ORIGINAL 515 50th Flower SueeL Suite moo Los Angeles. 090071-2212 2:3.788.7445te 113.788.7380 fax Katten ?Minimums!? 13.55.. 113.53- . - . . min Stuart M. Richter (SBN 126231) William B. Freeman (SBN 137276) Ryan J. Larsen (SBN 211622) Jessica M. Mickelsen (SBN 277581) KATTEN MUCHIN ROSENMAN LLP 2029 Century Park East, Suite 2600 Los Angeles, CA 90067?3012 Telephone: 310.788.4400 Facsimile: 310.788.4471 Attorneys for Plaintiff Bank of America, NA. F-x, f; County or Los Andes SEP 08 2015 Shem R. b11th as I umcerlUlerk I By ,Deputy 2 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT BANK OF AMERICA, N.A., Plaintiff, V. SENSA, INC. f/k/a INTELLIGENT BEAUTY, IB HOLDING, JUST FABULOUS, INC. a/k/a SENSA PRODUCTS, BRAND IDEAS, ADAM DON and DOES 1 through 50, inclusive, Defendants. CASE NO. BC 564394 FIRST AMENDED COMPLAINT FOR: 1) BREACH OF CREDIT 2) BREACH OF COUNT FOR MONEY 4) SPECIFIC PERFORMANCE OF SECURITY 5) FAILURE TO PAY ON ACCOUNT OF DEBT, CAL. COMM. CODE 9-607; 6) FRAUDULENT TRANSFERS, CAL. CIV. CODE ET. 7 FRAUDULENT TRANSFERS, CAL. CIV. 8 CODE ET. FRAUDULENT TRANSFERS, CAL CIV. ODE 3439 ET. 9) CONSPIRACY TO DEFRAUD 10) FRAUDULENT TRANSFERS, CAL. CIV. CODE ET. 1) FRAUDULENT TRANSFERS, CAL CIV. CODE ET. SEQ. 12) FRAUDULENT TRANSFERS, CAL. CIV. CODE ET. AND 13) CONSPIRACY TO DEFRAUD p-A Hon. Deirdre Hill Dept: 49 110301926v4 r?n h?l i?A La.) 515 South Flower Street. Suite I000 Los Angeles. CA 90071-22!) 213.783.7445 tel 213.788.7380 fax u: Katten N-N A kl] . 11 'lx) . . T. (3.31 00 Plaintiff Bank of America, NA. (?Lender?) alleges as followszl THE PARTIES l. Lender is a national banking association quali?ed to do business and doing business in the State of California and the County of Los Angeles. 2. Defendant Sensa, Inc., f/k/a Intelligent Beauty Inc. (?Borrower?), purports to be a corporation organized and operating under the laws of the State of Delaware. Borrower conducts business in the State of California and the County of Los Angeles. 3. Defendant Just Fabulous, Inc., a/k/a JustFab purports to be a corporation organized and operating under the laws of the State of Delaware. JustFab conducts business in the State of California and the County of Los Angeles. - i 4. Defendant Sensa Products, LLC purports to be a limited liability company organized and operating under the laws of the State of Delaware: Sensa conducts business in the State of California and the County of Los Angeles. 5. Defendant Brand Ideas, LLC (?Brand Ideas?) purports to'be a limited liability company organized and operating under the laws of the State of Delaware. Brand Ideas conducts business in the State of California and the County of Los Angeles. I 6. Defendant IB Holding, LLC Holding?) purports to be a limited liability company organized and operating under the laws of the State of Delaware. IB Holding conducts business in the State of California and the County of Los Angeles. IB Holding is the parent company of Borrower, JustFab, and Brand Ideas. 7. Defendant Adam Goldenberg (?Goldenberg?) is an individual and of JustFab. Goldenberg is a partial owner of JustFab and resides in Los Angeles County, California. 8. Defendant Don Ressler is an individual and of JustFab. Ressler is a partial owner of JustFab and resides in Los Angeles County, California. The true names and capacities of defendants named herein as Does 1 through 50, whether individual, corporate,'associate or otherwise, are unknown to Lender, who therefore sues said defendants by such ?ctitious names. Lender is informed and believes, and thereon alleges, that each of the defendants designated herein as Does 1 through 50 is legally responsible in some 2 [10301926v4 Katten it ti. a? [7,31 humMn?mnn-un u: r?lHl?lr?lD??D?l 213.788.7445 tel 213.788.7330 fax 515 South Flower Street. Suite moo Los Angeles. CA 9007mm: 00 -J Ln 00 \l manner for the occurrences and/or omissions herein alleged,?and that Lender?s damages as herein alleged were proximately caused by the acts or omissions of said defendants, and each of them. Lender will amend this Complaint to allege the true names and capacities of the Defendants named herein as Does 1 through 50 when same have been ascertained. VENUE 10. Venue is proper in this Court because, among other things: Defendants conduct business in the County of Los Angeles; (ii) at least one of the Defendants resides in the County of Los Angeles; and the contracts at issue in this proceeding specifically provide for venue in the County of Los Angeles. Venue is also proper because the contracts at issue were executed and, to the extent performed, they were performed in whole or in part in Los Angeles County. GENERAL ALLEGATIONS The Credit Agreement, Guaranty, And Default 11. Lender and Borrower are parties to that certain ?Credit Agreement? dated as of May 11, 2012 (as amended and modi?ed from time to time, the ?Credit Agreement?). In accordance with the terms of the Credit Agreement, Lender made available to- Borrower a term loan in the original principal amount of $10,000,000.00 (?Term Loan?), and a revolving line of credit in the original principal amount of up to $15,000,000.00 (?Line of Credit?). A true and correct c0py of the Credit Agreement is attached hereto as Exhibit 12. Pursuant to the terms of the Credit Agreement, Sensa and Brand Ideas (collectively, ?Guarantors?) each guaranteed payment of the full amount of all indebtedness and obligations owed by Borrower to Lender (the ?Guaranty?). 13. To secure their respective obligations under the Credit Agreement, Borrower and Guarantors executed that certain ?Security Agreement? dated as of May 11, 2012 (?My Agreement?), pursuant to which they each granted to Lender a security interest in all of their respective tangible and intangible assets (the ?Collateral?), including certain patents, trademarks and other intellectual property (the Assets?) and all existing and future contract rights,? accounts receivable, rights to payment including tax refunds, chattel paper, notes, accounts, 10301926v4 Katten 13222. E. 1273;! T. E: 3:1: o?Iv?dv?dr?lp?An?a mthv??O 515 South Flower Street. Suite 1000 Los Angelei. CA . 23.758.74.45 tel 2I3.788.7380 fax udrafts, and other personal property assets of Borrower and Guarantors. A true and correct copy of i the Security Agreement is attached hereto as Exhibit 14. Lender perfected its ?rst priority security interest in the Collateral by duly recording Financing Statements with the Of?ce of the Secretary of State of Delaware on May 11, 2012 as Instrument Nos. 1835885, 1836206 and 1835604 (collectively, the ?Financing Statements?), and by maintaining continuous possession of all bank accounts at Lender containing cash collateral of Borrower and Guarantors (collectively, the. ?Bank Accounts?). True and correct c0pies of the Financing Statements are attached hereto collectively as Exhibit 15. Lender also perfected its security interest in the IP Assets by duly recording the Financing Statements and duly recording multiple notices of recordation and assignment documents (as amended and/or continued form time to time, the Filings?) with the United States Patent and Trademark Of?ce (the ?21(1) True and correct copies of the PTO Filings are attached hereto collectively as Exhibit 16. Borrower and Guarantors defaulted on their obligations under the terms of the Credit Agreement, the Guaranty and the Security Agreement by, among other things, failing to make payments when due and violating multiple covenants contained in the Credit Agreement. Thereafter, Borrower, Guarantors and Lender entered into a Forbearance Agreement dated as of December 18, 2013 (as amended from time to time, the ?Forbearance Agreement?). A true and correct copy of the Forbearance Agreement is attached hereto as Exhibit 17. Pursuant to the terms of the Forbearance Agreement, the Term Loan was repaid in full, but amounts due and owing under the Line of Credit remained outstanding, subject to revised repayment terms. In turn, Lender agreed to forbear from exercising its rights and remedies under the loan documents through the forbearance period of May 12, 2014 (?Forbearance Period?). 18. Lender and Borrower further agreed that immediately after the expiration of the Forbearance Period, or upon the earlier occurrence of a new default, Lender may, without notice, exercise all of the rights and remedies contained in the Forbearance Agreement, Credit Agreement, Security Agreement and any of the other loan documents. 11030I926v4 5:5 Sauth Flower Street. Suite Las Angeles. CA 90071-2111 213.788.7445 tel 334383380 fax munMudIfanmnun Katten -J i? ?11 . GO 1.27:1 19. The Forbearance Period has expired. Although Lender perfOrmed all of the terms and conditions required of it in the Forbearance Agreement, the Credit Agreement, the Security Agreement and the other loan documents, Borrower has defaulted under terms of the Forbearance Agreement, the Credit Agreement and the Security Agreement. Guarantors have also failed to honor the terms of the Guaranty following Borrower?s default. 20. Because of Borrower?s and Guarantors? respective defaults, as of September 30, 2014, there was due, owing and unpaid from Borrower under terms of the Credit Agreement and Guarantors under the Guaranty: the outstanding principal balance due under the terms of the Credit Agreement in the amount of at least $14,466,666.00; accrued and outstanding interest in' the amount of at least $428,451.12; and all of Lender?s costs of collection, including reaSOnable attorneys? fees owed under the Credit Agreement and the Guaranty (collectively, the ?Indebtedness?). Interest is accruing on the Indebtedness at a per diem rate of $4,567.08, together with Lender?s ongoing costs of collection. BorrowerPavs A Substantial Fine To The Federal Trade Commission, Is Unable To Continue Its Business, And Borrower And The Guarantors Assign Their Assets To An Assignee For The Benefit Of Their Creditors 21. On or about January 7, 2014, the Federal Trade Commission ?led a complaint against Borrower, Goldenberg, and another investor named Alan R. Hirsch in the United States District Court, Northern District of Illinois, Eastern Division, Case Number 14-cv- 72. 22. The complaint alleged that Borrower and Hirsh were the owners of Sensa Products, LLC. 23. The complaint alleged that Goldenberg was the CEO of Sensa, Inc., a member of its four?member Board of Directors, a member of Sensa Products, four-member board'of directors, and ?acting alone or in concert with others, [had] formulated, directed, controlled, had the authority to control, or participated in the acts and practices set forth in this Complaint.? I 24. The complaint alleged, among other things, that Borrower, Hirsh, and Goldenberg: 10301926v4 n?ai?nn?A U.) p?I 43 kit SIS Sath Flower Street. Suite moo L05 Angela's, CA goon-21:2 zv3.788.7445 tel 1.3788380 fa: Katten E. 321:.) NM :l MN OO-J Ell L271 Ia) Falsely represented that Sensa?s products were clinically proven to cause substantial weight loss without dieting or exercise, averaging 30 pounds in'six months; b) Falsely represented that a clinical study of more than 1,400 people proved that Sensa causes users to lose an average of 30.5 pounds in six months, without changing their diets or exercise routines; c) Failed to disclose or disclose adequately that certain of the consumers appearing in Sensa?s advertisements were offered incentives, such as possible monetary compensation, free trips, or television appearances to provide an endorsement, or have been compensated in connection with their. endorsement; d) Falsely represented that a clinical study conducted by allaboratory independently of Defendants proved Sensa?s ef?cacy for weight loss. . 25. Shortly thereafter, Borrower agreed to pay $26,500,000 to settle the claim. The payment put a severe strain on Borrower?s ?nances. Borrower?s assets were and are insuf?cient to pay its debts to Lender. 26. On or about October 17, 2014, Borrower and Guarantors entered into an ?Assignment Agreement? to an assignee for the bene?t of their creditors pursuant to California Code of Civil Procedure section 439.010 et. seq. Defendants Cause JustFab?s Intercompanv Debts To Borrower And To Guarantor Brand Ideas To Be Eliminated, For No Consideration, In Order To Prevent Lender From Collecting On Its Debt 27. JustFab is an af?liate of Borrower and Brand Ideas. Prior to the execution of the Credit Agreement, Borrower loaned and/or advanced over $20,000,000.00 in cash to JustFab directly and/or through various intercompany transactions. This is re?ected in the Credit Agreement at Schedule 8.02, which states ?The Borrower currently has receivables . . . from af?liate Just Fabulo?us,Inc. (and its subsidiaries) in the amount of approximately $20,800,000 . . 9, 1030l926v4 Katten T. 1'33 m. 5?5 South Plantar Street. Suite L06 Angela. CA 90071-2112 I 213.788.7445 tel 213.788.7330 u28. In' addition to the express representation to the Lender in the Credit Agreement, the receivable from JustFab was also set forth in several other internal Borrower documents, including, without limitation: a) b) A September 13, 2011 ?Intercompany Agreement? between Borrower, JustF ab and IB Holdingincluded a Recital which stated: Inc. [Borrower] has provided working capital to Just Fabulous through intercompany transactions up to August 13, 2011 in an aggregate amount of SeVenteen Million Eight Hundred Seventy Four Thousand Three Hundred Eighty Two Dollars subject to minimal adjustment for the period from September 1, 2011 through the Effective Date (the ?Intercompany This agreement provided that the Intercompany Receivable would be ?assigned? to JustFab if Borrower entered into a ?Qualifying Capital Transaction? where it received at least $100,000,000 in net proceeds. This event never occurred, thus, the Intercompany Receivable was and now still is owing by JustFab to Borrower. A July 16, 2012 ?Amended and Restated Intercompany Agreement? between Borrower, JustFab and IB Holding (entered into after Borrower entered into the Credit Agreement with Lender) included a Recital which stated: Inc. [Borrower] has provided working capital to Just Fabulous through intercompany transactions up to May 31, 2012 in an aggregate amount of Twenty-Two Million Three Hundred Ninety-F our Thousand Two Hundred Eleven Dollars subject to adjustment for the period from June 1, 2012 through the Effective Date (the ?Intercompany This agreement provided that the Intercompany Receivable would be ?assigned? to JustFab if Borrower entered into a transaction where it received at least $100,000,000 in net proceeds, or if Borrower, JustFab, IB Beauty Holding, Inc., Sensa, or Dermstore, LLC closed a ?Qualified Public Offering.? (Par. 1). Neither of these conditions occurred, thus, the Intercompany Receivable was and now still is owed by JustFab to Borrower. In addition, the agreement also provided that notwithstanding anything 7 110301926v4 l?lv?lr?d h) CD DJ 515 soth Flower Street. Suite 1000 213.788.7445 tel 133.788.7380 fax Katte munchinme Los Angeles, CA 90071-2212 r?I v?I 00 ?4 DJ 117.11 WHO :1 :1 else stated therein, it shall apply only upon ?the repayment to BofA of all amounts then owed to BofA and the satisfaction in full of all BofA rights and all obligations of the Loan Parties (as de?ned in the BofA Subordination Agreement) then applicable pursuant to the terms and conditions of the BofA Credit Agreement, the BofA Subordination Agreement, and the other Senior Loan Documents (as de?ned in the BofA Subordination Agreement).? (Par. 7). Thus, the agreement speci?cally stated that it could not be used to prevent repayment of any debt owed to Lender. c) In September 2014, following Borrower?s default under the Credit Agreement, Borrower?s Chief Financial Of?cer provided to Lender a spreadsheet which purportedly set forth Borrower?s consolidated ?nancial statements. The spreadsheets stated that Borrower and its af?liates had intercompany receivables in the amount 29. In addition to these and other documents, the receivable from JustFab was also acknowEedged several times by representatives of Borrower to representatives of Lender. As one example, on May 9, 2012, when Borrower and Lender were negotiating the terms of the Credit Agreement, the parties exchanged emails speci?cally discussing how to de?ne ?the intercompany receivable on IE Inc/Loan party?s books from other non-loan party IBH subsidiaries? in regards to timing on cash reimbursements. Borrower also provided ?nancial statements and other documents to Lender as part of its loan application, and such documents disclosed the Receivables owed by JustFab to Borrower. 30. Borrower?s receivable from JustFab constitutes part of Lender?s Collateral pursuant to the Security Agreement. 31.4 JustFab also owed a receivable to Brand Ideas, which was acknowledged multiple times by Defendants. For example, on May 22, 2014, at Lender?s request, Borrower?s CFO Susan Weikel sent an email to Lender with a subject line of ?Intercompany balances? which stated that Brand Ideas had a receivable from JustFab in the amount of $7,881,184. 110301926v4 Katten ?232. 11211! if T. {23: ET. u: p??i?Ai?tr? le??O 5?5 South Flower Suite 1000 Los Angeles. CA 90071-2 2I2 113.738.73801'3: h?I-i A LJW NMr?dv?Ar? p?d ON . Likewise, on May 23, 2014, Ms. Weikel sent an Excel spreadsheet to Lender 32. 'which purported to show a ?Summary of Related Party Receivables.? The document stated that as of April 30, 2014, Brand Ideas had a receivable from JustFab in the amount of $7,881,184. 33. Brand Ideas? receivable from JustFab constitutes part of Lender?s Collateral pursuant to the Security Agreement. 34. The receivables from JustFab to Borrower and JustFab to Brand Ideas are collectively de?ned herein as the ?Receivables.? 35. On September 24, 2014, Lender foreclosed on the Receivables by sending two ?Notices of Lien and Demand For Payment of Accounts Receivable in Accordance with California Commercial Code Section to JustFab (collectively, the ?Notices?). Pursuant to the Notices, Lender noti?ed JustFab of Lender?s security interest in, and senior right to collect, all Receivables. True and correct copies of the Notices are attached hereto collectively as Exhibit As a result of the Notices, Lender, not Borrower or Brand Ideas, is entitled to payment of the Receivables under California law. 36. When Lender, sought to collect the Receivables from JustFab as part of its Collateral after Borrower defaulted on the Credit Agreement, and Brand Ideas defaulted on the Guaranty, Defendants took and are now taking the position that the Receivables are not due and owing. Defendants provided no justi?cation or explanation for this position, and provided no evidence that the Receivables had somehow been paid, satis?ed, or transferred for adequate consideration. Instead, Defendants have sought to void the Receivables after the fact solely for the purpose of hindering, delaying, and frustrating Lender?s efforts to collect on the Collateral. FIRST CAUSE OF ACTION [Breach of Credit Agreement Against Borrower] 37. Lender realleges and incorporates by reference, as though fully set forth herein, each and every allegation contained in paragraphs 1 through 36 above. 38. Borrower has failed to make payments when due under the terms of the Credit Agreement and the Forbearance Agreement. Borrower has also failed to perform various nonmonetary covenants and obligations provided for under the terms of the Credit Agreement, 9 110301926v4 Katten :1 12:2. i111 anln?menmnur 515 Soth Flawer Street. Suite i000 . Los Angeles. CA goon-22:2 213.768.74.45 tel (.11 UJ OO \1 Ch kl?l U) 00 . including the following: non-compliance with the Consolidated Fixed Charge Coverage Ratio covenant for the reporting period ending December 31, 2012, and all reporting periods thereafter, in violation of Sections 8.11 and 9.01(b) of the Credit Agreement; (ii) non-compliance with the 7 Minimum Consolidated EBITDA covenant for the reporting period ending December 31, 2012 and all reporting periods thereafter, in violation of Sections 8.11 and 9.01(b) of the Credit Agreement; and failure to deliver multiple ?nancial statements in violation of Sections 7.01(c) and 9.01(c) of the Credit Agreement. 39. Despite demands by Lender, Borrower has failed to cure the defaults and honor its obligations under the terms of the Credit Agreement. As a result, Borrower has breached the Credit Agreement. - 40. Lender has performed all obligations on its part required to be performed underthe terms of the Credit Agreement, except those obligations that have been waived or excused by virtue of Borrower?s defaults. 41. As a result of Borrower?s breach _of the Credit Agreement, Lender is entitled to recover the full amount of the Indebtedness, together with accrued interest on the Indebtedness and Lender?s reasonable collection costs. 42. Pursuant to-Section 10.04 of the Credit Agreement, Lender is entitled to recover all expenses incurred in connection with the enforcement of Lender?s rights under the terms of the Credit Agreement and related loan documents, including reasonable attorneys? fees and costs of collection. Lender has incurred and willcontinue to incur fees and costs prosecuting this action in an amount subject to proof. SECOND CAUSE OF ACTION [Breach of Guaranty Against Guarantors] 43. Lender realleges and incorporates by this reference, as though fully set forth herein, each and every allegation contained in paragraphs 1 through 42 above. 44. Lender has performed all of the terms and conditions of the Credit Agreement, the Guaranty and other loan documents on its part to be performed except obligations waived or excused by Guarantors. 10 lO30 926v4 Katten humMudIlansennun u: 515 South Flower Street. Suite I000 Las Angeles. CA soar-nu 111.788.1445 tel 2?3.18?.7380 fax 45. Guarantors have breached . the Guaranty by, among other things, failing and refusing, and continuing to fail and refuse, to repay the Indebtedness pursuant to the terms and conditions _of the Credit Agreement and the Guaranty. 46. As a result of Guarantors? breaches, Lender is entitled to recover the full amount of the Indebtedness,-together with accrued interest on the Indebtedness and Lender?s reasonable collection costs. 47. Pursuant to the terms of the Guaranty, Lender is entitled to recover all expenses incurred in connection with the enforcement of Lender?s rights under the terms of the Guaranty, including reasonable attorneys? fees and costs of collection. Lender has incurred and will continue to incur fees and costs prosecuting this action in an amount subject to proof. THIRD CAUSE OF ACTION [Money Lent Against Borrower] 48. Lender realleges and incorporates by this reference, as though fully set forth herein, each and every allegation contained in paragraphs 1 through 47 above. 49. Lender advanced money to Borrower in the amount of at least $14,466,666.00. Borrower is obligated to repay that sum to lender. 50. Although Lender has demanded, and by this Complaint hereby further demands, payment in full from Borrower, Borrower has failed and refused, and continues to fail and refuse, to make payment to Lender. As a result, Lender is entitled to recover the full amount loaned and advanced to Borrower. . FOURTH CAUSE OF ACTION I [Speci?c Performance of Security Agreement Against Borrower and Guarantors] 51. Lender realleges and incorporates by this reference, as though fully set forth herein, each and every allegation contained in paragraphs 1 through 50 above. 52. Lender has performed all terms and conditions of the Security Agreement to be performed, except those terms excused or waived by the defaults of Borrower and Guarantors. 53. Lender has demanded, and hereby further demands, that Borrower and Guarantors perform their respective obligations under the Security Agreement and deliver possession of all 11 10301926v4 lb. -1 {:21 [Lil Katten it; 515 South Flower Sheet. Suile Los Angelu. CA 90073-2212 2:3.738.7445lel ?3.7883186!? WMnRasenmlnu: Collateral to Lender. 54. Borrower and Guarantors have breached the Security Agreement by, among other things, causing the Events of Default, and by failing and refusing, and continuing to fail and refuse, to deliver sole and exclusive possession of all C011ateral to Lender. 55. Pursuant to the terms of the Security Agreement, Lender is entitled to exclusive possession of the Collateral; to direct any parties liable for any payment in connection with the Collateral to make payment of any and all monies due, or to become due, directly to Lender or otherwise as the Lender directs; to commence and prosecute any actions to collect any Collateral; and do and perform all such other acts and things as the Lender may deem appropriate or convenient in connection with the Collateral. . 56. There is no plain, adequate or speedy remedy at law for the enforcement of the terms of the Security Agreement or to compensate Lender for the damage caused to it by the failure and refusal of Borrower and Guarantors to perform their respective obligations pursuant to the Security Agreement. Lender therefore seeks an order requiring speci?c performance of the terms of the Security Agreement. Lender further seeks the. appointment of a receiver to perform the obligations of Borrower and Lender under the terms of the Security Agreement. Lender further seeks preliminary and permanent injunctive relief in support of the receivership. 57. The Security Agreement provides that Borrower and Guarantors will pay all costs incurred by Lender in enforcing its remedies under the Security Agreement, including attorneys? fees and legal expenses in pursuing its rights to suit, retention, and disposition of the Collateral. FIFTH CAUSE OF ACTION [For Payment of Receivables Pursuant to Section 9-607(a) of the California Commercial Code Against JustFab] 58. Lender realleges and incorporates by this reference, as though fully set forth herein, each and every allegation contained in paragraphs 1 through 57 above. 59. Borrower has defaulted on the Credit Agreement and Lender has made demand for repayment of the Indebtedness and turnover of the Collateral. . 60. As set forth above, the Receivables owed by JustFab to Borrower that are 12 lO301926v4 I?tv?Ir?I h) CD La) fax 515 South Flower Street. Suite ?:00 Los Angeles. CA goon-22!: Katten 213.788.7445 lel p?A i, r} #322. NM ?4 00 I: 213;] disclosed in the Credit Agreement and other documents constitute a portion of the Collateral. Likewise, the Receivables owed by JustFab to Brand Ideas disclosed in other documents also constitute a portion of the Collateral. 61. Lender has foreclosed on the Receivables by sending the Notices to JustFab in accordance with Section 9-607(a) of the California Commercial Code. 62. In accordance with the Notices, Lender has demanded, and hereby further demands, that JustFab perform its obligations pursuant to Section 9?607(a) of the California Commercial Code by making payment of the Receivables directly to Lender. In particular, Lender may enforce any rights that Borrower and Brand Ideas may have had against JustFab to recover the Receivables in accordance with Section 63. Despite Lender?s demands, JustFab has failed and refused, and continues to fail and refuse, to perform its obligation to make payment on the Receivables to Lender. 64. As a result of JustFab?s failure to make payment on the Receivables to Lender, Lender has incurred damages in the full amount of the Indebtedness, together with accrued interest on the Indebtedness and Lender?s reasonable collection costs. SIXTH CAUSE OF ACTION [Fraudulent Transfers Under California Civil Code 3439(a)(1), et. seq., Against Borrower, JustFab and IB Holding] 65. Lender realleges and incorporates by this reference, as though fully set forth herein, each and every allegation contained in paragraphs 1 through 64 above. 66. Borrower, JustFab and IB Holding knowingly and intentionally engaged in. the above-referenced acts which resulted in the JustFab Receivables to Borrower in excess of $20,000,000 being written off and/or declared not collectable, with no consideration exchanged, and with no explanation or justi?cation. This constituted a fraudulent transfer that was intended to and did prevent Borrower and Lender from collecting 0n the Receivables and/or hindered or delayed Borrower?s and Lender?s ability to collect and realize on the Receivables. These actions were accomplished by and through various intercompany actions and transactions by and between Borrower, JustFab and IB Holding, with the actual intent to hinder, delay or defraud Borrower, 13 ll0301926v4 Katten 112:: It r?tr?Ir?Iu?Ir?t 515 50th Flower Street. Suite 1000 Los Angeles. CA your-22?: 211.788.7445 tel 213.788.7580 faxLender and other creditors of Borrower in violation of Section of the California Civil Code. 67. Lender further alleges that these intercompany actions and transactions to erase the Receivable were intended by Borrower, JustFab and IB Holding to bene?t JustFab and/or IB Holding, and/or their respective shareholders and creditors, at the expense of Borrower and Borrower?s creditors, including Lender. 68. Pursuant to Civil Code section the following factors are all relevant to demonstrate that Borrower, JustFab, and IB Holding acted with the actual intent to defraud Lender: l) the transfer was to an insider (Borrower and JustFab are af?liates and have interlocking owners, of?cers, and directors), 5) the transfer was of substantially all of the debtor?s assets (the Receivables were a large asset, and Borrower now has insuf?cient assets to pay its creditors, including Lender), 6) whether the debtor absconded (Borrower is no longer in business), 7) whether the debtor removed or concealed assets (the Receivables were removed and not collected), 8) whether the value of the consideration received by debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred (Borrower received no consideration for the claimed cancellation of the Receivables), 9) whether the debtor was insolvent or became insolvent shortly after the?transfer was made or the obligation was incurred (Borrower was insolvent and/or became insolvent when the Receivables were made uncollectable), 10) and whether the transfer occurred shortly before or shortly after a substantial debt was incurred (Borrower determined the Receivables would-not be collected after it paid a substantial ?ne to the FTC, became insolvent and assigned its assets to an assignee for the bene?t of creditors, stopped conducting business, and defaulted on the Credit Agreement). These factors all support a ?nding that the transfer was fraudulent. 69. As a result of this fraudulent transfer, Lender is being hindered from collecting the Receivables, and Lender will be unable to collect on a judgment rendered by the Court in Lender?s favor. Lender has suffered or will suffer damages in the amount of the Indebtedness, together with accrued interest on the Indebtedness and Lender?s reasonable collection costs. 70. Pursuant to Section 3439.07 of the Civil Code, Lender is entitled to an order 14 lO301926v4 b?np?nh?n B) CD 4s. (It 515 South Flawer Street. Suite 113.788.7445 tel 113.788.7380 fax Los Angeles. CA 90071-2111 Katten hummun?wnmw \o 00 as .07.. \l T. 00 avoiding the intercompany actions and transactions between Borrower, JustFab and IB Holding which purport to declare .the Receivables not due and owing or not collectable, and requiring JustFab to remit full payment of the Receivables to Lender. Lender is also entitled to temporary, preliminary and permanent injunctive relief to prevent the loss of the Receivables. Absent such an order, Lender will suffer irreparable harm in that Lender?s right to collect on the Receivables may be lost. Lender has no adequate remedy at law because Borrower is insolvent and has-no other assets to satisfy Lender?s judgment. A 71.. The actions of Borrower, JustFab and IB?Holding were malicious, intentional, fraudulent and oppressive in that each of these entities was engaged in the insider transactions described above with the intent to destroy the collectability of the Receivables; to cause Borrower to avoid paying Lender; and to cause harm and damages to Lender. 72. The intentional, fraudulent and oppressive nature of Borrower?s, JustFab?s and IB Holding?s conduct is evidenced by the fact that the Credit Agreement and other documents contain written representations by Borrower as to the existence and legal enforceability of certain of the Receivables - - yet after the Credit Agreement was executed and Lender provided loans to Borrower - - Borrower, JustFab and IB Holding engaged in the intercompany actions and transactions to hinder, delay and frustrate Borrower?s and Lender?s respective right and ability to collect said Receivables. As a proximate result of these malicious, intentional, fraudulent and oppressive acts, Lender is entitled to an award of punitive damages. SEVENTH CAUSE OF ACTION [Fraudulent Transfers Under California Civil Code 3439(a)(2)(A), et. seq., Against Borrower, JustFab and IB Holding] 73. Lender realleges and incorporates by this reference, as though fully set forth herein, each and every allegation contained in paragraphs l'through 72 above. 74. Borrower, JustFab and IB Holding knowingly and intentionally engaged in the above-referenced acts which' resulted in the JustFab Receivables to Borrower in excess of $20,000,000 being Written off and/or declared not collectable, with no consideration exchanged, and with no explanation or justi?Cation. Lender alleges that these acts were done to prevent 15 110301926v4 Katten 'l 1 E3 ?f?l a: I?lD?ll??l?I th?no U1 515 Sath Flower Street. Suite moo Los Angeles. CA goon-nu await-Borrower from collecting on and realizing any value for the Receivables. Lender further alleges that in connection with these actions and intercompany transactions by and between Borrower, JustFab and IB Holding, Borrower did not receive reasonably equivalent value in violation of Section of the California Civil Code. In fact, Borrower did not receive any value in exchange for declaring the Receivables not collectable. 75. These actions and intercompany transactions bene?ted JustFab and/or IB Holding, and/or their respective shareholders and creditors, at the expense of Borrower and Borrower?s creditors, including Lender. 76. Borrower did not receive reasonably equivalent value from JustFab or IE Holding in exchange for these actions and intercompany transactions, which had the direct impact of reducing Borrower?s assets by over. $20,000,000. At the time the intercompany actions and transactions took place, Borrower?s remaining assets, liquidity and working capital were inadequate-for Borrower to survive as a going concern. In particular, as set forth above, Borrower had paid a substantial ?ne to the FTC, was insolvent and unable to pay its debts, and entered into an Assignment Agreement to an assignee for the bene?t of its creditors. At the time Borrower declared the Receivables not'collectable, it?knew that its assets would therefore be insuf?cient to pay off its debt to Lender. Indeed, that was the entire purpose of declaring the Receivables not collectable. 77. As a result of these fraudulent transfers, Lender is being hindered from collecting the Receivables, and Borrower will be unable to satisfy a judgment rendered by the Court in Lender?s favor. Lender has suffered or will suffer damages in the amount of the Indebtedness, together with accrued interest on the Indebtedness and Lender?s reasonable collection costs. 78. Pursuant to Section 3439.07 of the Civil Code, Lender is entitled to an order avoiding the intercompany actions and transactions between Borrower, JustFab and IB Holding (that caused the cancellation of the Receivables), and requiring JustFab to remit full payment of the Receivables to Lender. Lender is also entitled to temporary, preliminary and permanent injunctive relief to prevent the loss of the Receivables. Absent such an order, Lender will suffer irreparable harm in that Lender?s right to collect on the Receivables may be lost. Lender has no 16 110301926v4 sis South flower Street. Suite r000 Los Ange'les. CA 9007-1212 Katten. EE. ?17833445 tel fax vy?n (It adequate remedy at law because Borrower is insolvent and has no other assets to satisfy Lender?s judgment. 79. The actions of Borrower, JustFab and IB Holding were malicious, intentional, fraudulent and oppressive in that each of these entities engaged in the insider actions and transactions described above with the intent to destroy the collectability of the Receivables; to cause Borrower to avoid paying Lender; and to cause harm and, damages to Lender. 30. The intentional, fraudulent and oppressive nature of Borrower?s, JustFab?s and IB Holding?s conduct is evidenced by the fact that the Credit Agreement and other documents contain written representations by Borrower as to the existence and legal enforceability of certain of the Receivables - - yet 'after the Credit Agreement was executed and Lender provided loans to Borrower - - Borrower, JustFab and IB Holding engaged in the intercompany actions and transactions to hinder, delay and frustrate Borrower?s and Lender?s respective right and ability to collect said Receivables. As a proximate result of these malicious, intentional, fraudulent and oppressive acts, Lender is entitled to an award cf punitive damages. EIGHTH CAUSE OF ACTION [Fraudulent Transfers Under California Civil Code 3439(a)(2)(B), et. seq., Against Borrower, JustFab and IB Holding] 81. Lender realleges and incorporates by this reference, as though fully set forth herein, each and every allegation contained in paragraphs 1 through 80 above. 82. Borrower, JustFab and IB Holding knowingly and intentionally engaged in the above-referenced acts which. resulted in the JustFab Receivable to Borrower in excess of $20,000,000 being written off and/or declared not collectable, with no consideration exchanged, and with no explanation or justi?cation. These acts were done to prevent Borrower from collecting on and realizing any value for the Receivables. In connection with these actions and intercompany transactions by and between Borrower, JustFab and IB Holding, Borrower did not receive reasonably equivalent value in violation of Section of the California Civil Code. In fact, Borrower did not receive any value in exchange for declaring the Receivables not collectable, l7 110301926v4 y?n J: 515 50th Planet StreeL Suite 1000 Los Angeles. CA soar-1:12 1?3.788.7445 tel fax Katten 83. The actions and intercompany transactions bene?ted JustFab and/or IB Holding, and/or their respective shareholders and creditors, at the expense of Borrower and Borrower?s creditors, including Lender. At the time the intercompany actions and transactions took place, Borrower?s remaining assets, liquidity and working capital were inadequate for Borrower to survive as a going concern. In particular, as set forth above, Borrower had paid a substantial ?ne to the FTC and thereafter was forced to enter into an Assignment Agreement to an assignee for the bene?t of its creditors. At the time Borrower declared the Receivables not collectable, it knew that its assets would therefore be insuf?cient to pay off its debt to Lender. Indeed, that was the entire purpose of declaring the Receivables not collectable. 84. Borrower did not receive reasonably equivalent value from JustFab or IB Holding in exchange for these actions and intercompany transactions, which had the direct impact of reducing Borrower?s assets by over $20,000,000. 85. As a result of these fraudulent transfers, Lender is being hindered from collecting the Receivables, and Borrower will be unable to satisfy a judgment rendered by the Court in Lender?s favor. Lender has suffered or will suffer damages in the amount of the Indebtedness, together with accrued interest on the Indebtedness and Lender?s reasonable collection costs. 86. Pursuant to Section 3439.07 of the- Civil Code, Lender is entitled to an order avoiding the intercompany actions- and transactions between Borrower, JustFab and IB Holding and requiring JustFab to remit full payment of the Receivables to Lender. Lender is also entitled to temporary, preliminary and permanent injunctive relief to prevent the loss of the Receivables. Absent such an order, Lender will suffer irreparable harm in that Lender?s right to collect on the Receivables may be lost. Lender has no adequate remedy at law because Borrower is insolvent and has no other assets to satisfy Lender?s judgment. 87. The actions of Borrower, JustFab and IB Holding were malicious, intentional, fraudulent and oppressive in that each of these entities was engaged in the insider transactions described above with the intent to destroy the collectability of the Receivables; to cause Borrower to avoid paying Lender; and to cause harm and damages to Lender. 88. The intentional, fraudulent and oppressive nature of Borrower?s, JustFab?s and 1B 18 lO30l926v4 .pwmi??o p?a LA 515 South Fla-?er Street. Suile Los Angeles. CA goon-1212 213.738.7445 tel 213.788.7380 lax Katten - 15:. :Ll Holding?s conduct is evidenced by the fact that the Credit Agreement and other documents contain written representations by Borrower as to the existence and legal enforceability of certain of the Receivables - yet after the Credit Agreement was executed and Lender provided loans to Borrower - l- Borrower, JustFab and IB Holding engaged in the intercompany actions and transactions to hinder, delay and frustrate Borrower?s and Lender?s respective right and ability to collect said Receivables. As a proximate result of these malicious, intentional, fraudulent and oppressive acts, Lender is entitled to an award of punitive damages. NINTH CAUSE OF ACTION [Conspiracy to Defraud Against Borrower, JustFab, IB Holding, Goldenberg, Res'sler] 89. Lender realleges and incorporates by this reference, as though fully set forth herein, each and every allegation contained in paragraphs 1 through 88 above. 