions to all Credit Extensions | 73 | |||
ARTICLE V REPRESENTATIONS AND WARRANTIES | 74 | |||
5.01 Existence, Qualification and Power | 74 | |||
5.02 Authorization; No Contravention | 74 | |||
5.03 Governmental Authorization; Other Consents | 75 | |||
5.04 Binding Effect | 75 |
(i)
Section | Page | |||
5.05 Financial Statements; No Material Adverse Effect | 75 | |||
5.06 Litigation | 76 | |||
5.07 No Default | 76 | |||
5.08 Ownership of Property; Liens | 76 | |||
5.09 Environmental Compliance | 77 | |||
5.10 Insurance | 78 | |||
5.11 Taxes | 78 | |||
5.12 ERISA Compliance | 78 | |||
5.13 Subsidiaries; Equity Interests | 79 | |||
5.14 Margin Regulations; Investment Company Act | 79 | |||
5.15 Disclosure | 79 | |||
5.16 Compliance with Laws | 80 | |||
5.17 Intellectual Property; Licenses, Etc. | 80 | |||
5.18 Labor Matters | 80 | |||
5.19 Security Documents | 81 | |||
5.20 Solvency | 82 | |||
5.21 Deposit Accounts; Credit Card Arrangements | 82 | |||
5.22 Brokers | 82 | |||
5.23 Customer and Trade Relations | 82 | |||
5.24 Material Contracts | 82 | |||
5.25 Casualty | 82 | |||
5.26 Anti-Terrorism Laws | 83 | |||
ARTICLE VI AFFIRMATIVE COVENANTS | 84 | |||
6.01 Financial Statements | 84 | |||
6.02 Certificates; Other Information | 85 | |||
6.03 Notices | 87 | |||
6.04 Payment of Obligations | 88 | |||
6.05 Preservation of Existence, Etc. | 88 | |||
6.06 Maintenance of Properties | 89 | |||
6.07 Maintenance of Insurance | 89 | |||
6.08 Compliance with Laws | 90 | |||
6.09 Books and Records; Accountants | 90 | |||
6.10 Inspection Rights | 91 | |||
6.11 Use of Proceeds | 92 | |||
6.12 Additional Loan Parties | 92 | |||
6.13 Cash Management | 92 | |||
6.14 Information Regarding the Collateral | 94 | |||
6.15 Physical Inventories | 95 | |||
6.16 Environmental Laws | 95 | |||
6.17 Further Assurances | 96 | |||
6.18 Compliance with Terms of Leaseholds | 96 | |||
6.19 Material Contracts | 97 | |||
6.20 ERISA | 97 | |||
6.21 Stock Ledger System | 98 | |||
6.22 Urban Renewal | 98 | |||
6.23 Post-Closing | 98 |
(ii)
Section | Page | |||
ARTICLE VII NEGATIVE COVENANTS | 99 | |||
7.01 Liens | 99 | |||
7.02 Investments | 99 | |||
7.03 Indebtedness; Disqualified Stock | 99 | |||
7.04 Fundamental Changes | 99 | |||
7.05 Dispositions | 100 | |||
7.06 Restricted Payments | 101 | |||
7.07 Prepayments of Indebtedness | 102 | |||
7.08 Change in Nature of Business | 102 | |||
7.09 Transactions with Affiliates | 102 | |||
7.10 Burdensome Agreements | 102 | |||
7.11 Use of Proceeds | 103 | |||
7.12 Amendment of Material Documents | 103 | |||
7.13 Corporate Name; Fiscal Year | 103 | |||
7.14 Deposit Accounts; Blocked Accounts; Credit Card Processors | 103 | |||
7.15 Consignments | 103 | |||
7.16 Inventory Book Value | 104 | |||
7.17 Minimum Availability. Permit Availability at any time to be less than an amount equal to 10% of the then applicable Loan Cap | 104 | |||
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES | 104 | |||
8.01 Events of Default | 104 | |||
8.02 Remedies Upon Event of Default | 107 | |||
8.03 Application of Funds | 108 | |||
ARTICLE IX ADMINISTRATIVE AGENT | 109 | |||
9.01 Appointment and Authority | 109 | |||
9.02 Rights as a Lender | 109 | |||
9.03 Exculpatory Provisions | 110 | |||
9.04 Reliance by Agents | 111 | |||
9.05 Delegation of Duties | 111 | |||
9.06 Resignation of Agents | 111 | |||
9.07 Non-Reliance on Administrative Agent and Other Lenders | 112 | |||
9.08 Administrative Agent May File Proofs of Claim | 112 | |||
9.09 Collateral and Guaranty Matters | 113 | |||
9.10 Notice of Transfer | 113 | |||
9.11 Reports and Financial Statements | 114 | |||
9.12 Agency for Perfection | 114 | |||
9.13 Indemnification of Agents | 114 | |||
9.14 Relation among Lenders | 115 | |||
9.15 Defaulting Lender | 115 | |||
ARTICLE X MISCELLANEOUS | 116 | |||
10.01 Amendments, Etc. | 116 | |||
10.02 Notices; Effectiveness; Electronic Communications | 117 | |||
10.03 No Waiver; Cumulative Remedies | 118 | |||
10.04 Expenses; Indemnity; Damage Waiver | 119 | |||
10.05 Payments Set Aside | 120 | |||
10.06 Successors and Assigns | 120 | |||
10.07 Treatment of Certain Information; Confidentiality | 124 | |||
10.08 Right of Setoff | 125 | |||
10.09 Interest Rate Limitation | 125 | |||
10.10 Counterparts; Integration; Effectiveness | 125 | |||
10.11 Survival | 125 |
(iii)
Section | Page | |||
10.12 Severability | 126 | |||
10.13 Replacement of Lenders | 126 | |||
10.14 Governing Law; Jurisdiction; Etc. | 127 | |||
10.15 Waiver of Jury Trial | 128 | |||
10.16 No Advisory or Fiduciary Responsibility | 128 | |||
10.17 USA PATRIOT Act Notice | 128 | |||
10.18 Foreign Asset Control Regulations | 129 | |||
10.19 Time of the Essence | 129 | |||
10.20 [Intentionally Omitted] | 129 | |||
10.21 Press Releases | 129 | |||
10.22 Additional Waivers | 129 | |||
10.23 No Strict Construction | 131 | |||
10.24 Attachments | 131 | |||
SIGNATURES | S-132 |
(iv)
1.01 | Borrowers | |
1.02 | Guarantors | |
