Facility: 36249PAA7
Revolving Credit Loans: 36249PAB5
Term Loans: 36249PAC3]
as Administrative Agent, Swing Loan Lender and Issuing Lender
Page | ||||||
1. CERTAIN DEFINITIONS | 1 | |||||
1.1 | Certain Definitions | 1 | ||||
1.2 | Construction | 20 | ||||
1.3 | Accounting Principles | 20 | ||||
1.4 | Letter of Credit Amounts | 21 | ||||
1.5 | Currency Equivalents Generally | 21 | ||||
2. REVOLVING CREDIT AND SWING LOAN FACILITIES | 21 | |||||
2.1 | Revolving Credit Commitments | 21 | ||||
2.2 | Nature of the Lenders’ Obligations with Respect to Revolving Credit Loans | 22 | ||||
2.3 | Facility Fees | 22 | ||||
2.4 | Revolving Credit Loan Requests; Swing Loan Requests | 23 | ||||
2.5 | Making Revolving Credit Loans and Swing Loans; Presumptions by the Administrative Agent; Repayment of Revolving Credit Loans; Borrowings to Repay Swing Loans | 23 | ||||
2.6 | Notes | 25 | ||||
2.7 | Use of Proceeds | 25 | ||||
2.8 | Letter of Credit Subfacility | 25 | ||||
2.9 | Cash Collateral | 32 | ||||
2.10 | Defaulting Lenders | 33 | ||||
3. TERM LOANS | 35 | |||||
3.1 | Term Loan Commitments | 35 | ||||
3.2 | Making the Term Loans; Presumptions by the Administrative Agent | 35 | ||||
3.3 | Nature of Lenders’ Obligations with Respect to Term Loans; Repayment Terms | 36 | ||||
3.4 | Term Notes | 37 | ||||
3.5 | Incremental Facilities | 37 | ||||
4. INTEREST RATES | 39 | |||||
4.1 | Interest Rate Options | 39 | ||||
4.2 | Interest Periods | 39 | ||||
4.3 | Interest After Default | 40 | ||||
4.4 | LIBOR Rate Unascertainable; Illegality; Increased Costs; Deposits Not Available | 40 | ||||
4.5 | Selection of Interest Rate Options | 41 | ||||
5. PAYMENTS | 41 | |||||
5.1 | Payments | 41 | ||||
5.2 | Pro Rata Treatment of Lenders | 42 | ||||
5.3 | Sharing of Payments by Lenders | 42 | ||||
5.4 | Presumptions by Administrative Agent | 43 | ||||
5.5 | Interest Payment Dates | 43 | ||||
5.6 | Voluntary Prepayments; Reduction of Revolving Credit Commitments | 43 | ||||
5.7 | Mandatory Prepayments | 45 | ||||
5.8 | Increased Costs | 46 | ||||
5.9 | Taxes | 47 | ||||
5.10 | Indemnity | 49 | ||||
5.11 | Settlement Date Procedures | 50 | ||||
5.12 | Interbank Market Presumption | 50 | ||||
5.13 | Judgment Currency | 51 | ||||
6. REPRESENTATIONS AND WARRANTIES | 51 | |||||
6.1 | Representations and Warranties | 51 | ||||
6.2 | Updates to Schedules | 55 |
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Page | ||||||
7. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT | 55 | |||||
7.1 | First Loans and Letters of Credit | 55 | ||||
7.2 | Each Loan or Letter of Credit | 57 | ||||
7.3 | Loans to Fund Acquisitions | 57 | ||||
8. COVENANTS | 57 | |||||
8.1 | Affirmative Covenants | 57 | ||||
8.2 | Negative Covenants | 59 | ||||
8.3 | Reporting Requirements | 65 | ||||
9. DEFAULT | 67 | |||||
9.1 | Events of Default | 67 | ||||
9.2 | Consequences of Event of Default | 69 | ||||
10. THE ADMINISTRATIVE AGENT | 70 | |||||
10.1 | Appointment and Authority | 70 | ||||
10.2 | Rights as a Lender | 70 | ||||
10.3 | Exculpatory Provisions | 71 | ||||
10.4 | Reliance by Administrative Agent | 71 | ||||
10.5 | Delegation of Duties | 72 | ||||
10.6 | Resignation of Administrative Agent | 72 | ||||
10.7 | Non-Reliance on Administrative Agent and Other Lenders | 73 | ||||
10.8 | Administrative Agent’s Fee | 73 | ||||
10.9 | Collateral and Guaranty Matters | 73 | ||||
10.10 | No Other Duties, Etc. | 73 | ||||
10.11 | Administrative Agent May File Proofs of Claim | 73 | ||||
10.12 | Lender Provided Interest Rate Hedge or Other Lender Provided Financial Service Products | 74 | ||||
11. MISCELLANEOUS | 74 | |||||
11.1 | Modifications, Amendments or Waivers | 74 | ||||
11.2 | No Implied Waivers; Cumulative Remedies | 76 | ||||
11.3 | Expenses; Indemnity; Damage Waiver | 76 | ||||
11.4 | Holidays | 77 | ||||
11.5 | Notices; Effectiveness; Electronic Communication | 78 | ||||
11.6 | Severability | 78 | ||||
11.7 | Duration; Survival | 78 | ||||
11.8 | Successors and Assigns | 79 | ||||
11.9 | Confidentiality | 81 | ||||
11.10 | Counterparts; Integration; Effectiveness | 82 | ||||
11.11 | Choice of Law; Submission to Jurisdiction; Waiver of Venue; Service of Process; Waiver of Jury Trial | 82 | ||||
11.12 | USA Patriot Act Notice | 83 | ||||
11.13 | No Advisory or Fiduciary Responsibility | 84 | ||||
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SCHEDULES | ||||
SCHEDULE 1.1(A) — PRICING GRID | ||||
SCHEDULE 1.1(B) — REVOLVING CREDIT COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES | ||||
SCHEDULE 1.1(C) — TERM LOAN COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES | ||||
SCHEDULE 1.1(P) — PERMITTED LIENS | ||||
SCHEDULE 2.8 — EXISTING LETTERS OF CREDIT REPORT | ||||
SCHEDULE 6.1(a) — QUALIFICATIONS TO DO BUSINESS | ||||
SCHEDULE 6.1(b) — SUBSIDIARIES | ||||
SCHEDULE 6.1(e) — MATERIAL LITIGATION | ||||
SCHEDULE 6.1(k) — PLEDGED COLLATERAL | ||||
SCHEDULE 6.1(n) — ENVIRONMENTAL DISCLOSURES | ||||
SCHEDULE 7.1 — EXISTING INDEBTEDNESS | ||||
SCHEDULE 7.1(a) — OPINION OF COUNSEL | ||||
SCHEDULE 8.1(c) — INSURANCE REQUIREMENTS RELATING TO COLLATERAL | ||||
SCHEDULE 8.2(a) — PERMITTED INDEBTEDNESS | ||||
SCHEDULE 8.2(d) — EXISTING INVESTMENTS | ||||
SCHEDULE 9.1(j) — EXISTING 5% SHAREHOLDERS | ||||
SCHEDULE 11.5 — ADMINISTRATIVE AGENT INFORMATION | ||||
EXHIBITS | ||||
EXHIBIT 1.1(A) — ADMINISTRATIVE QUESTIONNAIRE | ||||
EXHIBIT 1.1(B) — ASSIGNMENT AND ASSUMPTION AGREEMENT | ||||
EXHIBIT 1.1(G) — GUARANTOR JOINDER | ||||
EXHIBIT 1.1(N) — FORM OF NOTE | ||||
EXHIBIT 2.4(a) — REVOLVING CREDIT LOAN REQUEST | ||||
EXHIBIT 2.4(b) — SWING LOAN REQUEST | ||||
EXHIBIT 2.8 — LETTER OF CREDIT REPORT | ||||
EXHIBIT 3.1 — TERM LOAN REQUEST | ||||
EXHIBIT 7.1 — FORM OF SOLVENCY CERTIFICATE | ||||
EXHIBIT 8.3(c) — QUARTERLY COMPLIANCE CERTIFICATE | ||||
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LIBOR Rate = | LIBOR Base Rate |
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Due Date | Payment Amount | |||
July 5, 2011 | 1.250 | % | ||
October 5, 2011 | 1.250 | % | ||
January 5, 2012 | 1.250 | % | ||
April 5, 2012 | 1.250 | % | ||
July 5, 2012 | 1.250 | % | ||
October 5, 2012 | 1.250 | % | ||
January 5, 2013 | 1.250 | % | ||
April 5, 2013 | 1.250 | % | ||
July 5, 2013 | 2.500 | % | ||
October 5, 2013 | 2.500 | % | ||
January 5, 2014 | 2.500 | % | ||
April 5, 2014 | 2.500 | % | ||
July 5, 2014 | 2.500 | % | ||
October 5, 2014 | 2.500 | % | ||
January 5, 2015 | 2.500 | % | ||
April 5, 2015 | 2.500 | % | ||
July 5, 2015 | 2.500 | % | ||
October 5, 2015 | 2.500 | % | ||
January 5, 2016 | 2.500 | % |
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Maximum Percentage | Period | |||
35% | During fiscal year 2011 | |||
40% | after fiscal year end 2011 |
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BORROWERS: GSI COMMERCE, INC. GSI COMMERCE SOLUTIONS, INC. | ||||
By: | /s/ Michael R. Conn | |||
Name: | Michael R. Conn | |||
Title: | Executive Vice President Finance, Chief Financial Officer and Treasurer | |||
GUARANTORS: ASFD, INC. GSI COMMERCE CALL CENTER, INC. GSI COMMERCE SOUTH, INC. GSI EQUIPMENT, INC. GSI LEGACY HOLDINGS, INC. KOP PROMOTIONS, LLC ONLINE DIRECT, INC. PROMOTIONS DISTRIBUTOR SERVICE CORPORATION | ||||
By: | /s/ Michael R. Conn | |||
Name: | Michael R. Conn | |||
Title: | President and Treasurer | |||
CLEAR SALEING, INC. E-DIALOG, INC. FETCHBACK, INC. GSI INTERACTIVE, INC. GSI MARKETING SERVICES, INC. GSI MEDIA, INC. M3 MOBILE, INCORPORATED MBS INSIGHT, INC. RUELALA, INC. SB.COM, INC. SILVERLIGN GROUP, INC. SMARTBARGAINS, INC. SMARTBARGAINS SECURITY CORPORATION VENDORNET, INC. | ||||
By: | /s/ Michael R. Conn | |||
Name: | Michael R. Conn | |||
Title: | Treasurer | |||
RETAIL CONVERGENCE.COM, LP | ||||
By: | SB.COM, INC., | |||
its General Partner |
By: | /s/ Michael R. Conn | |||
Name: | Michael R. Conn | |||
Title: | Treasurer |
SHOPRUNNER, INC. | ||||
By: | /s/ Michael R. Conn | |||
Name: | Michael R. Conn | |||
Title: | Chief Financial Officer and Treasurer | |||
935 KOP ASSOCIATES, LLC 1075 FIRST GLOBAL ASSOCIATES, LLC | ||||
By: | GSI COMMERCE, INC., | |||
its sole member and manager |
By: | /s/ Michael R. Conn | |||
Name: | Michael R. Conn | |||
Title: | Executive Vice President Finance, Chief Financial Officer and Treasurer |
7601 TRADE PORT DRIVE, LLC | ||||
By: | GSI COMMERCE SOLUTIONS, INC., | |||
its sole member and manager | ||||
By: | /s/ Michael R. Conn | |||
Name: | Michael R. Conn | |||
Title: | Executive Vice President Finance, Chief Financial Officer and Treasurer |