90. Borrower, JustFab, IB Holding, Goldenberg and Ressler, and each of them, knowingly and willingly conspired with and agreed among themselves to hinder, delay, or defraud Lender in the collection of the Indebtedness. 91. Each of the Defendants engaged in the acts and transactions described above in furtherance of the conspiracy. Each of the Defendants collectively determined that they would contend that the JustFab Receivables were no longer collectable by Borrower. Goldenberg and Ressler are owners, directors, and of?cers of Defendants and they directed Defendants to take this position, and/or acquiesced to such a position once it was taken. In particular, Lender believes that each of said Defendants obtained a monetary bene?t resulting from these actions by enhancing the value of JustFab and IB Holding at the expense of Borrower and Lender, and that Goldenberg and Ressler did so to increase their own interest in JustFab. Defendants knew that their actions would prevent Lender from enforcing its rights under the Credit Agreement and Security Agreement.? As a result, said Defendants, and each of them, are jointly and severally liable for the fraudulent transfers alleged in the Sixth, Seventh and Eighth Causes of Action above. 92. The acts of the conspiring Defendants were malicious, intentional, fraudulent and oppressive in that each of said Defendants engaged in the insider actions and transactions 19 110301926v4 o?nu?Ii?na?n WNHO p?A A 515 South Flower Street. Suite 213.788.7445 tel 213331738011? los Angeles. CA 90071-2212 inseam" Katten Ti. 1:7: :11" :3 described above with the intent to cause Borrower to avoid paying the Indebtedness to Lender; to hinder collection of the Receivables; and to otherwise cause harm and damages to Lender. 93. 'The intentional, fraudulent and oppressive nature of Borrower?s, JustFab?s, 1B Holding?s, Goldenberg?s and Ressler?s conduct is evidenced by the fact that the Credit Agreement and other documents contain written representations by Borrower as to the existence and legal enforceability of certain of the Receivables - yet after the Credit Agreement was executed and Lender provided loans to Borrower - Borrower, JustFab, IB Holding, Goldenberg and Ressler engaged in the intercompany actions and transactions to hinder, delay and frustrate Borrower?s and Lender?s reSpective right and ability to collect said Receivables. As a proximate result of these malicious, intentional, fraudulent and oppressive acts, Lender is entitled to an award of punitive damages as against each of said Defendants. TENTH CAUSE OF ACTION [Fraudulent Transfers Under California Civil Code 3439(a)(1), et. seq., Against Brand Ideas, Just Fab and IB Holding] .94. Lender realleges and incorporates by this reference, as though fully set forth herein, each and every allegation contained in paragraphs 1 through 93 above. 95. Brand Ideas, JustFab and IB Holding knowingly and intentionally engaged in the. above?referenced acts which resulted in the JustFab Receivables to Brand Ideas in the amount of at least $7,881,184 being written off and/or declared not collectable, with no consideration exchanged, and with no explanation or justi?cation; This constituted a fraudulent transfer that was intended to and did prevent Brand Ideas and Lender from collecting on the Receivables and/or hindered or delayed Brand Ideas and Lender?s ability to collect and realize on the Receivables. These actions were accomplished by and through various intercompany actions and transactions by and between Brand Ideas, JustFab and IB Holding, with the actual intent to hinder, delay or defraud Brand Ideas, Lender and other creditors of Brand Ideas in violation of Section of the California Civil Code. 96. Lender further alleges that these intercompany actions and transactions to erase the Receivables were intended by Brand Ideas, JustFab and IB Holding to bene?t JustFab and/or IE 20 110301926v4 r?II?it?I NH0 p?l 213.788.7445 tel 213.788.7380 fax L11 515 South Flwer Street. Suite moo Las Angeles. CA gnarl-22': Katten E113. L11 MM -JON C, 00 I. I. Holding, and/or their respective shareholders and creditors, at the expense of Brand Ideas and Brand Ideas? creditors, including Lender. 97. Pursuant to Civil Code section the following factors are all relevant to demonstrate that Brand Ideas, JustFab, and IB Holding acted with the actual intent to defraud Lender: 1) the transfer was to an insider (Brand Ideas and JustFab are af?liates and have interlocking owners, officers, and directors), 5) the transfer was of substantially all of the debtor?s assets (the Receivables were a large asset, and Brand Ideas now has insuf?cient assets to pay its creditors, including Lender), 6) whether the debtor absconded (Brand Ideas is no longer in business), 7) whether the debtor removed or concealed assets (the Receivables were removed and not collected), 8) whether the value of the consideration received by debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred (Brand Ideas received no consideration for the claimed cancellation of the Receivables), 9) whether the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred (Brand Ideas was insolvent and/or became insolvent when the Receivables were made uncollectable), 10) and whether the transfer occurred shortly before or shortly after a substantial debt was incurred (Brand Ideas determined the Receivables would not be collected after Borrower paid a substantial ?ne to the FTC, Borrower and Brand Ideas became insolvent and assigned their assets to an assignee for the bene?t of creditors, stopped conducting business, and defaulted on the Credit Agreement and the Guaranty). These factors all support a ?nding that the transfer was fraudulent. 98. As a result of this fraudulent transfer, Lender is being hindered from collecting the Receivables, and Lender will be unable to satisfy a judgment rendered by the Court in Lender?s favor. Lender has suffered or will suffer damages in the amount of the Indebtedness, together with accrued interest on the Indebtedness and Lender?s reasonable collection costs. 99. Pursuant to Section 3439.07 of the Civil Code, Lender is entitled to an order avoiding the intercompany actions and transactions between Brand Ideas, JustFab and IB Holding which purport to declare the Receivables not due' and owing or not collectable, and requiring JustFab to remit full payment of the Receivables to Lender, Lender is also entitled to temporary, 21 110301926v4 #HHl?n 5.5 South Flower SueeL Suite moo Los Angeles. CA 90071-2112 113.788.74.451el 2'3.788.7330 fax [Imminanan u: Katten 00 preliminary and permanent injunctive relief to prevent the loss of the Receivables. Absent such an order, Lender will suffer irreparable harm in that Lender?s right to collect on the Receivables may be lost. Lender has no adequate remedy at law because Borrower is insolvent and has no other assets to satisfy Lender?s judgment. 100. The actions of Brand Ideas, JustFab and IB Holding were malicious, intentional, fraudulent and oppressive in that each of these entities was engaged in the insider transactions described above with the intent to destroy the collectability of the Receivables; to cause Brand Ideas to avoid paying Lender; and to cause harm and damages to Lender. 101. The intentional, fraudulent and oppressive nature of Brand Ideas?, JustFab?s and IB Holding?s conduct is evidenced by the fact that the Defendants provided written representations to the existence and legal enforceability of the Receivables - - yet after Lender attempted to collect on the Receivables after Brand Ideas defaulted on the Guaranty - - Brand Ideas, JustFab and IB Holding engaged in the intercompany actions and transactions to hinder, delay and frustrate Brand Ideas? and Lender?s respective right and ability to collect said Receivables. As a proximate result of these malicious, intentional, fraudulent and oppressive acts, Lender is entitled to an award of punitive damages. I ELEVENTH CAUSE OF ACTION [Fraudulent Transfers Under California Civil Code 3439(a)(2)(A), et. seq., Against Brand Ideas, JustFab and IB Holding] 102. Lender realleges and incorporates by this reference, as though fully set forth herein, each and every allegation contained in paragraphs 1 through 101 above. 103. Brand Ideas, JustFab and IB Holding knowingly and intentionally engaged in the above?referenced acts which resulted in the JustFab Receivables to Brand Ideas in the amount of at least being, $7,881,184 written off and/or declared not collectable, with no consideration exchanged, and with no explanation or justi?cation. Lender alleges that these acts were done to prevent Borrower from collecting on and realizing any value for the Receivables. Lender further alleges that in connection with these actions and intercompany transactions by and between Brand Ideas, JustFab and IB Holding, Brand Ideas did not receive reasonably equivalent value in 22 10301926v4 Katt?n '1 f. I 1.1.3 a: T, -3 r?I?t?It?II?r? 515 South FlowerStreet. Suite 1000 Los Angela. CA goon-HI: zl3.788.74451el 213.788.7380fa: violation of Section of the California Civil Code. In fact, Brand Ideas did not receive any value in exchange for declaring the Receivables not collectable. 104. These actions and intercompany transactions bene?ted JustFab and/or IB Holding, and/or their respective shareholders and creditors, at the expense of Brand Ideas and Brand Ideas? creditors, including Lender. 105. Brand Ideas did not receive reasonably equivalent value from JustFab or IB Holding in exchange for these actions and intercompany transactions, which had the direct impact of reducing Brand Ideas? assets by at least $7,881,184. At the time the intercompany actions and transactions took place, Brand Ideas? remaining assets, liquidity and working capital were inadequate for Brand Ideas to survive as a going concern. In particular, as set forth above, Borrower had paid a substantial fine to the FTC, Borrower and Brand Ideas were insolvent and unable to pay their debts, and entered into an Assignment Agreement to an assignee for the benefit of their creditors. At the time Brand Ideas declared the Receivables not collect?able, it knew that its assets would therefore be insuf?cient to pay off its debt to Lender. Indeed, that was the entire purpose of declaring the Receivables not collectable. 106. As a result of these fraudulent transfers, Lender is being hindered from collecting the Receivables, and Lender will be unable to collect on a judgment rendered by the Court in Lender?s favor. Lender has suffered or will suffer damages in the amount of the Indebtedness, together with accrued interest on the Indebtedness and Lender?s reasonable collection costs. 107. Pursuant to Section 3439.07 of the Civil Code, Lender is entitled to an order avoiding the intercompany actions and transactions between Brand Ideas, JustFab and IB Holding (that caused the cancellation of the Receivables), and requiring JustFab to remit full payment of the Receivables to Lender. Lender is also entitled to temporary, preliminary and permanent injunctive relief to prevent the loss of the Receivables. Absent such an order, Lender will suffer irreparable harm in that Lender?s right to collect on the Receivables may be lost. Lender has no adequate remedy at law because Brand Ideas is insolvent and has no other assets to satisfy Lender?s judgment. 108. The actions of Brand Ideas, JustFab and 1B Holding were malicious, intentional, 23 110301926v4 Katten 4] r?AI?it?lI?i DJ 5) FA 515 South Flower Street. Suite 1000 tos Angeles. CA 90071-1212 213.788.74.45 tel 213.788.7380 fax rfraudulent and oppressive in that each of these entities engaged in the insider actions and transactions described above with the intent to destroy the collectability of the Receivables; to cause Brand Ideas to avoid paying Lender; and to cause harm and damages to Lender. 109. The intentional, fraudulent and oppressive nature of Brand Ideas?, JustFab?s and IB Holding?s conduct is evidenced by the fact that the Defendants provided written representations to the existence and legal enforceability of the Receivables - - yet after Lender attempted-to collect on the Receivables after Brand Ideas defaulted on the Guaranty - - Brand Ideas, JustFab and IB Holding engaged in the intercompany actions and transactions to hinder, delay and frustrate Brand Ideas? and Lender?s respective right and ability to collect said Receivables. As a proximate result of these malicious, intentional, fraudulent and oppressive acts, Lender is entitled to an award of punitive damages. I TWELFTH CAUSE OF ACTION [Fraudulent Transfers Under California Civil Code 343 et. seq., Against Brand Ideas, JustFab and IB Holding] 110. Lender realleges and incorporates by this reference, as though fully set forth herein, each and every allegation contained in paragraphs 1 through 109 above. 111. Brand Ideas, JustFab and IB Holding knowingly and intentionally engaged in the above-referenced acts which resulted in the JustFab Receivable to Brand Ideas in at least $7,881,184 being written off and/or declared not collectable, with no consideration exchanged, and with no explanation or justi?cation. These acts were done to prevent Lender from collecting on and realizing any value for the Receivables. In connection with these actions and intercompany transactions by and between Brand Ideas, JustFab and IB Holding, Brand Ideas did not receive reasonably equivalent value in violation of Section of the California Civil Code. In fact, Brand Ideas did not receive any value in exchange for declaring the Receivables not collectable. 112. The actions and intercompany transactions bene?ted JustFab and/or IB Holding, and/or their respective shareholders and creditors, at the expense of Brand Ideas and Brand Ideas? creditors, including Lender. At the time the intercompany actions and transactions took place, 24 llO30l926v4 I?lr?II?lh?l p?l 515 South Flower Street. Suile I000 Les Angela. (Agnew-nu 2I3.788.7445 tel 115.788.7380 fax up Katten NM 00 T- 1331 313?2: 51.1% 12.5.: 7.1.3 42:1 0 0 Brand Ideas? remaining assets, liquidity and working capital were inadequate for Brand Ideas to survive as a going concern. In particular, as set forth above, Borrower had paid a substantial ?ne to the FTC, Borrower and Brand Ideas were insolvent and unable to pay their debts, and entered into an Assignment Agreement to an assignee for the bene?t of their creditors. At the time Brand Ideas declared the Receivables not collectable, it knew that its assets would therefore be insuf?cient to pay off its debt to Lender. Indeed, that was the entire purpose of declaring the Receivables not collectable. .113. Brand Ideas did not receive reasonably equivalent value from JustF ab or 1B Holding in exchange for these actions and intercompany transactions, which had the direct impact 'of reducing Brand Ideas? assets by at least $7,881,184. 114. As a result of these fraudulent transfers, Lender is being hindered from collecting the Receivables, and Lender will be unable to satisfy a judgment rendered by the Court in Lender?s favor. Lender has suffered or will suffer damages in the amount of the Indebtedness, together with accrued interest on the Indebtedness and Lender?s reasonable collection costs. 115. Pursuant to Section 3439.07 of the Civil Code, Lender is entitled to an order avoiding the intercompany actions and transactions between Brand Ideas, JustF ab and IB Holding and requiring JustF ab to remit full payment of the Receivables to Lender. Lender is also entitled to temporary, preliminary and permanent injunctive relief to prevent?the loss of the Receivables. Absent such an order, Lender will suffer irreparable harm in that Lender?s right to collect on the Receivables may be lost. Lender has no adequate remedy at law because Brand Ideas is insolvent and has no other assets to satisfy Lender?s judgment. 116. The actions of Brand Ideas, JustF ab and IB Holding were malicious, intentional, fraudulent and Oppressive in that each of these entities was engaged in the insider transactions described above With the intent to destroy the collectability of the Receivables; to cause Brand Ideas to avoid paying Lender; and to cause harm and damages to Lender. 117. The intentional, fraudulent and oppressive nature of Brand Ideas?, JustFab?s and IB Hol'ding?s conduct is evidenced by the fact that the Defendants provided written representations to the existence and legal enforceability of the Receivables - - yet after Lender 25 10301926\'4 n?ir?AI?di?Ai?n p?a 213.783.7Ms tel 213.788.7180 fax 51550ul11 Flower Street. Suite 1000 los Angeles. CA 90071-2112 Katten. [Ilium-In?ammu: t: 41:11.13: .21: 2:2. 11:: attempted to collect on the Receivables after Brand Ideas defaulted on the Guaranty - - Brand Ideas, JustFab and IB Holding engaged in the intercompany actions and transactions to hinder, delay and frustrate Brand Ideas? and Lender?s respective right and ability to collect said Receivables. As a proximate result of these malicious, intentional, fraudulent and oppressive acts, Lender is entitled to an award of punitive damages. THIRTEENTH CAUSE OF ACTION [ConSpiracy to Defraud Against Brand Ideas, JustFab, IB Holding, Goldenberg and Ressler] 118. Lender realleges and incorporates by this reference, as though fully set forth herein, each and every allegation contained in paragraphs 1 through 117 above. 119. Brand Ideas, JustFab, IB Holding, Goldenberg and Ressler, and each of them, knowingly and willingly conspired with and agreed among themselves to hinder, delay, or defraud Lender in the collection of the Indebtedness. 120. _Each of the Defendants engaged in the acts and transactions described above in furtherance of the conspiracy. Each of the Defendants collectively determined that they would contend that the JustFab Receivables Were no longer collectable by Brand Ideas. Goldenberg and Ressler are owners,?directors, and of?cers of Defendants and they directed Defendants to take this position, and/or acquiesced to 'such a position once it was taken. In particular, Lender believes that each of said Defendants obtained a monetary bene?t resulting from these actions by enhancing the value of JustFab and IB Holding at the expense of Brand Ideas and Lender, and that Goldenberg and Ressler did so to increase their own interest in Brand Ideas. Defendants knew that their actions would prevent Lender from enforcing its rights under the Credit Agreement, Guaranty, and Security Agreement. As a result, said Defendants, and each of them, are jointly and severally liable for the fraudulent transfers alleged in the Tenth, Eleventh, and Twelfth Causes of Action above. 121. The acts of the conspiring Defendants were malicious, intentional, fraudulent and oppressive in that each of said Defendants engaged in the insider actions and transactions described above with the intent to cause Brand Ideas to avoid paying the Indebtedness to Lender; to hinder collection of the Receivables; and to otherwise cause harm and damages to Lender. 26 10301926v4 Katten a" If. ligjl I: .11? Ll b?i b?l D?tel 213.788.7380 In 515 South Flower Street. Suite 1000 Las Angelesl CA 9007mmThe intentional, fraudulent and oppressive nature of Brand Ideas?, IustFab?s, IB 122. Holding?s, Goldenberg?s, and Ressler?s conduct is evidenced by the fact that the Defendants provided written representations to the existence and legal enforceability of the Receivables - - yet after Lender attempted to collect on the Receivables after Brand Ideas defaulted on the Guaranty - - Brand Ideas, JustFab and IB Holding engaged in the intercompany actions and transactions to hinder, delay and frustrate Brand Ideas? and Lender?s respective right and ability to collect said Receivables. As a proximate result of these malicious, intentional, fraudulent and oppressive acts, Lender is entitled to an award of punitive damages as against each of said PRAYER FOR RELIEF WHEREFORE, Lender prays for judgment as follows: ON THE FIRST CAUSE OF ACTION: 1. ?For damages according to proof; and 2. For attorneys? fees and costs in bringing and prosecuting this action. ON THE SECOND CAUSE OF ACTION: 1. For damages according to proof; and 2. For attorneys? fees and costs in bringing and prosecuting this action. ON THE THIRD CAUSE OF ACTION: 1. For repayment of all money lent to Borrower by Lender. ON THE FOURTH CAUSE OF ACTION: 1. For Speci?c performance of the Security Agreement; 2. For the appointment of a receiver to take possession of the Borrower?s assets for purposes of performing Borrower?s obligations under the terms of the Security Agreement; and 2. For attorneys? fees and costs in bringing and prosecuting this action. ON THE FIFTH CAUSE OF ACTION: I 1. For the performance of obligations pursuant to Section 9-607(a) of the California Commercial Code; and 27 l030 926v4 257881380 fax y?A v?Ir?d kn 4> 515 South Flower Street. Suite 1000 Los Angeles. CA 90071-1112 Katten 213.788.7445 tel For attorneys? fees and costs in bringing and prosecuting this action. ON THE SIXTH CAUSE OF ACTION: 1. 2. 3. void; and 4. Receivables; 5. For damages according to proof; For unwinding, eliminating, or avoiding the fraudulent transfers; For an order that any agreement to conduct the fraudulent transfers be deemed For an attachment or for other appropriate provisional relief to collect on the For temporary, preliminary and permanent injunctive relief enjoining Defendants A from transferring, conveying and/or preventing collection on the Receivables; and For punitive damages according to proof. ON THE SEVENTH CAUSE OF ACTION: 1 . 2. 3. void; 4. Receivables; 5. For damages according to proof at trial; For an order unwinding, eliminating, or avoiding the fraudulent transfers; For an order that any agreement to conduct the fraudulent transfers be deemed For an attachment or for other appropriate provisional relief to; collect on the For temporary, preliminary and permanent injunctive relief enjoining Defendants from transferring, conveying and/or preventing collection on the Receivables; and 6. For punitive damages according to proof. ON THE EIGHTH CAUSE OF ACTION: 1. 2. 3. void; 4. Receivables; For damages according to proof at trial; For an order unwinding, eliminating, or avoiding the fraudulent transfers; For an order that any agreement to conduct the fraudulent transfers be deemed For an attachment or for other appropriate provisional relief to collect on the '28 110301926v~4 t?Ip?nn?Ar?lp?u war??O (.11 5.5 South Flower Street. Suite 1000 Las Angeles. CA soar-22:2 zt3.788.7445 tel fax Katten tFor temporary, preliminary and permanent injunctive relief enjoining Defendants from transferring, conveying and/or preventing collection on the Receivables; and 6. For punitive damages according to proof. ON THE NINTH CAUSE OF ACTION: 1. For damages according to proof; 2. For unwinding, eliminating, or avoiding the fraudulent transfers; 3. For an order that any agreement to conduct the fraudulent transfers be deemed void; 4. For an attachment or for other appropriate provisional relief to c011ect on the Receivables; 5. For temporary, preliminary and permanent injunctive relief enjoining Defendants from transferring, conveying and/or preventing collection on the Receivables; and 6. For punitive damages according to proof. ON THE TENTH CAUSE OF ACTION: 1. For damages according to proof; For unwinding, eliminating, or avoiding the fraudulent transfers; For an order that any agreement to conduct the fraudulent transfers be deemed void; 4. For?an attachment or for other appropriate provisional relief to collect on the Receivables; 5. For temporary,'preliminary and permanent injunctive relief enjoining Defendants i from transferring, conveying and/or preventing collection on the Receivables; and 6. For punitive damages according to proof. ON THE ELEVENTH CAUSE OF ACTION: 1. For'damages according to proof at .trial; 2. For an order unwinding, eliminating, or avoiding the fraudulent transfers; For an order that any agreement to conduct the fraudulent transfers be deemed void; 29 0301926v4 h) CD la.) .b WManm-mu-n u: 515 South Flower Street. Suite 1000 Los Angeles. CA 90071-2212 213.788.7445 tel 213.188.1380 fax LII 11.} Ea. NM UI-D- iiattachment or for other appropriate provisional relief to collect on the Receivables; S. For temporary, preliminary and permanent injunctive relief enjoining Defendants from transferring, conveying and/or preventing collection on the Receivables; and 6. For punitive damages according to proof. ON THE TWELFTH CAUSE OF ACTION: 1. Fordamages according to proof at trial; 2. For an order unwinding, eliminating, or avoiding the fraudulent transfers; 3. For an order that any agreement to conduct the fraudulent transfers be deemed void; 4. For an attachment or for other appropriate provisional relief to collect on the Receivables; 5. For temporary, preliminary and permanent injunctive relief enjoining Defendants from transferring, conveying and/or preventing collection on the Receivables; and 6. For punitive damages according to proof.- ON THE THIRTEENTH CAUSE OF ACTION: 1. For damages according to proof at trial; 2. For an order unwinding, eliminating, or avoiding the fraudulent transfers; 3. I For an order that any agreement to conduct the fraudulent transfers be deemed void; For an attacMent or for other appropriate provisional relief to collect on the Receivables; 5. For temporary, preliminary and permanent injunctive relief enjoining Defendants from transferring, conveying and/or preventing collection on the Receivables; and 6. For punitive damages according to proof; 30 110301926v4 o??ao?Ao?a sis South Flawer Street, Suite 213.788.7445 tel 213.788.7380 fax Katte autumn-mm u: Los Angeles. CA goon-2112 Li] 11'1.le ON ALL CAUSES OF ACTION: 1. 2. Dated: September 8, 2015 For interest as allowed by law; and For such other and further relief as this Court deems just and proper. KATTEN MUCHIN ROSENMAN LLP Stuart M. Richter - William B. Freeman Ryan J. Larsen kelse By: 1 Larsen Attorn ys fo laintiff Bank of America, NA. 31 10301926v4 3E. 1 a CHAR IUJGOGOSVS CREDIT AGREEMENT Daled as ofMay I I, 2012 among INTELLIGENT BEAUTY, mm, as the Borrower. CERTAIN DOMESTIC OF THE BORROWER, - as the Guarantors. and BANK OF AMERICA, N.A., as Lender {47-3. TABLE OF CONTENTS ARTICLE I DEFINITIONS AND ACCOUNTING TERMS ?g?ngd 1331215. .. I 1.02 0 er relive Provisions. 23 1.03 Accounting Terms .. 24 1.04 ngnding .. 25 1.05 Timgs of Day. .. 25 1.05 Letter orciegii Amouni?. .. 25 ARTICLE II THE COMMITMENTS AND CREDIT EXT ..25 2.0] Cgmmilmenls .. 25 2.02 Comer '0 nd Iinua i Loans. 25 2.03 Letters of?rcgig. . 27 2.04 mm. 3 2.05 ination or Reduclio chvoIvin mi! .. .. 33 2.06 W. .. . .. 34 2.072.08 Cummiiment 35 2.09 Computation g?nicrcs: and Fees. . 35 2.10 51mm. .. . 3s I Generailx. I 35 2.12 Cash Cg?mggl .. 35 ARTICLE TAXES, YIELD PROTECTION AND ILLEGALITY.. 35 3.0] Tags; .. - 35 3.02 . 38 3.03 lo Igemrminc Rates. 39 3.04 mm. .. .. 39 3.05 Comgensazion for Losses .. 40 3.06 Mitigation leigmigm. 4 3.07 M5111. ., .. 41 ARTICLE IV gummy 4.01 Magma. - .. ..41 4.02 Obligations Uncondijiongl. 4' 4.03 .. 42 4.04 Qenain Additional Waiver; .. 4.4.06 _R_ights ofConlIibulion. .. 43 4.07 Guarantee of Baxmcm; Conlimiing guarantee. 43 ARTICLE CONDITIONS PRECEDENT TO CREDIT EXTENSIONS .. 43 5.0i Qnditioug of Initial Credil Exicnsion. .. .- 43 5.02 andigiona 10 a? Credit mum? ARTICLE VI REPRESENTATIONS AND WARRANTIES I .. 47 6-0! 6.02 Aulhgrizaiion;_No Conlravcnlion. .. 47 6.03 GovernmeLILgI Aulliorimlion: Other ansems. .. 47 6.04 Binding E?ccl . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..47 6.05 Financial Slaleinenls; No Material Advgr?e 5!!6.06 Litigation .. .. 48 6.07 No DcfaulL . . . . . . . . . . . . . . .. 48 6.08 Ownershig ofPropg?y; Licug .. 49 CHARmmsosVs '31 I gt 6.09 animnmental Comgtianm. .. A- 49 6.10 lg?rance" .. .. 50 Taxes .. 50 6.12 ERISA . 50 6.13 Subgjgiarigg. .. .. 5' 6J4 Margin Investment Company Act 5' 6.15 Qisclosurc. . .. 6.16 gzompliance with Lama, 52 6. 1319mm; Licenses. a g. 52 6.18 Sotvegg 52 6.19 .. 6.20 Busiggs Locations. ARTICLE AFFIRMATJVE. mm. 52 7.0! Financial Statements. 53 7.02 Information .. 54 7.03 Notigg. 56 7.04 ligament of Obligations. .. 55 56 7.05 res tion 0e tc. 7.06 Maintengnce of Propertics. 57 7-07 Mamm- --57 57 7.08 with Laws. .. 7.09 Books ang Records. .. S7 7. I0 ?ights. 5'1 I m; 53 7.12 Additional Subsidiaries .. 7.13 EMS?ComglianCe .. 1.14 . 7.15 Further - -- 59 7. I 6 chosit Accounts.. . .. -- 59 7.17 Eost-Clgging .. "59 ARTICLE NEGATIVE COVENANTS 60 8.0} Lisa. 60 8.02 . .. 52 8.03 Indebtedness . . . . . . . . . . . . . . . . .. . 6] 8.04 Fundamental .. 55 8.05 Di?po?'1tion?. .. 65 8.06 Restricted . . . . . . . . . . . . . . . . .. 65 8.07 Chang; in Nature of Business . . . . . . . . . . . . .. 66 8.08 with A?tliates and lnsidgrs .. 56 8.09 Burdagsome . . . . . . . . . . . . . . . . . .. 65 8.10 of .. 67 8.) 1 Financial Covenant: . ..67 8.12 Ofggnigmign Docgmc?gs; Fiscal Year; Legal ?ame, of Formation egg: form of Entity .. 68 8.13 of Subsidiaries. .. 68 8.14 Pxepaxment ofOthcr g8 .. 8 8. I to Cert Documents. ARTICLE IX EVENTS OF DEFAULT AND REMEDIES 69 9.0! Events onefault. 69 9.02 Romedicg goon Email: of Dgfaull. .. .. 71 9.03 53.2mm. .. .. 7! ii ARTICLEX MISCELLANEOUS .. 71 10.01 Amegdmenls?lc .. 7' 10.02 Notices 1 unication'Fa imil i . ..72 73 10.03 10.04 10.05 10.06 10.07 10.08 10.09 10.10 10.11 10.12 10.13 10.14 10.15 10.16 10.11T 10.18 10.19 CHARI11260605V5 Ho Qumulagiyg Eemodies; Ex I: 555' 1nd mni a eWaivcr.- 73 Engaging Set AsideSucg?sors and Assigns. .. 74 Trcaimcnlo mi 1' mation-Co 1' ntiali ..75 Sgt-off. . ?~75 Rate Limizajign. 76 Cou la 3 ion- Effectiveness 75 urvi a1 1' Re resenlglions and Warranligg. 77 ?gvcrabmg .. 77 77 ?aiver of Righj to Trial by .11137'3 dviso or Fidu 1a shi . 79 California Jugigigl ?cferrnm 79 lelalera] and Guarangg Mange. . 79 411.] EL til] 377;. SCHEDULES 1.01 Excluded Emperty 6. to Insurance Tax Sharing Agreement 6.l2 ERISA Compliance 6. l3 Subsidiaries 6.l7 JP Rights 620(3) Locations of Real Property 6.20(b) Taxpayer and Organizational Identi?cation Numbers 6.200;) Changes in Legal Name, State of Formation and Structure 7.1? Post-Closing Deliverables 8.0] Liens Existing on the Closing Date 8.02 Investments Existing on the Closing Date 8.03 Indebtedness Existing on the Closing Date 10.02 Certain Addresses for Notices EXHIBITS A Form of Loan Notice Form of Revolving Note Form of Term Note Form of Compliance Certi?cate Form of Joinder Agreement CHAR l\l260&05v$ i3"? fl - ll CREDIT AGREEMENT This CREDIT AGREEMENT is entered into as of May ll, 2012 among INTELLIGENT BEAUTY, INC., a Delaware corporation (the ?Bormwer?), the Guarantors (de?ned herein} and BANK OF AMERICA, N.A., as the Lender. The Borrower has requested that the Lender provide credit facilities for the purposes set ferth herein, and the Lender is willing to do so on the terms and conditions set forth herein. In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows: ARTICLE I DEFINITIONS AND ACCOUNTING TERMS l.0l Terms. As used in this Agreement, the following terms shall have tlte meanings set forth below: "Agguisition", by any Person, means the acquisition by such Person, in a single transaction or in a series of related transactions, of all or substantially all of the property of another Person, or any division, line of business or other business unit of another Person or at least a majority of the Voting Stock of number Person, in each case whether or not involving a merger or consolidation with suah other Person and whether for cash, property, Services, assumption of Indebtedness, securities or otherwise. "Additional Subordinated De 1" means Indebtedness of any Loan Party or any Subsidiary incurred alter the Closing Date that is approved by the Lender and where the right and time of payment of such Indebtedness and priority of any Lien securing the same, and the rights of the holder thereof to enforce remedies in connection therewith have, in each case, been subordinated to the Obligations either (I) pursuant to a Written subordination agreement in form and substance reasonably satisfactory to the Lender or (ii) on terms othenvise approved by the Lender in its sole but reasonable discretion. ?iliate" means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control With the Person speci?ed. means this Credit Agreement. as amended, modi?ed, and extended from time to time in accordance with the terms hereof. "Appii?bltcil?ate? means with respect to Eurodollar Rate Loans, a percentage equal to 2.50% per anttum, with respect to Base Rate Loans, a percentage equal to l.50% per annunt, with respect to the Letter of Credit Fee, a percentage equal to 2.50% per annum and with respect to the Commitment Fee, a percentage equal to 0.50% per annum. "?ttribulabie Indebtedness" means, on any date, in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sltcet of such Person prepared as of such date in accordance with GAAP, in respect of any Lease of any Person, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a CHAR ?126060596 IE1 1:11;. .I tilt Capital Lease and in respect of any Securitization Transaction of any Person, the outstanding principal amount of such ?nancing. after taking into account reserve accounts. ?Audited ?nancial ?tatements" means the audited consolidated balance sheets of Holdings and its Subsidiaries, in each easc for the ?scal year ended December 2010, and the related consolidated statements of income or operations. shareholders' equity and cash ?ows for such ?sCal year of Holdings and its Subsidiaries. including the notes thereto. audited by independent public accountants of recognized national standing and prepared in conformity with GAAP and the audited balance sheet of Sense for the ?scal year ended December Ill. 2010 and the related statements of income or operations. shareholders' equity and cash flows for such ?scal year of Settsa, including the notes thereto, audited by independent public accountants of recognized national standing and prepared in conformity with GAAP. "Availability means. with respect to the Revolving Commitment, the period horn and including the Closing Date to the earliest of(a) the Revolving Maturity Date. the date of termination of the Revolving Commitment pursuant to Section 2.05. and the date of tem'tination of the commitment of the Lender to make Loans and of the obligation of the Lender to make LIC Credit Extensions pursuant to ?ection 9.02. "Base Rate" means for any day a ?uctuating rate per annum equal to the highest of the Federal Funds Rate plus 0.50%, the rate of interest in effect for day as publicly announced from time to ?rm: by the Lender as its "prime rate" and the Eurodnllar Rate plus 1.00%. The ?prime rate" is a rate set by the Lender based upon Various factors including the Lender's costs and desired return. general economic conditions and other factors, and is used as a reference point for pricing some loans. which may be priced at, above, or below such announced rate. Any change in the "prime rate? announced by the Lender shall take effect at the opening of business on the day Speci?ed in the public announcement of such change. . ?Ease Rate Loan" means a Loan that bears interest based on the Base Rate. "Borrower" has the meaning speci?ed in the introductory paragraph hereto. "Bermudas" means a bomowing consisting of simultaneous Loans of the same Type and, in the case of Burodollar Rate Loans. having the same interest Period made by the Lender pursuant to ?ecnon 2-.01- ?_Bu_sins_ss_pp_y" means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of. or are in fact closed in, the state where the Lender's Of?ce is located and. if such day relates to any Eurodotlar Rate Loan. means any such day that is also a London Banking Day. ?Busingsef means, at any time, a collective reference to the businesscs operated by the Bonewer and its Subsidiaries at such time. ?Qapital Lease" means. as applied to any Person, any leasc of any property by that Person as lessee which, in accordance with GAAP. is required to be accounted for as a capital lease on the balance sheet of that Person. ?Cash means to pledge and deposit with or deliver to the Lender, as collateral for LIC Obligations, cash or deposit account balances or, ifthe Lender shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Lender. l; [An-Er 13-2. ?s _l "Cash Collgtergl" shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support. means, as at any date, securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than twelve months from the date of acquisition, Dollar denominated time deposits and certi?cates of deposit of the Lender, (ii) any domestic commercial bank of recognized standing having capital and surplus in excess of $500,000,000 or any bank whose shorHerm commercial paper rating from 3&1? is at least A-l or the equivalent thereof or from Moody's is at least P-l or the equivalent thereof (any such bank being an "Approved in each case with maturities of not more than 270 days ?om the date of acquisition, commercial paper and variable or ?xed rate notes issued by any Approved Bank (er by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-l (or the equivalent thereof) or better by or P-l (or the equivalent thereof) or better by Moody's and maturing within six months of the date of acquisition, repurchase agreements entered into by any Person with a bank or trust company (including the Lender) or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issmad by or fully guaranteed by the United States in which such Person shall have a perfected ?rst priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations and investments, classi?ed in accordance with GAAP as current assets, in money market investment programs registered under the investment Company Act of [940 which are administered by reputable ?nancial institutions havlng capital of at least $500,000,000 and the portfolios of which are limited to investments of the character described in the foregoing subdivislons through means the occurrence, alter the date of this Agreement, of any of the following: the adoption or taking elTect of any law, rule, regulation or treaty, any change in any law, rule, regulation or treaty or itt the administration, interpretation. implementation or application thereof by any Governmental Authority or the .making or issuance of any request. rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; mm that, notwithstanding anything herein to the contrary, the Dodd-Frank Wall Street Rcfonn and Consumer Protection Act and all requests, rules, guidclines or directivas thereunder or issued in connection therewith and all requests, rules, guidelines or directives promulgated by the Bank for international Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States ?through regulatory authorities, in each case pursuant to Basel Ill, shall in each case be deemed to be a "Change tn Law", regardless of the date enacted, adopted or issued. ?Change of? Control" means the occurrence of any of the following events: the Control Group shall cease to own and control, of record and bene?cially, directly or indirectly, at least 51% ot' the outstanding Equity interests of Holdings; or Holdings shall'ceasc to own and control, of? record and bene?cially, directly t00% of the outstanding Equity interests of the Borrower; or the Borrower shall cease to own and control, of record and bene?cially, directly at least 90% of the outstanding Equity Interests ol'Senso. "Skis" means when used with respect to the Commitment, refers to whether such Commitment is the Revolving Commitment or the Term Loan Commitment and when used with respect to Loans or a Bonewing, refers to whether such Loans, or the Loans comprising such Borrowing. are Revolving Loans or Term Loans. A- s2. tit l, Date" means the date hereof. ollatera means a collective reference to all real and personal properly with respect to which Liens in favor of the holders of the Obligations are purported to be granted pursuant to and in accordance with the terms of the Collateral Documents. means a collective reference to the Security Agreement, the Pledge Agreement, the Mortgages and other security documents as may be executed and delivered by the Loan Parties pursuant to the terms of section 7, a. "mammal" means, as to the Lender, the Revolving Commitment of the Lender and the Term Loan Commitment of the Lender. ?Commt'tment'?ee? has the meaning speci?ed in Section 2.05. "Compliance signi?cate" means a certi?cate substantially in the form of "Consolidated Capital Expendilgrg?" means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, all capital expenditures, as determined in accordance with GAAP: midi-4 Meg, that Consolidated Capital Expenditures shall not include expenditures made with proceeds of any involuntary Disposition to the extent such expenditures are used to purchase property that is the same as or similar to the property subject to such involuntary Disposition or(b) Permitted Acquisitions. ?Consolidated Cash lgz?" means, for any period, for the Borrower and its Subsidiaries on a consolidated basis. the aggregate of all taxes, as determined in accordance with GAAP, to the extent the sameare paid in cash during such period. "Consolidated means, for any period. for the Borrower and its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net income for such period plu_s the following, without duplication, to the extent deducted in calculating such Consolidated Net income: Consolidated interest Charges for such period, (ii) the provision for federal, state, local and foreign taxes on or measured by income (including franchise taxes) payable by the Borrower and its Subsidiaries for such period, the amount of depreciation and amortization expense for such period, (iv) with respect to the ?scal quarter ended December 20!] only. those certain one-time nonotecurring expenses in an aggregate amount not to exceed $750,000, all non-cash expenses, charges and losses (excluding any non-cash expenses. charges or losses related to receivables) for such period which do not represent a cash item in such period or any future period and (vi) nil earnings attributed to Dr. Alan Hirsch with respect to his Equity interests in Sensa, all as determined in accordance with GAAP, minus the following, without duplication, to the extent included in calculating such Consolidated Net income: all non?cash income or gains for such period (including without limitation management fee income charged to Subsidiaries of Holdings that are not the Borrower or any of its Subsidiaries) and (ii) all losses attributed to Dr. Alan Hirsch with respect to his Equity Interests in Sense, all as determined in accordance with GAAP and minus the amount of depreciation and amortization expense for such period added back to "Consolidated EBITD pursuant to clause that is attributable?t'o Subsidiaries of Holdings that are not the Borrowar or any?pf?its Subsidiaries, as determined in accordance with GAAP. ?QQnsolidalcd Figad Cha ver Ra i means, as of any date of determination, the ratio of the sum of Consolidated for the period of the four ?scal quarters most recently ended minus (ii) C0nsolidaled Capital Expenditures for such period to Consolidated FiXed Charges for the period of the four ?scal quarters most recently ended. 