2.01 | Commitments and Applicable Percentages | |
2.03 | Existing Letters of Credit | |
5.01 | Loan Parties Organizational Information | |
5.05 | Material Indebtedness | |
5.06 | Litigation | |
5.08(b)(1) | Owned Real Estate | |
5.08(b)(2) | Leased Real Estate | |
5.09 | Environmental Matters | |
5.10 | Insurance | |
5.13 | Subsidiaries; Other Equity Investments; Equity Interests in the Borrower | |
5.17 | Intellectual Property Matters | |
5.18 | Labor Matters | |
5.21(a) | DDAs | |
5.21(b) | Credit Card Arrangements | |
5.24 | Material Contracts | |
6.02 | Financial and Collateral Reporting | |
7.01 | Existing Liens | |
7.02 | Existing Investments | |
7.03 | Existing Indebtedness | |
10.02 | Administrative Agent’s Office; Certain Addresses for Notices |
Form of | ||
A | Committed Loan Notice | |
B | Swing Line Loan Notice | |
C-1 | Committed Loan Note | |
C-2 | Swing Line Loan Note | |
D | Compliance Certificate | |
E | Borrowing Base Certificate | |
F | Assignment and Assumption | |
G | Credit Card Notification | |
H | DDA Notification | |
I | Joinder Agreement |
(v)
DEFINITIONS AND ACCOUNTING TERMS
S-1
S-2
LIBOR | Base Rate | Commitment | ||||||||||||||
Level | Average Excess Availability | Margin | Margin | Fee Margin | ||||||||||||
I | Greater than or equal to 75% of the Loan Cap | 1.75 | % | 1.75 | % | 0.50 | % | |||||||||
II | Less than 75% of the Loan Cap but greater than or equal to 50% of the Loan Cap | 2.00 | % | 2.00 | % | 0.375 | % | |||||||||
III | Less than 50% of the Loan Cap but greater than or equal to 25% of the Loan Cap | 2.25 | % | 2.25 | % | 0.30 | % | |||||||||
IV | Less than 25% of the Loan Cap | 2.50 | % | 2.50 | % | 0.25 | % |
S-3
S-4
S-5
S-6
S-7
S-8
S-9
S-10
S-11
S-12
S-13
S-14
S-15
S-16
S-17
S-18
S-19
S-20
S-21
S-22
S-23
S-24
S-25
S-26
S-27
S-28
S-29
S-30
S-31
S-32
S-33
S-34
S-35
S-36
S-37
S-38
S-39
S-40
S-41
S-42
S-43
THE COMMITMENTS AND CREDIT EXTENSIONS
S-44
S-45
S-46
S-47
S-48
S-49
S-50
S-51
S-52
S-53
S-54
S-55
S-56
S-57
S-58
S-59
S-60
S-61
S-62
S-63
TAXES, YIELD PROTECTION AND ILLEGALITY;
APPOINTMENT OF LEAD BORROWER
S-64
S-65
S-66
S-67
S-68
S-69
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
S-70
S-71
S-72
S-73
REPRESENTATIONS AND WARRANTIES
S-74
S-75
S-76
S-77
S-78
S-79
S-80
S-81
S-82
S-83
AFFIRMATIVE COVENANTS
S-84
S-85
S-86
S-87
S-88
S-89
S-90
S-91
S-92
S-93
S-94
S-95
S-96
S-97
S-98
NEGATIVE COVENANTS
S-99
S-100
S-101
S-102
S-103
EVENTS OF DEFAULT AND REMEDIES
S-104
S-105
S-106
S-107
S-108
ADMINISTRATIVE AGENT
S-109
S-110
S-111
S-112
S-113
S-114
S-115
MISCELLANEOUS
S-116
S-117
S-118
S-119
S-120
S-121
S-122
S-123
S-124
S-125
S-126
S-127
S-128
S-129
S-130
S-131
Borrowers: A.C. MOORE INCORPORATED as Lead Borrower and a Borrower | ||||
By: | /s/ Rodney B. Schriver | |||
Name: | Rodney B. Schriver | |||
Title: | Vice President |
S-132
Guarantors: A.C. MOORE ARTS & CRAFTS, INC. | ||||
By: | /s/ Rodney B. Schriver | |||
Name: | Rodney B. Schriver | |||
Title: | Vice President | |||
MOORESTOWN FINANCE, INC. | ||||
By: | /s/ Rodney B. Schriver | |||
Name: | Rodney B. Schriver | |||
Title: | Vice President | |||
BLACKWOOD ASSETS, INC. | ||||
By: | /s/ Rodney B. Schriver | |||
Name: | Rodney B. Schriver | |||
Title: | Vice President |
S-133
Agents: WELLS FARGO RETAIL FINANCE, LLC, as Administrative Agent and Collateral Agent | ||||
By: | /s/ Cory Loftus | |||
Name: | Cory Loftus | |||
Title: | Vice President |
S-134
Lenders: WELLS FARGO RETAIL FINANCE, LLC, as Lender and Swing Line Lender | ||||
By: | /s/ Cory Loftus | |||
Name: | Cory Loftus | |||
Title: | Vice President |
S-135
Form of Committed Loan Notice
1 | A Borrowing must be a borrowing consisting of simultaneous Loans of the same Type and, in the case of LIBO Rate Loans, must have the same Interest Period. | |
2 | Each notice of a Committed Borrowing must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of LIBO Rate Loans, any conversion to, or continuation of, LIBO Rate Loans or any conversion of LIBO Rate Loans to Base Rate Loans, and (ii) one Business Day prior to the requested date of any Borrowing of Base Rate Loans (except that the Administrative Agent may in its sole discretion accept later notice in respect of the initial Credit Extension on the Closing Date). | |
3 | Each Committed Borrowing of, conversion to, or continuation of, LIBO Rate Loans must be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof, and, except as provided in Sections 2.03(c) and 2.04(c) of the Credit Agreement, each Borrowing of, or conversion to, Base Rate Loans must be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. | |
4 | Loans may be either Base Rate Loans or LIBO Rate Loans. If the Type of Loan is not specified, then the applicable Loan will be made as a Base Rate Loan. |
A.C. MOORE INCORPORATED | ||||
as Lead Borrower | ||||
By: | ||||
Name: | ||||
Title: |