GATOR ACQUISITION CORP. | ||||
BY: | /s/ Michael R. Conn | |||
Name: | Michael R. Conn | |||
Title: | President, Treasurer and Secretary |
GATOR ACQUISITION LLC GSI COMMERCE, INC., | ||||
BY:its sole member | ||||
BY: | /s/ Michael R. Conn | |||
Name: | Michael R. Conn | |||
Title: | Executive Vice President Finance, Chief Financial Officer and Treasurer |
BANK OF AMERICA, N.A., INDIVIDUALLY AND AS ADMINISTRATIVE AGENT | ||||
BY: | /s/ Andrew Richards | |||
NAME: Andrew Richards | ||||
TITLE: SVP |
LENDER SIGNATURE PAGE TO THE GSI COMMERCE, INC. AND GSI COMMERCE SOLUTIONS, INC. CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE Name of Institution: Morgan Stanley Bank, N.A. | ||||
by | /s/ Sherrese Clarke | |||
Name: | Sherrese Clarke | |||
Title: | Authorized Signatory |
LENDER SIGNATURE PAGE TO THE GSI COMMERCE, INC. AND GSI COMMERCE SOLUTIONS, INC. CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE Name of Institution: PNC BANK, National Association | ||||
by | /s/ John M DiNapoli | |||
Name: | John M DiNapoli | |||
Title: | Senior Vice President |
LENDER SIGNATURE PAGE TO THE GSI COMMERCE, INC. AND GSI COMMERCE SOLUTIONS, INC. CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE Name of Institution: Deutsche Bank Trust Company Americas | ||||
by | /s/ Paul O’Leary | |||
Name: | Paul O’Leary | |||
Title: | Director | |||
by | /s/ Evelyn Thierry | |||
Name: | Evelyn Thierry | |||
Title: | Director |
LENDER SIGNATURE PAGE TO THE GSI COMMERCE, INC. AND GSI COMMERCE SOLUTIONS, INC. CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE Name of Institution: JPMorgan Chase Bank, N.A. | ||||
by | /s/ Eugene M. Kennedy III | |||
Name: | Eugene M. Kennedy III | |||
Title: | Vice President |
LENDER SIGNATURE PAGE TO THE GSI COMMERCE, INC. AND GSI COMMERCE SOLUTIONS, INC. CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE Name of Institution: TD Bank NA | ||||
by | /s/ Thomas M. McGrory | |||
Name: | Thomas M. McGrory | |||
Title: | Vice President |
LENDER SIGNATURE PAGE TO THE GSI COMMERCE, INC. AND GSI COMMERCE SOLUTIONS, INC. CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE Name of Institution: HSBC Bank USA, National Association: | ||||
by | /s/ Susan A. Waters | |||
Name: | Susan A. Waters | |||
Title: | Vice President |
LENDER SIGNATURE PAGE TO THE GSI COMMERCE, INC. AND GSI COMMERCE SOLUTIONS, INC. CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE Name of Institution: RBS Citizens N.A. | ||||
by | /s/ Williams M. Clossey | |||
Name: | William M. Clossey | |||
Title: | Vice President |
LENDER SIGNATURE PAGE TO THE GSI COMMERCE, INC. AND GSI COMMERCE SOLUTIONS, INC. CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE Name of Institution: Sovereign Bank | ||||
by | /s/ Dennis P. Wasilewski | |||
Name: | Dennis P. Wasilewski | |||
Title: | Senior Vice President |
LENDER SIGNATURE PAGE TO THE GSI COMMERCE, INC. AND GSI COMMERCE SOLUTIONS, INC. CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE Name of Institution: UBS Loan Finance LLC | ||||
by | /s/ Irja R. Otsa | |||
Name: | Irja R. Otsa | |||
Title: | Associate Director | |||
by | /s/ Mary E. Evans | |||
Name: | Mary E. Evans | |||
Title: | Associate Director |
LENDER SIGNATURE PAGE TO THE GSI COMMERCE, INC. AND GSI COMMERCE SOLUTIONS, INC. CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE Name of Institution: Raymond James Bank, FSB | ||||
by | /s/ Alexander L. Rody | |||
Name: | Alexander L. Rody | |||
Title: | Senior Vice President |
LENDER SIGNATURE PAGE TO THE GSI COMMERCE, INC. AND GSI COMMERCE SOLUTIONS, INC. CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE Name of Institution: UNION BANK, N.A. | ||||
by | /s/ Vik Thadani | |||
Name: | Vik Thadani | |||
Title: | Vice President |
LENDER SIGNATURE PAGE TO THE GSI COMMERCE, INC. AND GSI COMMERCE SOLUTIONS, INC. CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE Name of Institution: First Commonwealth Bank | ||||
by | /s/ Lawrence C. Deihle | |||
Name: | Lawrence C. Deihle | |||
Title: | Senior Vice President |
LENDER SIGNATURE PAGE TO THE GSI COMMERCE, INC. AND GSI COMMERCE SOLUTIONS, INC. CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE Name of Institution: GOLDMAN SACHS BANK USA: | ||||
by | /s/ Mark Walton | |||
Name: | Mark Walton | |||
Title: | Authorized Signatory | |||
Level I | Level II | Level III | Level IV | Level V | ||||||||||||||||
Total | Total | Total | ||||||||||||||||||
Total | Leverage | Leverage | Leverage | |||||||||||||||||
Leverage | Ratio is greater | Ratio is greater | Ratio is greater | Total | ||||||||||||||||
Ratio is less | than 2.0 to 1 but | than 2.5 to 1 but | than 3.0 to 1 but | Leverage | ||||||||||||||||
than or equal | less than or equal | less than or equal | less than or | Ratio is greater | ||||||||||||||||
Basis for Pricing | to 2.0 to 1 | to 2.5 to 1 | to 3.0 to 1 | equal to 3.5 to 1 | than 3.5 to 1 | |||||||||||||||
Facility Fee | 35.0 | 37.5 | 37.5 | 50.0 | 50.0 | |||||||||||||||
Applicable Margin for LIBOR Term Loans | 225 | 250 | 275 | 300 | 350 | |||||||||||||||
Applicable Margin for Base Rate Term Loans | 125 | 150 | 175 | 200 | 250 | |||||||||||||||
Applicable Margin for LIBOR Revolving Loans | 190 | 212.5 | 237.5 | 250 | 300 | |||||||||||||||
Applicable Margin for Base Rate Revolving Loans | 90 | 112.5 | 137.5 | 150 | 200 |
REVOLVING CREDIT LENDERS
AND ADDRESSES FOR NOTICES
Amount of | ||||||||
Commitment for | Applicable | |||||||
Revolving Credit | �� | Revolving Credit | ||||||
Lender | Loans | Percentage | ||||||
Bank of America N.A. NC1-001-04-39 101 North Tryon Street Charlotte, NC 28255 | $ | 29,212,500.00 | 10.250000000 | % | ||||
Daily Operations Contact: Name: Nilesh Patel Telephone: (980) 386-5094 Telecopy: (704) 719-8870 npatel@baml.com | ||||||||
Loan Closer Contact: Name: Wayne A. Richard Telephone: (980) 388-6484 Telecopy: (704) 208-3075 wayne.a.richard@baml.com | ||||||||
Other Notices as Administrative Agent: Bank of America, N.A. Agency Management Address: 135 S. LaSalle Street, IL1-231-05-41 Chicago, IL 60603 Attention: Fani Davidson Telephone: (312) 923-0604 Telecopy: (312) 453-4217 fani.davidson@baml.com | ||||||||
L/C Issuer: Bank of America, N.A. Trade Operations Address: 1 Fleet Way, PA6-580-02-30 Scranton, PA 18507 Attention: Alfonso Malave Telephone: (570) 330-4212 Telecopy: (570) 330-4186 alfonso.malave@baml.com | ||||||||
USD PAYMENT INSTRUCTIONS: Bank of America New York NY ABA 026009593 Acct # 1366212250600 Acct Name: Corporate Credit Services Ref: GSI COMMERCE, INC. |
Amount of | ||||||||
Commitment for | Applicable | |||||||
Revolving Credit | Revolving Credit | |||||||
Lender | Loans | Percentage | ||||||
Morgan Stanley Bank, N.A. | $ | 29,212,500.00 | 10.250000000 | % | ||||
PNC Bank, N.A. | $ | 29,212,500.00 | 10.250000000 | % | ||||
Deutsche Bank Trust Company Americas | $ | 29,212,500.00 | 10.250000000 | % | ||||
JPMorgan Chase Bank, N.A. | $ | 29,212,500.00 | 10.250000000 | % | ||||
TD Bank, N.A. | $ | 21,375,000.00 | 7.500000000 | % | ||||
HSBC Bank USA, National Association | $ | 21,375,000.00 | 7.500000000 | % | ||||
RBS Citizens N.A. | $ | 21,375,000.00 | 7.500000000 | % | ||||
Sovereign Bank | $ | 21,375,000.00 | 7.500000000 | % | ||||
UBS Loan Finance LLC | $ | 14,250,000.00 | 5.000000000 | % | ||||
Raymond James Bank, FSB | $ | 14,250,000.00 | 5.000000000 | % | ||||
Union Bank, N.A. | $ | 14,250,000.00 | 5.000000000 | % | ||||
First Commonwealth Bank | $ | 7,125,000.00 | 2.500000000 | % | ||||
Goldman Sachs Bank USA | $ | 3,562,500.00 | 1.250000000 | % | ||||
Total | $ | 285,000,000.00 | 100.000000000 | % | ||||
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
AND ADDRESSES FOR NOTICES
Amount of | ||||||||
Commitment for Term | Applicable Term | |||||||
Lender | Loans | Loan Percentage | ||||||
Bank of America N.A. NC1-001-04-39 101 North Tryon Street Charlotte, NC 28255 | $ | 11,787,500.00 | 10.250000000 | % | ||||
Daily Operations Contact: Name: Nilesh Patel Telephone: (980) 386-5094 Telecopy: (704) 719-8870 npatel@baml.com | ||||||||
Loan Closer Contact: Name: Wayne A. Richard Telephone: (980) 388-6484 Telecopy: (704) 208-3075 wayne.a.richard@baml.com | ||||||||
Other Notices as Administrative Agent: Bank of America, N.A. Agency Management Address: 135 S. LaSalle Street, IL1-231-05-41 Chicago, IL 60603 Attention: Fani Davidson Telephone: (312) 923-0604 Telecopy: (312) 453-4217 fani.davidson@baml.com | ||||||||