4 CHAR nt 25060st L'i onsoligated iijzed Charges" means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, an amount equal to-the sum of (2) Consolidated Cash Taxes for such period plus the cash portion of Consolidated interest Charges for such period gig; Consolidated Scheduled Funded Debt Payments for such period pips Restricted Payments made in cash in such period (other than the Restricted Payments made pursuant to Section 8.06m). all as determined in accordance with GAAP. With respect to the calculation of Consolidated Fixed Charges for use in determining compliance with the ?nancial covenant set forth in Section 8.1 113}, for the measurement periods ending June 30, 2012, September 30, 2012, December 3i, 2012 and March 31. 2013, (1) Consolidated Scheduled Funded Debt Payments under the Existing Credit Agreement shall be disregarded and instead Consolidated Scheduled Funded Debt Payments on account of the Tenn Loan shall be usod, which Consolidated Scheduled Funded Debt Payments shall be deemed to equal the following amounts with respect to each such measurement period: $3,333,332 for the measurement period ending June 30, 2012, (ii) $3,333,332 for the measurement period ending September 30, 2012, $3,333,332 for the measurement period ending December 31, 20i2 and (iv) $3,333,332 for the measurement period ending Match 31, 2013 and Consolidated interest Charges fer the four ?scal quarter period ending as ol?Junc 30, 2012 shall be based on Consolidated interest Charges for the one ?scal-quarter period then ended mm four (4), (ii) Consolidated interest Charges For the four ?scal quarter period ending as of September 30, 2012 shall be based on Consolidated interest Charges for the two ?scal-quarter pericd then ended multiplied by two (2) and Consolidated interest Charges for the four ?soei quarter period ending as of December 2012 shall be based on Consolidated interest Charges for the three ?scal-quarter period then ended MW four?thirds and for the measurement periods ending June 30,. 2014. September 30, 2014, December 31, 2014 and March 31, 2015, Consolidated Scheduled Funded Debt Payments on account of the Term Loan for the ?scal quarter ending June 30, 2014 shall be.deemed to be 5833.333. "Consolidth Fundgd indebtedness" means Funded indebtedness of the Borrower and its Subsidiaries on a consolidated basis determined in accordance with GAAP. ?Consolidated interest Charges" means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, an amount equal to the sum of all interest, premium payments, debt discount. fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, gig (ii) the portion of rent expense with respect to such period under Capital Leases that is treated as interest in accordance with GAAP pips the implied interest component of Leases with respect to such period. "Consolidated Net income" means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, the net income of the Borrower and its Subsidiaries (excluding extramdmary gains) for that period, as determined in accordance with GAAP. "ansolidated Funded Debt Payments" means for any period for the Borrower and its Subsidiaries on a consolidated basis, the sum oi'ali scheduled payments ol?prineipai on Consolidated Funded indebtedness, as determined in accordance with GAAP. For purposes of this de?nition, ?scheduled payments of principal" shall be determined without giving effect to any reduction of' such scheduled payments resulting ?'om the application of any voluntary or mandatory prepayments made during the applicable period, shall be deemed to include the Attributable indebtedness in respect of Capital Leasas, Securitiaation Transactions and Leases and shall not include any voluntary prepayments or mandatory prepayments required pursuant to ?eetion 2.04. CHAR 111260605?45 if} if?! .le ?Contractual leigation" means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by whreh it or any of its property is bound. "?gntrol" means the possession, directly'or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. "Controlling" and haVe meanings correlative thereto. Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other Person possesses. directly or indirectly, power to vote 10% or more of the securities having ordinary voting poWer for the election of directors. managing general partners or the equivalent. "ammo" means the collective reference to the Sponsor, the Founders and their Permitted Transferees and any other Person approved in writing by the Lender in its sole discretion. means any agreement, whether written or oral, providing for the grant by or to a Loan Party or any Subsidiary of any right under any Copyright. "Copyrights" means all proprietary rights afforded Works pursuant to Title 17 of the United States Code, including, without limitation. all rights in mask works, copyrights and original designs and all proprietary rights afforded such Works by other countries for the full term thereof (and including all rights accruing by virtue of bilateral or international treaties and conventions thereto), whether registered or unregistered, including, but not limited to, all applications for registration, renewals, eXtensions, rcVersions or restorations thereof now or hereafter provided for by law and all rights to make applications for registrations and recordations, regardless of the medium of ?xation or means of expression and all copyright rights under the copyright laws of the United States and other countries for the full term thereof (and including all rights accruing by virtue of bilateral or international copyright treaties and conventions), whether registered or unregistered, including, but not limited to, all applications for registrations, renewals, extensions, reversions or restorations of copyrights now or hereafler provided for by law and all rights to make applications for copyright registrations and recordations, regardless of the medium of ?xation or means of expression. "Cred' 'on" means each of the following: a Borrowing and an MC Credit Extension. ?Cure Amount" has the meaning set forth in section 8,1 Ito). "?re?ght" has the meaning set forth in Section He). ebt Issuance" means the issuance by any Loan Party or any Subsidiary of any indebtedness other than Indebtedness permitted under ?eetion 8.03. "Debtor Relief Laws" means the Bankruptcy Code ofthe United States. and all other liquidation, conservatorslrip, bankruptcy, assignment for the bene?t of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicablcjurisdictiorrs from time to time in effect. ?Default? means any eVent or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of lime, or both, would be an Event of Default. "Default Rate" means when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to the Base Rate p _u_s (ii) the Applicable Rate, if any, applicable to Base Rate 6 cnnunrzeososvs {53. till I it: Loans of the applicable Class pl_u? 2% per unnum; provided, howeygg that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan 12135 2% annum, in each case to the tfullest extent permitted by applicable Laws and when used with respect to Letter of Credit Fees, 3 rate equal to the Applicable Rate pju_s 2% per annum. ?Disposition? or "Dispose" means the sale, transfer, license, leaso or other disposition (including any Sale and Leaseback Transaction) of any property by any Loan Party or any Subsidiary (including the Equity interests of any Subsidiary). including any sale, assignment, transfer or other disposal, with or without recourse. of any notes or accounts receivable or any rights and claims associated herewith. but excluding the sale, lease, license, transfer or other disposition of inventory in the ordinary course of business; the sale, lease, license, transfer or other disposition in the ordinary course of business of Surplus, obsolete or worn out property no longer used or use?tl in the conduct of business. ot?any Loan Party and its Subsidiaries; any sale, lease, license, transfer or other disposition of propertyr to any Loan Party or any Subsidiary; provided, that if the transferor of such property is a Loan Party the transferee thereof must be a Loan Party or (ii) to the extent such transaction constitutes an investment, such transaction is permitted under Section 8,92; any Involuntary Disposition; the sale, lease. license, transfer or other disposition to Subsidiaries of Holdings that are not been Parties of intellectual property and other assets that are, in each case. no longer used or useful in the business of any Loan Parry or any of its Subsidiaries, at not less than book value (less the amount (as of the date of such disposition) of any liabilities of the transferor transferred to the transferee in connection with such disposition) and the sale, lease, license, transfer or other disposition of intellectual property and other assets to Subsidiaries of Holdings that are not Loan Parties at not less than book value (less the amount (as of the date of such disposition) of any liabilities of the to the transferee in connection with such disposition) in. an aggregate amount not to exceed $1,000,000 during the term of this Agreement. "Dollar" and mean lawful mortey of the United States. ?Dome tic Sub 'dia means any Subsidiary that is organized under the laws of any state of the United States or the District of Columbia. ?13am Qt? Qbiiggtions" means, with respect to an Acquisition, all obligations of the Borrower or any Subsidiary to make earn out or other contingency payments (including purchase price adjustments, non-competition and consulting agreements, or other indemnity obligations) pursuant to the documentation relating to such Acquisition. For purposes of determining the aggregate consideration paid for an Acquisition at time of such Acquisition, the amount of any Earn Out Obligations shall be deemed to be the maximum amount of the cam-out payments in respect thereof as speci?ed in the documents relating to such Acquisition. For purposes of determining the amount of any Earn Out Obligations to be included in the de?nition of Funded Indebtedness, the amount of Earn Out Obligations shall be deemed to be the aggregate liability in respect thereof, as determined in accordance with GAAP. ?Eligible Assets" means pmpeny that is used or useful in the same or a similar line of business as the Borrower and its Subsidiaries were engaged in on the Closing Date (or any reasonable extension or expansions thereof). "linyironmental Laws" means any and all federal, state, local, foreign and other applicable statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, grants, franchises. licenses, agreements or governmental restrictions relating to pollution and the protection of the environment, including those related to the handling or. release of hazardous substances or wastes, air emissions and discharges to waste or public systems. CHAR l\l160605v5 T- ll viron .i means any liability. contingent or othenvise (including any liability for damages, costs of environmental remediation, ?nes, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon violation of any Environmental Law, the generation,use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, exposure to any Hazardous Materials, the release or threatened releasegf arty Hazardous Materials into the or any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. means, with respect to any Person, all of the shares of capital stock of (or other ownership or pro?t interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or pro?t interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or pro?t interests in) such Person or warrants. rights or options for the purchase or acquisition from such Person of such shares (or such other interests). andall of the other ownership or pro?t interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination. ui Issuance" means any issuance by any Loan Party or any Subsidiary to any Person of its Equity Interests, other than any issuance of its Equity interests pursuant to the exercise of options or warrants, any issuance of its Equity interests pursuant to the conversion of any debt securities to equity or the conversion of any class equity securities to any other class of equity securities and any issuance of options or warrants relating to its Equity Interests. The term "Equity issuance? shall not be deemed to include any Disposition. means the Employee Retirement income Security Act of I974. means any trade or business (whether or not incorporated) under common controi with the Borrower within the meaning of Section 414(b) or of the Internal Revenue Code (and Sections 4 l4(m) and of the lntemal Revenue Code for purposes of provisions relating to Section 4l2 of the lntemal Revenue Code). Event" means Reportable Event with respect to Pension Plan; the withdrawal of the Borrower or any ERJSA Af?liate from a Pension Plan subject to Section 4063 of during a plan year in which such entity was a "substantial employer" as de?ned in Section 4UOl(a)(2) of ERISA or a cessation of operations that is treated as such withdrawal under Section 4062(e) of a- complete or paniai withdrawal by the Borrower or any ERISA Af?liate from a Multiemployer Plan or noti?cation that a Multiemployer Plan is in reorganization; the ?ling of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Sections 404 or 4041A the institution by the PBGC of proceedings to terminate a Pension Plan; any event or condition which constitutes grounds under Section 4042 of ERISA fo'r the termination of, or the appointment of a to administer, any Pension Plan; (3) the determination that any Pension Plan is considered an tit-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 43l and 432 of the Internal Revenue Code or Sections 303, 304 and 305 of or the imposition of any liability under Title of ERJSA. other than for PBGC premiums clue but not delinquent under Section 4007 of ERISA, upon the Borrowar or any ERISA A?iliate. "E.prodollar Base Rate" means: AK ?12606056 for any Interest Period with respect to Eurodollar Rate Loan, the rate per annum equal to the British Bankers Association LIBOR Rate as published by Reuters (or such other commercially available source providing quotations of BBA LIBOR as may be designated by the Lender from time to time) at approximately ii:th a.rn., London time, two London Banking Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the ?rst day of such Interest Period) with a term equivalent to such interest Period or (ii) if such rate is not available at such time for any reason, the rate per annum determined by the Lender to be the rate at which deposits in Dollars for delivery on the ?rst day of such interest Period in same day ?tnds in the approximate amount of the Eurodoliar Rate Loan being made. continued or converted and with a term equivalent to such Interest Period would be offered by Lender's London Branch to major banks in the London interbank eurodoliar market at their request at approximately I kill) a.m. (London time) two London Banking Days prior to the commencement of such Interest Period; and for any interest rate calculation with respect to a Base Rate Lean on any dateI the rate per annum equal to BBA LIBOR, at approximately ?:00 am. London time determined two London Banking Days prior to such date for Dollar deposits being delivered in the London interbank market for a term of one month commencing that day or (ii) if such published rate is not available at such time for any reason. the rate per annum determined by the Lender to be the rate at which deposits in Dollars for delivery on the date of determination in same day hands in the approximate amount of the Base Rate Loan being made or maintained with a term equal to one month wOuId be offered by Lender's London Branch to major banks in the London interbank eurodoltar market at their request at the date and time of determination. ?Burodolla; Rate" means for any Interest Period with respect to any Eurodollar Rate Loan, a rate per annum determined by the Lender to be equal to the quotient obtained by dividing the Eurodollar Base Rule for such Eurodollar Rate Loan for such Interest Period by (ii) one minus the Eurodollnr Reserve Percentage for such Eurodoilar Rate Loan for such Interest Period and for any day with respect to any Base Rate Loan bearing interest at a rate bascd on the Eurodollar Rate. a rate per annum determined by the Lender to be equal to the quotient obtained by dividing the Eurodotiar Base Rate for such Base Rate Loan for such day by (ii) one mm the Eurodollar Reserve Percentage for such Base Rate Loan for such day. Bale Loan" means a Loan that bears Interest at a rate based on clause of the de?nition of"Burodoilar Rate". means. for any day during any Interest Period. the reserve percentage (expressed as a decimalI carried out to live decimal places) [It effect on such day, whether or not applicable to the Lender. under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency. supplemental or other marginal reserve requirement) with rcSpect to Euroeurrency funding (currently referred to as "EurOcurreucy liabilities"). The Eurodollar Rate for each outstanding Eurodotiar Rate Loan and for each outstanding Base Rate Loan the interest on which is determined by reference to the Eurodoltar Rate, in each case. shall be adjuSted automatically as of the effective date of any change in the Eurodollnr Reserve Percentage. vem of Default" has the meaning speci?ed in Sgctign "Mlid?d?gpit?" means, with rcSpect to any Loan Party, including any Person that becomes a Loan Party alter the Closing Date as coutempiated by Section LIZ, any owned or leased real or personal property which is located outside of the United States unless reasonany requested by the Lender, any per50nai property (including, without limitation. motor vehicles) in respect of which perfection of 9 i135. ii: - El a Lien is not either governed by the Uniform Commercial Code or (ii) effected by appropriate evidence of the Lien being ?led in either the United States Copyright Oilice or the United States Patent and Trademark Of?ce, unless reasonably requested by the Lender; Mica that such exclusion shall not apply to 1? Rights except to the extent such 1? Rights arise under the Laws of a country other than the United States or its territories, the Equity Interests of any Foreign Subsidiary of a Loan Party to the extent not required to be pledged to secure the Obligations pursuant to Section any property which, subject to the terms ofSectiog 3.02, is subject to a Lien of the type described in ?gction germ pursuant to documents which prohibit such Loan Party from granting any other Liens in such property, any leasehold interest of any Loan Party in office space, warehouse space or space dedicated to call center operations and that certain intellectual property and Equity interests set forth on Schegglg means, with respect to the Lender or any other recipient of any payment to be made by or on accOunt ofany obligation of the Borrower hereunder, (2) taxes imposed on or measured by its overall net income (hOWever denominated). and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal of?ce is located or, in the case of the Lender, in which the Lender's Of?ce is located, any branch pro?ts tones imposed by the United States or any similar tax imposed by any other jurisdiction in which the Borrower is located, any backup withholding tax that is required by the lntemal Revenue Code to be withheld from amounts payable to the Lender if the Lender has failed to comply with ?e_ct_io_n_ and any Taxes imposed on any ?withhoidable payment" payable to such recipient as a result of the failure of such recipient to satisfy the applicable requirements as set forth alter December 20l2 in FATCA to establish that such payment is exempt from withholding under FATCA. ?Existing Credit. Agreement" means that certain credit agreement, dated as of June 39, 20t l, by and between the Borrower, Holdings and SRF investments LLC, as amended or otherwise modified. "Extraordinagr Receipts" means any cash received by or paid to or for the account of any Person not in the ordinary course of business (other titan any tax refunds), including, without limitation, pension plan rcversions, proceeds of insurance (including, without limitation, any key man life insurance). any loss of, damage to or of, or arty condemnation or other taking for public use of, any property of any Loan Party or any of its Subsidiaries (and payments in lieu thereof), indemnity payments and any purchase pnce adjustment received in connection with any purchase agreement. it is understood and agreed that, to the extent that any Loan Party shall receive any proceeds of insurance (under a shared insurance policy) with respect to property or assets of a Subsidiary of Holdings that is not a Loan Party, then such Loam Party shall be permitted to transfer the proceeds applicable to such property or assets to the appropriate Person, and suoh proceeds shall not be deemed to be "Extraordinary Receipts". "Facilities" means. at any time, a collective reference to the facilities and real properties owned, leased or operated by any Loan Party or any Subsidiary. means Sections l47l through 1474 of the lntenral.Revcnue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not matcnally more onerous to comply with) and any current or future regulations or official interpretations thereof. ?Federal Funds Rage" means, for any day, the rate per annum equal to the weighted average of the . rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding day; provided that if suclt day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, to cnan ruzsosaste .J i ?l if necessary, to a whole multiple of of charged to the Lender on such day on such transactions as determined by the Lender. "Eoreign ?pbsidia1y? means any Subsidiary tltat is not a Domestic Subsidiary. "Founders" means Adam and Don Ressler. means the Board of Governors of the Federal Reserve System or the Unitcd States. "Eygded Indebtedness" means, as to any Person at a particular lime, without dupliCation, all ol? the following, whether or not included as indebtedness or liabilities in accordance with GAAP: all obligations for borroch money, whether current or long-tom (including the Obligations) and all obligations of such Person evidenced by bonds, debentures, notes. loan agreements or other similar instruments; all purchase money Indebtedness; the principal portion nf? all obligations under conditional sale or other title retention agreements relating to property purchased by the Borrower or any Subsidiary (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business); - all obligations arising under letters of credit (including standby and commercial), bankers' acceptances, bank guaranties. surety bonds and similar instruments; all obligations in respect of the deferred purchase price of property or services. including without limitation any Earn Out Obligations; provided, wever, it is understood and agreed that trade accounts payable in the ordinary course of business and, in each case, not past due for more than 120 days after the date on which such trade account payable was created shall not be included as "Funded indebtedness"; the Attributable Indebtedness of Capital Leases. Securitization Transactions and Leases; (3) all obligations of such Person to purchase, redeem, retire, defeasc or otherwise make any payment in respect of any Equity interests in sneh Person or any other Person. valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preferencc plus accrued and unpaid dividends; all Funded indebtedness of others secured by (or for which the holder of Funded indebtedness has an existing right. contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of' production From. property owned or acquired by such Person, whether or not obligations secured thereby haVe been assumed; all Guarantees with respect to Funded indebtedness of the types specified in - clauses through above of another Person; and I all Funded Indebtedness of the types referred to in clauses through above oi'atry partnership or joint venture (other than ajoint venture that is itscifa corporation or limited CHARIUZAOHUSVS liability company) in which such Person is a general partner orjoint venturer. except to the extent that Funded Indebtedness is expressly made non-recourse to such Person. For purposes hereof, the amount of any direct obligation arising under letters of credit (including standby and commercial), bankers' acceptances, bank guaranties, surety bonds and similar instruments shall be the maximum amount available to be drawn thereunder. means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certi?ed Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, consistently applied and as in effect From time to time. "Governmental Authority" means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentallty, regulatory body, court. central bank or other entity exercising executive. legislative, judicial, taxing, regulatory or administrative powers or functions of or pedaining to government (including any supra? national bodies such as the EurOpean Union or the European Central Bank). "Guarantee." means, as to any Person, any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any indebtedness or other obligation payable or performable by another Person (the "primary obligor") in any manner. whether directly or indirectly, and including any obligation of such Person, direct or indirect, to purchase or pay (or advance or supply funds for the purchase or payment oi) such indebtedness or other obligation, (ii) to purchase or lease property, securities or Services for the purpose of assuring the obliges in respect of such indebtedness or other obligation of the payment or perfomrance of such indebtedness or other obligation, to maintain working capital, equity capital or any other ?nancial statement condition or liquidity or level of income or cash ?ow of the primary obligor so as to enable the primary obligor to pay such indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligce in respect of such indebtedness or other obligation of the payment or performance thereof or to protect such ohligec against loss in respect thereof (in whole or in part), or any Lien on any assets of such Person securing any indebtedness or other obligatitm of any other Person, whether or not such indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such indebtedness to obtain any such Lien). The amount of any Gnarantce shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximpm reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good forth. The term "Guarantee" as a verb has a corresponding meaning. "guarantors" means each Person identified as a "Guarantor" on the signature pages hereto and each other Person that joins as a Girarantor pursuant to Section 12, together with their successors and permitted assigns. "grjuaran 1" means the Guaranty made by the Guarantors in favor of the holders of the Obligatiorrs pursuant to Article lV. "Hazardous Materials" means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, biphenyis, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law. "Hgidings" means IB Holding LLC, a Delaware limited liability company. l2 CHAancsosvs "Honor gate" has the meaning set forth in Section 2.03m). mmaterial Domestic Subsidi means, at any time. any Domestic Subsidiary that as of the last day of the fiscal quarter of the Borrower most recently cnded for which ?nancial statements are available, did not have consolidated total assets in excess of five percent oi" the aggregate consolidated total assets for the Borrower and its Subsidiaries as at the end ofsuch ?scal quarter for any one immaterial Domestic Subsidiary and (it) together with all other immaterial Domestic Subsidiaries. ten percent 00%) of the aggregate consolidated total assets of the Borrower and its Subsidiaries at the end of such ?scal quarter for all immaterial Domestic Subsidiaries in the aggregate and for the period of the four consecutive fiscal quarters of the Borrower most recently ended for which ?nancial statements are available, did not have Consolidated attributable to it for such period constituting ?ve percent or more of the Consolidated of the Borrower and its Subsidiaries for such period. as determined in accordance with GAAP, for any one immaterial Domestic Subsidiary and (ii) together with all other immaterial Domestic Subsidiaries, Consolidated attributable to such immaterial Domestic Subsidiaries for such period constituting ten percent or more of the Consolidated of the BorrOWer and its Subsidiaries for such period, as determined in accordance with GAAP. for all immaterial Domestic Subsidiaries in the aggregate. "indebtedness" means. as to any Person at a particUIar time, without duplication, all of the following, whethcr or not included as indebtedness or liabilities in accordance with GAAP: all Funded indebtedness; the Swap Termination Value of any ?Swap Contract; all Guarantees with respect to outstanding indebtedness of the types speci?ed in clauses and above of any other Person; and all indebtedness of the types referred to in clauses through above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which the Borrower or a Subsidiary is a general partner or joint vcnturer, unless such indebtedness is expressly made non-recourse to the Borrower or such Subsidiary. "ittgiemm'?gd Taxes" means Taxes other than Excluded Taxes. has the meaning speci?ed in ?ectign rooster. means (it) as to any Eurodollar Rate Lean, the last day of each interest Period applicable to such Loan and the Revolving Maturity Date or the Term Loan Maturity Date, as applicable; provided, however, that if any interest Period for Eurodotlar Rate Loan exceeds three months, the respective datcs that fail every three months after the beginning of such interest Period shall also be interest Payment Dates; and as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Revolving Maturity Date or the Term Loan Maturity Date, as applicable. ?litteggt Perio means, as to each Burodollar Rotc Loan, the period commencing on the date such Eurodoilar Rate Loan is disbursed or converted to or continued as a Eurodoltar Rate Loan and ending on the date one. two, three or six months, subject to availability, thereafter, as selected by the Borrower in its Loan Notice; provided that: CHAR \i260605v$ any interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless. in the case of a Eurodollar Rate Loan, such Business Day falls in another calendar month, in which case such interest Period shall and on the next preceding Business Day; any interest Period pertaining to a Burodollar Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such interest Period) shall end on the last Business Day of the calendar momh at the end of such interest Period; no interest Period with respect to any Revolving Loan shall extend beyond the Maturity Date; and no interest Period with to the Term Loan shall extend beyond the Term Loan Maturity Date. "interim Financial Statements" has the meaning set forth in W. "internal Bu. none Code" means the internal Revenue Code of i986, as amended. "Wm" means, as to any Person, any direct or indirect acquisition or investment by such Person. whether by means of the purchase or other acquisition of Equity interests of another Pcrson, a loan. advance or capital contribution to, Guarantee or assumptiOn of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person. including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the inVestor Guarantees indebtedness of such other Person, or an Acquisition. For purposes of covenant compliance, the amount of any investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment. For the avoidance of doubt. the term "investment" shall not include intereompany receivables resulting From payments related to shared employees and services, shared costs/bene?ts and shared vendor payments, so long as such transactions in each case are entered into in the ordinary course of such Person's business and (ii) do not result in any Loan Party paying more than the portion of such shared employees. services, costs. bene?ts and vendor payments attributable to it (alter giving effect to all cash reimbursements in respect of such transaction ultimately received from Subsidiaries of Holdings that are not the Borrower or one oi'lts Subsidiaries). corporate cost mark-ups for management fees owing to a Loan Party so long as in each case such transactions are entered into in the ordinary course of such Person's business and (ii) result in an intercompany receivable in an amount approximately equal to the amount of such management fees and (2.) corporate allocation of depreciation and atnortizatiOn expense so long as in each case such allocations are cashless and entered into in the ordinary course of business. "lnvolggtag Disposition" means any loss of, damage to or of?, or any condemnation or other taking for public use oi?, any property of any Loan Party or any of its Subsidiaries. l?lP Eights" has the meaning speci?ed in Section 6? l7. means, with respect to any Letter of Credit, the ?international Standby Practices 1998" published by the institute of international Banking Law at Practice, inc. (or such later version thereof as may be in effect at the time of issuance). CHARHIZGOGOSVS {Tit ?111. tit 13.75.- means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the Lender and the Borrower (or any Subsidiary) or in favor of the Lender and relating to any such Letter ofCredit. 'W?'?mmgm" means ajoinder agreement substantially in the form of E. hibit cxccuied and delivered by a Domestic Subsidiary in accordance with the provisions ofSectign ?Laws? means, collectively, all international, foreign, federal. state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties. requests, licenSes, authorizations and permits of, and agreements with, any Govemmental Authority, in each casc whether or not having the force of law. - means an extension of credit resulting from a drawing under any Letter?oi? Credit which has not been reimbursed on the date when made or refinanced as a Borrowrng of Revoivrng Loans. . i ?x means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof. Obligations" means, as at any date of determination, the aggregate amount available to be drawn trnder all outstanding Letters of Credit plus the aggregate of at! Unreimbursed Amotmts. including all LIC Borrowings. For ptnposcs of computing the amount available to be drawn under any Letter of Credit,? the amount of such Letter of Credit shall be determined in accordance with Section For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the such Letter of Credit shall be deemed to be ?outstanding! in the amount so remaining available to be drawn. ?l,cnd?r" means Bank of America, NA. and its successors and assigns. means the Lender?s address and, as appropriate, account as set forth on Schedule 10.02 or such other address or account as the Lender may from time to ttme notrl?y the Borrower. ?Letter of Credit? means any standby letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder. ?letter; of ?gplicalion" means an application and agreement for the issuanco or amendment of a letter of credit in the form from time to time in use by the Lender. ?Letter of ggredit ?ggiratign Date" means the day that is thirty days prior to the Revolving Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day). "Letter of Credit Fog" has the meaning speci?ed in chtion 193?). ?Letter of Qrgdit Subtimi" means an amount equal to the lesser of the Revolving Commitment and $5,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Commitment. CHARHDGOWSVS l; i F: it {at .1 "Jen" means any mongage, pledge, hypotheeation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsocver (including any conditional sale or other title retention agreement, any eascment, right of way or other encumbrance on title to real preperty, and any ?nancing lease having substantially the some economic effect as any of the foregoing). means an extension of credit by the Lender to the Borrower under 55191311 in the form of a Revolving Loan or Term Loan. means this Agreement. each Note, each Issuer Document, the Subordination Agreement, each Joinder Agreement, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.12 of this Agreement and each Collateral Document. "Mugs" means a notice of a Borrowing of Loans. a cenversion of Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, in each case pursuant to Sectign 2.02m, which, if in writing. shall be substantially in the form of Exhibit A. ?Loan Eertig" menns, collectively, the Borrower and each Guarantor. means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollnr market. "Material Adverse Effect" means a material adverse change in. or a material adverse effect upon, the operations,-business. assets, properties, liabilities (actual or contingent), condition (?nancial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole; a material impairment of the rights and remedies of the Lender under any Loan Document or of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a pany; or a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party. "Mjnimum Collateral Amount" means, at any time, with respect to Cash Collateral censisting of cash or deposit account balances provided in accordance with the provisions of ?ec1lon 2. (anii) or (59(1ij an amount equal to l02% of the Outstanding Amount of all LIC Obligations. end means Mood 'sinvestors Service, inc. and an successor thereto. 3? ?Mort ed means any real propeny that is owned or leased by a Loan Party and is subject to a Mortgage. "wages" means the mortgages. deeds of trust or deeds to secure debt that purport to grant to the Lender, a security interest in the fee interest nndfor leasehold interests of any Loan Party in real property (other than Excluded Property). ?Multiemployer Plan" means any employee benefit plan of the type described in Section of to which the Borrower or any Affiliate makes or is obligated to make contributions, or during the preceding live plan years, has made or been obligated to make contributions. "Multiple Employer Plan" means a Plan which has two or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERJSA. 