5 | The Lead Borrower may request a Borrowing of LIBO Rate Loans with an Interest Period of one, two or three months. If no election of Interest Period is specified, then the Lead Borrower will be deemed to have specified an Interest Period of one month. |
Form of Swing Line Loan Notice
To: | Wells Fargo Retail Finance, LLC, as Swing Line Lender Wells Fargo Retail Finance, LLC, as Administrative Agent |
A.C. MOORE INCORPORATED, | ||||
as Lead Borrower | ||||
By: | ||||
Name: | ||||
Title: |
1 | Each notice of a Swing Line Borrowing must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested date of any Swing Line Borrowing. | |
2 | Each Swing Line Borrowing shall be for an amount no less than $100,000. |
$60,000,000.00 | January 15, 2009 |
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Borrower: | ||||
A.C. MOORE INCORPORATED | ||||
By: | ||||
Name: | ||||
Title: |
$7,500,000.00 | January 15, 2009 |
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Borrower: | ||||
A.C. MOORE INCORPORATED | ||||
By: | ||||
Name: | ||||
Title: |
1. | No Defaults or Events of Default. |
(a) | Since (the date of the last similar certification), and except as set forth inAppendix I, no Default or Event of Default has occurred. |
(b) | If a Default or Event of Default has occurred since (the date of the last similar certification), the Loan Parties have taken or propose to take those actions with respect to such Default or Event of Default as described on saidAppendix I. |
2. | Inventory Book Value Calculations. Attached hereto asAppendix II are reasonably detailed calculations demonstrating compliance with the “Inventory Book Value” covenant contained in Section 7.16 of the Credit Agreement. |
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3. | Rent, Taxes and Insurance. |
(a) | Except as set forth onAppendix III, (i) all rent owing under the Leases (other than common area or other charges not constituting base rent that are the subject of a good faith dispute or are under review by the Loan Parties), and all obligations and liabilities in respect of Taxes, have been timely paid, (ii) no Loan Party has received notice that any material obligations or liabilities with respect to utilities have not been timely paid, and (iii) no Loan Party has received notice that any obligations or liabilities in respect of insurance premiums have not been timely paid. |
(b) | Appendix III describes the details of all past due payments (if any) and the steps (if any) being taken or contemplated by the Loan Parties to be taken on account thereof. Copies of any related default, cure or late notices concerning any obligations have been enclosed herewith. |
4. | Intellectual Property. Since (the date of the last similar certification), and except as set forth inAppendix IV, no Loan Party has acquired any additional Intellectual Property. If any Loan Party has acquired any additional Intellectual Property (of the type that is required to be disclosed on Exhibit A, B and/or C, as applicable, to the Intellectual Property Security Agreement) since (the date of the last similar certification), such Loan Party shall deliver to the Collateral Agent an updated Exhibit A, B and/or C (as applicable) to the Intellectual Property Security Agreement as required pursuant to Section 5(a) thereof. |
(a) | Attached hereto asAppendix V are the audited financial statements of the Lead Borrower and its Subsidiaries required by Section 6.01(a) of the Credit Agreement for the Fiscal Year ending , and the related Consolidated statements of income or operations and Shareholders’ Equity and the related Consolidated statement of cash flows for such Fiscal Year, accompanied by a report and unqualified opinion of Registered Public Accounting Firm of nationally recognized standing reasonably acceptable to the Administrative Agent (it being agreed that PriceWaterhouseCoopers is acceptable), which report and opinion has been prepared in accordance with the requirements of Section 6.01(a) of the Credit Agreement. |
(b) | Attached hereto asAppendix V are the unaudited financial statements of the Lead Borrower and its Subsidiaries required by Section 6.01(b) of the Credit Agreement for the Fiscal Quarter ending , and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flow for respect to such Fiscal Quarter and for the portion of the Lead Borrower’s Fiscal Year then ended, in accordance with the requirements of Section 6.01(b) of the Credit Agreement. |
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(c) | Attached hereto asAppendix V are the unaudited financial statements of the Lead Borrower and its Subsidiaries required by Section 6.01(c) of the Credit Agreement for the Fiscal Month ending , and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flow for respect to such Fiscal Month and for the portion of the Lead Borrower’s Fiscal Year then ended, in accordance with the requirements of Section 6.01(c) of the Credit Agreement. |
6. | No Material Accounting Changes, Etc. |