L/C Issuer: Bank of America, N.A. Trade Operations Address: 1 Fleet Way, PA6-580-02-30 Scranton, PA 18507 Attention: Alfonso Malave Telephone: (570) 330-4212 Telecopy: (570) 330-4186 alfonso.malave@baml.com | ||||||||
USD PAYMENT INSTRUCTIONS: Bank of America New York NY ABA 026009593 Acct # 1366212250600 Acct Name: Corporate Credit Services Ref: GSI COMMERCE, INC. | ||||||||
Morgan Stanley Bank, N.A. | $ | 11,787,500.00 | 10.250000000 | % |
Amount of | ||||||||
Commitment for Term | Applicable Term | |||||||
Lender | Loans | Loan Percentage | ||||||
PNC Bank, N.A. | $ | 11,787,500.00 | 10.250000000 | % | ||||
Deutsche Bank Trust Company Americas | $ | 11,787,500.00 | 10.250000000 | % | ||||
JPMorgan Chase Bank, N.A. | $ | 11,787,500.00 | 10.250000000 | % | ||||
TD Bank, N.A. | $ | 8,625,000.00 | 7.500000000 | % | ||||
HSBC Bank USA, National Association | $ | 8,625,000.00 | 7.500000000 | % | ||||
RBS Citizens N.A. | $ | 8,625,000.00 | 7.500000000 | % | ||||
Sovereign Bank | $ | 8,625,000.00 | 7.500000000 | % | ||||
UBS Loan Finance LLC | $ | 5,750,000.00 | 5.000000000 | % | ||||
Raymond James Bank, FSB | $ | 5,750,000.00 | 5.000000000 | % | ||||
Union Bank, N.A. | $ | 5,750,000.00 | 5.000000000 | % | ||||
First Commonwealth Bank | $ | 2,875,000.00 | 2.500000000 | % | ||||
Goldman Sachs Bank USA | $ | 1,437,500.00 | 1.250000000 | % | ||||
Total | $ | 115,000,000.00 | 100.000000000 | % | ||||
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Address: 935 First Avenue
King of Prussia, PA 19406
Attention: Chief Financial Officer
Telephone: (610) 496-7000
Telecopy: (610) 265-1730
Original | Original File | Secured | Related | |||||||||
Debtor | State | Jurisdiction | File Date | Number | Party | Filings | ||||||
1075 FIRST GLOBAL ASSOCIATES, LLC | PA | Department of State | 1/22/2008 | 2008012304501 | PNC Bank, National Association | |||||||
7601 TRADE PORT DRIVE, LLC | KY | Secretary of State | 1/22/2008 | 2008-2294862-33.01 | PNC Bank, National Association | |||||||
935 KOP ASSOCIATES, LLC | PA | Department of State | 1/22/2008 | 2008012304513 | PNC Bank, National Association | |||||||
ASFD, INC. | DE | Secretary of State | 1/22/2008 | 2008 0263994 | PNC Bank, National Association | |||||||
CLEAR SALEING, INC. | DE | Secretary of State | 1/11/2011 | 2011 0118417 | PNC Bank, National Association, as Agent |
Original | Original File | Secured | Related | |||||||||
Debtor | State | Jurisdiction | File Date | Number | Party | Filings | ||||||
E-DIALOG, INC. | DE | Secretary of State | 2/19/2008 | 2008 0605772 | PNC Bank, National Association | |||||||
E-DIALOG, INC. | DE | Secretary of State | 7/2/2008 | 2008 2280780 | PNC Bank, National Association | |||||||
FETCHBACK, INC. | DE | Secretary of State | 6/29/2010 | 2010 2268898 | PNC Bank, National Association | |||||||
GSI COMMERCE CALL CENTER, INC. | FL | Secured Transaction Registry | 1/23/2008 | 200807483948 | PNC Bank, National Association | |||||||
GSI COMMERCE CALL CENTER, INC. | FL | Secured Transaction Registry | 2/9/2009 | 200909990849 | Eau Claire County | |||||||
GSI COMMERCE SOLUTIONS, INC. | DE | Secretary of State | 1/22/2008 | 2008 0264075 | PNC Bank, National Association | |||||||
GSI COMMERCE SOLUTIONS, INC. | PA | Montgomery County Prothonotary | 12/15/2009 | 09-42854 (amount $1,038.61) | Commonwealth of Pennsylvania | |||||||
GSI COMMERCE SOUTH, INC. | DE | Secretary of State | 1/22/2008 | 2008 0263952 | PNC Bank, National Association | |||||||
GSI COMMERCE, INC. | DE | Secretary of State | 4/13/2006 | 6124322 9 | Bath & Body Works Direct, Inc. |
Original | Original File | Secured | Related | |||||||||
Debtor | State | Jurisdiction | File Date | Number | Party | Filings | ||||||
GSI COMMERCE, INC. | DE | Secretary of State | 1/22/2008 | 2008 0264034 | PNC Bank, National Association | |||||||
GSI EQUIPMENT, INC. | NY | Secretary of State | 1/22/2008 | 200801220061927 | PNC Bank, National Association | |||||||
GSI INTERACTIVE, INC. | DE | Secretary of State | 3/16/2010 | 2010 0904171 | PNC Bank, National Association | |||||||
GSI LEGACY HOLDINGS, INC. | PA | Department of State | 1/22/2008 | 2008012304498 | PNC Bank, National Association | |||||||
GSI MARKETING SERVICES, INC. | PA | Department of State | 7/12/2010 | 2010071305701 | PNC Bank, National Association | |||||||
GSI MEDIA, INC. | DE | Secretary of State | 3/16/2010 | 2010 0903835 | PNC Bank, National Association | |||||||
KOP PROMOTIONS, LLC | VA | State Corporation Commission | 3/17/2010 | 100317 7076-0 | PNC Bank, National Association |
Original | Original File | Secured | Related | |||||||||
Debtor | State | Jurisdiction | File Date | Number | Party | Filings | ||||||
M3 MOBILE, INCORPORATED | PA | Department of State | 5/20/2010 | 2010052102847 | PNC Bank, National Association | |||||||
M3 MOBILE, INCORPORATED | PA | Montgomery County Prothonotary | 12/14/2009 | 2009-42790 (amount: $2,200.46) | Commonwealth of Pennsylvania | |||||||
MBS INSIGHT, INC. | DE | Secretary of State | 5/20/2010 | 2010 1782501 | PNC Bank, National Assocation | |||||||
NEWROADS, INC. | DE | Secretary of State | 11/13/2003 | 3299162 1 | Bath & Body Works GC, LLC | Continuation filed: 10/22/2008 | ||||||
NEWROADS, INC. | DE | Secretary of State | 11/13/2003 | 3299164 7 | Express GC, LLC | Continuation filed: 10/22/2008 | ||||||
ONLINE DIRECT, INC. | DE | Secretary of State | 1/22/2008 | 2008 0263929 | PNC Bank, National Association |
Original | Original File | Secured | Related | |||||||||
Debtor | State | Jurisdiction | File Date | Number | Party | Filings | ||||||
VendorNet, Inc. | DE | Secretary of State | 5/20/2010 | 2010 1782170 | PNC Bank, National Association | Amendment filed: 6/29/2010 | ||||||
PROMOTIONS DISTRIBUTOR SERVICES CORPORATION | CA | Secretary of State | 8/19/2002 | 0223260732 | Citizens Bank of Massachusetts | Termination filed:10/24/2005 Continuation filed: 3/30/2007 | ||||||
PROMOTIONS DISTRIBUTOR SERVICES CORPORATION | CA | Secretary of State | 1/22/2008 | 08-7144432477 | PNC Bank, National Association | |||||||
RETAIL CONVERGENCE, INC. | DE | Secretary of State | 9/17/2008 | 2008 3140884 | John Hardy USA Inc. | |||||||
RETAIL CONVERGENCE, INC. | DE | Secretary of State | 3/16/2010 | 2010 0904106 | PNC Bank, National Association | |||||||
RETAIL CONVERGENCE.COM, LP | DE | Secretary of State | 3/16/2010 | 2010 0903892 | PNC Bank, National Association | |||||||
RETAIL CONVERGENCE.COM, LP | NY | Department of State | 2/23/2010 | E-032353976-W001-8 ($2,273.95) | New York State Department of State (Albany) | |||||||
RETAIL CONVERGENCE.COM, LP | NY | Department of State | 4/20/2010 | E-032353976-W002-3 ($110.90) | New York State Department of State (Albany) |
Original | Original File | Secured | Related | |||||||||
Debtor | State | Jurisdiction | File Date | Number | Party | Filings | ||||||
RETAIL CONVERGENCE.COM, LP | NY | Department of State | 11/16/2010 | E-032353976-W003-7 ($958.43) | New York State Department of State (Albany) | |||||||
SB.COM, INC. | DE | Secretary of State | 3/16/2010 | 2010 0904007 | PNC Bank, National Association | |||||||
SHOPRUNNER, INC | PA | Department of State | 3/16/2010 | 2010031701195 | PNC Bank, National Association | |||||||
SILVERLIGN GROUP, INC. | CA | Secretary of State | 3/16/2010 | 10-7225751767 | PNC Bank, National Association | |||||||
SMARTBARGAINS, INC. | DE | Secretary of State | 2/26/2007 | 2007 0721935 | Eugene Biro Borp | |||||||
SMARTBARGAINS, INC. | DE | Secretary of State | 3/16/2010 | 2010 0904056 | PNC Bank, National Association | |||||||
SMARTBARGAINS SECURITY CORPORATION | MA | Secretary of the Commonwealth | 3/17/2010 | 201078981220 | PNC Bank, National Association |
Letter of | ||||||||||||||||||||||||
Credit | Original Face | |||||||||||||||||||||||
Date of | Account | Number | Amount | Currency of | ||||||||||||||||||||
Issuance | Party | Beneficiary | (if any) | (if any) | Denomination | Expiration Date | ||||||||||||||||||
6/8/2004 | GSI Commerce Solutions, Inc. | BERKADIA COMMERCIAL MORTGAGE LLC | 18100138 | $ | 1,000,000.00 | USD | 6/8/2011 | |||||||||||||||||
1/22/2008 | GSI Commerce South, Inc. | THE TRAVELERS INDEMNITY COMPANY | 18108615 | $ | 55,000.00 | USD | 1/22/2012 | |||||||||||||||||
2/14/2008 | e-Dialog, Inc. | FARLEY WHITE KILNBROOK THREE, LLC | 18108923 | $ | 129,862.60 | USD | 11/11/2011 | |||||||||||||||||
5/11/2010 | RueLaLa, Inc. | THE 58 TO 64 40TH STREET | 18113064 | $ | 128,228.34 | USD | 5/11/2011 | |||||||||||||||||
3/17/2009 | e-Dialog, Inc. | NETVIEW 5 AND 6 LLC | 18111239 | $ | 106,708.50 | USD | 3/17/2011 | |||||||||||||||||