16 - roceeds" means the aggregate cash or Cash Equivalents proceeds received by any Loan Party or any Subsidiary in respect of any Disposition, Debt issuance, Equity Issuance, Involuntary Disposition or Extraordinary Roccipls, net of direct costs incurred in connection therewith (including, without limitation, legal, accounting and investment banking fees. and sales commissions), taxes paid or payable as a result thereof and in the case of any Disposition, the amount necessary to retire any indebtedness secured by a Permitted Lien (ranking senior to any Lien of the Lender) on the related property: it being understood that "Net Cash Proceeds? shall include. without limitation. any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received by any Loan Party or any Subsidiary in any DispositiOn, Debt issuance, Equity issuance. involuntary Disposition or Extraordinary Receipt. ?Note? or "Hams" means the Revolving Note and/or the Term Note, individually or collectively. as appropriate. "leigatiggs" means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent. due or to become due, now existing or hereafter arising and including interest and fees that accrue a?e?r the commencement by or against any Loan Pany or any Af?liate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding. regardless of whether such interest and fees are allowsd claims in such proceeding. The foregoing shall also include all obligations under any Swap Contract betwaen any Loan Party and the Lender or an Affiliate of the Lender (including without limitation any such Swap Contracts entered into before the Closing Date) and ail~obligations under any Treasury Management Agreemcnt betwaen any Loan Party and the Lender Or an Af?liate of the Lender (including without limitation any such Treasury Management Agreements entered into before the Closing Date). "gzrganizatign Documents" means, (it) with respect to any corporation, the certi?cate or articles of incorporation and the bylaws (or equivalent or comparable constitutivo documents with respect to any non-US. jurisdiction); with respect to any limited liability company, the certi?cate or articles of formation or organization and operating agreement; and with respect to any partnership. joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, ?ling or notice With respect thereto ?led in connection with its Formation or organization with the applicable Govcmmental Authority in the jurisdiction of its formatiOn or organization and, any certi?cate or articles of formation or organization of such entity. ?cher Taxes" means all present or uturc stamp or documentary taXes or any other excise or property taxes, charges or similar levies arising from any payment made or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document. Amoun means with respect to any Loans on any date, the aggregate outstanding principal amount thereof ?a?er giving effect to any borrowings and prepayments or repayments ofany Loans occurring on such date; and with respect to any Obligations on any date, the amoum of such UC Obligations on such date alter giving effect to any Credit Extension occurring on such date and any other changes in the aggregate amount of the LIC Obligations as of such date, including as a result of any reimbursements by the Borrower of Unrcimburscd Amounts. ?Egnlcigant? has the meaning set forth in Section 7 CHAR. nuances? ?Eatent License" means any agreement, whether written or oral, providing for the grant by or to a Loan Party or any Subsidiary of any right under any Patent. "Katie" means all letters patent and patent applications in the United States and all other countries (and all letters patent that issue therefrom) and all reissues, reexaminattotts, renewals, divisions and continuations (including continuations-in-part and continuing prosuution applications) thereof, for the full term thereof. means the Pension Bene?t Guaranty Corporation or any successor thereto. . "Pension Act" means the Pension Protection Act of 2006. "Pensign Funding Rules" means the rules of the internal Revenue Code and ERJSA regarding minimum required contributions (including any installment payment thereoi) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the lntemal Revenue Code and Section 302 of each as in effect prior to the Pension Act and, thereafter, Section 4 l2, 430. 43l, 432 and 416 of the intental Revenue Code and Sections 302, 303, 304 and 305 of ERISA. means any employee pension bene?t plan (including a Multiple Employer Plan or . a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any BRISA Af?liate and is either covered by Title of ERISA or is subject to minimum funding standards under Section 4 of the lntemal Revenue Code. - "Permitted means investments consisting of an Acquisition by any Loan Party. prgyirled that no Default or Event of Default shall have mounts! and be continuing or would result from snelt Acquisition, (ii) the property acquired (or the property of the Person acquired) in such Acquisition ts used or useful in the same or a related line of business as the BorroWer and its Subsidiaries were engaged in on the Closing Date (or any reasonable extensions or expansions thereof), in the case of ?an Acquisition of the Equity interests of another Person, the board of directors (or other comparable body) of such other Person shall have duly approved such Acquisition, (iv) the shall hava delivered to the Lender a Pro Forma Compliance Certi?cate demonstrating that, upon giving effect to such Acquisition on a Pro Forma Basis, the Loan Parties would be in compliance with the ?nancial covenants set forth in as ofthe most recent ?scal quarter for which the Borrowar was required to deliver ?nancial statements pursuant to Section 7.0lia) or (mm, the representations and warranties made by the Loan Parties in each Loan Document shall be true and correct in all material respects at and as if made as of the date of such Acquisition (aller giving elTect thereto) except to the extent such representattons and warranties expressly relate to an earlier date. (vi) ifsuch transaction involves the purchase of an interest in a partnership between the Borrower (or a Subsidiary) as a general partner and entities unaf?liated with the Borrower or such Subsidiary as the other partners, such transaction shall be effected by having such equity interest acquired by corpnrate holding company directly or indirectly wholly-owned by the Borrower newly formed for the sole purpose of effecting such transaction, (vii) immediately after giving effect to such Acquisition, the Borrower shall have at least $5,000,000 in the aggregate of the sum of (I) unrestricted cash and Cash Equivalents and (2) availability under the Revolving Commitment and the aggregate consideration (including cash and non-cash consideration, any assumption of indebtedness, deferred purchase price and any Earn-Out Obligations) paid by the Loan Parties for all Acquisitions during the tom of this Agreement shall not exceed $5,000,000. "Permitted Liens" means, at any time, Liens in respect of property of any Loan Party or any of its Subsidiaries permitted to exist at such time pursuant to the terms of Sggtigg 8.0L 8 CHAR Preferred Stoc means those certain 12,969 shares of Borrower's Series A Preferred Stock issued to Holdings pursuant to the Borrower's Restated Certi?cate of Incorporation and those certain H.467 shares of Borrower's Series Preferred Stock issued to Holdings pursuant to the Borrower's Restated Certi?cate of incorporation. "Pgrmittgd means, any Person who is a lineal descendant of any Founder, any Person who stands in any adoptive or step-adoptive relationship with any such lineal descendant- described in clause any Founder's spouse, child or sibling, any partnership (limited or general), limited liability company, joint venture, assooiation, trust or other business entity that has been or may be established or controlled by any Founder or any Permitted Transferee, for the bene?t of, or solely owned by, any Founder or its Permitted Transferecs, and any foundation controlled by or under the common control of any Persons who are Permitted Transferees. "Person" means any natural person, corporation, limited liability company, tmst, joint venture, association, company, partnership. Goverrunental Authority or other entity. "Elan" means any employee bene?t plan within the meaning of Section 3(3) of (including a Pension Plan), maintained for employees ofthc Borrower or any ERISA Af?liate or any such Plan to which the Borrower or any ERISA Af?liate is required to contribute on behalf of any of its employees. "Pledge Agr?ment" means the pledge agreement dated as of the Closing Date executed'in favor of the Lender, for the bene?t of the holders of the Obligations, by each of the Loan Parties, as amended or modi?ed from time to time in accordance with the terms hereof. ?Ero Forma Basis" means. for purposes of calculating the ?nancial covenants set forth in Section that any Disposition. involuntary Disposition, any Acquisition of Equity Interests of another Person or Restricted Payment shall be deemed to have occurred as of the ?rst day of the most recent four ?scal quarter period preceding the date of such transaction for which the Borrower was required to deliver ?nancial statements pursuant to Section or (910. in connection with the foregoing, respect to any Disposition or involuntary Disposition, income statement and cash flow statement items (whether positivo or negative) attributable to the property disposed of shall be excluded to the extent relating to any period occurring prior to the date of such transaction and with respect to any Acquisition of the Equity interests of another Person, income statement items attributable to the Person acquired shall be included to the extent relating to any period applicable in such calculations to the extent (A) such items are not otherwise included in such income statement items for the Borrower and its Subsidiaries in accordance with GAAP or in accordance with any de?ned terms set forth in ?eclion l.0l and (B) such items are supported by ?nancial statemean or other infonnation satisfactory to the Lender and (ii) arty Indebtedness incurred or assumed by the Borrower or any Subsidiary (including the Person acquired) in contraction with such transactlon (A) shall be deemed to have been incurred as of the ?rst day of the applicable period and (B) if such indebtedness has a ?oating or formula rate, shall have an implied rate ofinleresl for the applicable period for purposes of this de?nition determined by utilizing the rate which is or would be in effect with respect to such indebtedness as at the relevant date of determination. "Prg Forrna mepliancc Certi?cate" means a certi?cate of a Responsible Of?cer of the Borrower containing reasonably detailed calculations of the ?nancial covenants set forth in Section as of the most reccnt ?scal quarter end for which the Borrower was required to delivor ?nancial statements pursuant to Section 7.0l(a) or (biti) after giving effect to the applicable transaction on a Pro Forma Basrs. CHAR ?12605056 LII "Quah'?gd ?guin interes means common Equity interests of Holdings that do not include a .cash dividend and are not mandatorin redeemable by Holdings or any of its Subsidiaries or redeemable at the option of the holder of such Equity Interests, in each case prior to the I8i" day following the Revolving Maturity Date. means, with respect to any Person, such Person?s Af?liates and the partners. directors, of?cers. employees, agents, trustees, administrators, managers. advisers and representatives of such Person and of such Person's Af?liates. "Wm" means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty-day notice period has been waived. Credit Extension" means with respect to a Borrowing, conversion or continuation of Loans, a Loan Notice and with respect to an LIC Credit Extension, a Letter of Credit Application. ns' Officer" means the chief executive of?cer, president, chief ?nancial officer or treasurer of a Loan Party and, solely for purposes of the delivery of certi?cates pursuant to or 1.12m), the secretary or any assistant secretary of a Loan Party. Any document delivered hereunder that is signed by a Responsible Of?cer of a Loan Party shall he conclusively presumed to haste been authorized by all necessary corporate, partnership andlor other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party. - means any dividend or other distribution (whether in cash, Securities or other property) with respect to any Equity interests of any Loan Party or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit. on account of the purchase, redemption, retirement, acquisition. cancellation or termination of any such Equrty Interests or on account of any return of capital to the Borrower's stockholders, panners or_ members (or the equivalent Person thereol), or any setting apart of funds nr property for any of the foregoing. . ?Revolving ngmitment" means the Lender?s obligation to make Revolving Loans to the Borrower pursuant to Section 2.0l and issue Letters of Credit for the account of the Borrowar pursuant to section 2,03. The principal amount of the Revolving Commitment in effect on the Closing Date is DOLLARS evolving Loan" has the meaning speci?ed in Sectign 2.0m). "Revolving Maturity Date" means May 1, MI 5. "Revolving ?ote" has the meaning speci?ed in Section 2,10. means Standard Poor?s Financial Services LLC, a subsidiary of The McGraw-Hiil Companies, lnc., and any successor thereto. ale and ideasgizgck Transaction" means, with respect to any Loan Party or any Subsidiary, any arrangement, directly or indirectly, with any Person whereby the Loan Party or such Subsidiary shall sell or transfer any property used or useful in its business. whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred. 20 1:2th i means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions. ?Securitizatiog Transaction? means, with respect to any Person. any ?nancing transaction or series of ?nancing transactions (including factoring arrangements) pursuant to which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts, payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special purpose subsidiary or af?liate of such Person. i means the security agreement dated as of the Closing Date executed in favor of the Lender. for the bene?t of the holders of the Obligations. by each of the Loan Patties, as amended or modi?ed from time to time in accordance with the terms hereof. "52mg" means Sensa Products, LLC, a Delaware limited liability company. or "Solvency" means, with respect to any Person as of a particular date. that on such date such Person is able to pay its debts and other liabilities, contingent obligations and other commitments as titcy mature in the ordinary course of business, such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay as such debts and liabilities mature in their ordinary course. such Person is not engaged in a business Or a transaction, and is not about to engage in a business or a transaction, for which such Person's property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage, the lirir value of the property of Such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person and the present fair Saiable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured. in computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed at the amount which, in light ofall the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.? means TCV Vi, L.P.. a Delaware limited partnership and TCV Member Fund. L.P., 5 Cayman islands exempted limited ?Subardinut in ncss'imeans the unsecured subordinated indebtedness of the Borrower. Sense and Brand ideas. LLC incurred pursuant to the Subordinated Loan Documents in an aggregate principal amount not to exceed $0,000,000. "Subordinated indebtedness Holders" means TCV Vi, L.P., a Delaware limited partnership and TCV Member Fund, L.P., a Cayman islands exempted limited partnership and. in each case together with their permitted successors, assignes and inatcd Loan Documents" means the Subordinated TCV Guarantees, Subordination Agreement and all other material agreements. instruments and documents executed and delivered in connection with any oftirc foregoing. ?Subordination Agreement." means that certain subordination agreement entered into. as 0fth Closing Date, between the Subordinated indebtedness Holders and the Lender, as amended, restated or otherwise modified pursuant to the conditions set forth in the Loan Documents. - "Subordinated TCV gitiarantgg" means that certain Guaranty made as of December 20?) by Sensa in favor of TCV Vi. L.P., a Delaware limited partnership, as the designated lender, as amended 2i CliARl'll260605v5 or othemise modi?ed, that certain Guaranty made as of December 3i, mm by Brand ideas, LLC in favor of Vi. L.P., a Delaware limited partnership, as the designated lender, as amended or otherwise modified and that certain Guaranty made as of December mm by the Borrowar in ?avor of TCV Vi, L.P., a Delaware limited partnership, as the designated lender, as amended or otherwise modi?ed. gbsidiam" of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of Vating Stock is at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries. or both. by such Person. Unless otherwise speci?ed, all references herein to a ?Subsidiary? or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the Borrower. means any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions. commodity swaps, commodity Options, forward commodity contracts. equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions. floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement. and any and all transactions of any kind, and the related con?rmations. which are subject to the terms and conditions of, or governed by, any form of master agreement published by the international Swaps and Derivatives Association. inc; any lntemationai Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a including any such obligations or liabilities under any Master Agreement. ??wap Termination Valug" means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, for any date on or after the date such Swap Contracts have been closed out and lamination value(s) determined in accordance therewith, such lamination vaiue(s) and for any date prior to the date referenced in clause the amountIs) determined as tho mark-to-market vaiue(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include the Lender or any Af?liate of the Lender). Leasg" means any lease, tax retention operating lease, off-balance sheet loan or similar off-balancte sheet ?nancing arrangement whereby the arrangement is considered borrowed money indebtedness for tax purposes but is classi?ed as an Operating lease or does not otherwise appear on a balance sheet under GAAP. "Taxes" means all present or future taxes, levies. imposts, duties, deductions. withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. erm Loan" has the in Section 2.01m). ?Term Loan ngmitmem" means the Lender's obligation to make the Tenn Loan to the Borrower pursuant to ?mtiou 2.01m), in the principal amount of TEN MILLION DOLLARS (S 0,000,000). - enn Loan Malaria Date" means May l, 20I4. 22 ?Term Note" has the meaning speci?ed in Section 2.112. Among? means 3.000.000. "Total volvin Out ings" means the aggregate Outstanding Amount of all Revolving Loans and all UC Obligations. "Trademark License" means any agreement. written or oral. providing for the grant by or to a Loan Party or any Subsidiary of any right to use a Trademark. "Madge" means all statutory and common law trademarks. trade names. corporate names, company names. business names. fictitious business names. trade styles. service marks, logos and other source or business identi?ers. and the goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof. and all applications to register in connection therewrth. under the laws of the United States. any state thereof or any other country or any political subdivision thereof. or otherwise. for the full term and all renewals thereof. Management Agreement" means any agreement governing the provision of treasury or cash management services. including deposit accounts. overdraft. credit or debit card. funds transfer. automated clearinghouse. zero balance accounts. retumed check concentration. controlled disbursement, lockbox. account reconciliation and reporting and trade ?nance services and other cash management services. ?1mg? means. with respect to any Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan. means. with respect to any Letter of Credit. the Unifomt Customs and Practice for Documentary Credits. International Chamber of Commerce Publication No. 600 (or such later version thereof as may be in effect at the time of ismrancc). ?united States" and mean the United States of America. Amount" has the meaning speci?ed in ?ectign means. with respect to any Person. Equity Interests issued by such Person the holders of which are ordinarily. in the absence of contingencies. entitled to vote for the election of directors (or persons performing similar functions) of such Person. even though the right so to vote has been suspended by the happening of such a contingency. ?Wholly Owned Subsidiary" means any Person l00% of whose Equity interests are at the time owned by the Borrower directly or indirectly through other Persons l00% of whose Equity Interests are at the time owned. directly or indirectly, by the Borrower. "Work" means any work or subject matter that is subject to protection pursuant to Title of the United States Code. l.02 Other Interpretive Provisions. . With reference to this Agreement and each other Loan Document. unless otherwise speci?ed herein or in such other Loan Document: 23 crtanrnzaorostrs The de?nitions of terms herein shall apply equally to the singular and plural forms of the terms de?ned. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "ineiu "Meg" and "Merging" shall be deemed to be followed by the phrase ?without limitation." The word "gm" shall be construed to have the same meaning and effect as the word ?shaL,? Unless the context requires otherwise, any de?nition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as iiom time to time amended, supplemented or otherwise modi?ed (subject to any restrictions on such amendments, supplements or modi?cations set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person's successors and assigns, the words "heme", "herein," "11mg!" and ?theunder," and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise Speci?ed, refer to such low or regulation as amended, modi?ed or supplemented from time to time, and (vi) the words "asset" and "properly" shall be construed to have the same meaning and effect and to refer to any and all real and personal property and tangible and intangible assets and properties. including cash, securities, accounts and contract rights. in the computation of periods of time from a speci?ed dateto a later speci?ed date, the word ?_fr_om" means "fro and includi the words ?to? and each mean exgluding;" and the word "throng means ?lg and including." Section headings herein and in the other Loan DoCuments are included for convenience of reference only and shall not affect the interpretation of this Agreement Or any other Loan DocumenL mailbag Terms. Wily. Except as otherwise speci?cally prescribed herein, all accounting terms not specifically or completely de?ned herein shall be construed in conformity with, and all ?nancial data (including ?nancial ratios and other ?nancial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied an a consistent basis, as in effect ?'om thne to time, applied in a manner consistent with that used in preparing the Audited Financial Statements; proyided, wcver, that calculations of Attributable indebtedness under any Lease or the implied interest component of any Lease shall be made by the Borrower in accordance with accepted ?nancial practice and consistent with the terms of such Lease. (W W. The Borrower will provide a written summary of material changes in GMP and in the consistent application thereof with each annual and quarterly Compliance Certi?cate delivered in accordance with Section 7.02m}. if at any time any change in GAAP would affect the computation of any ?nancial ratio or requirement set forth in any Loan Document, and either the Borrower or the Lender shall so request, the Lender and the Borrower shall negotiate in good ?aith to amend such ratio or requirement to preserve the original intent thereof in light of .such change in pr_o_\_rid__et_i that. until so amended, such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Lender financial Statements and other documents required under this Agreement or as requested hereunder setting forth a 24 cunnmzeosom .s it . . tilt reconciliation between calculations of such ratio 0r requirement made before and after giving effect to such change in GAAP. (C) 93mm. Notwithstanding the above, the parties hereto acknowledge and agree that all calculations of the ?nancial covenants in ?e?tion shall be made on a Pro Fomta Basis. A A30 825 and EASE ASC 470-20. Notwithstanding the abova, for purposes of detennining compliance with any covenant (including the computation of any ?nancial covenant) contained herein, indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at l00% of the outstanding principal amount thereof, and the effects of FASB ASC 1325 and FASB ASC 470-20 on ?ttaneial liabilities shall be disregarded. 1-04 More Any ?nancial ratios required to be maintained pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up Or down to the nearest number (with a rounding-up if there is no nearest number). 1.05 We. Unless otherwise speci?ed, all references herein to times of day shall be references to Paci?c time (daylight or standard, as applicable). 1.06 Letter of Qredit Amounts. Unless otherwise speci?ed herein, the amount of a Letter of Credit at any time shall be deemed to he the stated amount of such Letter of Credit in effect at such time; mm, wev r. that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic inereascs in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of suchLetter of Credit atter giving effect to all such increases, whether or not suclt maximum stated amount is in effect at such time. ARTICLE it THE COMMITMENTS AND CREDIT EXTENSIONS 2.0l 99mmitments. (3) MM- Subject to the terms and conditiOns set fonh herein, the Lender agrees to make loans (each such loan, a "?evgtving Loan?) to the Borrower in Dollars time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the atnount of the Lender's Revolving Commitment; provigm, however, that after giving effect to any Borrowing of Revolving Loans, the Total Revolving Outstandings shall not exceed the Revolving Commitment. Within the limits of the Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01, prepay under Section 2.04, and reborrow under this Section 2.0L Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, or a combination thereof. as further provided herein, ?ogged, however, all Borrowings made on_thc Closing Date shall be made as Base Rate Loans. Cl MR I {72 3.1 with. Subject to the terms and conditions set forth herein, the Lender agrees to make a term loan (the ?Term Loan") to the Borrower in Dollars on the Closing Date in an amount not to exceed the Term Loan Commitment. Amounts repaid on the Term Loan may not be reborrowed. The Term Loan may consist of Base Rate Loans or Eurodollar Rate Loans or a combination thereof. as funher provided herein, provided' however, all Borrowings made on the Closing Date shall be made as Base Rate Loans. . 2.02 . Borrowings, Conversions and Eggpt'mpatigns gfLoans. Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower's irrevocable notice to the Lender, which may be given by telephone. Each such notice must be received by the Lender not later titan i200 amt. three Business Days prior to the requested datc of any Borrowing of, conversion to or continuation of, Eurodollar Rate beans or of any conVersion of Eurodollar Rate Loans to Sam Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans. Each telephonic notice by the BorroWer pursuant to this Section 2.92m must be con?rmed by delivery to the Lender of a written Loan Notice. appropriately completed and signed by a Responsible Of?cer of the Borrower. Each - Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Except as provided in . 53?11 Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Bach Loan Notice (whether telephonic or written) shall specify whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other. or a cominuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be be a Business Day), the principal ampunt of Loans to be borrowed, convened or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be convorted, and if applicable. the duration of the Interest Period with respect thereto. if the Borrower fails to specify a Type ol'a Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation. then the applicable Loans shall be made as, or convened to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the interest Period then in effoCI with respect to the applicable Eurodollar Rate Loans. if the Borrower requests a Borrowing of, conversion to. or continuation of Eurodollar Rate Loans in any Loan Noticc, but fails to specify an interest Period, it will be deemed to have Speci?ed an interest Period of one month. Upon satisfaction of the applicable conditions set forth in (and, if such Borrowing is the initial Credit Extension, ?ection the Lender shall make funds available to the Borrower either by crediting the account of the Borrower on the books of the Lender with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and acceptable to) the Lender by the Borrower; groyidcd, that if, on the date of a Borrowing of Revolving Loans, there an: MC Borrowings outstanding, then the proceeds of such Borrowing, shall be applied to the payment in full of any such LIC Borrowings and second, shall be made aVailable to the Borrower as provided above. Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of the interest Period for such Eurodollar Rate Loan. During the existence of a Default, no Loans may be ?rcqucsted as, converted to or continued as Eurodollar Rate Loans, and the Lender may demand that any or all of the then outstanding Eurodollar Rate Loans be converted immediately to Base Rate Loans. The shall notify the Borrower of the interest rate applicable to any interest Period for Eurodollar Rate Loans upon determination of such interest rate. At any time that Base 26 CHAR ntzaoeosvs Rate Loans are outstanding, the Lender shall notify the Borrower of any change in the Lender's prime rate used in determining the Base Rate following the public announcement of such change. After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than 5 Interest Periods in effect with respect to all Loans. 2.03 ors it. The Letter of Credit Commitment. Subject to the terms and conditions set forth herein, the Lender agrees, (A) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars fer the account of the Borrower or any of its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection below and (B) to honor drawings under the Letters ofCredit; provided that after giving effect to any LIC Credit Extension with respect to any Letter of Credit, the Total Revolving Outstandings shall not exceed the Revolving Commitment and the Outstanding Amount of the LIC Obligations shall not exceed the Letter of Credit Soblimit. Each request by the Borrower for the issuance or amendment of a Letter or Credit shall be deemed to be a representation by the Borrower that the UC Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof. the Borrowor's ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may. during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that haVe been drawn upon and reimbursed: (ii) The Lender shall not be under any obligation to issue any Letter of Credit if: (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Lender from issuing such Letter of Credit, or any Law applicable to the Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Lender shall prohibit, or request that the Lender refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall imposc upon the Lender with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Lender is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the Lender any unrcirnbursed loss, cost or expense which was not applicable on the Closing Date and which the Lender in good faith deems material to it; (B) the issuance of-such Letter of Credit would violate one or more policies of the Lender applicable to letters of credit generally; (C) such Letter of Credit is in an initial stated amount less than $100,000; (D) such Letter of Credit is to be denominated in a currency other than Dollars; - CHAR nmocosvs (5) subject to Section the expiry date ofsuch requested Letter of Credit would occur more than twelve months after the date of issuance or last extension; or (P) the expiry date oi?such requested Letter of Credit would occur ailer the Letter of Credit Expiration Date. The Lender shall be under no obligation to amend any Letter of Credit if (A) the Lender would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the bene?ciary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (iv) The Lender shall not amend any Letter of Credit if the Lender Would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof. Erocedures for Issuance and Amendment 9: [guys of Credit; Auto-Extensign Letter}; of dit. Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the Lender in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Of?cer of the Borrower. Such Letter of Credit Application may be sent by facsimile, by United States mail, by overnight courier. by electronic transmission using the system provided by the Lender, by personal delivery or by any other means acceptable to the Lender. Such Letter quredit Application must be received by the Lender not later than I l:00 am. at least ?ve (5) Business Days (or such later date and time as the Lender may agree in a particular instance in its sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. in the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the Lender; (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the bene?ciary thereof; (E) the dceuments to be presented by such bene?ciary in casc of any drawing thereunder; (F) the full text of any certificate to he presented by such bene?ciary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the Lender may require. In the case of a request for an amendment of any outstanding? Letter of Credit, such Letter of Credit Applimtlon shall specify in form and detail satisfactory to the Lender: (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the Lender may require. Additionally. the Borrower shall furnish to the Lender such other documents and information pennining to such requested Letter of Credit issuance or amendment, including any issuer Documents, as the Lender may require. (ii) if the Borrower so requests in any applicable Letter of Credit Application, the Lender may. in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each. an Letter of Credit"); provided that any such Auto-Extension Letter of Credit must permit the Leader to prevent any such extension at least once in each twelve-month period (commencing with the date or issuance of such Letter of Credit) by giving prior notice to the bene?ciary thereof not later than a day (the Notice Date") in each such twelvc~month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Lender. the Bonewer shall not be required to make a specific request to the Lender for any such cxtensitm. Once an Auto-Extension Letter of Credit has been issued, the Lender may permit the extension of such Letter of Credit at any time to an expiry date 28 not later than the Letter of Credit Expiration Date; provided, however that the Lender shall not permit any such extension if (A) the Lender has determined that it would not be permitted. or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions ot'clouse (ii) of or otherwise). or (B) it has received notice (which may be by telephone or in writing) on or before theday that is seven Business Days before the Non-Extension Notice Date from any Loan Party that one or more of the applicable conditions speci?ed in Sectign 5.92 is not than satis?ed. and in each case directing the Lender not to permit such extension. Qrawings and Reimbursements; Funding of Panicipatigns. Upon receipt from the bene?ciary of any Letter of Credit of any notice of drawing under such Letter of Credit, the Lender shall notify the Borrower thereof. Not later than ?:00 em. on the date of any payment by the Lender under a Letter of Credit (each such date. an the Borrower shall reimburSc the Lender in an amount equal to the amount of such drawingr in the event the Borrower fails to so reimburse the Lender, the Borrow? shall be deemed to have requested a borrowing of Revolving Loans that are Base Rate Loans to be disburscd on the Honor Date in an amount equal to the amount of the unreimbursed drawing (the without regard to the minimum and multiples Speci?ed in for the principal amount of Base Rate Loans. but subject to the canditions set forth in 2.9; (other than the delivery of a Loan Notice) and provided Lh_a_t, after giving effect to such Borrowing, the Total Revolving Outstandings shall not exceed the Revolving Commitment. Any notice given by the Lender pursuant to this ?e?lion 193(c)(1) may be giVen by telephone if immediately confirmed in writing; provided that the lack of such an immediate continuation shall not affect the conclusiveness or binding effect of such notice. (ii) With respect to any Amount that is not fully re?nanced by a Borrowing of Revolving Loans because the conditions set forth in Section 5.02 cannot be satis?ed Or for any other reason. the Berrower shall be deemed to have incurred from the Lender an MC Borrowing in the amount of the Unreimbursed Amount that is not so re?nanced. which Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. Absolute. The obligation of the Borromr to reimburse the Lender for each drawing under of Credit and to repay each LIC Borrowing shall be absolute. unconditional 'and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following: any lack of validity or enforceability of such Letter of Credit. this Agreement or any other Loan Doeumcnt; (ii) the existence of any claim, counterclaim, setot?t', defense or other right that the Borrower or any Subsidiary may have at any time against any bene?ciary or any transferee or such Letter of Credit (or any Person for whom any such bene?ciary or any such transferee may be acting), the Lender or any other Person, whether in connection with this Agreement. the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction: any dra?, demand, certi?cate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insuf?cient in any respect or any statement 29 1 therein being Untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit; (iv) waiver by the Lender of any requirement that exists for tho Lender's protection and not the protection of the Borrower or any waiver by the Lender which does not in fact materially prejudice the Borrower; honor of a demand for payment prescnted electronically even if such Letter of Credit requires that demand be in the form of a draft; (vi) any payment made by the Lender in respect of an otherwise complying item presented alter the date Speci?ed as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the 15? or the UCP, as applicable; . (vii) any payment by the Lender under such Letter of Credit against presentation of a draft or certi?cate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the Lender under-such Letter of Credit to any Person purporting to be a trustee - in bankruptcy, debtor-in-possession, assignee for the bene?t of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or any Subsidiary. The Borrower shall examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower's instructions or other irregularity, the Borrower will immediately notify the Lender. The Borrowur shall be conclusively deemed to have waived any such claim against the Lender and its correspondents unless such notice is given as aforesaid. (6) mm. The Borrower agrees that, in paying any drawing under a Letter of Credit, the Lender shall not have any responsibility to obtain any docUmcnt (other than any sight draft. certi?cates and documents expressly required by such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. The Borrower hereby assumes all risks of the acts or omissions of any bene?ciary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Burrowcr?s pursuing sueh rights and remedies as it may have against the bene?ciary or transferee at law or under any other agreement. The Lender shall not be liable or responsible for (il'any action taken or omitted in the absence of gross negligence or wiil?tl misconduct or (ii) the due execution. effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application; proyided, however, that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the Lender, and the Lender may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower preves were caused by the Lender's willful misconduct or gross negligence or the Lender's willful failure to pay under any Letter of Credit after the presentation to it by the bene?ciary of a sight draft and certi?cate(s) strictly complying with the terms and conditions of a Letter of Credit unless the Leader is prevented or prohibited from so paying as a result of any order or directive of any court or oritcr Governmental Authority. in furtherance and not in limitation of the foregoing, the Lender may accept documents that appear on their face to be in order, 30 Chart in account without responsibility for further investigation, regardless of any notice or information to the contrary, and the Lender shall not be responsible for the validity or suf?ciency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or bene?ts thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. The Lender may send a Letter of Credit or conduct any communication to or from the bene?ciary via the Society for Worldwide interbank Financial Telecommunication message or overnight courier. or any other commercially reasonable means of communicating with a beneficiary. Applicability of Limitation of Liability. Unless otherwise expressly agreed by the Lender and the Borrower when a Letter of Credit is issued. the mics of the 18? shall apply to each Letter of Credit. Notwithstanding the foregoing, the Lender shall not be responsible to the Borrower for, and the Lender?s rights and remedies against the Borrower shall not be impaired by, any action or inaction of the Lender required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the Lender or the bene?ciary is located, the practice stated in the 18? or UCP, as applicable, or in the decisions, opinions. practice statements. or of?cial commentary of the Banking Commission, the Bankers Association for Finance and Trade - lntemational Financial Services Association or the Institute of International Banking Law Practice, whether or not any Letter of Credit chooses such law or practice. (3) Letter 9! Credit Fees. The Borrower shall pay to the Lender a Letter of Credit fee (the ?Letter of mdit for each Letter of Credit equal to the Applicable Rate thugs the daily maximum amount available to be drawn undcr such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit the amount of such Letter of Credit shall be determined in accordance with Section I 06. Letter of Credit Fees shall be computed on a quarterly basis in arrears and (ii) due and payable on the ?rst Business Day after the end of each March, June. September and December, commencing with the ?rst such date to occur a?cr the issuance of such Letter of Credit, on the better of Credit Expiration Date and thereafter on demand. Notwithstanding anything to the contrary contained herein, upon the request of the Lender while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate. (It) Decumemamand Procusintharges Payable to Lender. The Borrowor shall pay directly to the Lender for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the Lender relating to letters ot'credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable. Conflict with Issuer Documents. In the event of any con?ict between the tenns hereof and the terms of any issuer Document, the terms hereof shall control. Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of. or is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse the Lender hereunder for any and all drawings under such Letter of Credit. Tire Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the bene?t of the Borrowor, and that the Borrower?s business derives substantial bene?ts From the businesses of such Subsidiaries. 2-04 Mermaids. Voluntary Prepayments. 3t CHARIUZGGEOSVS The Borrower may,-upon notice ?'om the Borrower to the Leader. at any time or from time to time voluntarily prepay Revolving Loans and/or the Term Loan in whole or in part without premium or penalty; provided that (A) such notice?must be received by the Lender not later than 11:00 am. on the date of such prepayment; (B) any such prepayment of Eurodollar Rate Loans shall be in a principal or a whole multiple of $100,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding); and (C) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 ora whole multiple of Si 00,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding). Each such notice shall specify the date and amount of such prepayment and the 'i'ype(s) of Loans to be prepaid and whether the Loans to be prepaid are the Revolving Loans and/or the Term Loan. if such notice is given by the BorrowerI the Borrower shall make such prepayment and the payment amount speci?ed in such notice shall be due and payable on the date speci?ed therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid. together with any additional amounts required pursuant to Section Each such prepayment of the Term Loan shall be applied to the remaining principal amortization payments of the Term Loan in inverse-order of maturity until the Term Loan has been paid in full. Mandatory Prepaymegts. (5) MW. if for any reason the Total Revolving Outstandings at any time exceed the Revolving Commitment then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the LJC Obligations in an aggregate amount equal to such excess; provided, howeyer, that the Borrower shall not be required to Cash Collateratize Obligations pursuant to this Section unless after the prepayment in full of the Revolving Loans the Total Revolving Outstandings exceed the Revolving Commitment then in effect. (ii) Dispositions and Involuntary Dispgitions. 't?he Bonewcr shall prepay the Loans and/or Cash Collatemiize the LIC Obligations as hcrea?cr provided in an aggregate amount equal to ?30% of the Net Cash Proceeds ofall Dispositions and involuntary Dispositions (other than, so long as no Default or Event of Default exists at the time prepayment and/or Cash Collateralization would otherwise he required pursuant to this Section Net Cash Proceeds from Dispositions and Involuntary Dispositions in an aggregate amount not to exceed $50,000 during the term oi? this Agreement) to the extent such Net Cash Proceeds are not reinvested in Eligible within 130 days of the date of such Disposition or involuntary Disposition. Any prepayment pursuant to this clause (ii) shall be applied as set forth in clause (vi) below. Debt issuances. Within ten (t0) Business Days after the receipt by any Loan Party or any Subsidiary of the Net Cash Proceeds of any Debt issuance, the Borrower shall prepay the Loans and/or Cash Coilateralize the Obligations as hereatier provided in an aggregate amount equal to NW: of such Net Cash Proceeds. Any prepayment pursuant to this clause shall be applied as set forth in clause (vi) below. (iv) Eguigr lssnances. Within ten (t0) Business Days other the receipt by any Loan Party or any Subsidiary of the Net Cash Proceeds of any Equity issuance, the Borrowar shall prepay the Loans and/or Cash Coilateralizo the UC Obligations in an aggregate amount equal to 50% of such Net Cash Proceeds (other than (it) for the avoidance of doubt, the proceeds of any Cure Amounts and so long as no Default or Event of Default exists at the time prepayment and/or Cash Coilateralization would otherwise be required pursuant to this Section Net Cash Proceeds from Equity lssuances in an aggregate amount not to exceed $50,000 during the lenn of 32 CHAR if E. hf.- it 7" 12. I 113th this Agreement). Any prepayment pursuant to this clause (iv) shall be applied as set forth in clause (vi) below. ExtraOrdinag: Receipts. The Borrower shall prepay the beans and/or Cash Collateraiize the UC Obligations as herealter provided in an aggregate amount equal to 100% ol'_the Net Cash Proceeds of all Extraordinary Receipts received by any Loan Party or any Subsidiary (other than, so long as no Default or Event of Default exists at the time prepayment andlor Cash Coltateralization would otherwise be required pursuant to this Section 2.94pm). Net Cash Proceeds from Extraordinary Receipts in an aggregate amount not to exceed $50,000 during the term of this Agreement) to the extent such Net Cash Proceeds are not reinvested in Eligible Assets within i80 days of the date sueh Extraordinary Receipts are received by any Loan Party or any Subsidiary. Any prepayment pursuant to this clause shalt be applied as set forth in clause (vi) below. (vi) Application of Mandatory Prepaymenli. All amounts required to be paid pursuant to this Seclng 2.04m) shall be applied as follows: (A) with respect to all amounts prepaid pursuant to ?ection ratany to Revolving Loans and (alter all Revolving Loans have been repaid) to Cash Coliateralize UC Obligations; (B) with respect to all amounts prepaid pursuant to lions 2.04 and Ly), ?rst to the remaining principal amortization payments of the Term Loan in inverse order of maturity until the Term Loan has been paid in full. then (alter the Term Loan has been paid in full) to the Revolving Loans and then (alter all Revolving Loans have been repaid) to Cash Coltateralize UC Obligations (without a corresponding permanent reduction in the Revolving Commitment). Within the parameters of the applications set forth abovo, prepayments shall be applied ?rst to Base Rate Loans and then to Eurodollar Rate Loans in direct order of interest Period maturities. All prepayments under this Segign 2.04m shall be subject to ggctign 3.05, but otherwise without premium or penalty. and shall be accompanied by interest on the principal amount prepaid through the date of prepayment. 2.05 Tennination 0: Reduction ol'Rgvolving commitment. thiogal Reductions. The Borrower may, upon notice to the Lender. terminate the Revolving Commitment, or from time to time permanently reduce the Revolving Commitment to an amount not less than the Outstanding Amount of Revolving Loans and UC Obligations; provided that any such notice shall be received by the Lender not later than l2:00 noon live (5) Business Days prior to the date of termination or reduction. (ii) any such partial reduction shall be in an aggregate amount of $500,000 or any whole multiple of $l00,000 in excess thereof and the Borrower shall not terminate 0r reduce (A) the Revolving Commitment if, after giving effect thereto and to any concurrent prepayments hereunder. the Total Revolving Outstandings would exceed the Revolving Commitment or (B) the Letter of Credit Sublimit if, alter giving e??ect thereto, the Outstanding Amount of UC Obligations not fully Cash Coliateralized hereunder would exceed the Letter of Credit Sublimit. Mandalay Reductions. if alter giving effect to arty reduction or termination of the Revolving Commitment under this Section 2.05, the Letter of Credit Sublimit exceeds the Revolving at time, the Letter of Credit Sublimit shall be automatically reduced by the amount of such excess. 33 i g" i. It W. All fees in reSpect of the Revolving Commitment accrued until the effective date of any termination of the Revolving Commitment shall be paid on the effective date ofsueh termination. 2.06 Repayment of Loans. (3) Bevolving Loans. The Bonewor shall repay to the Lender on the Revolving Maturity Date the aggregate principal amount of all Revolving Loans outstanding on such date. Term Loan. The Borrower shall repay the outstanding principal amount of the Term Loan in installments on the dams and in the amounts set forth in the table bel0w (as such installments may hereafter be adjusted as a result of prepayments made pursuant to Section 2,04), unless accelerated sooner pursuant to section 2.0 2012 31 2 201 l3 1 December 31 20l3 March 31 l4 Term Loan Maturity Principal Amount of Term Loan 2.0? Interest. (3) Subject to the provisions of subsection below. each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the sum of the Eurodollar Rate for such Interest Period plug the Applicable Rate and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plume Applicable Rate. If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at Stated maturity, by accelei'alion or otherwise, all outstanding Obligations hereunder shall thereafter bear interest at a ?uctuating interest rate per annum at all times equal to the Default Rate to the fullest exrent permitted by applicable Laws. (ii) if any amount (other titan principal of any Loan) is not paid when due (after giving elTeet to any applicable grace periods). whether at stated maturity, by acceleration or otherwise. than such amount shall therealter bear interest at a ?uctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. Upon the request of the Lender, while any Event of Default exists (other than as set forth in clauses and above), the Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. (iv) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand. 34 cnantuzaosom Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be speci?ed herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and otter judgment, and before and alter the commencement of any under any Debtor Relief Low. 2.08 Commitmem Fee. In addition to certain fees described in subsections and of?ection 2.03, the Borrower shall pay to the Lender, a commitment for: (the "Commitment Pee") at a rate per annum equal to the product of the Applicable Rate times (ii) the actual daily amount by which the Revolving Commitment exceeds the sum of the Outstanding Amount of Revolving Loans and the Outstanding Amount of UC Obligations. The Commitment Fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article is not met. and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the ??rst such date to occur a?er the Closing Date, and on the Revolving Maturity Date. The Commitment Fee shall be calculated quarterly in arrears. 2.09 ?om utation In nd Fees. All computations for Base Rate Loans (including Base Rate Loans determined by reference to the Eurodollar Rate) shall be made on the basis of a year of 365 or 366 days. as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a JED-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid if computed on the basis of a 365-day year). accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan. or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.l I. bear interest for one day. Each determination by the Lender of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error. Evidence of Debt. Tire Credit Extensions made by the Lender shall be evidenced by one or more accounts or records maintained by the Lender in the ordinary course of business. The accounts or records maintained by the Lender shall be conclusiVe absent manifest error of the amount of the Credit Extensions made by the Lender to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Bonewor hereunder to pay any amount owing with reapcct to the Obligations. Upon the request of the Lender, the Borrower shall execute and deliver to the Lender a promissory note, which shall evidence the Lender's Loans in addition to such accounts or records. Each such promissory note shall in the case of Revolving Loans, be in the form of Exhihit (a ?Revolving Note") and (ii) in the case of the Term Loan, be in the form of Exhibit (0 The Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable); amount and maturity of its Loans and payments with respect thereto. it i Generally. All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, rccoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Lender in Dollars and in immediately available funds not later than 2:00 pm. on the date specified herein. All payments received by the Lender after 2:00 pm. shall be deemed received on the next succeeding BusineSs Day and any 35 CHAR qunnsasvs till :15. applicable interest or fee shall continue to accrue. Subject 'to the de?nition of "Interest Period", if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be re?ected in computing interest or fees, as the case may be. 2. i 2 ?sh Cgilateml. (8) MW. lf(i) the Lender has honored any full or partial drawing request under any Letter ofCredit and such drawing has resulted in an LIC Borrowing, (ii) as of the Letter of Credit Expiration Date, any Obligation for any reason remains outstanding or the Borrowor shall be required to provide Cash Collateral pursuant to Seetlgg the Borrower shall immediately (in the case of clause above) or'within one Business Day (in all other cases) following any request by the Lender, provide Cash Collateral in an amount not less than the applicable Minimum Collateral - Amount. grant of?ggprig lnterest, The Borrower hereby grants to (and subjecLs to the control oi) the Lender, and agrees to maintain, a ?rst priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the faregoing, all as security for the obligations to which such Cash Collateral may he applied pursuant to M. if at any time the Lender determines that Cash Collateral is subject to any right or claim of any Person other than the Lender as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, upon demand by the Lender, pay or provide to the Lender additional Cash Collateral in an amount suf?cient to eliminate such de?ciency. All- Cash Collateral (other than credit Support _uot constituting funds subject. to deposit) shall be maintained in blocked. non-interest bearing deposit accouan at the Lender. The Borrower shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any oftltis section 2.!2 or Sections 2.03, mar 2.91 in respect of Letters of Credit shall be held and applied in satisfaction of the speci?c LIC Obligations and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein. Release. Cash Collateral (or the appropriate portion thereof) provided to rcduoe obligations shall be released following the elimination of the applicable obligations giving rise or (ii) the determination by the Lender that there exists excess Cash Collateral; argued, M, any such release shall be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Loan Documents and the other applicable provisions of the Loan Documents, and the Person providing Cash Collateral and the Lender may agree that Cash Collateral shall not be released but instead held to support future anticipated obligations. ARTICLE TAXES, YIELD PROTECTION AND 3.0! Tax 5. Egyments Free of Taxes; Obligation to WithholdL Payments 9n Accgunt of Taxc . Any and all payments by or on account of any obligation of the Loan Parties hereunder or under any other 36 5:1 Loan Document shell to the extent permitted by applicable Laws be made free and clear of and without reduction or withholding for any Taxes. if, however. applicable Laws require the Borrower to withhold or deduct any Tax, such Tax shall be withheld or deducted In accordance with such Laws as determined hy the Borrower. as the case may be, upon the basis of the information and documentation to be delivered pursuant to subsection below. (ii) if the Borrower shall be required by the lntemat Revenue Code to withhold or deduct any Taxes. including both United States Federal backup withholding and withholding taxes. from any payment, then to the extent that the withholding or deduction is made on account of indemnified Taxes or Other Taxes, the sum payable by the Borrower shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable toadditional sums payable under this Section) the Lender receives an amount equal to the sum it Would have received had no such withholding or deduction been made. a men of Other Tax the an a ies. Without limiting the provisions of subsection above, the Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Law. Tax in cations. Without limiting the provisions of subsection or above, the Loan Parties shall, and do hereby, jointly and severally. indemnify the Lender. and shall make payment in respect thereof within to days after demand therefor, for the full amount of any indemni?ed Taxes or Other Taxes (including indemni?ed Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) withheld or deducted by the Borrower or paid by the Lender. and any penalties, interest and reasonable expenscs arising therefrom or with respect thereto, whether or no: such indemni?ed Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certi?cate as to the amount of any such payment or liability delivered to the Borrower by the Lender shall be conclusive absent manifest error. (ii) Without limiting the provisions of subsectiOn or above, the Lender shall, and does hereby, indemnify the Borrower, and shall make payment in respect thereof within to days alter demand therefor, against any and all Taxes and any and'ull related losses, claims, liabilities, penalties, interest and expenses (including the fees, charges and disbursements of any counsai for the Borrower) incurred by or asserted against the Borrower by any Governmental Authority as a result of the failure by the Lender to deliver, or as a result of the inaccuracy, inadequacy or deficiency of. any documentation required to be delivered by the Lender to the Borrower pursuant to subsection The agreements in this clause (ii) shall survive any assignment of rights by, or replacement of, the Lender, the termination of the Commitments and the repayment. satisfaction or discharge of all other Obligations. Eyidenee of Payments. Upon request by any Loan Party alter any payment of Taxes by any Loan Party to a Governmental Authority as provided in this W. each Loan Party shall deliver to the Lender. the original or a certi?ed copy of a receipt issued by such Govemmeutat Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably Satisfactory to the Lender. Status of Leader; Tux Dogumentation. The Lender shall deliver to the Borrower, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit the Borrower to determine (A) whether or not payments made hereunder or under any other Loan Documents are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) the Lender's entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments CHARNZGOGMVS 1-12. {Tl to be made to the Lender by the Borrower pursuant to this Agreement 0r otherwise to establish the Lender?s status for withholding tax purposos in the applicablejurisdietion. (ii) ?Without limiting the generality of the foregoing, if the Borrower is resident for tax purposes in the United States, the Lender shall deliver to the Borrower executed originals of lntemal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrower as will enable the Borrower to determine whether or not the Lender is subject to backup withholding or information reporting requirements; and The Lender shall (A) notify the Borrower of any change in circumstanCes which would modify or render invalid any claimed exemption or reduction, and (B) tat-re such steps as shall not be materially disadvantageous to it, in the reasonablejudgment of the Lender. and 'as may be reasonably necessary (including the rte-designation of Lender's Office) to avoid any requirement of applicable Laws of any jurisdiction that the Borrower make any withholding or deduction for taxes from amounts payable to the Lender. lercatment 91 ggertain Refunds. if the Lender determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section, it shall pay to such Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of?pocket expenses incurred by the Lender. and without interest (Other then any interest paid by the relevant Governmental Authority with respect to such refund). provided that each Loan Party agrees to repay the amount paid over to such Loan Party (all); any penalties, interest or other charges imposed by the relevant Governmental Authority) to the bender tn the event the Lender is required to repay such refund to such Governmental Authority. This subsection shall not be construed to require the Lender to make available its tax returns (or any other information relating to its taxes that it deems con?dential) to the Borrower or any other Person. 3.02 illegality. If the Lender determines that any Law has made it unlaw?rl, or that any Governmental Authority has asserted that it is unlawful, for the Lender or Lender's Of?ce to make. maintain or fund Loans whose interest is determined by reference to the Eurodoliar Rate. or to determine or charge interest rates based upon the Eurodoliar Rate, or any Governmental Authority has imposed material restrictions on the authority of the Lender to purchase or sell, or to take deposits of. Dollars in the London interbank market, then, oh notice thereof by the Leader to the Borrower, any obligation of the Lender to make or continue Eurodoliar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended and (ii) if such notice asserts the illegality of the Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodoliar Rate component of the Best: Rate, the interest rate on which Base Rate Loans of the Lender shall, if necessary to avoid such illegality, be determined by the Lender without reference to the Eurodoliar Rate component of the Base Rate. in each case until the Lender noti?es the Borrower that the circumstances giving the to such determination no longer exist. Upon receipt of such notice, (it) the Borrower shall, upon demand from the Lender, prepay or, if applicable, convert all Eurodoliar Rate Loans to Base Rate Loans (the interest rate on which Base Rate Loans shall, if necessary to avoid such illegality, be determined without reference to the Eurodoliar Rate component of the Base Rate), either on the last day of the interest Period therefor, if the Lender may lawfully continue to maintain such Eurodoliar Rate Loans to such day, or immediately, if the Lender may not lawfully continue to maintain such Eurodoliar Rate Loans and if Such notice asserts the illegality 'of the Lender determining or charging interest rates baSed upon the Eurodoliar Rate, the 38 cnannrasoaosu Lender shall during the period of such suspension compute the Base Rate without reference to the Eurodoliar Rate component thereof until the Lender has determined that it is no longer illegal for the Lender to detennino or charge interest rates bescd upon the Eurodoiler Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted. 3.03 to Detegnine Rates. If the Lender determines that for any reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodoilar Rate Loan, adequate and reasonable means do not exist for determining the Eurodollar Base Rate for any requested interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or preposed Base Rate Loan, or the Eurodollar Base Rate for any requested Interest Period with reSpect to a proposed Eurodoliar Rate Loan does not adequately and fairly re?ect the cost to the Lender of ?mding such Loan, the Lender will notify the Borrower. Thereafter, the obligation of the Lender to make or maintain Eurodollar Rate Loans shall be suspended and in the event of a determination described in the preceding sentence with reapeet to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall he suspended, in each case until the Lender revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing. conversion or continuation of Eurodoiiar Rate Loans or, failing that. will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount speci?ed therein. 3.04 lucgeased Cg?g. Ingmasg CostsGencraily. Change in Law shall: imposc, modify or deem applicable any rescrve, special deposit. compulsory loan, insurance charge or similar requirement against assets of. deposits with or for the account of, or credit extended or participated in by, the Lender (except any reserve requirement re?ected in the Eurodollar Rate); (ii) subject the Lender to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit or any Eurodollar Rate Loan made by it, or change the basis of taxation of paymentsto the Lender in respect thereof (except for indemni?ed Taxes or Other Taxes cot/cred by Section 3.0! and the imposition of. or any change in the rate of, any Excluded Tax payable by the Lender); or impose on the Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by the Lender or any Letter of Credit; and the result of any of the foregoing shall be to increase the cost to the Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurodoliar Rate (or of maintaining its obligation to make any such Loan), or to increase the cost to the Lender of issuing or maintaining any Letter of Credit (or of maintaining its obligation to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by the Lender hereunder [whether of principal, interest or any other amount) then, upon request of the Lender, the BorroWer will pay to the Lender such additional amount or amounts as will compensate the Lender for such additional costs incurred or reduction suffered. 39 MW. if the Lender determines that any Change in Law affecting the Lender or the Lender?s Office or the Lender?s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on the Lender's capital or on the capital of the Lender's holding company, if any, as a consequence of this Agreement. the Commitments or the Loans made or the Letters of Credit issued by the Lender, to a level below that which the Lender or the Lender's holding company could have achieved but for such Change in Law (taking into consideration the Lender's policies and the policies of the Lender's holding company with respect to capital adequacy). then from time to time the Borrower will pay to the Lender, such additional amount or amounts as will compensate the Lender or the Lender's holding company for any such reduction suffered. Qerti?gates for Keimbursement. A certi?cate of the Lender setting forth the amount or amounts necessary to compensate the Lender or its holding company, as the case may be, as speci?ed in subsection or of this Section and delivered to the Borrower shall be conclusive absent manifest enor. The Borrower shall pay the Lender the amount shown as due on any such certi?cate within to days alter receipt thereof. mtg. Failure or delay on the part of the Lender to demand compensation pursuant to the foregoing provisions ofthis Section shall not constitute a mirror of the Lender's right to demand such compensation. provided that the Borrower shall not be required to compensate the Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that the Lender noti?es the Borrower of the Change in Law giving rise to such increased costs or reductions and of the Lender's intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof). 3.05 compensation for Losses, Upon demand of the Lender from titne to time, the Borrower shall cornpensatc?the Lender for and hold the Lender harmless from any less, cost or expense incurred by it as a result of: I any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the interest Period for such Loan (whether voluntary. mandatory, automatic, by reason of acceleration. or otherwise); or any failure by the Borrower (for a reason other titan the failure of the Lender to make a Loan) to prepay, borrow, continue or cont/en any Lean other a Base Rate Loan on the date or in the amount noti?ed by the Borrower; excluding any loss of anticipated pro?ts but including any loss or expense arising from the liquidation or. reemployment of funds obtained by it to maintain Such Loan or from fees payable to terminate the deposits from which such funds were obtained. The Borrower shall also pay any customary administrative fees charged by the Lender in connection with the foregoing. For purposcs of calculating amounts payable by the Borrower to the Lender under this Sggtion 1&5. the Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodoilar Base Rate used in detennining the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodoltar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded. 40 CHARNZEOGOSVS . I: 3.06 Mitigation Obliggtigns, if the Lender requests compensation under ?ction 3.94, or the Borrower is required to pay any additional amount to the Lender or any Govemmental Authority for the account of the Lender pursuant to ?egtion 3,01, or if the Lender gives a notice pursuant to ?egtiog 3.02, then the Lender shall, as applicable. use reasonable efforts to designate a different Lender's Dilice for funding or booking the Loans or to assign its rights and obligations hereunder to another of its oli'toes. branches or af?liates, if. in the judgment of the Lender. such designation or assignment would eliminate or reduce amounts payable pursuant to gectigg 3,0! or L01, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.92, as applicable. and (ii) in each case, would not subject the Lender to any unreimbursed cost or expense and would not othenvise be disadvantageous to the Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by the Lender in connection with any such designation or assignment. 3.07 Suggiygl. All of the Borrower?s obligations under this Anictg It] shall survive termination of the Revolving Commitment and repayment of all other Obligations hereunder. ARTICLE I 4.0! Tho Guaranty. Each of the Guarantors hereby jointly and severally guarantees to the Lender and each Af?liate of the Lender that enters into a Swap Contract or Treasury Management Agreement with a Loan Party, as hereinafter provided, as primary obligor and not as surety, the prompt payment of the Obligations in full when due (whether at stated maturity, as a mandatory prepayment. by animation. as a mandatory Cash Collateralization or otherwise) strictly in accordance with the terms thereof. The Guarantors hereby further agree that if any of the Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory Cash Collateralization or otherwise), the. Guarantors will.jointly and severally, pay the same, without any demand or notice whatsoever. and that in the caso of any extension of time of payment or renewal of any of the Obligations. the same will be paid in ?tti when due (whether at maturity. as a mandatory prepayment, by acceleration, as a mandatory Cash Coltateralization or otherwise) in accordance with the terms of such extension or renewal. Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents. Swap Contracts or Treasury Management Agreements, the obligations of each Guarantor under this Agreement and the other Loan Documents shalt be limited to an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under the Debtor Relief Laws or any comparable provisions of any applicable state law. 4.02 Obliggtigns Unconditional. 'l'he obligations of the Guarantors under Seetipn are joint and several. absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Loan Documents, Swap Contracts or 'Ii'easury Management Agreements. or any other agrcentent or instrument referred to therein. or any substitution. release, impairment or exehange of any other guarantee of or security for any of the Obligations, and. to the fullest extent pennitted by applicable law, irrespective of any law or regulation or other circumstance whatsoever which might otherwise constitute a legal or equitable discharge 4 i: if; tat or defense of a surety or guarantor, it being the intent of this Sgctinn 4.02 that the obligations of the Guarantors hereunder shall be absolute and unconditiOnal under any and all circumstances. Each Guarantor agrees that such Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against the Borrower or any other Guarantor for amounts paid under dris'?glele lV until such time as the Obligations have been paid in full and the Commitments have expired or terminated. Without limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by law, the occurrence of any one or more of the following shall not alter or impair the liability of any Guarantor hereunder, which shall remain absolute and unconditional its described above: at any time or from time to time, without notice to any Guarantor, the time for any performance of or compliance with any of the Obligations shall be extended, or such performance or compliance shall be waived; any of the acts mentioned in any of the provisions of any of the Loan Documents, any Swap Contract between any Loan Party and the Lender or any Af?liate of the Lender, or any Treasury Management Agreement between any Loan Party and the Lender or any Af?liate of the Lender, or any other agreement or instrument referred to in the Loan Documents, such Swap Contracts or such Treasury Management Agreements shall be done or omitted; to) the maturity of any of the Obligations shall be accelerated, or any of the Obligations shall be modi?ed, supplemented or amended in any respect, or any right under any of the Loan DocumenIS. any Swap Contract between any Loan Party and the Lender or any Af?liate of the Lender or any Treasury Management Agreement between any Loan Party and the Lender or any Af?liate of the Lender, or any other agreement or instrument referred to in the Loan Documents, such Swap Contracts or soch Treasury Management Agreements shall be waived or any other guarantee of any ofthe Obligations or any security therefor shall be released, impaired or exchanged in whole or in part or otherwise dealt with; any Lien granted to, or in favor of, the Lenderas security for any ofthe Obligations shall fall to attach or be perfected; or any of Obligations shall be determined to be void or voidable (including, without limitation, for the bene?t of any creditor of any Cmarantor) or shall be subordinated to the claims ofnny Person (including, without limitation, any creditor of any Guarantor). With respect to its obligations hereunder. each Guarantor hereby expressly waives diligence. presentment, demand of payment, pretest and all notices whatsoever, and any requirement that the Lender exhaust any right. power or remedy or proceed against any Person under any of the Loan Documents, any Swap Contract between any Loan Party and the Lender or any Af?liate of the Lender or any Treasury Management Agreement between any Loan Party and the Lender or any Af?liate of the Lender, or any other agreement or instrument referred to in the Loan Documents, such Swap Contracts or such Treasury Management Agrwne'nu. or against any other Person under any other guarantee of, or security for, any of the Obligations. - 4.03 Reinstatement. The obligations of the Guarantors under this Article tV shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in of the Obligations is rescinded or must be otherwise restored by any holder of any of the Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and cash Guarantor agrees that it will indemnify the Lender on demand for all reasonable costs and expenses (including, without limitation, the fees, charges 42 CHAR ru ransom and disbursements of counsel) incurred by the Lender in connection with such rescission or restoration. including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, ?audulent transfer or similar payment under any bankruptcy, insolvency or law. 4.04 ngtitt Additignal \Vnivars. Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the Obligations, except through the eXercise of rights of subrogation pursuant to Sgetinn 4,02 and through the exercise ofrights ol'contribution pursuant to ?ection 4,06. 4.05 Remedies. The Guaraniors agree that, to the fullest extent permitted by law, as between the Guarantors, on the one hand, and the Lender, on the other hand, the Obligations may be declared to be forthwith due and payable as provided in Section 9.02 (and shall be deemed to have become automatically due and payable in the circumstances provided in said Section 2m) for purposes of ?ection 4.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Obligations iiom becoming autumaticuily due and paynble) as against any other Person and that, in the event of such declaration (or the Obligations being deemed to have become automatically due and payable). the Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by the Guarantors for purposes of ?_c_e_ti_on_gl_,_QL The Guarantors acknowledge and agree that their obligations hereunder are secured in accordance with the terms of the Collateral Documents and that the Lender may exercise its remedies thereunder in accordance with the terms thereof. 4.06 Rights of The Guarantors agree among themselves that. in connection with payments made hereunder, each Guarantor shall have contribution rights against the other Guarantors as permitted under applicable law. Such contribution rights shall be subordinate and subject in right of payment to the obligations of such Guaranth under the Loan Documents and no Guarantor shall exercise such rights of contribution until all Obligations have been paid in full and the Commitments have terminated. 4.07 Guarantee gt Payment; Continuing Guarantee. The guarantee in this AM is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to all Obligations whenever arising. ARTICLE CONDITIONS PRECEDENT T0 CREDIT EXTENSIONS 5.0i anditigng 9! initial Credit Egtension. This Agreement shall become effective upon and the obligation of the Lender to make its initial Credit Extension hereunder is subject to satisfaction ofthc following conditiOns precedent: Lgan Documents. Receipt by the Lender of executed counterparts of this Agreement and the other Loan Doeuments, each properly executed by a RespOnsibie Of?cer of the signing Loan Party. . 43 cunnmzoocosvs Opinions of Counsel. Receipt by the Lender of favorable opinions of legal counsel to the Loan Parties. addressed to the Lender, dated as of the Closing Date. and in form and substance satisfactory to the Lender. Financial Statements. The Lender shall havo received: . an unaudited consolidated balance sheet of the Borrower and its Subsidiaries for the ?scal quarter ended December 3 I. 20? prepared in accordance with GAAP, and the related consolidated statements of income or opcratiom prepared in accordance with GAAP and modi?ed (not in accordance with GAAP) cash flows for such ?scal quarter and for the portion of the Borrower?s ?scal year then ended. setting fonh in each case in camparative form the ?gures for the corresponding ?scal'quarter of the previous ?scal year and the corresponding portion of the previous Fecal year (the ?interim Financial Statements"): and (ii) the Audited Financial Statements. No Material Adverse Change. There shall not have occurred a material adverse change since December 3 l, 2010 in the operations, business. assets, prepcnies, liabilities (actual or contingent), operations. condition (?nancial or otherwise) or prospects ol'the Benower and its Subsidiaries, taken as a whole. lgitigation. There shall not exist any action, suit, investigation or proceeding .pending or, to the knowledge of the in any court or before an arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect. QLganization DocumentsI Resolutions. Etc. Recelpt by the Lender of the following, each of which shall be originals, facsimiles or other electronic copies (followul by originals). in form and substance satisfactory to the Lender and its legal counsel: copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authorlty of the state or otlrerjurisdietion of its incorporation or organization, where applicable, and certi?ed by a secretary or assistant secretary of such Loan Party to be true and correct as of the Closing Dale; (ii) such certi?cates of resolutions or other action, ineumbency certi?cates andlor other certi?cates of Responsible Of?cers of each Loan Party as the Lender may require evidencing the identity, authority and capacity of each Responsible Of?cer thereof authorized to act as a Responsible Of?cer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; and such documents and certi?cations as the Lender may require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and quali?ed to engage in business in its state of organization or formation. Perfection and Priority of Liens. Receipt by the Lender of the following: searches of Uniform Commerclal Code ?lings in the jurisdiction of formation of each Loan Party or where a ?ling would need to be made in order to perfect 44 the Lender's security interest in the Collateral, copies of the ?nancing Statements on ?le in suehjurisdictions and evidence that no Liens exist other than Permitted Liens; (ii) UCC ?nancing statements for each appropriate jurisdiction as is necessary, in the Lender's sole discretion, to perfect the Lender's security interest in the Collateral; all certi?cates evidencing any certificated Equity interests pledged to the Lender pursuant to the Pledge Agreement, together with duly executed in blank and undated stock powers attached thereto; (iv) searches of ownership of, and Liens on, intellectual property of each Loan Party in the appropriate governmental of?ces; and duly executed notices of grant of security interest in the form TCQUired by the Security Agreement as are necessary. in the Lender?s sole discretion, to perfect the Lender?s security interest in the intellectual property of the Loan Parties. . gyidenee Receipt by the Lender of copies of insurance policies or certi?cates of insurance of the Loan Parties evidencing liability and eaSunlty insurance meeting the requirements set forth in the Loan Documents, including, but not limited to. naming the Lender as additional insured (in the case of liability insurance) or Lender's loss payee (in the case of hazard insurance). (5) W. Receipt by the Lender of a certi?cate signed by a Responsible Olliccr of the Borrower certifying that the conditions speci?ed in Sections 5.91m) and and ?ection? 