(a) | The financial statements furnished to the Administrative Agent for the [Fiscal Year/Fiscal Quarter/Fiscal Month] ending were prepared in accordance with GAAP and present fairly in all material respects the financial condition, results of operations and cash flows of the Lead Borrower and its Subsidiaries, as of the end of the period(s) covered, subject only to, with respect to the monthly financial statements, normal year-end audit adjustments and the absence of footnotes. |
(b) | Except as set forth inAppendix VI, there has been no change in GAAP used in the preparation of the financial statements furnished to the Administrative Agent for the [Fiscal Year/Fiscal Quarter/Fiscal Month] ending . If any such change has occurred, a statement of reconciliation conforming such financial statements to GAAP is attached hereto inAppendix VI. |
7. | Management Analysis. Attached hereto asAppendix VII is a copy of the discussion and analysis prepared by the management of the Lead Borrower with respect to the financial statements delivered herewith,provided,however, a copy of such discussion and analysis shall not be required in connection with the delivery of monthly financial statements in accordance with the requirements of Section 6.01(c) of the Credit Agreement. |
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Lead Borrower: | ||||
A.C. MOORE INCORPORATED | ||||
By: | ||||
Name: | ||||
Title: |
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1. | The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, that interest in and to the Assignor’s rights and obligations as a Lender under the Credit Agreement as of the date hereof (including, without limitation, such interest in each of the Assignor’s outstanding Commitments, if any, and the Loans (and related Obligations) owing to it) specified in Section 1 ofSchedule I hereto. After giving effect to such sale and assignment, the Assignor’s and the Assignee’s Commitments and the amount of the Loans owing to the Assignor and the Assignee and the amount of Letters of Credit participated in by the Assignor and the Assignee will be as set forth in Section 2 ofSchedule I hereto. |
2. | The Assignor: (a) represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any Liens and that it is legally authorized to enter into this Assignment and Assumption; (b) makes no representation or warranty and assumes no responsibility with respect to (i) any statements, warranties or representations made in, or in connection with, the Credit Agreement or any other Loan Document or any other instrument or document furnished pursuant thereto, or (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other Loan Document or any other instrument or document furnished pursuant thereto; (c) makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of their respective obligations under the Credit Agreement or any other Loan Document or any other instrument or document furnished pursuant thereto; and (d) confirms, in the case of an Assignee who is not a Lender, an Affiliate of a Lender, or an Approved Fund, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the Assignor subject to this Assignment and Assumption, is not less than $10,000,000.00, or, if less, the entire remaining amount of the Assignor’s Commitment and the Loans at any time owing to it, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Lead Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed). |
1
3. | The Assignee: (a) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements referred to in Section 6.01 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption; (b) agrees that it will, independently and without reliance upon any Agent, the Assignor or any other Lender, 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 Credit Agreement; (c) appoints and authorizes the Agents to take such action as agent on its behalf and to exercise such powers under the Credit Agreement as are delegated to the Agents by the terms thereof, together with such powers as are reasonably incidental thereto; (d) agrees that it will perform in accordance with their terms all of the obligations which, by the terms of the Credit Agreement, are required to be performed by it as a Lender; (e) specifies as its lending office (and address for notices) the office set forth beneath its name on the signature pages hereof; (f) agrees that, if the Assignee is a Foreign Lender entitled to an exemption from, or reduction of, withholding tax under the law of the jurisdiction in which any Borrower is resident for tax purposes, or any treaty to which such jurisdiction is a party, the Assignee shall deliver to the Lead Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) whichever of the following is applicable: (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party, (ii) duly completed copies of Internal Revenue Service Form W-8ECI, (iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (A) a certificate to the effect that such Foreign Lender is not (1) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of the Borrowers within the meaning of section 881(c)(3)(B) of the Code, or (3) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (B) duly completed copies of Internal Revenue Service Form W-8BEN, or (iv) any other form prescribed by applicable Law as a basis for claiming exemption from, or a reduction in, United States Federal withholding tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Law to permit the Lead Borrower to determine the withholding or deduction required to be made; and (g) represents and warrants that it is an Eligible Assignee. |