7/15/2009 | e-Dialog, Inc. | 1350 BROADWAY ASSOCIATES L.L.C. | 18111073 | $ | 91,000.00 | USD | 7/15/2011 | |||||||||||||||||
6/30/2010 | e-Dialog, Inc. | LEGACY PARTNERS I BELLEVUE, LLC | 18113243 | $ | 53,195.00 | USD | 6/30/2011 | |||||||||||||||||
12/27/2010 | GSI Commerce Solutions, Inc. | MISSOURI DEPARTMENT OF REVENUE (MDOR) | 18100138 | $ | 1,000,000.00 | USD | 6/8/2011 | |||||||||||||||||
2/25/2009 | GSI Interactive, Inc. | SERIOUS USA, INC. | 18108615 | $ | 55,000.00 | USD | 1/22/2012 | |||||||||||||||||
6/28/2010 | RueLaLa, Inc. | MILLTEX DISTRIBUTORS CO. | 18108923 | $ | 129,862.60 | USD | 11/11/2011 |
Jurisdiction of | ||||
Entity | Organization | Foreign Qualifications | ||
GSI Commerce, Inc. | Delaware | Pennsylvania | ||
GSI Commerce Solutions, Inc. | Pennsylvania | Kentucky, California, Massachusetts, Georgia, Virginia, New Jersey, Washington, New York, Missouri, Minnesota | ||
GSI Equipment, Inc. | New York | New Jersey | ||
GSI Interactive, Inc. | Delaware | Pennsylvania, New York, California | ||
Silverlign Group, Inc. | California | Oregon, Washington | ||
KOP Promotions, LLC | Virginia | Pennsylvania | ||
7601 Trade Port Drive, LLC | Kentucky | None | ||
935 KOP Associates, LLC | Pennsylvania | None | ||
1075 First Global Associates, LLC | Pennsylvania | None | ||
GSI Legacy Holdings, Inc. | Pennsylvania | None | ||
ASFD, Inc. | Delaware | Pennsylvania | ||
GSI Commerce Call Center, Inc. | Florida | Wisconsin, Pennsylvania | ||
GSI Commerce South, Inc. | Delaware | California, Tennessee, Virginia, North Carolina | ||
Online Direct, Inc. | Delaware | Georgia, Tennessee | ||
Promotions Distributor Service Corporation | California | None | ||
GSI Media, Inc. | Delaware | Pennsylvania, New York | ||
e-Dialog, Inc. | Delaware | Massachusetts, California, New York, Texas, Washington | ||
RueLaLa, Inc. | Delaware | New York, Massachusetts | ||
SmartBargains, Inc. | Delaware | Massachusetts, Kentucky, New York, Washington, Pennsylvania | ||
SB.com, Inc. | Delaware | Massachusetts | ||
Retail Convergence.com, LP | Delaware | Massachusetts, Kentucky, Washington | ||
SmartBargains Security Corporation | Massachusetts | None | ||
ShopRunner, Inc. | Pennsylvania | New York | ||
VendorNet, Inc. | Delaware | Florida, North Carolina, Missouri, California, Virginia, Georgia | ||
M3 Mobile, Incorporated | Pennsylvania | None | ||
MBS Insight, Inc. | Delaware | New York | ||
GSI Marketing Services, Inc. | Pennsylvania | New York | ||
Fetchback, Inc. | Delaware | Arizona, New Jersey, Kentucky, North Carolina, Illinois, New York | ||
Clear Saleing, Inc. | Delaware | Ohio, Oregon, Illinois, California, Utah, New York, Texas |
Percentage of Equity | ||||||||||||||||
Jurisdiction | Amount of | Interest Owned | ||||||||||||||
of | Type of Equity | Equity | Directly or Indirectly | |||||||||||||
Name of Subsidiary | Organization | Interest | Interest | by GSI Commerce, Inc. | ||||||||||||
GSI Equipment, Inc. | New York | Common Stock | 100 shares | 100 | % | |||||||||||
7601 Trade Port Drive, LLC | Kentucky | Limited Liability Company Interest | 10 units | 100 | % | |||||||||||
935 KOP Associates, LLC | Pennsylvania | Limited Liability Company Interest | 10 units | 100 | % | |||||||||||
935 HQ Associates, LLC | Delaware | Limited Liability Company Interest | 10 units | 100 | % | |||||||||||
1075 First Global Associates, LLC | Pennsylvania | Limited Liability Company Interest | 10 units | 100 | % | |||||||||||
GSI Legacy Holdings, Inc. | Pennsylvania | Common Stock | 100 shares | 100 | % | |||||||||||
ASFD, Inc. | Delaware | Common Stock | 100 shares | 100 | % | |||||||||||
GSI Commerce Call Center, Inc. | Florida | Common Stock | 100 shares | 100 | % | |||||||||||
GSI Luxembourg S.à.r.l | Luxembourg | Limited Liability Company (Societe a Responsabilite Limitee) Interest | 125 shares | 100 | % | |||||||||||
GSI Commerce Solutions International, S.L. | Spain | Limited Liability Company (Sociedad de Responsabilidad Limitada) Interest | 46,480 shares | 100 | % | |||||||||||
Zendor/GSI Commerce Limited | United Kingdom | Limited Company Interest | 1,010 shares | 100 | % | |||||||||||
GSI Commerce South, Inc. | Delaware | Common Stock | 100 shares | 100 | % | |||||||||||
Online Direct, Inc. | Delaware | Common Stock | 100 shares | 100 | % | |||||||||||
Promotions Distributor Services Corporation | California | Common Stock | 1,000 shares | 100 | % | |||||||||||
E-Dialog, Inc. | Delaware | Common Stock | 100 shares | 100 | % | |||||||||||
E-Dialog UK Limited | England and Wales | Limited Company Interest | 1 ordinary share | 100 | % | |||||||||||
GSI Interactive, Inc. | Delaware | Common Stock | 100 shares | 100 | % | |||||||||||
KOP Promotions, LLC | Virginia | Limited Liability Company Interest | 100 units | 100 | % | |||||||||||
Silverlign Group, Inc. | California | Common Stock | 400,000 shares | 100 | % | |||||||||||
GSI Media, Inc. (f/k/a Peanut Butter Corporation) | Delaware | Common Stock | 100 shares | 100 | % | |||||||||||
RueLaLa, Inc. | Delaware | Common Stock; Preferred Stock | 964.4635 shares; 35.5365 shares | 100 | % |
Percentage of Equity | ||||||||||||||||
Jurisdiction | Amount of | Interest Owned | ||||||||||||||
of | Type of Equity | Equity | Directly or Indirectly | |||||||||||||
Name of Subsidiary | Organization | Interest | Interest | by GSI Commerce, Inc. | ||||||||||||
SmartBargains, Inc. | Delaware | Common Stock | 100 shares | 100 | % | |||||||||||
SmartBargains Security Corporation | Massachusetts | Common Stock | 1000 shares | 100 | % | |||||||||||
SB.com, Inc. | Delaware | Common Stock | 1000 shares | 100 | % | |||||||||||
Retail Convergence.com, LP | Delaware | Partnership interests | 99% limited partner interest and 1% general partner interest | 100 | % | |||||||||||
ShopRunner, Inc. | Pennsylvania | Common Stock | 100 shares | 100 | % | |||||||||||
M3 Mobile, Incorporated | Pennsylvania | Common Stock | 10,000 shares | 100 | % | |||||||||||
MBS Insight, Inc. | Delaware | Common Stock | 1,000 shares | 100 | % | |||||||||||
VendorNet, Inc. | Delaware | Common Stock | 100 shares | 100 | % | |||||||||||
GSI Marketing Services, Inc. | Pennsylvania | Common Stock | 100 shares | 100 | % | |||||||||||
Fetchback, Inc. | Delaware | Common Stock | 100 shares | 100 | % | |||||||||||
GSI Commerce Japan K.K. | Japan | Common Stock | 100 common shares | 100 | % | |||||||||||
e-Dialog Singapore Private Ltd. | Singapore | Limited Company Interest | 100 shares | 100 | % | |||||||||||
Clear Saleing, Inc. | Delaware | Common Stock | 100 shares | 100 | % | |||||||||||
Gator Acquisition Corp. | Delaware | Common Stock | 1 share | 100 | % | |||||||||||
Gator Acquisition LLC | Delaware | Limited Liability Company Interest | 1 unit | 100 | % |
Percentage of Equity | ||||||||||||||||
Amount of | Interest Owned | |||||||||||||||
Jurisdiction of | Type of Equity | Equity | Directly or Indirectly | |||||||||||||
Name | Organization | Interest | Interest | by Parent | ||||||||||||
GSI Commerce Solutions, Inc. | Pennsylvania | Common Stock | 100 shares | 100 | % |
Jurisdiction of | ||||||||
Name | Organization | Public Company | ||||||
GSI Commerce, Inc. | Delaware | Yes |
1. | Limited Liability Company Agreement of KOP Promotions, LLC. | |
2. | Limited Partnership Agreement of Retail Convergence.com, LP, as amended by Consent and Amendment No. 1 thereto. | |
3. | Limited Liability Company Agreement of 935 KOP Associates, LLC. | |
4. | Limited Liability Company Agreement of 1075 First Global Associates, LLC, as amended by First Amendment thereto. | |
5. | Limited Liability Company Agreement of 7601 Trade Port Drive, LLC. |
1. | GSI Commerce, Inc. 2.5% Convertible Notes due 2027 in the aggregate amount of $150,000,000, issued pursuant to an Indenture from GSI Commerce, Inc. to The Bank of New York, dated as of July 2, 2007. | |
2. | Master Lease Agreement between GSI Commerce Solutions, Inc. and PNC Equipment Finance, LLC, dated as of December 22, 2006, as amended, including without limitation, that certain Schedule of Leased Equipment No. 04225-004, dated as of June 30, 2008, assigned to Commerce Commercial Leasing, LLC and that certain assignment of a participation interest to Sovereign Bank on January 10, 2008. | |
3. | Capital Lease between Accretive Commerce and BB&T Equipment Finance, dated as of May 18, 2007, and any amendments thereto. | |
4. | Letter Agreement, dated as of January 11, 2008, for $2,000,000 Committed Line of Credit and $1,000,000 Existing Standby Letter of Credit between PNC Bank, National Association and GSI Commerce Solutions, Inc. | |