5.02M and have been satis?ed and (ii) the Borrower and its Subsidiaries (alter giving effect to the transactions contemplated hereby and the ineurrence of indebtedness related thereto) arc Solvent on a consolidated basis. 0) Termination of; Existing Credit Agreement. Reccipt by the Lender of evidence that the obligations under the Existing Credit Agreement are being repaid in l'uii concurrently with the Closing Date and all Liens securing obligations under the Existing Credit Agreement, if any, concurrently with the Closing Date are being released. Amendment of TQV ngrantees. Receipt by the Lender. in each case in form and substance satisfactory to the Lender of an amendment to each of the Guarantees and (ii) evidence that all Liens provided by any Loan Party in connection with the Subordinated Loan Documents concurrently with the Closing Data are being released. indebtedness. Receipt by the Administrative Agent of the Subordinated Loan Documents, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Lenders (including without limitation the subordination provisions) by a Responsible Of?cer of the Borrower as true and complete. Permitted Preferred Stock. Receipt by the Lender of the certificate of designation (or comparable instrument) and all documentation in connection with the Permitted Preferred Stock and all other prefencd equity interests of Holdings, the Borrower and each Guarantor, in each case certified by a Responsible Of?cer of the Borrower as true and complete in all material respects, which shall, in each case, be in ferm and substance reasonably satisfactory to the Lender and (ii) evidence in form and substance satisfactory to the Lender that 4 5 CHARIHZGOGOSVS i if] the holders of the Permitted Preferred Stock shall have. in accordance with the terms and conditions of the documentation governing the Permitted Preferred Stock. (A) agreed to not require any mandatory redemption of the Permitted Prefen'cd Stock until no earlier than the date that is six (6) months after the Revolving Maturity Date and (B) to the extent required persuant to the documentation governing the Permitted Preferred Stock. consented to the transactions contemplated hereby. Eggs. Receipt by the Leader of any fees required to be paid on or before-the Closing Date. including without limitation an upfront fee of 0.25% of the aggregate amount of the Revolving and the Term Loan Commitment. (0) Attomey Costs. The Borrower shall have paid all fees, charges and disbursements ofcounsel to the Leader to the extent invoiced prior to or on the Closing Date. pips, such additional amounts of such fees. charges and disbursements as shall constitute its reasonable estimate of such fees. charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estitnate shall not thereafter preclude a ?nal settling of accounts between the Borrower and the Lender). when. Receipt by the Leader of such other documents. instruments,.agreements and information as reasonably requested by the Lender. including. but not limited to. information regarding litigation. tax, accounting, labor. insurance. pension liabilities (actual or contingent). real estate leases. material contracts. debt agreements. property ovmership. environmental matters, contingent liabilities and management of Holdings and its Subsidiaries. 5.02 Conditigns to all Credit thensinns. The obligation of the Lender to honor any Request for Credit Extension is subject to the following conditions precedent: The representations and warranties of the Borrower and each other Loan Party contained in Article Vl or any other Loan Document. or which are contained in any document furnished at any time under or in connection herewith or therewith. shall be true and correct in all material reapects on and as of the date of such Credit Extension, except that (it) any such representation and warranty that is quali?ed by materiality or a reference to Material Adverse Effect shall be true and correct in all respects on and as of the date of such Credit Extension and to the extent that any such rcprescntation and warranty speci?cally refers to an earlier date, each such representation and warranty shall be true and correct in all material respects as of such earlier date (except that any such representation and warranty that is quali?ed by materiality or reference?to Material Adverse Effect shall be true and correct in all respects as of such earlier date). and except that for purposes of this the representations and warranties contained in subscetions and of Scetlnp 6.02 shall be deemed to refer to the most recent statements t?untished pursuant to clauses and respectively. of Section 1.01. No Default er Bvont of Default shall exist. or would result from such proposed Credit Extension or from the application of the proceeds thereof. The Lender shall have received a Request for Credit Extension In accordance with the requirements hereof. 45 CHnatuzsasasvs Each Request for Credit Extension submitted by the Borrower shall be deemed to 'be a representation and warranty that the conditions speci?ed in Sections 5,92(a) and have been satisfied on and as of the date of the applicable Credit Extension. Vi REPRESENTATIONS AND WARRANTIES The Loan Ponies represent and warrant to the Lender that: 6.0] Exi ce aiift ation and Power. Each Loan Party is duly organized or formed, validly existing and in good standing under the Laws of thejurisdiction of its incorporation or organization, has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and is duty quali?ed and is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such quali?cation or license; except in arch case referred to in clause or to the extent that failure to do so couid not reasonably be expected to have a Material Adverse 6.02 Authorization; No The execution, delivery and performance by each Loan Party of each been Document to whiclt such Person is party have been duly authorized by all necessary corporate or other organizational action, and do not contravene the temts of any of such Person's Organization Documents; con?ict or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under any Contractual Obligation to which such Person is a party or affecting such Person or the preperties of such Person or any of its Subsidiaries Or (it) any order, injunction, writ or decree of any Govemmentai Authority or any arbitral award to which such Person or its property is subject; or violate in any material reSpect any Law (including, without limitation, Regulation or Regulation issued by the FRB). 6.03 Governmental Authorization: Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Govemmentai Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document other than those that have already been obtained and are in full force and effect and ?lings to perfect the Liens created by the Collateral Documents. 6.04 Binding Effect. Each Loan Document has been duly executed and delivered by each Loan Party that is party thereto. Each Loon Document constitutes a legal, valid and binding obligation of catch Loan Party that is party thereto, enforceable against each such Loan Party in accordance with its terms, except as such enforceability may be limited by applicable Debtor Relief Laws and by general principles of equity (whether enforcement is sought by proceedings in equity or at law). - 47 6.05 Financial Statements; No Material Effect. The Audited Financial Stateman were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise noted therein; (ii) fairly present in all material respects the ?nancial conditiOn of Holdings and its Subsidiaries or Sensa Products, LLC, as applicable, as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and show all material indebtedness and other liabilities, direct or contingent, of Holdings and its Subsidiaries or Sense. as applicable, as of the date thereof, including liabilities for taxes, material commitments and Indebtedness. The interim Financial Statements were prepared in accordance with GAAP conSIStently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present in all material respects the ?nancial condition of the Borrower and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses and to the absence of footnotes?nnd to normal year-end audit adjustments; and show all material indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and indebtedness. From the date of the Audited Financial Statements to and including the Closing Date, there has been no Disposition by any Loan Party or any Subsidiary, or any involuntary Disposition. ofany material part ofthe business or property of any Loan Party or any Subsidiary, and no purchesc or other acquisition by any of any business or property (including any Equity interests of any other Person) material to any Loan Party or any Subsidiary. in each case. which is not re?ected in the foregoing ?nancial statements or in the notes thereto and has not otherwise been disclosed in writing to the Lender on or prior to the Closing Date. The ?nancial statements delivered pursuant to Section 7,01 have been prepared in accordance with GAAP (except as may otherwise be permitted under the applicable ciauSe of Section 7.01) and present fairly in all material respects (on the basis disclosed in the footnotes to such ?nancial statements) the consolidated and consolidating ?nancial condition, results of operations and cash flows of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as applicable or the ?nancial condition, results of operations and cash flows ofSensa, in each case as of the dates thercol?and for the periods covered thereby. Since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonablybe expected to haw: a Material Adverse Effect. 6.06 alien. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Loan Parties after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before any Govcmmentai Authority, by or against any Loan Party or any of its Subsidiaries 0r against any of their properties or revenues that purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or if determined adversely, could reasonably be expected to have a Material Adverse Effect. - 6.07 No Default. Neither any Loan Party nor any Subsidiary is in default under or with respect to any Contractual Obligation that could reasanabiy be expected to have a Material Adverse Effect. 48 curtain-ransom No Default has occurred and is continuing. 6.08 Ownership gi?l?ropegy; Liens. Each Loan Party and its Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not. individually or in the aggregate. reaSOnably be expected to have a Material Adverse Effect. The property of each Loan Party and its Subsidiaries is subject to no Liens, other than Permitted Liens. 6.09 Env'ronm nt liance. Exoept as could not reasonably be expected to have a Material Adverse Effect: Each of the Facilities and all operations at the Facilities are in compliance with all applicable Environmental laws, and there is no violation of any Environmental Law with respect to the Facilities or the Businesses. and no Loan Party and. to the knowledge of any Responsible Of?cer oi?lhe Loan Parties, no other Person has caused to exist any conditions relating to the Facilities or the Businesses, in each caSe, that could reasonably be echcted to give rise to liability under any appilCable Environmental Laws. him: of the Facilities contains, or, to the knowledge of any Responsible Of?cer of the Loan Parties, has previously contained. any Hazardous Materials al, on or under the Facilities in amounts or concentrations that constitute or constituted a violation of, or that could reasonably be expected to give rise to liability under, Environmental Laws. Neither any Loan Party nor any Subsidiary has. within the past ?ve years.- received any written notice of. or inquiry from any Gerremmental Authority regarding, any violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Facilities or the Businesses, nor does any Responsible Of?cer of any Loan Party have knowledge that any such notice will be received or is being threatened. Hazardous Materials have not been tranSported or disposed of from the Facilities, or generated, treated. stored or disposed ol?at. on or under any of the Facilities or any other location, in each case by or on behalf of any Loan Party or any Subsidiary in violation of, or in a manner that would be reasonably likely to givo rise to liability under, any applicable Environmental Law. No judicial proceeding or governmental or administrative action is pending or, to the knowledge of any Responsible Of?cer of the Loan Ponies, threatened in writing, under any Environmental Law to which any Loan Party or any Subsidiary is or, to the knowledge of the Responsible Of?cers of the Loan Parties, will be named as a party, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or otherjudicial requirements outstanding with respect to any liability arising under any Environmental Law with respect to any Loan Party, any Subsidiary, the Facilities or the Businesses. (0 There has been no release or threat of release of Hazardous Materials at or from the Facilities, or arising from or related to the operations (including, without limitation, disposal) of any Loan Party or any Subsidiary in connection with the Facilities or othenvise in connection with the Businesses, in violation of or in amounts or in a manner that could reasonably be expected to give 49 173.31 rise to liability under Environmental Laws. 6. l0 insurance. The preperties of the Loan Parties and Uteir Subsidiaries are insured with ?nancially sound and reputable insurance companies not Af?liates of such Persons, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the applicable Loan Party or the applicable Subsidiary operates. The insurance coverage of the Loan Parties and their Subsidiaries as in effect on the Closing Date is outlined as to carrier, policy number, expiration date. type, amount and deductibles on Schedule 6, l0. 6th Iaxes. The Loan Parties and their Subsidiaries have filed all federal, state and other material tax returns and repons required to be filed, and have paid all federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or aSSets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax assessment against any Loan Party or any Subsidiary that would, if made, have a Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is party to any tax sharing agreement other than as set forth on Sghedule 6.1 I. 6. l2 RIS liance. Except as set forth in W, each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Revenue Code and other federal or state laws. Each Pension Plan that is intended to be a quali?ed under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the lmemal Revenue Service to the effect that the form of such quali?ed under Section 40l(a) of the Revenue Code and the trust related thereto has been determined by the Internal Revenue Service to be exempt from federal income tax under Section 501(o) oftlte Internal Revenue Code or an application for such a letter is being processed by the internal Revsnue Service. To the best knowledge of the Loan Parties, nothing has occurred that would prevent, or cause the loss of, such tux-quali?ed status. There are no pending or, to the best knowledge of the Loan Parties, threatened claims, actions or lawsuits. or action by any Governmental Authority, with respect to any Plan that could be reasonably be expected to have Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect. No ERISA Event has occurred and neither the Berrnwer nor any ERISA Af?liate is aware of any fact, event _or circumstance that could reasonably be expected to censtitule or result in an Event with respect to any Pension Plan; (ii) the BorrOWer and each ERJSA Af?liate has met all applicable requirements under the Pension Funding Rules In respect of each Pension Plan, and no wachr of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Internal Revenue Code) is sixty percent or higher and neither the Borrower nor any ERISA Af?liate knows of any facts or circumstances that could reasonably be expected to cause the funding tnrget attainment percentage for any such plan to drop below sixty percent as of the most recent valuation date; (iv) neither the Borrower nor any ERISA Af?liate has incurred any liability to the PBGC other than for the payment of premiums, and there are no premium 50 CHAR Innocents . payments which have become due that are unpaid; neither the Borrower nor any ERISA Af?liate has engaged in a transaction that could be subject to Section 4969 or Section 42t2(e) of and (VI) no Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PGBC to institute proceedings under Title of ERISA to laminate any Pension Plan. 6.13 Subsidiaries. Set forth on ?chedulc 6. t; is a complete and accurate list as of the Closing Date of each Subsidiary of any Loan Pony, together with jurisdiction of formation; (ll) number of shares of each class of Equrty interests outstanding, number and percentage of outstanding shares of each class owned (directly or indirectly) by any Loan Party or any Subsidiary and (iv) number and effect, ifexerciscd, of all outstanding options, warrants, rights of conversion or purchaso and all other similar rights with respect thereto. The outstanding Equity Interests of each Subsidiary of any Loan Party is validly issued. fully paid and non- 6J4 Margin Regulations," investment Company Act. The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or canying margin stock (within the meaning of Regulation issued by the FRB), or extending credit for the purpose of purchasing or margin stock. Following the application cf the proceeds of each Borrowing or drawing under each Letter of Credit. not more than 25% of the valuo of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of ?e?tioy Em or ?ection 8.05 or subject to any restriction contained in any agreement or between the Borrower and the Lender or any Af?liate of the Lender relating to Indebtedness and within the scope of Section 2.Ql(e) will be margin Stock. None of any Loan Party, any Person Controlling any Loan Party, or any Subsidiary is or is required to be registered as an "investment company" under the Investment Company Act of 1940. 6. I 5 Disclosure. Each Loan Party has disclosed to the Lender all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to' result in a Material Adverse Effect. No report. financial statement, certificate or other information furnished (whether in writing or orally) by or on behalf of any Loatt Party to the Lender in connection with the transactiom contemplated hereby and the negotiation of this Agreement or delivered hereunder or under my other Loan Document (in each case, as modi?ed or supplemented by other information so furnished) when taken as a whole contains any material misstatement of factor omits to state any material fact necessary to make the statements therein. in the light of the circumstances under which they were made, not misleading; p_r_o_v_ide_d that, with respect to projected ?nancial the Loan Parties represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time (it being understood that such ?nancial projections as they relate to future events are necessarily based upon opiniOns and estimates that are not to be viewed as fact. and that actual results during the period or periods coVored thereby may differ from such projections by a material amount). 5! "l 6.!6 Compliance with Laws. Each Loan Party and each Subsidiary is in compliance with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which such requirement of Law or order, writ, injunction or decree is being contested in good faith by proceedings diligently conducted or the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect. 6. 7 Intellectual Ergpg?y: Licenses, Etc. Each Loan Party and its Subsidiaries own, or possess the legal right to use, all of the trademarks, Service marks, trade names. copyrights, patents, patent rights, franchises, licanses and other intellectual property rights (collectively, ??ghts? that are reasonably necessary for the operation of their respective businesses. Set forth on Schedule 6.17 is a list of all Rights registered or pending registration with the United States Copyright Of?ce or the United States Patent and Trademark Office and owned by each Loan Party as of the Closing Date. Except for such claims and infringements that could not reasonably be expected to have a Material Adverse Effect, no claim has been asserted and is pending by any Person challenging or questioning the use of any 1? Rights or the validity or effectiveness of any lP Rights. nor does any Loan Party know of any such claim. and, to the knowledge of the Loan Parties, the use of any Rights by any Loan Party or any of its Subsidiaries or the granting ofa right or a license in respect of any lP Rights from any Loan Party or any of its Subsidiaries does not infringe on the rights of any Person. As of the Closing Date. none of the iP Rights owned by any of the Loan Parties or any of its Subsidiaries is subject to any licensing agreement or similar arrangement except as set forth on ?ghegule 6. l8 Solvency. The Loan Parties are Solvent on a consolidated basis. 6J9 Perfection gf Security interests in the Collateral. The Collateral Documents create valid security interests in, and Liens on, the Collateral purported to be covered thereby, which security interests and Liens are can-ently perfected security Interests and Liens, prior to all other Liens other than Permitted Liens. 6.20 Business Locations. Set forth on M2919) is a list of all real property located in the United States that is owned or leased by the Loan Parties as of the Closing Date. Set forth on is the lax Payer identi?cation number and organizational identi?cation number of each Loan Party as of the Closing Date. The exact legal name and state of organization of each Loan Party is as set forth on the signature pages hereto. Except as set fonh on Schedule no Loan Party has during the ?ve years preceding the Closing Date changed its legal name, (ii) changed its state of formation, or been party to a merger, consolidation or other change in structure. - ARTICLE VII AFF COVENANTS So long as the Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatis?ed (other than contingent indemni?cation obligations for which 52 CHaanncososvs this i. no claim has been made), or any Letter of Credit shall remain outstanding (other than any Letter of Credit backstopped by a letter of credit issued by an issuer satisfactory to. and otherwise in form and substance satisfactory to, the Lender or Cash Collateralized in a manner satisfactory to the Lender), the Loan Parties shall and shall cause eaeir Subsidiary to: 7.0! Financial Statements. Deliver to the Lender, in form and detail satisfactory to the Lender: upon the earlier of the date that is one hundred and (ISO) days after the end of each ?scal year of Holdings or the date such information is ?led with the SEC, a consolidated and conSOIidating balance sheet of Holdings and its Subsidiaries as at the end of such ?scal year (which, for the avoidance of doubt shall include consolidating statements of the Borrower and its Subsidiaries), and the related consolidated and consolidating statements et?income or operations, changes in shareholders' equity and cash ?ows for such ?scal year, Setting forth in each case in comparative form the ?gures for the previous ?scal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent certi?ed public accountant of nationally recognized or regionally recognized standing acceptable to the Lender (it being understood and agreed that Grant Thumlon LLP is aceeptable to the Lender as of the Closing Date). which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any "going concern" or like quali?cation or exception or any quali?cation or exception as to the scope of such audit; upon the earlier of the date that is sixty (60) days after the end of each of the ?rst three ?scal quarters of each ?scal year of the Borrower or the date such information is ?led with the SEC, a consolidated balance sheet of the Borrower and its Subsidiaries in at the end of such ?scal quarter, and the related consolidated statements of income or Operations, and modi?ed (not in accordance with GAAP) cash flows for such ?scal quarter and for the portion of the Borrower?s ?scal year then ended. setting forth in each case in comparative form the ?gures for the corresponding ?scal quarter of the previous ?scal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certi?ed by a Responsible Of?cer of the BorroWer as fairly presenting the ?nancial condition, results of operations, and cash flows of the Borrower and its Subsidiaries in accordance with GAAP (other than with respect to cash ?ows), subject only to normal year-end audit adjustments and the absence of footnotes and, in each case, prepared in a manner consistent with the Interim Financial Statements and (ii) upon the earlier of the date that is ninety (90) days after the end of the fourth ?scal quarter of each ?scal year of the Borrower or the date such information is ?led with the SEC, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such ?scal quarter, and the related consolidated statements of income or operations and modi?ed (not in accordance with GAAP) cash flows for such ?scal quarter and for the portion of the Borrower's ?scal year then ended, setting forth in each case in comparativo form the figures for the corresponding ?scal quarter of the previous ?scal year and the corresponding portion of the previous ?scal year, all in reasonable detail and certi?ed by a Responsible Of?cer of the Borrower as fairly presenting the ?nancial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP (other than with respect to cash ?ows), subject only tonormal year-end audit adjustments and the absence of footnotes and, in each case, prepared in a manner consistent with the interim Financial Statements; upon the earlier of the date that is one hundred and ?fty (ISO) days after December 3t, 20? or the date such information is ?led with the SEC. a consolidated balance sheet of Holdings and its Subsidiaries as at the end of such ?scal year, and the related 53 55:2! s' .- eonsolidated statements of income or operations, changes in shareholders? equity and cash flows for such ?scal year, setting forth in each case in comparative form the ?gures for the previous ?scal year. all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opiniOn of an independent certi?ed public accountant of nationally recognized standing acceptable to the Lender (it being understood and ayeed that GrantThomton LLP is acceptable to the Lender as of the Closing Date), which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any "going concern" or like quali?cation or exception or any quali?cation or exception as to the seepe of such audit; upon the earlier of the date that is? one hundred and ?fty (150) days alter December 3 20l or the date such information is ?led with the SEC, a balance sheet of Sensa as at the end of such ?scal year, and the related statements of income or operations, changes in shareholder's' equity and cash flours for such ?scal year. setting forth in each case in comparatiVe form the ?gures for the previous ?scal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent certi?ed public accountant of nationally recognized standing acceptable to the Lender (it being understood and agreed that Grant Thornton LLP is acceptable to the Lender as of the Closing Date), which report and Opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any "going concern" or like quali?cation or exception or any quali?cation or exception as to the scope of such audit; and upon the earlier of the date that is sixty (60) days after March 3t, 2012 or the (late sueir information is ?led with the SEC, a consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as at the end of such ?scal quarter. and the related consolidated and consolidating statements of income or operations and modi?ed (not in accordance with GAAP) cash ?ows for such liscal quarter and for the portion of the Borrower's ?scal year then ended. setting forth in each case in comparative form the ?gures for the corresponding ?scal quarter of the previous ?scal year and the corresponding portion of the previous ?scal year, all in reasonable detail and certi?ed by a Responsible Of?cer of the Borrower as fairly presenting the ?nancial condition, results of operations and cash ?ows of the Borrower and its Subsidiaries in accordance with GAAP (other than with respect to cash ?ows), subject only to normal year-end audit adjustments and the absence of footnotes and prepared in a manner consistent with the interim Financial Statements. glent'irgates; Other information. Deliver to the Lender, in form and detail satisfactory to the Lender: (3) concurrently with the delivery of the ?nancial statements referred to in sections 2.01m and (him, a duly completed Compliance Certi?cate signed by a Responsible Of?cer of the Borrower; prior to the end of each ?scal year of the Borrower, beginning with the ?scal year ending December 3 I, 2m 2, an annual business plan and budget of the Borrower and its after the same are available, copies of each annual report, proxy or ?nancial statement or other report or communication sent to the equityholders of any Loan Party, and copies of all annual, regular, periodic and special reports and registration statements which a Loan Party may ?le or be required to ?le with the SEC under Section ill or i5(d) of the 54 CHARIUZGOSOSVS Securities Exchange Act of l934, and not otherwise required to be delivered to the Lender pursuant hereto; concurrently with the delivery of the ?nancial statements referred to in sections 19.1111.) arid (lam). a certi?cate of a Responsible Of?cer of the Borrower containing information regarding the amount of all Dispositions, involuntary Dispositions, Debt lssuances, Equity issuanccs, Extraordinary Receipts and Acquisitions that occurred during the period covered by such ?nancial statements; after any request by the Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit cemmittee of the board of directors) of Holdings or the board of directors of the Borrower by independent accountants in connection with the accounts or books of Holdings, the Borrower or any Subsidiary, or any audit of any of them; after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be fumished to the Lender pursuant to Section 1.0l or any other clause of this Sectign 7.02; and in any event within ?ve (5) Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-US. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party er any Subsidiary thereof; (it) such additional information regarding the business, ?nancial or corporate alTairs of any Loan Party or any Subsidiary, or compliance with the tonne of the Loan Documents. as the Lender may from time to time reasonably request; and concurrently with the delivery of the ?nancial statements referred to in Scallops Mia) and a certi?cate of a Responsible Of?cer of the Borrower listing (A) all applications by any Loan Party, if any, for Copyrights, Patents or Trademarks made since the date of the prior certi?cate (or, in the case of the first such certi?cate, the Closing Date), (B) ail issuances of regisrrations or letters on existing applications by any Loan Party for Copyrights, Patents and Trademarks received since the date of the prior certi?cate (or, in the case of the ?rst such certi?cate, the Closing Date) and (C) all Trademark Licenses, Copyright Licenses and Patent Licenses entered into by any Loan Party sinco the date of the prior certi?cate (or, in the case of the ?rst such certi?cate, the Closing Date) and (ii) attaching the insurance binder or other evidence of insurance for any insurance coverage of any Loan Party Or any Subsidiary that was renewed, replaced or modi?ed during the period covered by such ?nancial statements. Documents required to be deliVered pursuant to or ?c_cti9_n_1gg1(to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which the Borrower posts such documents, or provides a link thereto on the Borrower's website on the lnternct at the website address listed on Schedule or (ii) on which such documents are posted on the Borrower's behalf on an or intranet website, if any, to which the Lender has access; provided, that: the Borrower shall deliver paper copies of such documents to the Lender upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is glvon by the Lender and (ii) the Borrower shall notify the Lender (by facsimile or electronic mail) of the posting of any such 55 documents and provide to the Lender by electronic mail electronic versions so? copies) of such documents. 7.03 m. (and in any event, within two Business Days) after any ReSponsibie Of?cer of any Loan Party obtains knowledge thereof, notify the Leader of the occunenee of any Default. Promptiy (and in any event, within five Business Days) after any Responsible Officer of any Loan Party obtains knowledge thereof, notify the Lender of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect. (and in any event, within ?ve Business Days) after any Responsible Of?cer of any Loan Party obtains knowledge thereof, notify the Lender of the occurrence of any ERJSA Event. (6) (and in any event, within ?ve Business Days) notify the Lender-of any material change in accounting policies or ?nancial reporting practices by the Borrower or any Subsrdiary. Each notice pursuant to this Section 7.93131) through (9) shall be accompanied by astatement of a Responsible Of?cer of the Borrower setting forth details of the occurrence referred to therein and stating what action the applicable Loan Party has taken and proposes to take with reSpect thereto. Each notice pursuant to ?ection 7.03m shall describe with particularity any and all provisions of this Agreement and any ether Loan Document that have been breached. 7.04 Payment of Obligations. Pay and discharge, as the same shall become due and payable. all its obligations and liabilities, including all tax liabilities. assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate in accordance with GAAP are being maintained by the Loan Party or such Subsidiary; all lawful claims which, if unpaid, would bylaw become a Lien upon its property, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Loan Party or such Subsidiary; and all material indebtedness. as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such indebtedness. 7.05 Ereservation of Existence, Etc. Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 8.04 or 8.05. . Preserve, renew and maintain in full force and effect its good standing under the Laws of the jurisdiction of its organization, except to the extent the failure to do so could not reasonably be expected to-havc a Material Adverse Effect. Take all reasonable action to maintain all rights, privileges. permits, licenses 'and franchises necessary or desirable in the normal conduct of its business, cxoept to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect. Preserve or renew all of its registered lP Rights or Rights in respect of which an application for registration has been ?led or recorded with United States Copyright Of?ce or the 56 CHAR i\l26060$v$ United States Patent and Trademark Of?ce, the non-preservation of which could reasonably be expected to have a Material Adverse Effect. 7.06 Maintenance ofProp_er1ics. Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted. Make all necessary repairs thereto and renewals and replacements thereof. except where the failure to do so could not reasonably be expected to ltave a Material Adverse Effect. Use the standard of care typical in the industry in the operation and maintenance of its facilities. . 7.07 Maintenance of insurance. Maintain in full force and effect insurance (including worker's compensation insurance, liability insurance, casualty insurance and business interruption insurance) with ?nancially sound and reputable insurance companies not Af?liates of any Loan Party, in such amounts. with such deduotibies and covering Such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the applicable Loan Party or the applicable Subsidiary operates. The Lender shall be named as loss payee or mortgagee, as its interest may appear, andlor ndditioaal insured with respect to any such insurance providing coverage itt respect of any Collateral, and each provider of any such insurance shall agree. by endorsement upon the policy or policies issued by it or by independent instruments furnished to the Lender. that it will give the Lender thirty (30) days prior written notice before any such policy or policies shall be altered or canceled. 7.08 Compliance with Law. Comply with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which such requirement of Law or order. writ. injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or the failure to comply therewith could not reasonably be cttpected to have a Material Adverse Effect. 7.09 [looks and Records. Maintain proper books of record and account, in which full. true and correct entries in conformity with GAAP consistently applied shall be made of all ?nancial transactions and matters involving the assats and business of such Loan Party or such Subsidiary, as the casc may be. Maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having mgulatoryjurisdiction ovor such Loan Party or such Subsidiary, as the case may be. 7.10 ns eeti Ri ins. Permit representatives and independent contractors of the Lender to visit and inspect any of its properties, to examine its corporate. ?nancial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, ?nances and accounts with its directors, oilicers, and independent public accountants (it being understood that the Borrower may attend such discussions), all at such 57 .lZiLl Ill reasonable times during normal business hours and as often as may be desired, upon reasonable advance notice to the Borrower; Mg, excluding any such visits and inspections during the continuation of an Event of Default, only one such visit and inspection during any calendar year shall be at the expense of the Borrower; provided, furtth ow ver, when an EVcnt of Default exists the Lender (or any of its representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and without advance notice. Notwithstanding ?anything to the contrary in this Section {2.10. none of the Loan Parties will be required to diaclose, permit the inspection, examination or making of extracts, or discussion of, any document. information or other matter that in respect of which such disclosure is then prohibited by Law or any material agreement binding on such Loan Party or (ii) is subject to attomey?elient privilege or similar privilege or constitutes attorney work product. 7.1! Use of Proceeds. Use the proceeds of the Credit Extensions to re?nance existing indebtedness, to ?nance working capital and capital expenditures and for other general cerporate purposes. provided that in no event shall the proceeds of the Credit Extensions be used in contravention of any Law or of any Loan Document. . 7.l2 Additional Subsidiaries. Within thirty (30) days alter the acquisition or formation of any Subsidiary: notify the Lender thereof in writing, together with the jurisdiction of formation. (ii) number of shares of each class of Equity interests outstanding. number and percentage of outstanding shares of each class owucd (directly or indirectly) by the Borrower or any Subsidiary and (iv) number and effect, if exercised, of all outstanding options, wan-ants, rights of conversion or purchase and all other similar rights with respect thereto; and if such Subsidiary is a Domestic Subsidiary (other than any immaterial Domestic Subsidiary), cause such Person to become a Guarantor by executing and delivering to the Lender a Joinder Agreement or such other documents as the Lender shall deem appropriate for such purpose, and (ii) deliver to the Lender documents of the types referred to in and and favorable opinions of counsel to such Person (which shall cover, among other things. the legality, validity, binding effect and enforceability of the documentation rcfened to in clause all in form, content and scope satisfactory to the Lender. 