4. | Following the execution of this Assignment and Assumption by the Assignor and the Assignee, it will be delivered, together with a processing and recordation fee in the amount, if any, required as set forth in Section 10.06 to the Credit Agreement, to the Administrative Agent for acceptance and recording by the Administrative Agent. The effective date of this Assignment and Assumption shall be the date of acceptance thereof by the Administrative Agent, unless otherwise specified onSchedule I hereto (the “Effective Date”). |
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5. | Upon such acceptance and recording by the Administrative Agent and, to the extent required by Section 10.06(b)(iii) of the Credit Agreement, consent by the Administrative Agent, the Lead Borrower, the L/C Issuer and/or the Swing Line Lender, as applicable (such consent not to be unreasonably withheld or delayed), from and after the Effective Date, (a) the Assignee shall be a party to the Credit Agreement and, to the extent of the interest assigned by this Assignment and Assumption, shall have the rights and obligations of a Lender under the Credit Agreement, and (b) the Assignor shall, to the extent of the interest assigned by this Assignment and Assumption, be released from its obligations under the Credit Agreement. |
6. | Upon such acceptance and recording by the Administrative Agent, from and after the Effective Date, the Administrative Agent shall make all payments under the Credit Agreement in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments in payments under the Credit Agreement for periods prior to the Effective Date directly between themselves. |
7. | This Assignment and Assumption shall be governed by, and be construed in accordance with, the laws of the State of New York. |
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[ASSIGNOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
[ASSIGNEE] | ||||
By: | ||||
Name: | ||||
Title: | ||||
Lending Office (and address for notices): | ||||
[Address] |
of , _____:
WELLS FARGO RETAIL FINANCE, LLC | ||||
as Administrative Agent | ||||
By: | ||||
Title: |
4
WELLS FARGO RETAIL FINANCE, LLC | ||||
By: | ||||
Title: |
5
A.C. MOORE INCORPORATED | ||||
By: | ||||
Title: |
6
WELLS FARGO BANK, N.A. | ||||
By: | ||||
Title: |
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WELLS FARGO RETAIL FINANCE, LLC | ||||
By: | ||||
Title: |
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Section 1. | Percentage/Amount of Commitments/Loans/Letters of Credit Assigned byAssignor to Assignee. |
Applicable Percentage assigned by Assignor: | % | |||
Commitment assigned by Assignor: | $ | |||
Aggregate Outstanding Principal Amount of Loans assigned by Assignor: | $ | |||
Aggregate Participations assigned by Assignor in L/C Obligations: | $ |
Section 2. | Percentage/Amount of Commitments/Loans/Letters of Credit Held by Assignorand Assignee after giving effect to Assignment and Assumption. |
Assignor’s Applicable Percentage | % | |||
Assignee’s Applicable Percentage: | % | |||
Assignor’s Commitment: | $ | |||
Assignee’s Commitment: | $ | |||
Aggregate Outstanding Principal Amount of Loans Owing to Assignor: | $ | |||
Aggregate Outstanding Principal Amount of Loans Owing to Assignee: | $ | |||
Aggregate Participations by Assignor in L/C Obligations: | $ | |||
Aggregate Participations by Assignee in L/C Obligations: | $ |
Effective Date: | , |
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To: | [Name and Address of Credit Card Processor] | |||
(the “Processor”) | ||||
Re: | A.C. Moore Incorporated Security Agreement — Assignment of Credit Card Receivables |
Charlotte, North Carolina
ABA # 021-200-025
Account No. [ ]
For Credit to the Account of: A.C. Moore Incorporated
1
Attention:
Phone: (___) __-___
Wells Fargo Retail Finance, LLC
One Boston Place, 18th Floor
Boston, Massachusetts 02108
Attention: Treasury Department
Phone: (617) 624-4400
Very truly yours, | ||||
WELLS FARGO RETAIL FINANCE, LLC | ||||
(“Secured Party”) | ||||
By: | ||||
Name: | ||||
Title: | ||||
A.C. MOORE INCORPORATED | ||||
(“Company”) | ||||
By: | ||||
Name: | ||||
Title: |
2
To: | [Name and Address of Bank] | |||
Re: | [ ] The Account Numbers referenced on Exhibit A annexed hereto |
ABA #
Account No.
Re: A.C. Moore Inc.