5. | Mortgage, Assignment of Leases and Rents and Security Agreement, dated as of June 9, 2004, by 935 HQ Associates, LLC in favor of CIBC Inc. | |
6. | Promissory Note, dated as of June 9, 2004, by 935 HQ Associates, LLC in favor of CIBC Inc. | |
7. | Lease Agreement (Lease #15747-00400), dated as of August 31, 2005, between Bank of America Leasing & Capital, LLC and e-Dialog, Inc. | |
8. | Master Lease Agreement (Contract # 1693036), dated as of August 31, 2005, between Fleet Business Credit, LLC and e-Dialog, Inc. | |
9. | Master Lease Agreement Number 4502, dated as of August 27, 2004, between VenCore Solutions LLC and e-Dialog, Inc. | |
10. | Master Lease Agreement (Lease #13882), dated as of March 28, 2007, between Banc of America Leasing and Capital, LLC and e-Dialog, Inc. | |
11. | Master Lease Agreement, dated as of March 11, 2010, between Hewlett Packard Financial Services Company and Retail Converge, Inc. | |
12. | Master Lease Agreement (Contract #TFV-28514), dated as of July 16, 2008, between Delage Landen Financial Services Inc. and Retail Convergence, Inc. | |
13. | Master Lease Agreement, dated as of July 8, 2009, between Raymond Storage Concepts, Inc. and GSI Commerce, Inc. | |
14. | Master Lease Agreement, dated as of August 18, 2009, between Ikon Financial Services and GSI Commerce South, Inc. | |
15. | Wisconsin Community Development Block Grant Agreement between the Wisconsin Department of Commerce, Eau Claire County and GSI Commerce Call Center, Inc., effective as of October 1, 2007, and Promissory Note by GSI Commerce Call Center in favor of Wisconsin Department of Commerce, Eau Claire County, dated as of July 10, 2007. |
16. | Master Lease Agreement (Contract #25000817) between De Lage Landen Financial Services Inc. and MBS Insight, Inc. | |
17. | Equipment Lease/Finance Agreement, dated as of March 31, 2009, between Axis Capital Inc. and Fetchback, Inc. | |
18. | Equipment Lease Agreement No. 915077, dated as of May 9, 2007, between Axis Capital Inc. and Fetchback, Inc. | |
19. | Equipment Lease Agreement No. 915077, dated as of June 6, 2007, between Axis Capital Inc. and Fetchback, Inc. | |
20. | Installment Payment Agreement No. 3025864, dated as of March 12, 2008, by and between Fetchback, Inc. and Bank of America Leasing & Capital, LLC and its supplier, ADG Communications. | |
21. | Master Lease Agreement #1109123, dated as of June 1, 2009, by and between Fetchback, Inc. and US Bancorp. | |
22. | Master Lease Agreement #1166359, dated as of June 22, 2009, by and between Fetchback, Inc and US Bancorp. | |
23. | Master Lease Agreement No. 8799357, dated as of May 16, 2008, by and between Fetchback, Inc. and Dell Financial Services, L.L.C. and the related schedules setting forth equipment leased. | |
24. | Equipment Lease Agreement No. 861125, dated as of February 5, 2008, by and between Fetchback, Inc. and Fidelity Capital Partners, LLC. | |
25. | Equipment Lease Agreement, dated as of February 5, 2008, by and between Fetchback, Inc. and Fidelity Capital Partners, LLC. | |
26. | Master Lease Agreement, dated as of October 5, 2010, by and between GSI Commerce, Inc. and TD Equipment Finance, Inc. | |
27. | Equipment Lease Agreement No. 8314, dated as of June 28, 2010, by and between Retail Convergence.com, LP and Cisco Systems Capital Corp. | |
28. | Master Lease and Financing Agreement No. 2719216625, dated as of September 17, 2010, by and between GSI Commerce, Inc. and Hewlett-Packard Financial Services Company. | |
29. | Payment Plan Agreement No. 6594, dated as of April 13, 2010, by and between GSI Commerce Solutions, Inc. and Oracle Credit Corp. | |
30. | Payment Plan Agreement, Payment Schedule No. 37625, dated as of February 26, 2010, by and between GSI Commerce Solutions, Inc. and Oracle Credit Corp. | |
31. | Payment Plan Agreement No. 6986, dated as of December 28, 2010, by and between GSI Commerce, Inc. and Oracle Credit Corp. | |
32. | Master Lease Agreement No. 3786041 by and between GSI Commerce Solutions, Inc. and IBM Credit LLC. | |
33. | Software License Agreement No. 031809, dated as of September 30, 2009, by and between GSI Commerce Solutions, Inc. and Sterling Commerce, Inc. |
1. | Each of the Delaware Entities is a corporation or limited partnership, as applicable, validly existing and in good standing under the laws of the State of Delaware with the corporate power and authority to own its properties and to carry on its business as, to our knowledge, it is now conducted. | |
2. | Each of the Pennsylvania Entities is a corporation or limited liability company, as applicable, and presently subsisting under the laws of the Commonwealth of Pennsylvania with the corporate power and authority to own its properties and to carry on its business as, to our knowledge, it is now conducted. | |
3. | Each of the California Entities is a corporation validly existing and in good standing under the laws of the State of California with the corporate power and authority to own its properties and to carry on its business as, to our knowledge, it is now conducted. | |
4. | The New York Entity is a corporation validly existing and in good standing under the laws of the State of New York with the corporate power and authority to own its properties and to carry on its business as, to our knowledge, it is now conducted. | |
5. | Each California Entity, Delaware Entity, New York Entity and Pennsylvania Entity is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as applicable, in the jurisdictions listed opposite its name onSchedule I hereto. | |
6. | Each California Entity, Delaware Entity, New York Entity and Pennsylvania Entity has the corporate, limited liability company or limited partnership power and authority, as applicable, to enter into, execute, deliver and perform the Loan Documents to which it is a party, to incur the Indebtedness contemplated by the Loan Documents and to perform its obligations under the Loan Documents to which it is a party, has taken all necessary corporate, limited liability company or limited partnership action, as applicable, to authorize the execution, delivery and performance of such Loan Documents and has duly executed and delivered such Loan Documents. | |
7. | Each Loan Document to which a Loan Party is a party is the legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms. | |
8. | The execution and delivery by the Loan Parties of the Loan Documents to which they are parties do not, the performance by the Loan Parties of their respective obligations thereunder will not, and the grant by each Loan Party of the security interests under the Collateral Documents will not (i) result in a violation of the Parent Organizational Documents, the GSICS Organizational Documents, or the certificate of incorporation, articles of incorporation, bylaws, limited partnership agreement, limited liability company agreement, operating agreement or other organizational documents, as applicable, of any of the California Entities, Delaware Entities, New York Entity and Pennsylvania Entities, (ii) result in a conflict with or breach or default, or the creation or imposition of a Lien, under any Company Agreement (as defined inSchedule III hereto) or (iii) to our knowledge, violate any judicial or administrative judgment, order or decree to which any Loan Party is subject. | |
9. | The execution and delivery by each Loan Party of the Loan Documents to which it is a party do not, the performance by each Loan Party of its obligations thereunder will not, and the grant by each Loan Party of the security interests under the Collateral Documents will not require any approval from or filing with any governmental authority of the United States, the State of California, the State of New York or the Commonwealth of Pennsylvania or pursuant to the provisions of the Delaware General Corporation Law, the Delaware Limited Liability Company Act and the Delaware Revised Uniform Limited Partnership Act except for (i) in the case of collateral consisting of securities, as may be required in connection with any disposition of securities by laws affecting the offering and sale of securities and (ii) the filings or other actions referred to in paragraphs 13 and 14 hereof. |