7.13 EiLISAanpliance. Do, and cause each of its Af?liates to do, each of the following: maintain each Plan in compliance in all material respects with the applicable provisions of the intemal Revenue Code and other federal or state law; cause each Plan that is quali?ed under Section 40l(a) of the lntemal Revenue Code to maintain such quali?cation; and make all required contributions to any Plan subject to Section 4 l2, Section 430 or Section 431 of the intemal Revenue Code. 7. l4 Eledged Assets. Eguigy interests. Cause l00% of the issued and outstanding Equity interests of each Domestic Subsidiary (other titan those certain Equity interests held by the Borrower set forth on mogul; and 66% (or such greater percentage that, due to a change in an applicable Law alter the date hereof, could not reasonably be expected to cause the undistributcd earnings of such Foreign 58 cunntumsosus l. I fl Subsidiary as determined for United States federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary's United States parent and (2) could not reasonably be expected to cause any material adverse tax consequences) of the issued and outstanding Equity interests entitled to vote (within the meaning of Treas. Reg. Section and l0ll% of the issued and outstanding Equity interests not entitled to vote (within the meaning of Treas. Reg. Section in each Foreign Subsidiary directly owned by a Loan Party to be subject at all times to a ?rst priority perfected Lien in favor of the holders of the Obligations pursuant to the terms and conditions of the Collateral Documents, together with opinions of counsel and any ?lings and deliveries necessary in connection therewith to perfect the security interests therein. all in form and substance satisfactory to the Lender. ther Progeny. Cause all of its ovmcd and leased real and personal property other than Excluded?Property to be subject at all times to first priority. perfected and. in the ease of real property (whether leascd or owned). title insured Liens in favor of the holders of the Obligations. to secure the Obligations pursuant to the terms and conditions of the Collateral Documents or, with respect to any such propeny acquired subsequent to the Closing Date. such other additional security documents as the Lender shall subject in any case to Permitted Lions and (ii) deliver such other documentation as the Lender may reasonably request in canneclion with the foregoing. including, without limitation. appropriate ?nancing statements. real estate title insurance policies, sunreys. environmental reports. landlord's waivers, certified resolutions and other organizational and authorizing documents of such Person. favorable opinions of counsel to such Person (which shall cover. among other things. the legality. validity. binding effect and enforceability of the documentation referred to above and the perfection ofthc Lender's Liens thereunder) and other items of the types required to be delivered pursuant to Scct'on all in form. content and scope satisfactory to the Lender. 7. i5 Funner Assurances. upon request by the Lender, correct any material defect or arm that may be discovered in any Loan Document or in the execution. acknowledgment. ?ling or recordation thereof, and do, execute. acknowledge, deliver, record, rc-rceorrl, ?le, re-lite, register and re-register any and all such funher acts, deeds, certi?cates, assurances and other instruments as the Lender may reasonably require from time to time in order to can-y out mare effectively the purposcs of the Loan Documents. (ii) to the fullest extent permitted by applicable Law. subject any Loan Party?s or any of its Subsidiaries' properties, assets, rights or interests to the Liens now or herca?cr intended to be covered by any of the Collateral Documents. perfect and maintain the validity. effectiveness and priority of any of the Collateral Documents and any of the Liens intended to bcerented thereunder and (iv) assure, convey, grant, assign, transfer. preserve, protect and con?rm more effectively unto the Lender the rights granted or now or hereafter intended to be granted to the Lender under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be a party. and cause each of its Subsidiaries to_ do So. 7. [6 Deposit Accounts. Each Loan Party at all times will maintain its primary deposit and operating accounts with the Lender and maintain its principal depository relationship with the Lender. 7. 7 Post-gigging lgelivetzhies. (it) Use commercially reasonable efforts to within ninety (90) days of the Closing Date deliver to the Lender, in form and substance satisfactory to the Lender, landlord estoppels for those certain leasehold interests of the Loan Parties designated on Schedule 1.11. 59 cmanusososyr if] 13:15.. {it {3.231 I .. 1 Within ninety (90) days of the Closing Date deliver to the Lender, in form and substance satisfactory to the Lender. copies of insurance endorsements naming the Lender as additional insured (in the ease of liability insurance) and loss payee (in the case of hazard insurance) and (ii) copies of immune policies or certificates of insurance of the Loan Patties evidencing liability insuranco and hazard insurance meeting the requirements set forllr in the Loan Documents. Within ninety (90) days of the Closing Date deliver to the Lender evidence reasonably satisfactory to the Lender that all account control agreements entered into in connection with the Existing Credit Agreement have been terminated. Within ninety (90) days of the Closing Date tile or cause to be ?led with the United States Patent and Trademark Of?ce or the United States Copyright Office. as applicable. such documentation as reasonably requested by the Lender so that the applicable records correctly re?ect the applicable Loan-Party's ownership of all patents, trademarks and copyrights (or applications therefor) listed on Schedule 6.17. ARTICLE NEGATIVE COVENANTS So long as the Lender shall have its Commitment, any Loan or other Obligation shall remain unpaid or unsatis?ed (other than contingent indemni?cation obligations for which no claim has been made), or any Letter of Credit shall remain outstanding (other than any Letter of Credit backstopped by a letter ofcredii issued by an issuer satisfactory to, and otherwise in form and substance satisfactory to. the Lender or Cash Collateralized in a manner satisfactory to the Lender), no Loan Party shall, nor shall it permit any Subsidiary to. directly or indirectly: 8t0l Liens. Create, incur. assume or suffer to exist any Lien upon any of its property, assets or revenues. whether now owned 0r hereafter acquired, other than the following: . Liens pursuant to any Loan Document; Liens existing on the date hereof and listed on Sc adule Oi, arm/M that the property covered thereby is not changed. (ii) the amount secured or bene?ted thereby is not increased and the direct or any contingent obligor with respect thereto is not changed; Liens (other than Liens imposed under ERISA) for taxes. assessments or governmental charges or levies not yet due or are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with statutory Liens of landlords and Lions of carriers, warehousemcn, mechanics, materialmcn and suppliers and other Liens imposed by law or pursuant to customary reservations or retentions of title arising in the ordinary course of business. provided that such Licns_secure only amounts not overdue for a period of more than 30 days or, if more than 30 days overdue, no action has been taken to enforce the same or (ii) such Lien is being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GMP have been established; 60 pledges or deposits in the ordinary course of business in connection with workers' compensation, unemployment insurance and other social security legislation, other than any Lien imposed by deposits to secure the performance of bids, trade contracts and leases (other than indebtedness). statutory obligations, surety and appeal bonds. performance bonds and other obligations of a like nature incurred in the ordinary course of business; (3) easements, righls~of?way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount. and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the busines of the applicable Person; Liens securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event ot?Defauit under ?eetion 9.0mm Liens securing indebtedness permitted under Sgtion ?ame); provided that such Liens do not at any time encumber any other than the property ?nanced by such indebtedness. (ii) the indebtedness secured thereby does not exceed the cost (negotiated on an arm?s length basis) of the property being acquired on the date of acquisition and such Liens attach to such property concurrently with or within ninety days a?er the acquisition thereof; 6) I leases or subleases granted to others not interfering in any material respect with the business of any Loan Party or any of its Subsidiaries: any interest of title of a lessor under, and Liens arising from UCC ?nancing statements (or equivalent ?lings, registrations or agreements in foreign jurisdictions) relating to. leases permitted by this Agreement; Liens deemed to exist in connection with lnvostments in repurchase agreements permitted under ?ection 8.02; normal and customary rights of setofi' upon deposits of cash in favor of banks or other depository i nstitutions; Liens of a collection bank arising under Section 4-2l0 of the Uniform Commercial Code on items in the course of collection; (0) Liens of sellers of goods to the Borrower and any of its Subsidiaries arising under Article 2 of the Uniform Commercial Code or similar provisions of applicable law in the ordinary course of business, covering only the goods sold and securing only the unpaid purchase price for such goods and related expenses; Liens, if anyI in favor of the Lender on Cash Collateral delivered pursuant to Section 2. tzm; Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business; 61 8.02 Liens on IP Rights to the extent such Liens arise from licenses or sublicenses thereof entered into in the ordinary course of business of the Borrower and its Subsidiaries: Liens securing Additional Subordinated Debt; provided that such Liens do not at arty lime encumber any property other titan the property ?nanced by such Additional Subordinated Debt and (ii) the Indebtedness secured thereby does not exceed the cost (negotiated on an arm's length basis) of the property being acquired on the date of acquisition; and any extension, renewal or substitution for any Lien permitted under clause of this Section 8.01, to the extent that the amount of the Indebtedness, obligation or other liability secured by the applicable Lien does not exceed the amount of the Indebtedness, other obligation or other liability existing immediately prior to such extension, renewal or substitution and (ii) the scope of tho property subject to such Lien is not increased. Investment; Make any Investments, except: Investments held by any Loan Party or any Subsidiary in the form of cash or Cash Equivalents; Investments existing as of the Closing Date and set forth in Sphedulg 8.02; Investments in any Person that is a Loan Party prior to giving effect to such Investment; Investments by any Subsidiary of the Borrower that is not a Loan Party in any other Subsidiary of the Borrower that is not a Loan Party; Investments consisting of extensions or credit In the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary coursc of business, and Investments recciired in satisfaction or partial satisfaction thereof from ?nancially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss; (I) Guarantees permitted by Sgctigu 8,03; (3) Permitted Acquisitions; Investments by the Loan Parties in Subsidiaries of Holdings (other than the Borrower and its Subsidiaries) in an aggregate amount not to creecd $2,500,000 at any one time outstanding; . additional by the Loan Parties in Subsidiaries of Holdings (other than the Borrower and its Subsidiaries); proyided, tilt, in no event shall the sum of all lnvastments made by the Loan Parties pursuant to this clause at any time outstanding gigs the aggregate amount of all Restricted Payments made pursuant to Section goats) during the then current ?scal year or the Borrower exceed $12,500,000 in the aggregate for the fiscal year ending December 20l2 and $15,000,000 in the aggregate for each ?scal year ending therea?er; (ii) no Default or Event of Default exists immediately prior to and after giving effect to any such Investment. immediately after giving effect to such Investment, the Borrower has at least $5,000,000 in the aggregate of the sum of (I) unrestricted cash and Cash Equivalents and (2) 62- CIMR I\l 26060595 8.03 availability under the Revolving Commitment and (iv) solely with respect to any Investment made pursuant to this 8.02m in the ?scal year of the Borrower ending December 20l2 that, together with all Restricted Payments made pursuant to in such ?scal year prior to such date and all other investments made pursuant to this that are outstanding on such date, aggregates to greater than $10,000,000, the Borrower shall have delivered a certi?cate executed by a Responsible Of?cer of the Borrower certii?ying that upon giving effect to any such Investment on a Pro F0rma Basis, the Consolidated Fixed Charge Coverage Ratio (it being understood and agreed that for purposes of the determination to be made under this clause all Restricted Payments made by the Borrower in the ?scal year ending December 3i. 2012 pursuant to Section 8,06(c) and the aggregate amount of all investments made pursuant to this WM) that are outstanding, in each case, will be included in clause of the de?nition of ?Consolidated Fixed Charges", notwithstanding the de?nition of such term) is not less than 1.0 to i.0 as of the most recent ?scal quarter for which the Borrowor was required to deliver ?nancial statements pursuant to Section 7.0! a or (3311); Investments consisting of operating deposit accounts maintained in the ordinary course of business; (it) investments consisting oi? temporary credit extensions and advances to Dr. Alan Hirsch in an aggregate amount not to exceed $l50,000 per calendar month; (I) advances to directors, of?cers and employees of the Borrower and its Subsidiaries for travel. entertainment, relocation and analogous ordinary business purposes, in an aggregate amount for all such advances not to exceed Si 00,000 at any time outstanding; - investments in joint ventures, strategic alliances, licensing and similar arrangements customary in Borrower's industry and which do not require any Loan Party or any Subsidiary to assume or otherwise become liable for the obligations of any third party not directly related to or arising out of such arrangement or, withOut the prior written consent of the Lender, require the Borrower or any Subsidiary to transfer ownership of non-cash assets to such joint venture or other entity, in an aggregate amount for all Such investments pursuant to this clause not to exceed $1,000,000 at any one time outstanding; and other investmean not exceeding $l,000,000 in the aggregate at any one time outstanding. indebtedngs. Create, incurl assume or suffer to exist any indebtedness. except: indebtedness under the Loan Documents; indebtedness of the Loan Parties and their Subsidiaries set forth in Schedule intercompany indebtedness permitted under Sectign 8.02; ohligations (contingent or otherwise) of any Loan Party or any Subsidiary existing or arising under any Swap Contract, grgvigegi that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments. assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such 63 Person. and not for purposes of speculation or taking a ?market view;" and (ii) such. swap Contract does not contain any provision cxonerating the non-defaulting party from us obhgatmn to make payments on outstanding transactions to the defaulting party; purchase money Indebtedness (including obligations in respect of Qtpital Leases or leases) hereafter incurred by any Loan Party or anySubsidiary to ?nance the purchase of ?xed assets. and renewals, re?nancing: and extensions thereof, grgvidg that the total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of $1,000,000 at any one time outstanding; (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) ?nanced; and no such Indebtedness shalt be re?nanced for a principal amount in excess of the principal balance outstanding thereon at the time of such re?nancing: Indebtedness of the Ber-rower and its Subsidiaries to any Subsidiary of Holdings (other than the Borrower or any of its Subsidiaries) in an aggregate principal amount not to exceed St.000,000 at any one time outstanding; (3 Additional Subordinated Debt In an aggregate principal amount not to exceed I 300,000 at any one time outstanding; . Indebtedness incurred with corporate credit cards in the ordinary course of business in an aggregate principal amount not to exceed $1,000,000 at any one time outstanding; provided, m. such Indebtedness is not secured by cash or Cash Equivalents: - - Indebtedness incurred in the ordinary course of business in connection with the financing of Insurance premiums: Earn Out Obligations with respect to Permitted Acquisitions and unsceured Indebtedness consisting of the deferred purchaSe price of Pennitted Acquisitions; Indebtedness assumed in connection with any Permitted Acquisition and not incurred in contemplation thereof; (I) uncecured Indebtedness incurred in connection with the ?nancing of a Permitted Acquisition, in an aggregate principal amount not to exceed $500,000 at'any one time outstanding; (on) the Subordinated Indebtedness; unsecured Indebtedness of the Borrower and its Subsidiaries not otherwise permitted hereunder in an aggregate principal amount not to exceed $500,000 at any one time outstanding; and renewals, rcfinancings and extension of Indebtedness described in clause of this on terms and conditions not materially less favorable to the applicable debtor; provided, that, the principal amount of the Indebtedness described in clause (b)'of this ?sction it); shall not be Increased above the principal amount thereof outstanding immediately prior to such renewal, re?nancing or extension. 64 u?Ei 8.04 Fundamental Changes. Merge. dissolve, liquidate, consolidate with or into another Person. or Dispose of (whether in one transaction er in a Series of transactions) all or substantially all of Its assets (whether now owned or hereafter acquired) to or in favor of any Person; provided that. notwithstanding the foregoing provisions of this ?ection 8.04 but subject to the terms of ?eetion? 1,t2 and 145, the Borrower may m??e 0' consolidate with any of its Subsidiaries provided that the Borrower shall be the continuing or surviving corporation. any Loan Party (other than the Borrower) may merge or consolidate with any other Loan Party (other than the Borrower), any Subsidiary of the Borrower that is not a Loan Party may be merged or consolidated with or into any Loan Party provided that such Loan Party shall be the continuing or surviving corporation and any Subsidiary of the Borrower that is not a Loan Party may be merged 0r consolidated with or into any other Subsidiary of the Borrower that is not a Loan Party. 8.05 Dispgsitigns. Make any Disposition unless the consideration paid in connection therewith shall be cash or Cash Equivalents paid contemporaneous with consummation of the transaction and shall be in an amount not less than the fair market value of the property disposed of, (it) no Default or Event of Default has occurred and is continuing immediately prior to and utter giving effect to such Disposition and the aggregate net book value of all of the assets sold or otherwise disposed of by the Borrower and its Subsidiaries in all such Dispositions occurring during the term of this Agreement shall not exceed $i.000.000. 8.06 Restricted ifgyments. Declare or make, directly or indirectly. any Restricted Payment, or incur any obligation (contingent or otherwise) to do so. except that: each Subsidiary may make Restricted Payments to any Loan Party; the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity interests of such Person; the Borrower and its Subsidiaries may make additional Restricted Payments, in an aggregate amount not to exceed $l2,500,000 (minus the outstanding aggregate amount of all investments made pursuant to Sgction ?,02(i1 at the time such Restricted Payment is made) in the ?scal year of the Borrower ending December 3t, 20i2 and (ii) $15,000,000 (prime the outstanding aggregate amount of all investments made pursuant to ?ection 8.02m at the time such Restricted Payment is made) in any ?scal year of the Borrower ending thereafter; provided, that. in each casc. no Default or Event of Default exists immediately prior to and after giving effect to any such Resrricted Payment, immediately after giving effect to Restricted Payment, the Borrower has at least $5,000,000 in the aggregate of the sum of (I) unrestricted casir and Cash Equivalents and (2) availability under the Revolving Commitment and solely with respect to any Restricted Payment made pursuant to this geettgn some} in the ?scal year of the Borrower ending December 20l2 that, together with all other Restricted Payments made pursuant to this Section 8.06M in sueir ?scal year prior to such date and all other investments made pursuant to Segtion 8.02m that are outstanding on such date, aggregates to greater than i0,000,000, the Borrower shall have delivered a certi?cate executed by a Responsible Of?cer of the Borrower certifying that upon giving effect to any sueit Restricted Payment on a Pro Forma Basis, the Consolidated Fixed Charge Coverage Ratio (it being understood and agreed that for purposes of the determination to be made under this clause all Restricted Payments made by the Borrower in the ?scal year ending December 3 I, 20l2 pursuant to this Septiog 8.015(e1and the 65 cnannrzaosom i' if; {it r-?L 41 aggregate amount of all Investments made pursuant to Section 8.02?) that are outstanding, in each casel will be included in clause of the de?nition of ?Consolidated Fixed Charges". notwithstanding the de?nition of such term) is not less than i.0 to as of the most recent fiscal quarter for which the Borrower was required to deliver ?nancial statements pursuant to Sectign 7.0lta) or (Lam); and the Borrower may declare and make dividend payments to Holdings so that Holdings may pay corporate operating (including, without limitation, directors fees and expenses) and overhead expenses in the ordinary course of business in an amount not to exceed $250,000 during any calendar year. 3.07 Change in Nature of Business. Engage in any material line of business substantially different from those lines of business conducted by the Borrower and its Subsidiaries en the Closing Date or any business substantially related or incidental thereto. 8.08 rgnsagtigns with Af?liates and insiders. Enter into or permit to exist any transaction or scrim of transactions with any of?cer, director or Af?liate of such Person other than advances of working capital to any Loan Party, transfers of cash and assets to any Loan Party, intercompany transactions expreSsly permitted by Section 5.02; Section 3:93.. W. M12: or normal and reasonable compensation and reimbursement of expenses of of?cers and directors in the ordinary course of business. and except as otherwise speci?cally limited in this Agreement. other transactions which are entered into in the ordinary coursc'of such Person's business (in terms and conditions substantially as favorable to such Person as would be obtainable by it in a comparable arms-length transaction with a Person other than an of?cer. director or Af?liate. 8.09 Burdegsome Agreements. Enter into, or permit to exist, any Contractual Obligation that encumbers or restricts on the ability of any such Person to pay dividends or make any other distributions to any Loan Party on its Equity interests or with respect to any other interest or participation in, or measured by, its pro?ts, (ii) pay any indebtedness or other obligation owad to any Loan Party, make loans or advances to any Loan Party. (iv) 58?. lease or transfer any of its property to any Loan Party, pledge its property pursuant to the Loan Documents or any renewals, rctinancings. exchanges, rcfundings or extension thereof or (vi) act as a Loan Party pursuant to the Loan Documents or any renewals, rc?nancings, exchanges, refundings or extension thereof, except (in respect of any of the matters referred to in clauses above) for Agreement and the other Loan Documents, (2) any document or instrument governing indebtean incuned pursuant to ?ection 8.03m, provided tirat any such restriction contained therein relates only to the assct or assets constructed or acquired in connection therewith, (Ii) any Permitted Lien or any document or instrument governing any Permitted Lien, provided that arty such restriction contained therein relates only to the asset or assets subject to such Permitted Lien or (4) customary restrictions and conditions contained in any agreement relating to the sale of any property permitted under Section 8.05 the consummation of such sale. Enter into. or permit to exist, any Contractual Obligation that prohibits or otherwise restricts the existence of any Lien upon any of its property in favor of the bender for the purpose of securing the Obligations, whether now owned or hereafter acquired, or requiring the grant of any security for any obligation if such property is given as security for the Obligations, except any document or instrument govcming Indebtedness incuned pursuant to Section 8,935), provided that any such restriction contained 66 crraa 13:2. therein relates only to the asset or assets constructed or acquired in connection therewith, (ii) in connection with any Permitted Lien or any document or instrument governing any Permitted Lien, Meg that any such restriction contained therein relates only to the asset or assets subject to such Permitted Lien, and pursuant to customary restrictions and conditions contained in any agreement relating to the sale of any property permitted under Section Log, pending the consummation of such sale. 8.10 Use of Prgegeds. Use the of any Credit Extension, whether directly or indirectly. and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation of the FRB) Or to extend credit to others for the purpose of purchasing or carrying margin stock or to re?ind indebtedness originally incurred for such purpose. 8.1 [financial Covegapts. ?ansolidatgg Fixed (marge ngerage Ratio. Permit the Consolidated Fitted Charge Coverage Ratio as of end of any fiscal quarter of the Borrower to be less than ms to 1.0. Minimum ansplidated Permit Consolidated as of the end of the ?scal quarter of the Borrower ending June 30, 2012, for the six month period ending on such date, to be less than $6,000,000, (ii) as oflhe end of the ?scal quarter of the Borrowar ending September 30, 2012, for the six month period on such date, to be less than $10,000,000, as of the end of the ?scal quarter of the Borrower ending 31, 2012, for the six month period ending on such date, to be less than $5,000,000, (iv) as of the end of each of the fiscal quarters of the Borrower ending March 3l, 2013. March 31, 20M and March 31, 2015. in each case for the six month period ending on such date, to be less than $10,500,000, as of the end of each of the ?scal quarters of the Borrower ending June 30, 2013 and June 30, 2014, in each case for the six month period ending on such date. to be less than $7,500,000, (vi) as of the end of each of the ?ssal quarters of the Borrower ending September 30, 2013 and September 30, 20M, in each case for the six month period ending on such date, to be less than $12,500,000 and (vii) as of the end of each of the ?scal quarters of the Borrower ending December 31, 20th and DeCember 20l4, in each case for the six month period ending on such date, to be less than $1 6,000,000. (6) W. Notwithstanding anything to the contrary contained in or in the event that any Loan Party would otherwise be in default of the ?nancial covenants set forth in Section 5.1 1(3) or for any period, on or before the tenth Business Day subsequent to the due date for delivery of the ?nancial statements for such period pursuant to Section with respect to the fourth ?scal quarter of a ?scal year of the Borrower, Section 1mm), Holdings shall have the right to issue Quali?ed Equity for cash in an aggregate amount equal to the amount necessary to cure the relevant failure to comply with all the applicable ?nancial covenants contained in Section 8.1 ?at and/or (lg) (collectively, the ?Cure Right"), and upon the receipt by the Borrower of such cash from Holdings as a capital contribution (the "Qure Amount"), such ?nancial covenants shall be reenlculated giving effect to the following: Consolidated for the ?scal quarter ending at the end of such pcriod shall be increased-by the Cure Amount, and suclt increase shall be effective for all periods that include such ?scal quarter and (ii) if, after giving effect to the feregoing the Loan Parties shall then be in compliance with the requirements of the ?nancial covenants set forth in Sectiog 8,1 1(a) and the Loan Parties shall be deemed to have satis?ed the requirements thereof as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default thereof which had ocCurred shall be deemed cured as of such date for all purposes of this Agreement; pxoyided, lh_at: 67 com tursususvs the Cure Amount shall be disregarded for all calculations under this Agreement other than compliance with Section 8,1 lfa) or as applicable, and shall be disregarded for purposes of determining pro forma compliance with ?ections its] for purposes of Seetign 8.06m); and (ii) (A) in each four ?scal quarter period, there shall be a period of at least two ?scal I quarters in respect of which no Cure Right is exercised, (B) during the term of this Agreement, the Cure Right shall be exercised no more than four (4) times in total. (C) the Cure Amount for any applicable period shall be no greater than the aggregate amount necessary to cure all Evonts of Default arising in respect of Section 8.i Hg) or Lb) for such applicable period and (D) the aggregate of all Otre Amounts during the term of this Agreement shall not exceed 33.000.000- 8.12 Organization Documents; Fiscal Year; Legal blame, State of Fggnatiop and Eorm of Entity. Amend. modify or change its Organization Documents in a manner adverse to the Lender. Change its ?scal year. Without providing 10) days prior written notice to the Lender, change its name. state of formation or form oforganizatiOn. 8.l3 Ownershi 0 id' Notwithstanding any other provisions of this Agreement to the contrary, permit any Person (other than any Loan Party or any Wholly Owned Subsidiary of the Borrower) to own any Equity interests of any Subsidiary of any Loan Party, except to qualify directors where required by applicable law or to satisfy other requirements of applicable law with respect to the owuership of Equity interests of Foreign Subsidiaries or except as existing on the date of this Agreement, permit any Loan Party or any Subsidiary of any Loan Party to issue or have outstanding any shares of preferred Equity interests (other than the Permitted Preferred Stock) or create, incur, assume or suffer to exist any Lien on any Equity interests of any Subsidiary of any Loan Party, except for Permitted Liens. 8. 4 grepayment of Other indebtedness. Make (or give any notice with respect thereto) any voluntary or optional payment or prepayment or redemption or acquisition for value of (including without limitation. by Way of depositing money or securities with the trustee with respect thereto hefore due for the purpose of paying when due), refund, re?nance or exchange of any indebtedness of any Loan Party or any Subsidiary (other than indebtedness arising under the Loan Documents). Make (or give any notice with respect thereto) any payment in violation of the terms and provisions of the Subordination Agreement. 8J5 Amendments to Certain Documents. Amend. modify or change (or permit the amendment, modi?cation or change oi) any of the terms or previsions of the Subordinated indebtedness or any Subordinated Loan Document in a manner adverse to the Lender. Amend. modify or change (or permit the amendment, modification or change of) any of the terms or provisions of the Additional Subordinated Debt or any doeument or agreement entered into in 68 cnannrzaosasvs connection therewith In a manner adv-arse to the Lender. 9.0! ARTICLE IX EVENTS OF DEFAULT AND REMEDIES Events of Detail]. Any of the following shall conStitute an Event of Default: (3) Non-Payment. The Borrower or arty other Loan Party fails to pay when and as required to be paid herein, any amount of principal of any Loan or any LIC Obligation, or (ii) within three Business Days after the same becomes due, any interest on any Loan or on any UC Obligation, or any the due hereunder, or within ?ve Business Days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or W. Any Loan Party fails to perform or observe any term, covenant or agreement comaineti in any of ?ectign I, 1,12 or or Article Yliior Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not speci?ed in subsection or above) contained in any Loan on its part to be perfonned or observed and such failure continues for thirty days after the earlier of the date on which a Reaponsibte Of?cer of any Loan Party becomes aware of such failure or (ii) written notice thereof shall have been given to any Loan Party by the Lender; or Representations and Wa?gnties. Any representation, warranty. certification or statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party herein, in any other Loan Document, or, in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or Cmss,-Defauu. Any Loan Party or any Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and indebtedness under Swap Cantraets) having an aggregate principal amount (including undrawn committed or available amounts and Including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount, or (8) fails to observe or perform any other agreement or condition relating to. any such indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any Other event occurs, the elTect of which default or other event is to eauso, or to permit the holder or holders of such Indebtedness or the bene?ciary or bene?ciaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or bene?ciary or bene?ciaries} to cause. with the giving of notice if required, such indebtedness to be demanded Or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or othenvise), or an offer to repurchase, prepay, defense or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to he demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as de?ned in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which the Borrower or any Subsidiary is the Defaulting Pany (as de?ned In such Swap Contract) or (B) any Termination Event (as so de?ned) under such Swap Contract as to which the Borrower, or any 69 CHAR t\l26060$v5 {'71 t1th . 4? .I I A, Subsidiary is an Affected Party (as so de?ned) and, in either event, the Swap Termination Value owed by the Borrower or such Subsidiary as a result thereof is greater than the Threshold Amount; or lnso nee . Any Loan Party or any of its Subsidiaries institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the bene?t of creditors; or applies. for or consents to the appointment of any receiver, trustee, custodian, conservator, iiquidator, rehabilitator or similar of?cer for it Or for all or any material part of its property; or any receiver, trustee, cuswdian, conservator, llquidator, rehabilitator or similar of?cer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty calendar days, or an order for relief is entered in any Such proceeding; or in "It to Pin ebts- ttachment. Any Loan Party or any of its Subsidiaries becomes unable or ndtnits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released. Vacated or fully bonded within thirty days alter its issue or levy; or Judgments. There is entered against any Loan Party or any Subsidiary one or more ?nal judgments or orders for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not covered by independent third-party insurance-as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary ?nal judgments that have. or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon or order, or (B) there is a period of ten consecutive days during which _a stay of enforcement of such judgment, by reason of a pending appeal or otherwisc, is not in effect; or MA 0) An ERISA Event occurs with respect to a Pension -Plan or Multicmployer Plan which has reSulted or could rcnsombly be expected to result in liability of any Loan Party under Title of to the Pension Plan, Multicmployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the Borrower or any Af?liate fails to pay when due. alter the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 420i of under a Multicmployer Plan in an aggregate amount in excess of the Threshold Amount; or lnvalidig of Loan mournents. Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and elTect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document. or purports to revoke, laminate or rescind any Loan Document; or (it) Subordination. Any Subordinated indebtedness shall cease (or any Loan Party or an Affiliate of any Loan Party shall so assert), for any reason, to be validly subordinated to the Obligations as provided in the Subordinated Loan Documents; or 70 tit a fuel I. l} ?phordinated indebtedness. There shall occur an "Event of Default" (or any comparable term) under, and as de?ned in, the Subordinated Loan Documents or (ii) any document or agreement executed in connection with the Additional Subordinated Debt; or ghange of There occurs any Change of Control. 9.02 Remedies Upon Event of Qefault. if any Event of Default occurs and is continuing, the Lender may take any or all of the following actions: A declare the Commitments and any obligation to make UC Credit Extensions to be tenninaled, whereupon such Commitments and obligation shall be laminated; declare the unpaid principal amount of all outstanding loans, all interest scented and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment. demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowar; require that the Borrower Cash Collaterallze the UC Obligations (in an amount equal to the Minimum Collateral Amount with respect thereto); and . A exercise all rights and remedies available to it under the Loan Docurnents; provided, howeyer. that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Ben-ower under the Bankruptcy Code of the United States, the obligation of the Lender to make Loans and any obligation of the Lender to make UC Credit Extensions shall automatically tenninatc, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the LIC Obligations as aforesaid shall automatically become effective, in each caSe without further act of the Lender. 9.03 Applicatigg of Funds. After the exercise of remedies provided for in Sgtign 2,02 (or tailor the Loans have automatically become immediately due and payable and the MC Obligations have automatically been required to be Cash Collateratized as set forth in the proviso to Sgption any amounts received on account of the Obligations shall be applied by the Lender in the manner determined by the Lender in Its sole discretion. Any surplus remaining alter payment in full of the Obligations shall be returned to the Borrower or whomsoeVer a court oflcompclentjurisdietion shall determine to be entitled thereto. ARTICLE MISCELLANEOUS l0.0l Amendments, E19. No amendment or waiver of any provision of this Agreement or any other Loan poeument, and no consent to any departure by any Loan Party therefrom, shall be effective unless in signed by the Lender and the Loan Parties. 7] A, l: T. ID.02 Notices and Other Commpnications; Eaesimjle Copies. with. Except in the case of notices and other communications expressly permitted to be given by telephone (and exoept as provided in subsection below), all notices and other . communications provided for herein shall be in writing and shall be delivered by hand or courier service, mailed by certi?ed or registered mail or sent by facsimile as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, to the address, facsimile number, electronic mail address or telephone number speci?ed for such Person on schedule 10.02; and Notices and other communications sent by hand or overnight courier service, or mailed by certi?ed or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been givan when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection below. shall be effective as provided in such subsection . Electronic Communications. Notices and other communications to the Lender hereunder may be delivered or fumished by electronic communication (including e?mail and lntemct or intranet Websites) pursuant to procedures approved by the Lender. The Lender or the Borrower may, in its discretion, agree to accept notices and other communicatiOns to it hereunder by electronic communications pursuant to precedures approved by it, provided that approval of such procedures may be limited to particular notices or communications. - Unless the Lender otherwise prescribes, notices and other communicatious sent to an c-mail address shall be deemed received upon the sender's receipt of an acknowledgement from the intended recipient (such as by the "return receipt requested" function. as available, return c-mail or other written acknowledgement) and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause of noti?cation that such notice or communication is available and identifying the website address therefor; provided that, for both clauses and if such notice, cmail or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the Opening of business on the next business day for the recipient. Qhange of Address, Etc. Each of the Borrower and the Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties hereto. W. The Lender shall be entitled to rely and act upon any notices (including telephonic or electronic Loan Notices and Letter of Credit Applications) purportedly given by or on behalf of any Loan Party even if(i) such notices were not made in a manner speci?ed herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient. varied from any continuation thereof. The Loan Panies shall indemnify the Lender from all losses. costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of a Loan Party. All telephonic notices to and other telephonic communications with the Lender may be recorded by the Lender, and each of the parties hereto hereby consents to such recording. 