1
One Boston Place, 19th Floor
Boston, Massachusetts 02108
Attention: Cory Loftus
Re: A.C. Moore Incorporated
2
Very truly yours, | ||||||
[ ], as Obligor | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
Form of Joinder Agreement
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1. | Joinder and Assumption of Obligations. Effective as of the date of this Joinder, the New [Borrower/Guarantor] hereby acknowledges that the New [Borrower/Guarantor] has received and reviewed a copy of the Credit Agreement and the other Loan Documents, and hereby: |
(a) | joins in the execution of, and becomes a party to, the Credit Agreement and the other Loan Documents as a [Borrower/Guarantor] thereunder, as indicated with its signature below; |
(b) | covenants and agrees to be bound by all covenants, agreements, liabilities and acknowledgments of a [Borrower/Guarantor] under the Credit Agreement and the other Loan Documents as of the date hereof (other than covenants, agreements, liabilities and acknowledgments that relate solely to an earlier date), in each case, with the same force and effect as if such New [Borrower/Guarantor] was a signatory to the Credit Agreement and the other Loan Documents and was expressly named as a [Borrower/Guarantor] therein; |
(c) | makes all representations, warranties, and other statements of a Borrower/Guarantor] under the Credit Agreement and the other Loan Documents, as of the date hereof (other than representations, warranties and other statements that relate solely to an earlier date), in each case, with the same force and effect as if such New [Borrower/Guarantor] was a signatory to the Credit Agreement and the other Loan Documents and was expressly named as a [Borrower/Guarantor] therein; |
(d) | assumes and agrees to perform all applicable duties and Obligations of the Existing [Borrowers/Guarantors] under the Credit Agreement and the other Loan Documents. |
2. | Supplemental Schedules. To the extent that any changes in any representations, warranties, and covenants require any amendments to the schedules to the Credit Agreement or any of the other Loan Documents, such schedules are hereby updated, as evidenced by any supplemental schedules (if any) annexed to this Joinder. |
3. | Ratification of Loan Documents. Except as specifically amended by this Joinder and the other documents executed and delivered in connection herewith, all of the terms and conditions of the Credit Agreement and of the other Loan Documents shall remain in full force and effect as in effect prior to the date hereof,without releasing any Loan Party thereunder or Collateral therefor. |
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4. | Conditions Precedent to Effectiveness. This Joinder shall not be effective until each of the following conditions precedent have been fulfilled to the reasonable satisfaction of the Administrative Agent: |
(a) | This Joinder shall have been duly executed and delivered by the respective parties hereto, and shall be in full force and effect. |
(b) | All action on the part of the New [Borrower/Guarantor] and the other Loan Parties necessary for the valid execution, delivery and performance by the New [Borrower/Guarantor] and the other Loan Parties of this Joinder and all other documentation, instruments, and agreements to be executed in connection herewith shall have been duly and effectively taken and evidence thereof reasonably satisfactory to the Administrative Agent shall have been provided to the Administrative Agent. |
(c) | The New [Borrower/Guarantor] (and each other Loan Party, to the extent requested by the Administrative Agent) shall each have delivered the following to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent: |
(i) | Certificate of Legal Existence and Good Standing, if applicable, issued by the Secretary of the State of its incorporation or organization. |
(ii) | A certificate of an authorized officer of the due adoption, continued effectiveness, and setting forth the text, of each corporate resolution adopted in connection with the assumption of obligations under the Credit Agreement and the other Loan Documents, and attesting to the true signatures of each Person authorized as a signatory to any of the Loan Documents, together with true and accurate copies of all Organization Documents. |
(iii) | Execution and delivery by the New [Borrower/Guarantor] of the following Loan Documents: |
a) | [Joinders to the Notes, as applicable]; |
b) | [Joinder to the Security Documents, as applicable]; |
c) | [Joinder to the Facility Guaranty, as applicable]; |
d) | [Blocked Account Agreement with ]; and |
e) | Such other documents and agreements as the Administrative Agent or the Collateral Agent may reasonably require. |
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(d) | Upon the request of the Administrative Agent in its sole discretion, the Administrative Agent shall have received a written legal opinion of the New [Borrower’s/Guarantor’s] counsel, addressed to the Administrative Agent, the Collateral Agent and the other Credit Parties, covering such matters relating to the New [Borrower/Guarantor], the Loan Documents and/or the transactions contemplated thereby as the Administrative Agent may reasonably request. |