10. | The execution and delivery by each Loan Party of the Loan Documents to which it is a party do not, the performance by each such Loan Party of its obligations thereunder will not, and the grant by each Loan Party of the security interests under the Collateral Documents will not result in any violation of any federal law of the United States or laws of the State of California, the State of New York or the Commonwealth of Pennsylvania or any regulation thereunder, or any provision of the Delaware General Corporation Law, the Delaware Limited Liability Company Act and the Delaware Revised Uniform Limited Partnership Act. | |
11. | The extension of credit made on the date hereof and the use of the proceeds thereof in accordance with the provisions of the Credit Agreement do not violate the provisions of Regulations T, U or X of the Board of Governors of the Federal Reserve System. | |
12. | Each of the Collateral Documents is effective to create in favor of the Administrative Agent, as security for the Obligations, as defined in the Credit Agreement, a security interest (the “Article 9 Security Interest”) in the collateral described therein in which a security interest may be created under Article 9 of the New York UCC (the “Article 9 Collateral”). | |
13. | The Financing Statements are in proper form for filing with the Filing Offices indicated opposite the name of each Loan Party onSchedule II hereto. Upon the filing of the Financing Statements with the Filing Offices indicated opposite the name of each Loan Party onSchedule II hereto, the Article 9 Security Interest in favor of the Administrative Agent in that portion of the Article 9 Collateral in which a security interest may be perfected by the filing of a financing statement under the California UCC, Delaware UCC, Florida UCC, Kentucky UCC, Massachusetts UCC, New York UCC, Pennsylvania UCC or Virginia UCC, as applicable, will be perfected. | |
14. | Upon (a) the execution of the IP Assignment by the parties thereto, (b) the filing of the Financing Statements with the Filing Offices indicated opposite the name of each Loan Party onSchedule II hereto, (c) the due recordation of the IP Assignment in the U.S. Patent and Trademark Office and (d) the due recordation of the IP Assignment in the U.S. Copyright Office, the Administrative Agent will have a valid and perfected security interest in the United States patents, trademarks and copyrights (the “Patents, Trademarks and Copyrights”) listed on the schedules to the IP Assignment that are duly and validly registered or recorded in the U.S. Patent and Trademark Office or the U.S. Copyright Office, as applicable, to the extent a security interest in the Patents, Trademarks and Copyrights may be perfected by the filing of a financing statement under the California UCC, Delaware UCC, Florida UCC, Kentucky UCC, Massachusetts UCC, New York UCC, Pennsylvania UCC or Virginia UCC, as applicable, by the filing of the IP Assignment in the U.S. Patent and Trademark Office or by the filing of the IP Assignment in the U.S. Copyright Office. | |
15. | The Article 9 Security Interest in that portion of the Article 9 Collateral consisting of certificated securities represented by the certificates identified onSchedule A to the Pledge Agreement will be perfected in the State of New York upon delivery of the certificates to the Administrative Agent. | |
16. | The Article 9 Security Interest in the Accounts (as defined in the Deposit Account Control Agreement) is perfected by the execution and delivery of the Deposit Account Control Agreement. | |
17. | No California Entity, Delaware Entity, New York Entity or Pennsylvania Entity is an “investment company” within the meaning of, and subject to regulation under, the Investment Company Act of 1940, as amended. |
1. | The “certificate holder” box on each insurance certificate should contain the following: |
As Administrative Agent
Mail Code: CA4-702-02-25
2001 Clayton Road, 2nd Fl.
Concord, CA 94520
E-mail: Josie.T.Flores@baml.com
2. | “Bank of America, N.A.” must be listed as an “additional insured” on liability certificates. | |
3. | For property insurance, the Administrative Agent must be provided with (a) a copy of the declarations page of the policy and (b) a lender’s loss payable endorsement specifically listing the Administrative Agent as loss payee/mortgagee. |
1. | Amended and Restated Credit Agreement, dated as of March 24, 2010, by and among GSI Commerce Solutions, Inc., as borrower, the guarantors named therein, the lenders named therein, PNC Bank, National Association, as administrative agent, and PNC Capital Markets LLC and Bank of America, N.A., as joint lead arrangers and joint bookrunners (the “Existing Credit Agreement”). | |
2. | Swing Loan Note and all Revolving Credit Notes, each dated as of March 24, 2010, issued by GSI Commerce Solutions, Inc. in favor of PNC Bank, National Association, under the Existing Credit Agreement. | |
3. | Continuing Agreement of Guaranty and Suretyship, dated as of January 11, 2008, by GSI Commerce, Inc. and all subsidiaries of GSI Commerce, Inc. in favor of PNC Bank, National Association, as reaffirmed pursuant to that certain Reaffirmation Agreement, dated as of March 24, 2010, by the parties signatory thereto in favor of PNC Bank, National Association. | |
4. | GSI Commerce, Inc. 2.5% Convertible Notes due 2027 in the aggregate amount of $150,000,000, issued pursuant to an Indenture from GSI Commerce, Inc. to The Bank of New York, dated July 2, 2007. | |
5. | Letter Agreement, dated as of January 11, 2008, for $2,000,000 Committed Line of Credit and $1,000,000 Existing Standby Letter of Credit between PNC Bank, National Association and GSI Commerce Solutions, Inc. | |
6. | Mortgage, Assignment of Leases and Rents and Security Agreement, by 935 HQ Associates, LLC in favor of CIBC Inc., dated June 9, 2004. | |
7. | Wisconsin Community Development Block Grant Agreement between the Wisconsin Department of Commerce, Eau Claire County and GSI Commerce Call Center, Inc., effective October 1, 2007 and Promissory Note in the amount of $1,000,000 by GSI Commerce Call Center in favor of Wisconsin Department of Commerce, Eau Claire County, dated July 10, 2007. |
1. | 4,000,000 shares of Series D-1 Convertible Preferred Stock of WebCollage, Inc. held by GSI Commerce, Inc. | |
2. | 175,618 shares of Series G Preferred Stock of WebCollage, Inc. held by GSI Commerce, Inc. | |
3. | 1,027,150 shares of Series C Convertible Preferred Stock of Allurent, Inc. held by GSI Commerce, Inc. | |
4. | 455,111 shares of Common Stock of PowerReviews, Inc. held by GSI Commerce Solutions, Inc. | |
5. | Performance Warrant to Purchase 641,320 shares of Common Stock of PowerReviews, Inc. held by GSI Commerce Solutions, Inc. | |
6. | 7,887,080 shares of Intershop Communications, AG held by GSI Commerce Solutions, Inc. |
Class of Voting | Number of | Percentage | ||||||||||
Issuer | Shareholder | Securities | Shares Held | Held | ||||||||
GSI Commerce, Inc. | Michael G. Rubin | Common Stock | 4,205,502 | 6.3 | % | |||||||
c/o GSI Commerce, Inc. | ||||||||||||
935 First Avenue | ||||||||||||
King of Prussia, PA 19406 | ||||||||||||
GSI Commerce, Inc. | Fred Alger Management, Inc. | Common Stock | 4,138,289 | 6.7 | % | |||||||
Alger Associates, Incorporated | ||||||||||||
111 Fifth Avenue | ||||||||||||
New York, NY 10003 | ||||||||||||
GSI Commerce, Inc. | Wells Fargo & Company | Common Stock | 6,842,049 | 10.31 | % | |||||||
420 Montgomery Street | ||||||||||||
San Francisco, CA 94163 | ||||||||||||
GSI Commerce, Inc. | Artisan Partners Holdings LP | Common Stock | 6,732,700 | 10.1 | % | |||||||
875 East Wisconsin Avenue, | ||||||||||||
Suite 800 | ||||||||||||
Milwaukee, WI 53202 | ||||||||||||
GSI Commerce, Inc. | BlackRock, Inc. | Common Stock | 4,410,616 | 6.63 | % | |||||||
40 East 52nd Street | ||||||||||||
New York, NY 10022 |
NC1-001-04-39
101 North Tryon Street
Charlotte, NC 28255
Name: Nilesh Patel
Telephone: (980) 386-5094
Telecopy: (704) 719-8870
npatel@baml.com
Name: Wayne A. Richard
Telephone: (980) 388-6484
Telecopy: (704) 208-3075
wayne.a.richard@baml.com
Bank of America, N.A.
Agency Management
Address: 135 S. LaSalle Street, IL1-231-05-41
Chicago, IL 60603
Attention: Fani Davidson
Telephone: (312) 923-0604
Telecopy: (312) 453-4217
fani.davidson@baml.com
Bank of America, N.A.
Trade Operations
Address: 1 Fleet Way, PA6-580-02-30
Scranton, PA 18507
Attention: Alfonso Malave
Telephone: (570) 330-4212
Telecopy: (570) 330-4186
alfonso.malave@baml.com
Bank of America
New York NY
ABA 026009593
Acct # 1366212250600
Acct Name: Corporate Credit Services
Ref: GSI COMMERCE, INC.