(e) | The Collateral Agent shall have received all documents and instruments, including UCC financing statements and Blocked Account Agreements, required by Law or reasonably requested by the Administrative Agent or the Collateral Agent to create or perfect the Lien intended to be created under the Security Documents and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Administrative Agent. |
(f) | All reasonable fees and Credit Party Expenses incurred by the Agents and the other Credit Parties in connection with the preparation and negotiation of this Joinder and related documents (including the reasonable fees and expenses of counsel to the Agents) shall have been paid in full by the New [Borrower/Guarantor]. |
(g) | The Loan Parties shall have executed and delivered to the Agents such additional documents, instruments, and agreements as the Administrative Agent or the Collateral Agent may reasonably request. |
5. | Miscellaneous. |
(a) | This Joinder may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, and all of which together shall constitute one instrument. |
(b) | This Joinder expresses the entire understanding of the parties with respect to the transactions contemplated hereby. No prior negotiations or discussions shall limit, modify, or otherwise affect the provisions hereof. |
(c) | Any determination that any provision of this Joinder or any application hereof is invalid, illegal or unenforceable in any respect and in any instance shall not affect the validity, legality, or enforceability of such provision in any other instance, or the validity, legality or enforceability of any other provisions of this Joinder. |
(d) | To the extent not paid by the New [Borrower/Guarantor] pursuant toSection 4(f) above, the Existing Borrowers and Existing Guarantors shall, within ten (10) Business Days after demand therefor, pay all reasonable fees and other Credit Party Expenses of the Agents and the other Credit Parties, including, without limitation, all reasonable attorneys’ fees, in connection with the preparation, negotiation, execution and delivery of this Joinder and the other documents, instruments and agreements required pursuant toSection 4 of this Joinder. |
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(e) | The New [Borrower/Guarantor] warrants and represents that the New [Borrower/Guarantor] is not relying on any representations or warranties of the Administrative Agent, the Collateral Agent or the other Credit Parties or their counsel in entering into this Joinder. |
(f) | THIS JOINDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. |
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New [Borrower/Guarantor]: | ||||
[ ] | ||||
By: | ||||
Name: | ||||
Title: | ||||
Administrative Agent: | ||||
WELLS FARGO RETAIL FINANCE, LLC | ||||
By: | ||||
Name: | ||||
Title: | ||||
Collateral Agent: | ||||
WELLS FARGO RETAIL FINANCE, LLC | ||||
By: | ||||
Name: | ||||
Title: |
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A.C. MOORE INCORPORATED | ||||
By: | ||||
Title: | ||||
Existing Guarantors: | ||||
A.C. MOORE ARTS & CRAFTS, INC. | ||||
By: | ||||
Title | ||||
MOORESTOWN FINANCE, INC. | ||||
By: | ||||
Title: | ||||
BLACKWOOD ASSETS, INC. | ||||
By: | ||||
Title: |
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1.01 | Borrowers | |
1.02 | Guarantors | |
2.01 | Commitments and Applicable Percentages | |
2.03 | Letters of Credit | |
5.01 | Loan Parties Organizational Information | |
5.05 | Material Indebtedness | |
5.06 | Litigation | |
5.08(b)(1) | Owned Real Estate | |
5.08(b)(2) | Leased Real Estate | |
5.09 | Environmental Matters | |
5.10 | Insurance | |
5.13 | Subsidiaries, Other Equity Investments, Equity Interests in the Borrower | |
5.17 | Intellectual Property Matters | |
5.18 | Labor Matters | |
5.21(a) | DDA’s | |
5.21(b) | Credit Card Arrangements | |
5.24 | Material Contracts | |
6.02 | Financial and Collateral Guarantors | |
7.01 | Existing Liens | |
7.02 | Existing Investments | |
7.03 | Existing Indebtedness | |
10.02 | Administrative Agent’s Officer; Certain Addresses for Notices |
1. | A.C. Moore Incorporated |
1. | A.C. Moore Arts & Crafts, Inc. | |
2. | Moorestown Finance, Inc. | |
3. | Blackwood Assets, Inc. |
1. | Irrevocable Standby Letter of Credit issued January 26, 2004 in the face amount of $700,000 (as has been amended by that certain Amendment to Irrevocable Standby Letter of Credit dated December 19, 2005 reducing the face amount to $630,000 and amendment to letter of credit reducing the face amount to $490,000). |
2. | Irrevocable Standby Letter of Credit issued January 8, 2008 in the face amount of $6,450,000. |
1. | A.C. Moore Incorporated, a Virginia corporation |
Chief Executive Office: | 130 A.C. Moore Dr. | |||
Berlin, NJ 08009 |
2. | A.C. Moore Arts & Crafts, Inc., a Pennsylvania corporation |
Chief Executive Office: | 130 A.C. Moore Dr. | |||
Berlin, NJ 08009 |
3. | Moorestown Finance, Inc., a Delaware corporation |
Chief Executive Office: | 103 Foulk Rd. Ste. 202 | |||
Wilmington, DE 19803 |
4. | Blackwood Assets, Inc., a Delaware corporation |
Chief Executive Office: | 103 Foulk Rd. Ste. 202 | |||
Wilmington, DE 19803 |
Number (%) of | ||||||||||||||
Issued and | Legal Name, | Authorized | Equity Interests | Legal Name, | ||||||||||
Authorized | Outstanding | Jurisdiction | Equity | of Subsidiary | Jurisdiction of Inc. | |||||||||
Equity | Equity | of Inc. / | Interests of | held by Loan | / Formation of | |||||||||
Loan Party | Interests | Interests | Formation | Subsidiaries | Subsidiary | Party | Subsidiary | |||||||
A.C. Moore Arts & Crafts, Inc. | 40,000,000 shares of Common Stock / 10,000,000 shares of Preferred Stock | 20,300,801 shares of Common Stock | See Schedule 5.01 | A.C. Moore Incorporated | 1,000 shares of Common Stock | 1,000 shares of Common Stock | See Schedule 5.01 | |||||||
Moorestown Finance, Inc. | 1,000 shares of Common Stock | 100 shares of Common Stock (100%) | See Schedule 5.01 | |||||||||||
A.C. Moore Urban Renewal, LLC | N/A | 99% membership interest | A.C. Moore Urban Renewal, LLC — New Jersey | |||||||||||
Moorestown Finance, Inc. | 1,000 shares of Common Stock | 100 shares of Common Stock | See Schedule 5.01 | Blackwood Assets, Inc. | 1,000 shares of Common Stock | 100 shares of Common Stock (100%) | See Schedule 5.01 | |||||||
A.C. Moore Incorporated | 1,000 shares of Common Stock | 1,000 shares of Common Stock | See Schedule 5.01 | A.C. Moore Urban Renewal, LLC | N/A | 1% membership interest | A.C. Moore Urban Renewal, LLC — New Jersey | |||||||
Blackwood Assets, Inc. | 1,000 shares of Common Stock | 100 shares of Common Stock | See Schedule 5.01 | None |
1. | 1997 Employee, Director and Consultant Stock Option Plan. |
2. | Form of Incentive Stock Option Agreement under the 1997 Employee, Director and Consultant Stock Option Plan. |
3. | 2002 Stock Option Plan. |
4. | Form of Incentive Stock Option/Non-Qualified Option Agreement under the 2002 Stock Option Plan. |
5. | 2007 Annual Incentive Plan. | |
6. | 2007 Stock Incentive Plan. | |
7. | Form of Stock Unit Agreement under the 2007 Stock Incentive Plan. | |
8. | Form of Nonqualified Stock Option Agreement under the 2007 Stock Incentive Plan. | |
9. | Form of Incentive Stock Option Agreement under the 2007 Stock Incentive Plan. | |
10. | Form of Stock Appreciation Rights Agreement under the 2007 Stock Incentive Plan. | |
11. | Form of Restricted Stock Agreement under the 2007 Stock Incentive Plan. | |
12. | Form of Option Agreement between the Company and Rick A. Lepley. |
1. | 1997 Employee, Director and Consultant Stock Option Plan. |
2. | Form of Incentive Stock Option Agreement under the 1997 Employee, Director and Consultant Stock Option Plan. |
3. | 2002 Stock Option Plan. |
4. | Form of Incentive Stock Option/Non-Qualified Option Agreement under the 2002 Stock Option Plan. |
5. | 2007 Annual Incentive Plan. | |
6. | 2007 Stock Incentive Plan. | |
7. | Form of Stock Unit Agreement under the 2007 Stock Incentive Plan. | |
8. | Form of Nonqualified Stock Option Agreement under the 2007 Stock Incentive Plan. | |
9. | Form of Incentive Stock Option Agreement under the 2007 Stock Incentive Plan. | |
10. | Form of Stock Appreciation Rights Agreement under the 2007 Stock Incentive Plan. | |
11. | Form of Restricted Stock Agreement under the 2007 Stock Incentive Plan. |
12. | Employment Agreement, effective as of June 1, 2006, between the Company and Rick A. Lepley (as amended by the First, Second and Third Amendment to Employment Agreement). |
13. | Form of Option Agreement between the Company and Rick A. Lepley. |
14. | Employment Agreement, effective as of July 24, 2006, between the Company and Amy Rhoades (as amended by the First and Second Amendment to Employment Agreement). |
15. | Letter Agreement, dated November 28, 2007, between the Company and Joseph A. Jeffries (as amended by the First Amendment). |
16. | Form of Special Retention Award Agreement. |
17. | Amendment and Restatement, dated as of September 24, 2008, of Employment Letter, dated as of March 21, 2007, between the Company and Michael G. Zawoysky. |
1. | State Tax Lien filed by the State of Maryland in the Circuit Court for Baltimore County against A.C. Moore Incorporated and A.C. Moore Arts & Crafts, Inc. in the amount of $24,400.00 filed on December 12, 2001. |
2. | Judgment Lien filed by Seamless Flooring, Inc. in the Court of Common Please, Bucks County, PA against A.C. Moore Incorporated in the amount of $36,896 filed on November 29, 2000. |
3. | Judgment Lien filed by Christopher M. Coyne in the Delaware County, PA Prothonotary’s office against A.C. Moore Incorporated in the amount of $3,051.00. |
1. | U.S. Bank Trust National Association — Owned by Blackwood Assets, Inc. | |
2. | U.S. Bank Trust National Association — Owned by Moorestown Finance, Inc. |
3. | Wachovia Bank with Evergreen Investments as Securities Intermediary — Owned by Moorestown Finance, Inc. |
4. | Wachovia Bank with Evergreen Investments as Securities Intermediary — Owned by Blackwood Assets, Inc. |
5. | Investment by A.C. Moore Arts & Crafts, Inc. in A.C. Moore Urban Renewal, LLC in the approximate amount of $1,000. |
6. | Investment by A.C. Moore Incorporated in A.C. Moore Urban Renewal, LLC in the approximate amount of $29,279,000. |
130 A.C. Moore Drive
Berlin, NJ 08009
Attn: Amy Rhoades, Vice President and General Counsel
130 North 18th Street
Philadelphia, PA 19103
Attn: Alan Lieblich