Form of Administrative Questionnaire
FAX ALONG WITH COMMITMENT LETTER TO: | ||
FAX # | ||
I. Borrower Name: | ||||||||
$ | Type of Credit Facility | |||||||
• | Signing Credit Agreement _____ YES _____ NO | |||
• | Coming in via Assignment _____ YES _____ NO |
III. Type of Lender: | ||
IV. Domestic Address: | V. Eurodollar Address: | |||
Primary | Secondary | |||||||||||
Credit Contact | Operations Contact | Operations Contact | ||||||||||
Name: | ||||||||||||
Title: | ||||||||||||
Address: | ||||||||||||
Telephone: | ||||||||||||
Facsimile: | ||||||||||||
E Mail Address: | ||||||||||||
IntraLinks E Mail Address: | ||||||||||||
![]() | 1 | 12/2007 |
Letter of Credit | Draft Documentation | |||||
Contact | Contact | Legal Counsel | ||||
Name: | ||||||
Title: | ||||||
Address: | ||||||
Telephone: | ||||||
Facsimile: | ||||||
E Mail Address: | ||||||
Pay to: | ||||
VIII. Lender’s Fed Wire Payment Instructions: |
Pay to: | ||||||
(Bank Name) | ||||||
(ABA#) | (City/State) | |||||
(Account #) | (Account Name) | |||||
(Attention) |
![]() | 2 | 12/2007 |
Name: | ||||
Title: | ||||
Address: | ||||
Telephone: | ||||
Facsimile: | ||||
E Mail Address: | ||||
![]() | 3 | 12/2007 |
W-8IMY (Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. branches for United States Tax Withholding) must be completed by the intermediary together with a withholding statement. Flow-through entities other than Qualified Intermediaries are required to include tax forms for each of the underlying beneficial owners.
* | Additional guidance and instructions as to where to submit this documentation can be found at this link: |
![(IMAGE)](https://capedge.com/proxy/8-K/0000950123-11-011274/c12139c1213903.gif)
Pay to: | Bank of America, N.A. ABA # 026009593 New York, NY Acct. # Attn: Corporate Credit Services Ref: Name of Facility |
![]() | 4 | 12/2007 |
1. | Assignor[s]: __________________________ | |
__________________________ | ||
2. | Assignee[s]: __________________________ | |
__________________________ | ||
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]] |
1 | For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language. | |
2 | For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language. | |
3 | Select as appropriate. | |
4 | Include bracketed language if there are either multiple Assignors or multiple Assignees. | |
5 | Include all applicable subfacilities. |
Form of Assignment and Assumption Agreement
3. | Borrowers: GSI Commerce, Inc., a Delaware corporation, and GSI Commerce Solutions, Inc., a Pennsylvania corporation | |
4. | Administrative Agent: Bank of America, N.A., as the administrative agent under the Credit Agreement | |
5. | Credit Agreement: Credit Agreement, dated as of February 9, 2011, among GSI Commerce, Inc., a Delaware corporation (the “Parent”), and GSI Commerce Solutions, Inc., a Pennsylvania corporation (“GSICS” and, together with the Parent, the “Borrowers”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, Swing Loan Lender and Issuing Lender. | |
6. | Assigned Interest[s]: |
Aggregate | Percentage | ||||||||||||
Amount of | Amount of | Assigned of | |||||||||||
Facility | Commitment/Loans | Commitment/Loans | Commitment/ | CUSIP | |||||||||
Assignor[s]6 | Assignee[s]7 | Assigned8 | for all Lenders9 | Assigned | Loans10 | Number | |||||||
$ | $ | % | |||||||||||
$ | $ | % | |||||||||||
$ | $ | % |
[7. | Trade Date: ]11 |
6 | List each Assignor, as appropriate. | |
7 | List each Assignee, as appropriate. | |
8 | Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g. “Revolving Credit Commitment”, “Term Loan Commitment”, etc.). | |
9 | Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. | |
10 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. | |
11 | To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date. |
Form of Assignment and Assumption Agreement
ASSIGNOR [NAME OF ASSIGNOR] | ||||
By: | ||||
Title: | ||||
ASSIGNEE [NAME OF ASSIGNEE] | ||||
By: | ||||
Title: | ||||
Accepted: | ||||
BANK OF AMERICA, N.A., as Administrative Agent | ||||
By: | ||||
Title: | ||||
[Consented to:]12 | ||||
GSI COMMERCE, INC., as Borrower | ||||
By: | ||||
Title: | ||||
GSI COMMERCE SOLUTIONS, INC., as Borrower | ||||
By: | ||||
Title: | ||||
[Consented to:]13 | ||||
[BANK OF AMERICA, N.A.][PNC BANK, NATIONAL ASSOCIATION], as Issuing Lender | ||||
By: | ||||
Title: |
12 | To be added unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;provided that for any assignment for which the Borrowers’ consent is required, such consent shall be deemed to have been given if the Borrowers have not responded within five Business Days of a request for such consent. | |
13 | To be added only for any assignment that increases the obligation of the Assignee(s) to participate in exposure under one or more Letters of Credit (whether or not then outstanding);provided, that the consent of the Issuing Lender shall not be required for (x) assignments of Term Loans or Term Loan Commitments to any Term Loan Lender or (y) assignments of Revolving Credit Loans or Revolving Credit Commitments to any Revolving Credit Lender. |
Form of Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION
Form of Assignment and Assumption Agreement
Form of Guarantor Joinder and Assumption Agreement
ATTEST: | |||||||||||||
By: | (Seal) | ||||||||||||
Name: | Name: | ||||||||||||
Title: | Title: | ||||||||||||
Acknowledged and accepted: | |||||||||||||
BANK OF AMERICA, N.A., as Administrative Agent | |||||||||||||
By: | |||||||||||||
Name: | |||||||||||||
Title: | |||||||||||||
Acknowledged and accepted: | |||||||||||||
BANK OF AMERICA, N.A., as Collateral Agent | |||||||||||||
By: | |||||||||||||
Name: | |||||||||||||
Title: | |||||||||||||
Form of Guarantor Joinder and Assumption Agreement
Form of Note
GSI COMMERCE, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
GSI COMMERCE SOLUTIONS, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
Form of Note
Amount of | Outstanding | |||||||||||
End of | Principal or | Principal | ||||||||||
Type of Loan | Amount of | Interest | Interest Paid | Balance This | Notation | |||||||
Date | Made | Loan Made | Period | This Date | Date | Made By | ||||||
Form of Note
o A borrowing of Revolving Credit Loans | o A renewal or conversion of Revolving Credit Loans | o A paydown of Revolving Credit Loans |
1. | On (a Business Day). | |
2. | In the amount of $ . | |
3. | For Revolving Credit Loans to which the LIBOR Rate Option applies: with an Interest Period of months. | |
4. | The proceeds of any Revolving Credit Loans requested herein shall be disbursed to the account of . |
GSI COMMERCE, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
GSI COMMERCE SOLUTIONS, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
Form of Revolving Credit Loan Request
To: | Bank of America, N.A., as Swing Loan Lender Bank of America, N.A., as Administrative Agent |
1. | On (a Business Day). | |
2. | In the amount of $ . | |
3. | The proceeds of any Swing Loan requested herein shall be disbursed to the account of . |
GSI COMMERCE, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
GSI COMMERCE SOLUTIONS, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
Form of Swing Loan Request
To: | Bank of America, N.A., as Administrative Agent GSI Commerce, Inc., as Borrower GSI Commerce Solutions, Inc., as Borrower |
Maximum | Current | |||||||||||||||
Face | Face | Beneficiary | Issuance | Expiry | Auto | Date of | Amount of | |||||||||
L/C No. | Amount | Amount | Name | Date | Date | Renewal | Amendment | Amendment | ||||||||
[NAME OF ISSUING LENDER] | ||||
By: | ||||
Name: | ||||
Title: | ||||
Form of Letter of Credit Report
1. | On (a Business Day). | |
2. | In the amount of $ . | |
3. | For Term Loans to which the LIBOR Rate Option applies: with an Interest Period of months. | |
4. | The proceeds of any Term Loans requested herein shall be disbursed to the account of . |
GSI COMMERCE, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
GSI COMMERCE SOLUTIONS, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
Form of Term Loan Request
Form of Solvency Certificate
GSI COMMERCE, INC. | ||||
By: | ||||
Name: | Michael Conn | |||
Title: | Chief Financial Officer | |||
GSI COMMERCE SOLUTIONS, INC. | ||||
By: | ||||
Name: | Michael Conn | |||
Title: | Chief Financial Officer | |||
Form of Solvency Certificate
Form of Quarterly Compliance Certificate
GSI COMMERCE, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
GSI COMMERCE SOLUTIONS, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
Form of Quarterly Compliance Certificate
to the Compliance Certificate
($ in 000’s)
Actual | Required | |||
Prepayment of Indebtedness | ___________ | not more than $___________1 | ||
Leverage Ratio | ||||
consolidated Indebtedness of the Loan Parties and their Subsidiaries on the Statement Date divided by | ___________ | |||
Consolidated Adjusted EBITDA for the four fiscal quarters ended on the Statement Date | ___________ | |||
Leverage Ratio | ___________ | not more than 4.0 to 1.0 | ||
Fixed Coverage Ratio | ||||
Consolidated EBITDA for the four fiscal quarters ended on the Statement Date divided by | ___________ | |||
Fixed Charges | ___________ | |||
Fixed Charge Coverage Ratio | ___________ | not less than 2.5 to 1.00 | ||
Cash and Cash Equivalents | ___________ | not less than $30,000,0002 | ||
Senior Leverage Ratio | ||||
consolidated Indebtedness of the Loan Parties and their Subsidiaries on the Statement Date which is secured by a Lien on any of their property divided by | ___________ | |||
Consolidated Adjusted EBITDA for the four fiscal quarters ended on the Statement Date | ___________ | |||
Senior Leverage Ratio | ___________ | not to exceed 2.5 to 1.0 | ||
Foreign Subsidiaries | ||||
The Company’s Foreign Subsidiaries own consolidated assets equal to | ___________ | |||
The Company’s consolidated total assets | ___________ | |||
Percentage owned by Foreign Subsidiaries | ___________ | not more than __________%3 | ||
Maximum dividends, distributions and stock repurchases prior to February 9, 2013. | ||||
Aggregate dividends or other distributions payable to another Loan Party | ___________ | |||
plus | ||||
Aggregate amount of stock repurchases of the common equity of the Parent made on or prior to February 9, 2013 | ___________ | not to exceed $50,000,000 | ||
plus | ||||
Aggregate dividends or other distributions (other than payable to another Loan Party) | ___________ | |||
Total | ___________ | not to exceed the Applicable Amount |
1 | Refer to Section 8.2(n) of Credit Agreement to determine applicable maximum amount. | |
2 | Of which not less than $25,000,000 shall be owned by the Parent, GSICS and/or the Domestic Subsidiaries and maintained in the United States. Refer to Section 8.2(q) of Credit Agreement. | |
3 | Refer to Section 8.2(r) for applicable percentage. |
Form of Quarterly Compliance Certificate
to the Compliance Certificate
Consolidated EBITDA
(in accordance with the definition of Consolidated EBITDA
as set forth in the Agreement)
Twelve | ||||||||||||||||||||
Consolidated | Quarter | Quarter | Quarter | Quarter | Months | |||||||||||||||
EBITDA | Ended | Ended | Ended | Ended | Ended | |||||||||||||||
(A) | ||||||||||||||||||||
Net income | ||||||||||||||||||||
(B) | ||||||||||||||||||||
+ interest expense | ||||||||||||||||||||
(C) | ||||||||||||||||||||
+ depreciation | ||||||||||||||||||||
(D) | ||||||||||||||||||||
+ amortization | ||||||||||||||||||||
(E) | ||||||||||||||||||||
+ income tax expense | ||||||||||||||||||||
(F) | ||||||||||||||||||||
+ other non-cash charges to net income (other than the write-down of current assets but including, without limitation, non-cash stock-based compensation expense, non-cash investment, goodwill or other intangible impairment charges) | ||||||||||||||||||||
(G) | ||||||||||||||||||||
- non-cash credits to net income | ||||||||||||||||||||
(H) | ||||||||||||||||||||
- cash payments made on account of non-cash charges included in EBITDA in a prior period |
Form of Quarterly Compliance Certificate
Twelve | ||||||||||||||||||||
Consolidated | Quarter | Quarter | Quarter | Quarter | Months | |||||||||||||||
EBITDA | Ended | Ended | Ended | Ended | Ended | |||||||||||||||
(I) | ||||||||||||||||||||
+ any expenses directly resulting from GAAP treatment of earn-out liabilities incurred in connection with any acquisition consummated on or prior to the Closing Date or any Permitted Acquisition and the payment of such liabilities during such period of determination | ||||||||||||||||||||
(J) | ||||||||||||||||||||
+ to the extent deducted in determining EBITDA for such period, one-time third party transaction expenses directly related to the Acquisition or any Permitted Acquisition, as documented to the Administrative Agent in reasonable detail | ||||||||||||||||||||
(K) | ||||||||||||||||||||
+ to the extent deducted in determining EBITDA for such period, one-time integration expenses directly related to the Acquisition or any Permitted Acquisition, as documented to the Administrative Agent in reasonable detail | ||||||||||||||||||||
(L) | ||||||||||||||||||||
+ the expense resulting from any upward adjustment in inventory valuation directly related to any acquisition consummated on or prior to the Closing Date or any Permitted Acquisition | ||||||||||||||||||||
(M) | ||||||||||||||||||||
- non-cash credits to net income |
Form of Quarterly Compliance Certificate
Twelve | ||||||||||||||||||||
Consolidated | Quarter | Quarter | Quarter | Quarter | Months | |||||||||||||||
EBITDA | Ended | Ended | Ended | Ended | Ended | |||||||||||||||
(N) | ||||||||||||||||||||
- the amount, if any, included in rows (A) through (K) above attributable in such period to Persons which have been divested during such period or which are the subject of written agreements providing for their divestiture, which amount, and method of calculating such amount, shall be reasonably satisfactory to the Administrative Agent | ||||||||||||||||||||
(O) | ||||||||||||||||||||
- any income directly resulting from GAAP treatment of earn-out liabilities incurred in connection with any acquisition consummated on or prior to the Closing Date or any Permitted Acquisition and the payment of such liabilities during such period of determination | ||||||||||||||||||||
(P) | ||||||||||||||||||||
- any downward adjustment in inventory valuation directly related to any acquisition consummated on or prior to the Closing Date or any Permitted Acquisition, in each case occurring in such period of determination | ||||||||||||||||||||
= Consolidated EBITDA4 |
4 | Provided that the aggregate amount added to EBITDA pursuant to row (K) in the Consolidated EBITDA table above, together with the aggregate amount added to Consolidated EBITDA pursuant to row (C) of the Consolidated Adjusted EBITDA table below, in any period of four consecutive fiscal quarters shall not exceed 10% of Consolidated EBITDA for such period (calculated prior to giving effect to any adjustments pursuant to row (K) in the Consolidated EBITDA table above and row (C) of the Consolidated Adjusted EBITDA table below. |
Form of Quarterly Compliance Certificate
Consolidated Adjusted EBITDA
(in accordance with the definition of Consolidated Adjusted EBITDA
as set forth in the Agreement)
Consolidated | Twelve | |||||||||||||||||||
Adjusted | Quarter | Quarter | Quarter | Quarter | Months | |||||||||||||||
EBITDA | Ended | Ended | Ended | Ended | Ended | |||||||||||||||
(A) | ||||||||||||||||||||
Consolidated EBITDA | ||||||||||||||||||||
(B) | ||||||||||||||||||||
+ (or - , if negative) with respect to any entity acquired during such period as a result of the Acquisition or a Permitted Acquisition, EBITDA of such entity for such period prior to such Acquisition or Permitted Acquisition (whether positive or negative), which have been realized or are reasonably expected to be realized within 12 months following the Acquisition or the relevant Permitted Acquisition, as the case may be | ||||||||||||||||||||
(C) | ||||||||||||||||||||
+ (or - , if negative) cost savings, operating expense reductions, restructuring costs or other operating improvements or synergies (net of continuing associated expenses) in connection with the Acquisition or Permitted Acquisitions to the extent factually supportable, which have been realized or are reasonably expected to be realized within 12 months following the Acquisition or the relevant Permitted Acquisition, as the case may be | ||||||||||||||||||||
= Consolidated Adjusted EBITDA5 |
5 | Provided that (i) any such increase or decrease to Consolidated EBITDA shall be determined in good faith by an Authorized Officer of the Borrowers and shall be set forth in a reasonably detailed certificate of an Authorized Officer of the Borrowers, using, for purposes of making such calculations, the historical consolidated financial statements of the Borrowers and their Subsidiaries which shall be reformulated as if such relevant transaction, and any other relevant transactions that have been consummated during the period, had been consummated on the first day of such period, (ii) any such increase or decrease to Consolidated EBITDA shall be without duplication for cost savings, operating expense reductions or other operating improvements or synergies or additional costs already included in such Consolidated EBITDA for such period of determination and (iii) the aggregate amount added to or included in Consolidated EBITDA pursuant to row (C) of the Consolidated Adjusted EBITDA table above, together with the aggregate amount added to EBITDA pursuant to row (K) of the Consolidated EBITDA table above, in any period of four consecutive fiscal quarters shall not exceed 10% of Consolidated EBITDA for such period (calculated prior to giving effect to any adjustments pursuant to row (C) of the Consolidated Adjusted EBITDA table above and row (K) of the Consolidated EBITDA table above). |
Form of Quarterly Compliance Certificate
Consolidated Cash Flow
(in accordance with the definition of Consolidated Cash Flow
as set forth in the Agreement)
Twelve | ||||||||||||||||||||
Quarter | Quarter | Quarter | Quarter | Months | ||||||||||||||||
Consolidated Cash Flow | Ended | Ended | Ended | Ended | Ended | |||||||||||||||
(A) | ||||||||||||||||||||
Consolidated EBITDA for such fiscal year | ||||||||||||||||||||
(B) | ||||||||||||||||||||
- Fixed Charges for such fiscal year and any cash expenditures made to satisfy earn-out liabilities during such fiscal year | ||||||||||||||||||||
(C) | ||||||||||||||||||||
- Capital Expenditures for such fiscal year and any cash expenditures made to satisfy earn-out liabilities during such fiscal year | ||||||||||||||||||||
= Consolidated Cash Flow (but only if positive) |
Form of Quarterly Compliance Certificate
Applicable Amount
(in accordance with the definition of Applicable Amount
as set forth in the Agreement)
Twelve | ||||||||||||||||||||
Quarter | Quarter | Quarter | Quarter | Months | ||||||||||||||||
Applicable Amount | Ended | Ended | Ended | Ended | Ended | |||||||||||||||
(A) | ||||||||||||||||||||
$75,000 | ||||||||||||||||||||
(B) | ||||||||||||||||||||
+ an amount, determined on a cumulative basis, but not less than zero, equal to the aggregate amount of Consolidated Cash Flow for each fiscal year ended prior to such time multiplied by 0.256 | ||||||||||||||||||||
(C) | ||||||||||||||||||||
- any amounts thereof used to make dividends or other distributions pursuant to Section 8.2(e)(iii) [Dividends and Related Distributions] of the Agreement after the Closing Date and prior to such time | ||||||||||||||||||||
(D) | ||||||||||||||||||||
- any amounts thereof used to make prepayments, redemptions or repurchases permitted by Section 8.2(n)(ii) [Repayment of Indebtedness] of the Agreement (including, without duplication, any amounts thereof scheduled to be used to make prepayments, redemptions or repurchases of Indebtedness incurred pursuant to Section 8.2(a)(vi) [Indebtedness] of the Agreement, which amounts shall reduce the Applicable Amount, to the extent provided in Section 8.2(a)(vi)(C) [Indebtedness], at the time such Indebtedness is incurred) after the Closing Date and prior to such time | ||||||||||||||||||||
= Applicable Amount |
6 | Commencing with Consolidated Cash Flow for the fiscal year ending December 31, 2011. |
Form of Quarterly Compliance Certificate