72 CHAR rttzeoaosvs 1i. 1] . :t-vjt 17} i 0.03 No Cumulative Remedies; Enforcement. No failure by the Lender to exercise, and no delay by the Lender in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall arty single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies. powers and privileges herein provided hereunder and provided under each other Loan Document are cumulative and not exclusive of any rights, remedies. powers and privileges provided by law. 10.04 Expenses; Indemnity; and Damage Waiyor. gusts and Expenses. The Lean Parties shall pay all reasonable out-of-poeltet expenses incurred by the Lender and.its Af?liates (including the reasonable fees, charges and disbursements of counsel for the Lender), in connection with the credit facilities provided for herein, the preparation, negotiation, eXeeution, delivery and administration of this Agreement and the other Loan Documents or any amendments. modi?cations or waivers of the. provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of?pocket expenses incurred by the Lender in connection mm the issuance, amendment. renewal or extension of any Letter of Credit or any demand for payment thereunder and all out-of-pocket expenses incurred by the Lender (including the fees, charges and disbursements of any counsel for the Lender), in connection with the enforcement or protection of its rights (A) in with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred duging any workout, restructuring or negotiations in respect of such Loans or Letters of Credit. In ni?c ti the can arties. The Loan Parties shall indemnify the Lender and each Related Party of the Lender (each such Person beittg called an ?lndemnitcg'? against, and hold each ?lndemnitce harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any lndemnitce) incurred by any lndemnitce or asserted against any lndemnitce by any Pers0n (including the Borrower or any other Loan Party) other than the lndemnitce and its Related Parties arising out of, in connection with, or as a result of the execution or delivery of this Agreement, any ether Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or tltereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the Lender to honor a demand fer payment under a Letter of Credit if the documents presented in connectiOn with demand do not strictly comply with the terms ,of such Letter of Credit), any actual or alleged presence or release of Hazardous Materials on Or from any property owned or operated by a Loan Party or any of its Subsidiaries, or any Environmental Liability related in any way to a Loan Party or any of its Subsidiaries, or (iv) any actual or prospectivo claim, litigation, inVestigation or proceeding relating to any of the foregoing, whether based on contract, tort or anyother theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any lndemnitce is a party thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the cdmparativc, contributory or sole negligence of the lndemnitce; provided that such indemnity shall not, as to any lndemnitce, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by ?nal and nonappealable judgment to have reSulted from the gross negligence, bad faith or willful misconduct of such lndemnitce or a material breach of the obligations of the Lender under this Agreement or any other Loan Document. 73 can l\l260605v5 Waiver of Conseguemigl Damages, Etc. To the fullest extent permitted by applicable law, no Loan Party shall assert, and each Loan Party hereby waives, and acknowledges that no other Person shall have, any claim against any lndemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, :m connection with. or as a result of, this Agreement, any other Loan Document or any agreement or Instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter ofCredrt or the use of the proceeds thereof. No lndemnitee referred to in subsection above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby except to the extent such damages directly result from such gross negligence, bad faith or willful misconduct as determined by a final and nonappealable judgment of a court of competent jurisdiction. Burma. All amouuts due under this Section shall be payable not later than ten Business Days after demand therefor. ?urvival. The agreements in this Section and the indemnity. pr0visions 95 5.311% 10.02 shall survive the termination of the Commitments and the repayment. satisfaction or discharge of all the other Obligations. l0.05 Egymeuts Set Aside. . . . To the extent that any payment by or on behalf of any Loan Party_is made to the Lender, or the Lender exercises its right of setoff, and such payment or the proceeds of such setoll?or any part thereof ts subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Lender in its discretion) to be repaid to a trustee, receiver or any Olth party. in conttection with any proceeding under any Debtor Relief Law or otherWISe. then to the extent of such recovery. the obligation or part thereof originally intended to be satis?ed shall be and continued in full force and effect as if such payment had not been made or such setoff had not occurred. l0.06 ?tl??2550r? and Assigns, -a Ass' 5 on ll . The provisions of this Agreement and the other Loan Documents sltall be binding upon and inure to the bene?t of the parties hereto and thereto and their respective successors and assigns permitted hereby. except that the Borrower may not assign or othenmse transfer any of its rights or obligations hereunder or thereunder without the prior written consent ofthe Lender (and any other attempted assignment or transfer by any party hereto shall be and vord). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, and. to the extent expressly contemplated hereby, the Relatcd Parties'of the Lender) any legal or equitable right, remedy or claim under or by reason of this Agreement. AM. The Lender may assign all or a, portion of its rights and obligations under this Agreement (including all or any portion of the Loans); pmvided, this], so long as no Default or Event of Default then exists, the Borrower shall have consented to the assignment (such consent shall not be unreasonably withheld or delayed). From and after the effective date of such assignment, the assignee thereunder shall be a party hereto and. to the extent of its interest assigned by such assignment, have the rights and obligations of the Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such assignment, be released from its obligations under this 74 CtIAnnmasosvs Agreement (and, in the case of an assignment covering all of the assigning Lender?s rights and obligations under this Agreement, the assigning Lender shall cease to be a party hereto but shall continue to be entitled to the bene?ts of ?ectigns 1M, and t0,04). Upon request by the assigning Lender and/or the assignee Lender, the Borrower (at its expense) shall execute and deliver new or replacement Notes to the assigning Lender and the assignee Lender. Notwithstanding anything herein to the contrary. the Lender may at any time, without the consent of the Borrower, pledge or assign a security interest in all or any portion of its rights under this Agreement (including under the Notes) to secure obligations of the Lender, including any pledge or assignment to secure obligations to liederal Reserve Bank; mean, that no such pledge or assignment shall release the Lender from any of its obligations hereunder or . substitute any pledge or assignee for the Lender as a party hereto. The Lender may at any time, without the consent of, or notice to. the Borrower, sell participations to any PerSOn (other than a natural person) (each, a "?nigiggn? in all or a portion of the Lender?s rights and/or obligations under this Agreement (including all or a portion of the Commitments andlor the Loans): provided that the Lender's obligations under this Agreement shall remain unchanged, (ii) the Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and the Borrower shall continue to deal solely and directly with the Lender in connectiOn with the Lender's rights and obligations under this Agreement. Any agreement or instrument pursuant to which the Lender sells Such a participation shall provide that the Lender shall retain the sole right to enforce this Agreement and to approrre any amendment, modi?cation or waiver of any provision of this Agreement. Subject to the last sentence of this subsection the Borrower agrees that each Participant shall be entitled to the bene?ts of sections 3.0t, 1,91 and to the same extent as if it was the Lender and had acquired its interest by assignment pursuant this Section. A Participant shall not be entitled to receive any greater payment under Section 3.01 or 143 than the Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Panicipant is made with the BorroWer's prior written consent. i0.07 ?r aininfomrntion' .nniid The Lender agrees to maintain the con?dentiality of the information (as de?ned below), except that information may be disclosed to its Af?liates and to its and its Af?liates' Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the con?dential nature of such information and instructed to keep such lnfonnation con?dential), to the extent required or requested by any regulatory authority purporting to have?jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of insurance Commissioners), to the extent required by applicable laws or regulations or by any subpoena or similar legal process, to any other party hereto. in connection with the exercise of any remedies or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder. (0 subject to an agreement containing provisions substantially the same as those of this Section. to any assignee of. or any proSpective assignee, any of its rights or obligations under this Agreement or (ii) any actual or prospective eeunterparty (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to a Loan Party and its obligations, Agreement or payments hereunder, on a con?dential basis to (I) any rating agency in connection with rating the Borrower or its Subsidiaries or the credit facilities provided hereunder or (ii) the ServiceBureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identi?ers with respect to the credit facilities provided hereunder, (Ir) with the consent of the Borrower or to the extent such information becomes publicly available other than as a result of a breach of this Section or becomes available to the Lender or any of its Af?liates on a noncontidential basis from a source other than the Borrower. is cnantuacesom I IE: A: ii?) ill-2t For purposes of this Section, (?infomatinm means all information received from a Loan Party or any Subsidiary relating to the Loan Parties or any Subsidiary or any of their respective businesses, other than any such information that is available to theLender on a noncon?dential ba?sis prior to disclosure by such Loan Party or any Subsidiary, provided that, in the case of inferrnation received from a Loan Party or any Subsidiary alter the date hereof, such information is clearly identi?ed at the time of delivery as con?dential. Any Person required to maintain the con?dentiality of infermation as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the some degree of'carc to maintain the con?dentiality of such information as such Personwouid accord to its own con?dential information. The Lender acknowledges that the lnfonnation may include material non-public information consenting the Borrower or a Subsidiary, as the case may be, it has developed compliance procedures regarding the use of material non-public information and it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws. 10.08 Sniff. if an Event of Default shall have occurred and be continuing, the Lender and each of its Affiliates is hereby authorized (in the case of an obtaining the prior written consent of the Lender) at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or ?nal, in whatever currency) at any time held and other obligations (in whatever currency) many time owing by the Lender or any such Affiliate to or for the credit or the account of the Borrower or any other Loan Party against any and all of the obligations of the Borrower_or such Loan Party now or herea?er existing under this Agreement or any other Loan Document to the Lender or its Af?liates, irrespective of whether or not the Lender or its Af?liates shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Loan Party may be contingent or unmatured or are owed to a branch of?ce or Af?liate of the Lender different from the branch of?ce 0r Affiliate holding such deposit or obligated on such indebtedness. The rights of the Lender and its Af?liates under this Section are in addition to other rights and remedies (including other of satofl) that the Leader or its Affiliates may have. The Lender agrees to notify the Benchr after any such setofl' and application, pm that the failure to give such notice shall not affect the validity of such sctofl' and application. "109 Interest Bate Limitation, Notwithstanding anything to the contrary contained in any.Loan Document. the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of'non-usurious interest permitted by applicable Law (the "Maximum Rate"). if the Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, ifit exceeds such unpaid principal. refunded to the Bertowcr. in determining whether the interest contracted for, charged, or received by Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, characterize any payment that is not prittcipai as an expense, fee, or premium rather than interest, exclude voluntary prepayments and the effects thereof, and amortize, prorate, allocate, and spread itt equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder. l0.l0 Counte no in ration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement. the other Loan Documents and any separate letter 76 CHAR ea in] agreements with respect to fees payable to the Lender constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreemean and understandings, oral or written, relating to the Subject matter hereof. Except as provided in Section this Agreement shall become effective when it shall have been executed by the Lender and when the Lender shall have received counterparts hereof that. when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement. 10.! Surviygl and Wagantics. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and lhcreof. Such representations and warranties have been or will be relied upon by the Lender. regardless ofany investigation made by the Lender or on their behalf and notwithstanding that the Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in fuli force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatis?ed or any Letter of Credit shall remain outstanding. I0. I 2 Sevcgbili?. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, the legality. validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and the parties shall endeavor in good faith negotiations to replace the illegal. invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 10.13 Governing Law; Jurisdiction; Etc. (3) LAW. THIS AGREEMENT SHALL BE GOVERNED BY. AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF-THE COURTS OF THE STATE OF CALIFORNIA SITTING IN LOS ANGELES COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE CENTRAL DISTRICT OF CALIFORNIA. AND ANY APPELLATE COURT FROM ANY THEREOF. IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH CALIFORNIA STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON TIIE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN 7? CHamuaeesosVs 13?2. I, I DOCUMENT SHALL AFFECT ANY RIGHT THAT THE LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBIECTION THAT IT MAY NOW OR HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (8) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT. SERVICE, OF P3001358. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS-IN THE MANNER PROVIDED FOR NOTICES IN W. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. ID.I4 Waiver Rihtt rial .Itt. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT. TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, TIIE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. I0. I5 Electronic Execution and gertain saber Documents. The words "execution," "signed," "signature" and words of like import in any amendment or other modi?cation hereof (Including waivers and consents) shall be deemed to include electronic signatures or the keeping of records in electronic form. each of which shall be of' the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Olobal and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. IO. I6 USA PATRIOT A21. The Lender hereby noti?es the Borrower that pursuant to the requirements of the USA Patriot Act (Title of Pub. L. 101-56 (signed into law October 26, 2000) (the it is required to obtain, verify and recurd Information that identi?es the Borrower, which information includes the name and address of the Barrower and other information that will allow the Lender to identify the Borrower in accordance 78 .i with the Act. The Borrower shall, following a request by the Lender, provide all documentation and other lnfonnation that the Lender requests in order to comply with its ongoing obligations under applicable "know your customer" and anti-money laundering rules and regulations, including the Act. 0. 7 No Advisory or; Fiduciag? Relationship. in connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modi?cation hereof or of any other Loan Document), the Borrower acknowledges and agrees, and acknowledges its Af?liates' understanding, that: the services regarding this Agreement provided by the Lender, are arm's-length commercial transactions between the Borrower and its Af?liates, on the one hand, and the Lender. on the ether hand, (ii) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and the BorroWer ls capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; the Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties. has not been, is not and will not be acting as an advisor, agent or ?duciary, for the Borrower or any of Af?liates or any other Person and (ii) the Lender has no obligation to the Borrower or any of its Af?liates with reSpeet to the transactions contemplated hereby except these obligations expressly set forth herein and in the other Loan Documents; and the Lender and its Af?liates may be engaged in a broad range of transactions that involve interests that differ li'om those of the Borrower and its Af?liates, and the Lender has no obligation to disclose any of such interests to the Borrower or its Af?liates. To the fullest extent permitted by law, the Borrower hereby waives and releases, any claims that it may have against the Lender with respect to any breach or alleged breach of agency or ?duciary duty in connection with any aspect of any transaction contemplated hereby. - California gudicial Reference. If any action or proceeding is ?led in a court of the State of Colifonria by or against any party hereto in connection with any of the transactions contemplated by this Agreement or any other Loan Document, the court shall, and is hereby directed to, make a general reference pursuant to Califomia Code of Civil Procedure Section 638 to a referee (who shall be a single active or retired judge) to hear and determine all of the issues in such action or proceeding (whether of Fact or of law) and to report a statement of decision, mo that at the option of any party to Such proceeding. any such issues pennining to a ?provisional remedy" as de?ned in California Code of Civil Procedure Section 128?! shall be heard and determined by the court, and without limiting the generality of ?c?li0n ?1,05, the Borrower shall be solely responsible to pay all fees and expenses of any referee appointed in such action or proceeding. l0.l9 Collp teral and Guaranty Manors. The Lender hereby agrees: to release any Lien on any property granted to or held by the Lender under any Loan Documenti?) upon payment un full of all Obligations (other than contingent indemni?cation obligations for which no claim has been made) and the expiration or termination of all Letters of Credit (other than any Letter of Credit that has been Cash Collateralizcd in a manner satisfactory to tho Lender), (ii) that is sold or otherwise Disposed of pursuant to a Disposition permitted hereunder or subject to Section "10] ifotherwise approved in writing by the Lender; to subordinate any Lien on any prOperty granted to or held by the Lender under any Loan Document to the holder of any Lien on such property that is permitted by Section and 79 Cum: 11': .- to release any Guarantor From its obligations under the Loan Documents (and to release all Liens granted by any such Guarantor) if such Guarantor ceases to be a Subsidiary as a result of a transaction permitted hereunder. The Lender will, at the Borrowar?s expense, execute and deliver to the Borrower such documents and instruments as the Borrower may reasonably request to evidence such release of Liens under the Loan Documents (including the return to the Borrowor of all certi?cates in the Borrower's possession or custody evidencing such property to be so released) or to so release such Guarantor, in each case in accordance with the terms of the Loan Documents and this Section to, l9. PAGES 80 CHAR ruzsoeusvs 113] i. ?21 IN WITNESS WHEREOF, the parties hereto hale caused [his to ba duly executed as of the date ?rst above written. BORROWER: INTELLIGENT BEAUTY. INC., a Delaware corporation By: Name: Title: GUARANTORS: SENSA PRODUCTS, LLC, a Delaware limited liability company .. Nam'e: Title: BRAND IDEAS, LLC, a Delaware limith liability company By: Name: Title: INTELLIGENT BEAUTY. INC. CREDIT AGREEMENT ES. {.73 31.11.} LENDER: BANK OF AMERICA, NRA. rlc? - ByL/v . K. . Namc?tdic Ynmauoty' Title: Senior Vica President BEAUW. INC. CREDIT AGREEMENT t5, 321;! -IT I :11 it .1 SCHEDULE l.01(a) Excluded Property All preferred membership interests owned by the Borrower as of the date hereofin Beauty Operations, LLC, speci?cally 50 preferred units. The following patents that are not used, needed or otherwise incarporated into the business operations for Sense Products, LLC: 11113 Use of odorants to alter blood flow to the vagina, and article of manufacture thereof Use of odorants to alter blood ?ow to the vagina Use of odorants to alter learning capacity Use of odorants to treat male impotence, and article of manufacture thereof Method of enhancing sports scores Method of treating headaches, and? article of manufacture therefor Method of altering perception of relative space of an area Tit Method of altering weight perception Method of altering age perception Registration No. 7,108,872 7.067.162 5,904,916 5,885,614 7,83 8,486 6,106,837 5.759.521 Bub, Application No. 20040137086 20060057232 3. The U.S. Trademark No. 35142i2 for BEAUTY WITH INTELLIGENCE. L11 .zr I. =12: ..J 4. The lease deposit in favor of Just Fabulous, Inc. in the amount of $106,048 (the lease was transferred to Just Fabulous, Inc. effec?ve May 1, 2012). 23%. ;l 1311:) a; I. SCHEDULE 6.10 Insurance - Please sec attach?d. SCHEDULE OF INSURANCE INTELUGENT BRAND IDEAS, LLC. SENSA PRODUCTSI LLC., qukcrs Compensation Commercial Property General Liability 1115mm: Femiy: Liability Cyba: liability Kidnap 6: Bunnies TOTALS: -IB BEAUTY HOLDING, 1N0. 051232012 061220.012 WIZ 51727312 9/180012 0911812012 911812012 5112.898 $41,999 5202.408 $89,500 $2,500 $33,096 $79,900 51.078 556.3379 SCHEDULE OF INSURANCE INTELLIGENT BEAUTY, INC., BRAND IDEAS, LLC, SENSA PRODUCTS. LLC., IB BEAUTY HOLDING, INC. Insumnce Company Coverage Deduc?hle Premium Pa?cy Number - MYERS HABILITY: COMPENSATION Bodily Iniury By Disass- 31.000.000 061032011 Policy Limit- Each Employee $1,030.00) Carder. W012 Noah Riva Inmate 23-01 Emu Ave Cram Forsm' Company El Segundo, CA . (lexical Of?ce $11,542,119 AMBest Ra?ngz, RatepchIOO $0.64 A XII 28561 Livingston Avenue Palicy Number: Valcnda. CA 4087023372 Waxchous-z 11' An)! Ran: $100 $12.93 3721 Electra Way CA. Store 51 562.699 Rm per $100 $4.46 Clerical II My - Rampch'IDO $0.64 28904 Avenue Pain: Valencia CA 91355 Wardam Central 51001110 Rate Pa 5100 $12.93 California- No ?xed Address Salcspu'san- Outside 540.088' Kampala) $0.16 11?33. ?2';th MW INTELLIGENT BEAUTY, ma, BRAND LLC. SENSA PRODUCTS. IB BEAUTY HOLDING, mo. WORKERS 3681 Gateshury Circle COMPENSATION Highlands Ranch, 00 $50,973 casual Of?a: $0.19 Carrier: Rate par $100 Numb Riva: Immune: Cram Fame: Company 4230 Damage Place Fort Collins. CO 592.303 A..M Best Rating: Gin-ital O?ice 0.19 A Rate par 3 100 Policy Number: 7929 National Turnp?n 4087023372 huinille. KY IfAny Warehouse $4.44 Rm: per 3100 Michigan- No ?xed If My Clerical Of?ce. $0.19 R21: Per 5100 801 Street - Grim-latte NC, 282206 HAM Citing] Of?ce $0.21 $100 208 Olive Branch Road Nashv?le . TN If Any Ciel-1:31 O?c: 50.14 Rate per 5100 1582 N. 1150 . 0mm. UT 5200.000 Rani] Ewes $1.41 - Rat: per $100 SCHEDULE OF INSURANCE INTELLIGENT BEAUTY. BRAND IDEAS, LLC, SENSA LLC., IB BEAUTY HOLDING, INC. Insurance Company Coverage Limits Deductible Premium Comments Policy Number msub?mug Property. Deductible: SL000 06/22/201 1? Business lawn:de Carrier. omen names: NW3 Casualty Pam-Ind E?fecrs of Others: $500,000 11:51:ch Company Busincss Personal Propmy - Assaults Rmivabl: $250,000 Blanketlimit? All Lom?cns 59.500000 51.000 541.999 Elam-mic Dam accessing: $500,000 AM Best Rating: ?mi Outdocx Propane 5100.000 A XIV Busincss boom: I Tmm) Valuch Papas 6: Ram: $100,000 Blank: limit - All Locadms 54500.0?) 24 Hours Property In Tunic SZSOJDO Policy Number: Progeny 05km $500,000 C15 CL 0010094- Emplayee Dishousty: $500,000 Loc? 1: ERISA: Included NAMED WEEDS: 28516 Ave Nev-1y Acquired Prepay: Beauty. Inc. Valmda. CA 91355 Building: 52.000000 Scan Pmducu. LLC Basins: Personal Property Included in Blanks: SL000 Pusan-11 Repay: 31.000930 Band um. LLC Business hmdBuaExp. Included in Blanks: 24 Hours Pollutant Clean Uprmoval: 5100.000 Debi; Removal: $150,000 Loc 2: 2301 Rosecrans Ave. Suite: 1150, 1135. 3100 El Segundo. CA 90245 Business Personal Prepay 1:1de in Blanket $1.000 Bus-ins: 12mm Exp. Indudzd in Blanket 723 Hours Karim Malia 52.50.? $1.000 Lac 3: 28904 Avenue Paint: $1.000 Valencia. CA 91355 SSGMOO Ruins Pascal Pmqu Eanhquakc Spa-W er Lange- 31.000900 $50,000 SLoca?ons 1&2) ?53 E. 21122;: i! SCHEDULE OF INSURANCE INTELLIGENT BEAUTY, BRAND IDEAS. LLO, SENSA PRODUCTS, LL04 IB BEAUTY HOLDING. INC. Insurance Company Policy Number Term Coverage Limits Deductible Premium Comman General liability Ins. Including Products Bodily Can-Ian 50.712011- Damage Salt: 05mm Neva Casualty 105mm: 627120 12 5 Company Gena-a1 Aggregate $2,009.00) Ni] mas Distributor Razz. AM Bea-(Rating: Products Liability - Agg, 32,000,006 $139 Per 31,000 Sale: A XIV Pmal ?Adv=r?sing Injury and Each Gum-wee 51.000.000 Tm) Policy Number: Fir: Legal liability 51.000.0m CIS C1. 0010094 Medical 510.000 Employcc Bcnc?t: Bad: Claim 51.000000 NAMED INSUREDS: Annual Aggegw: $1,000,000 51,030 Intdligcni Faulty. Inc. Sana Prodws. LUZ Hired and Non-Owned Auto Brand Idm. LLC Liability 51.000.000 mum: Damage malady; $50,000 $1,000 Nate: Cowman-dc! Umbrellnpalicy Collision $50,000 . $1.000 pwvidc: an additiand ?6,000,000 ?1 cavcmge human Recall Aggegal: 3500.? 51.000 commune $3003!? Insuiauce Company PolicyNumhcr UMBRELLA .Czrrier: Curtis AM Best Rating: A XV Policy Number: 88232988 NAMED INSUREDS: In?ning Beauty. Inc. SCHEDULE OF INSURANC INTELLIGENT BEAUTY, ., ID 3, LLC, SENSA PRODUCTS, LLC. IB BEAUTY HOLUING, INC. lYear WOM- 612212012 Coverage Corn-nerds] Umbre?a Ins. Pt: Owurmcc General Aggegm Pmduomenmp. 09: Ag $6900.00!) $5,000,000 5 6.000.000 Dedudible SIOJJOO Premium Oneal Nova Casualty Employee Bene?ts Nova await)! Anna 1mm :?Nm Casually Employu: Liability cum. a Form: 113;] I: if} E. .12} 4333. [324 . SCHEDULE OF INSURANCE INTELLIGENT BEAUTY, INCL, BRAND IDEAS, LLC. SENSA PRODUCTS, LLC., . l8 BEAUTY HOLDING, INC. Insurance Company Tami Coverage Limits - Deductible Pren?um Comments Policy Num?er - . FOREIGN PACKAGE GKNERAL LIABILITY: Gum-a! Aggegaze Unix $2,000,000 $2.500 ADDITIONAL comczs Carrier. 61081201 1- Pusonal Advatising Injury $1,000,003 Supple-mm Rzpauja?on Expmso- Chm-is Worldsomoc. 6/22/1012 Eada Guam-mu: $1,000.0m 5250.000 Per pawn Damage to amiss: Rented Amide-nu! Dead: .5: Dismmbammr AM Best Rating: (Includes 2 Median Expense $10,000 Covmgc Included A XV Wad: Aggcgam Limix- 51.000000 Exms'ron) AUTOMOBILE AD 8: Comings Imp $100,000 Policy Number: Wan-Owned Auto Medical Cavqage Limit- 525.000 wsuoox 1974 Liability 51,000,000 Him! Auto Physical Damage Each Accidcat . 510.0(1) SL000 First Natural hum-d: Each Policy Period: $10,000 $1,000 11mm gm: Beauty. Inc. - . Band Ideas, LLC MYERS LIABILITY Suns: Mus. LDC Fenian Voiunury Comp. Dame, LLC Employa's Liability. Just Fabulous. LLC Bodily Injury By $1,000,000 Heels. 1L8 Bodily Injuxy by Dis-as: Each Employ: 51.000300 7 Immance Company Policy Number Policy Number: 63020704 02 Named Insured: [nulling Beauty. Inc. Ideas. LLC Sasn MOB. LLC 123 Benny Holdings. Inc. Bauty Operations. Dunstan-c. LLC Just Fahdous. Inc. H213. LLC INTELLIGENT BEAUTY. mc.. BRAND IDEAS. sau?sn. vacuum-s. LLC. [8 BEAUTY HOLDING, mc. Ten-n 9/1812012 SCHEDULE OF INSURANCE MANAGMNT LIABILITY AGGREGATE Per Annual Aggregate Additional Aggregate 8: OFFICERS Ocamm EWLOYMENT PRACTICES Pa Occurrencc Animal Aggregau: CRIME: Employee Theft EPJS Fiddhy Fags? and Alm?on Inside chmiscs Outside the Premises Computer Fund Tmsf: Fraud Money Oxden a: Ooumfdt Currency FIDUCIARY: Maximum Aggcgun Limits $5,000,000 Comge Pans) $5,000,000 55.000.000 1 ?000,002) 55.0000!? 35.000300 $1,000,000 51.000000 $1,000.00) $1,000,000 51.000000 325.0(1) 51.000.000 Deductible Cayenne Rdmbursanenz $35,000 En:in Liability: $35,000 Any One Insured Evan I: 350.0% Any 011: Third Party Event: $50,000 310.003 310.0?) $10,000 5.1000 310.0% 510.0!? 50 Premium Tues and F25) Prior or PmdingDu: 5117107 SCHEDULE OF INSURANCE . INTELLIGENT BEAUTY, INC., BRAND IDEAS, LLC, SENBA LLC., 13 BEAUTY HOLDING, INC. insur?nce Company Coverage . Deductible Premium Comments Policmenber CYBER LIABIHTY 1 Yea: POLICY AGGREGATE: 9.000.003 Reta-unease Date: 91181200? Carder: 9mm: 1- Technoloy Panel Consul Bum-smut Included Concian Casualty Co. 9180.012 Sublimit 52.000.? $50,000 $79,900 Eurasian! was Sm Sex-vies Endorsement: AM Best Rating: Summit: 52.000000 $75,000 of Covering Inna-am: for prurides . A XV Media Liar:th 7 93923755) markz?ng. Ixamfmg and a:de Suhlimi: $2,000,000 375.000 services including misting consuming Policy Number: Security Primate Liability: saints 4252:6558 Subunit: 52.000.0(20 550.000 Business Interruption: Subunit $2,000,000 875.000 Named Insured: 3m Intelling Beauty. he. . Inmd Just ?bula-Ls. Inc. $50.00) Extra [3 Bmuzy Hoidings. Inc. E?s-pane Cyber Extoz?au A Sublimi: 51.000900 $50,000 Privacy Em! Expense Sublimi: $150,000 5 15.000 :33 T.- 11:3! {7.1 SCHEDULE OF INSURANCE INTELLIGENT BEAUTY, BRAND IDEAS, LLC, SENSA PRODUCTS, LLCH lB BEAUTY HOLDING, . IBSurance Company Policy Nmnber Coveran? Limits . Deductible Premium Commenls EDNAPIRANSOM 1 Ya: Ransom BENEFIT PERINSURED EXTORTION Pt: Emt 51.000000 $1.078 9118!.201 1- Transit 95 OF CAPITAL SUM INSURED Carrier: 842012 Pa Insured Evan 51.000.000 Circa: Amman Control R?uk Group Expense Dcath- 10096 . Per Insured Evan: Unlimited Loss IimhlSigat- 100% AM Best Rating: Additisz Expense Panama: Total Disablement. - A XV Pa him Even: 31300.0(? 100% [gal Linhiity Loss of Extremity 50% P?licy Nmuber: Ye: Inna-ed Event 51.0009!? KR 159-3664 PM Accident Per PM $250,030 ORSEMIE. Personal Accident Altman: Loss of Earning - Aggregate 51.000300 Un?t: per Inn-rad Event Named Insured: Indunnity Paid.- 120 Days lug-mis?t Mum Inc. Wailing Puiod 6 hour: Just Fabulous, Inc. [3 Emmy Holdings. Inc. Thea-'- Ramona: Limitofhabmgr' . Indm'ty Paint 60 Day: Named Excluded Domains: Non; . 10 .r E3 {7 SCHEDULE 6.11 Tux Sharing Agreement Tax Sharing and Indemni?cation Agreement (as amended) dated as of April 30, 20l0 by and among Intelligent Beauty, by and on behalf of itself and each of its Af?liates, and Just Fabulous, he, by and on behalf of itself and each of its Affiliates. SCHEDULE 6.12 BRISA Compliance . Intelligent Beauty, inc. sponsors and maintains the Intelligent Beauty. Inc. 40l(k) Pro?t Sharing Plan (the ?Plan"). Just Fabulous. Inc., Heels, LLC, Dermstore, LLC. Brand Ideas. LLC. 3105}! Media. LLC. Intelligent Beauty. LLC. Shoe Fabulous, LLC. and Sensa Products, LLC (the "Participating Employers") are all members of the same controlled group as Intelligent Beauty. Inc. The employees of small entities became eligible to participate in the Plan effective as ofsueh date indicated below: Blush Media, LLC July 1, 2008 Brand ldcas. LLC July I. 2008 LLC July I. 2008 Intelligent Beauty, LLC July 1. 2008 Sensa Products, LLC January l. 2010 Shoe Fabulous. LLC January l. 20l I Heels. LLC July l. 20]] Just Fabulous. Inc. July 1.201! However, the Participating. Employers did not formally adopt the Plan by resolution of its governing board of directors or managers as required by applicable Plan provisions, creating an operational failure under the Plan. To correct this operational failure, Intelligent Beauty, Inc. ?led a Voluntary Correction Program (VCP) submission with the Internal Revenue Service on January l7. 20l2, and had the respective board of directors or managers of each Participating Employer adopt resolutions ratifying the adoption of the Plan as a Participant Employer in accordance Plan. The VCP submission is still pending with the Internal Revenue Service. 11.5.! . SCHEDULE 6.13 Subsidiaries Intelligent Beauty, Inc. - - Intelligent Beauty, Inc. is a Delaware corporation and is quali?ed to do business in California. (ii) The total number of shares of capital stock Intelligent Beauty, Inc. is authorized to issue and has outstanding is 29,979,836 shares of capital stock, par value $0.000] per share (the ?13 Capital Stock?). There are two (2) classes of 13 Capital Stock; one designated "Preferred Stock? (the Preferred Stock") and the other designated ?Common Stock" . (the Conunon Stock?). There are two (2) series (3le Common Stock and two (2) series-.01? 13 Preferred Stock. There are 29,907,600?shares of Series A 18 Common Stock and 37,800 of Series 113 Common Stock. All of which are held by 113 Holding, LLC. There are 12,969 shares of Series A 1B Preferred Stock and 21,467 of Series Preferred Stock, all of which are held by IR Holding, LLC. . (iv) There are. no outstanding options, Warrants, rights ofcenversion or. purchase. Sensa Products, LLC Sensa Products, LLC is a Delaware limited liability company and is quali?ed to do business in California. (ii) The total number of membership interests Sensa Products, LLC is authorized to issue and has outstanding is 1000 ("Sensa Units?). 900 Sensa Units were issued to intelligent Beauty, inc. and 100 Sensa Units were issued to Alan Hirsch. (iv) The Sensa Units are subject to certain preemptive and similar rights asdescribed?more fully in the Limited Liability Company Agreement of Sensa Products, LLC, dated June 25, 2008, as amended. Brand Ideas, LLC Brand Ideas, LLC is a Delaware limited liability company and is quali?ed to do business in California. (ii) and Intelligent Beauty, Inc. is the sole owner and member of Brand ideas. LLC. It" {"521 11"} (iv) There are no outstanding shares, units. op?ons, warrants, nights of conversion or purchase. SCHEDULE 6.17 1? Rights Trademarks: SENSA SBNSA SPRINKLE DIET BEAUTY WITH WTELUGENCB My; REAL PEOPLEREAL RESULTS. SHAKE YOUR SENSA SHAKE. EAT. LOSE WEIGHT SHAKE. EAT. LOSE. SHAKE AWAY THE POUNDS SPRINKLB AWAY THE POUNDS SPRINKLE. BAT. LOSE. SPRINKLB. EAT. LOSE WEIGHT. Licensed Patents: ?ue; Method for Promoting Weight Loss Method and Compasition for Enhancing Weight Less Method of Assaying Satiely Enhancing Tastan'ls Use of to alter blood ?ow to the vagina, lye?ege?enliuu?xa 3613479 3583092 402343: 3514212 Es??imb? 85354680 85454688 85354669 8517735] 85177356 83177355 85177352 85356008 Patent 8,143,215 8,143,062 7,320,208 7,108,872 ?1 12123 rx and article of manufacture thereof Use of odorants to atter blood ?ow to the vagina Use of odorants to alter learning capacity of odorants to treat male impotence. and article of manufacture thereof Method of enhancing sports scores Method of treating headaches, and article of manufacture therefor Method of altering perception of relative space of an area ?le Method of altering weight perception Method of altering age perception Packaged Satiety Enhancing Composition 7,067,i 62 5.904.9l6 5,885,614 7,838,486 6,106,837 5,759,521 E?hu??n?g?m?l?h 20040137036 20060057232 12855465 hi. ,l 11-113. .1, {21:1 SCHEDULE 620(3) Locations of Real Properly Leased: Leased Corporate Of?ce: 2301 Rosecrans Avenue, Suite 1 150, El Segundo. California 90245 Leased Call Center Operations: ?2301 Rosecrans Avenue, Suite 3100, El Segundo, California 90245 Leased Warehouse No. 1 28516 Livingston Avenue. Valencia, Califomia 91355 Leased Warehouse No 2: 28904 Avenue Paine, Valencia, California 91355 Owned: None. SCHEDULE 6.200)) Taxpayer and Organizational Idcnti ?cation Elam Intelligent Beauty, Inc. Sensa Products, LDC: Brand Ideas, LLC: ngl?a 4242051 4489318 4039243 77-0667218 26-23 8-71 1 1 20-40503 51 .. SCHEDULE 6200:) Changes in Legal Name, State of Formation and Structure On September 30, 2010, Brand Ideas, Inc. converted from a Delaware C-oorporation to a Delaware limited liability company. .r 1:13,] '12! SCHEDULE 7.17 Post~Closing Dclivernblos Leased Warehouse No. 1: 28516 Avenue. Valencia, California 91355 Leased Warehouse No 2: 28904 Avenue Paine, Valencia, California 91355 a. 1'9: I. .IJEJ None. SCHEDULE 8.01 Liens Existing on the Closing Date til-1 . 1., . {.151 all SCHEDULE 8.02 I Investments Existing on the Closing Date On October 12, 2010, Brand Ideas. LLC loaned $20,000 to Lorien Newman pursuant to a three year promissory note at 5.25% interest per annum, compounded annually (the "Newman Note?). The Newman Note is secured by a pledge of Mr. Newman's 258,000 Series A Common Units in Holding, LLC. On January 3, 2011, Brand Ideas, LLC loaned $600,000 to Don Resale: pursuant to a two year promissory note at 3.25% interest per annum, compounded annually. The loan under the Note was paid to Mr. in payments of $50,000 per month for twelve months. This loan was approved by the Board of Managers of [8 Holding, LLC. On April 26, 2011, Brand Ideas, LLC loaned $137,493.00 to Adam Goldenberg pursuant to a two year promissory note at 3.25% interest per annum, compounded annually, to cover the portion oer. Goldenberg's 2010 tax liability resulting from his ownership interest in IE Holding, LLC. On April 27, 2011, Brand Ideas, LLC loaned $64,630 to Don pursuant to a two year promissory note at 3.25% interest per annum, compOunded almually to cover the portion of Mr. 2010 tax liability resulting from his ownership interest in IE Holding, LLC The Ressler Loan was approved by the Board of Managers of IE Holding, LLC. On June 3, 2011, Brand Ideas, LLC loaned $4,747 to Scott Whittier pursuant to a two year promissory note at 5.25% interest per annum, compounded annually, to cover the pertion of Mr. Whittier's 2010 tax liability resulting from his ownership interest in IE Holding, LLC. On July 27, 201 1, Intelligent Beauty, Inc. signed a Guaranty of Lease in connection with a lease of real prOperty used by af?liate Heels, LLC as a tenant. The lease, as amended, expires on October 31, 2018, and contains a minimum rent in the amount of $44,089.50 per month until October 31, 2012, a minimum rent in the amount from November 1, 2012, until October 31, 2013, and a minimum rent in the amount from Naircmber I, 2013, until October 31, 2014. On or around October 15, 2011, Brand Ideas, LLC loaned $7,596 to Matthew Lueders pursuant to a two year promissmy note at 3.25% interest per annum, compounded annually, to cotter the portion of Mr. Lucders? 2010 tax liability resulting from his ownership interest in Holding. LLC (the ?Lueders Loan"). The Lueders Loan was approved by the Board of Managers ofIB Holding, LLC. I: On January 3, 2012, Brand Ideas. LLC loaned $150,000 to Don pursuant to a two year promissory note at 3.25% interest per annum, compounded annually. This loan was paid to Mr. Ressler in payments of $50,000 per month for three months. This loan was approved by the Board of Managers of 1B Holding, LLC. The Borrower owns 50 units of preferred equity interests of Beauty Operations, LLC. The Borrower currently has receivables from af?liate lB Beauty Holding, lne. (and its subsidiaries) in the amount of approximately $1,000,000; from af?liate Just Fabulous, Inc. (and its subsidiaries) in the amount of approximately $20,800,000; and from parent iB Holding, LLC in the amount of approximately $25,000. The Loan Parties have advanced distributions to Dr. Alan Hirscl'r in the amount $2,512,577 as of May 1, 2012. - E. i: SCHEDULE 3.03 Indebtedness Existing on the Closing Date Pursuant to a certain promissory note dated September it, 2007. with an initial principal balance in the amount of$ 1 .500,000, Bon'ower owes Adam Goldenherg the current outstanding balance in the amount of $184,399.60. The promissory note accrues interest at the rate of 5.5% per annum, simple interest. and is paid in equal installments of $50,000 until the earlier of the the note being fully paid, a Liquidation Event as de?ned in Borrower's Restated Certificate of Incorporation, as amended, the sale of Borrower's Series A common stock in a ?rm commitment underwritten public offering, or tenninntion of Mr. Goldenberg?s employmen Borrower (or its successors and assigns). 13:5 71.1.7.1 SCHEDULE 10:03 Ccnain Addresses for Notices 1. for Loan Parties: Sensa Producm, LLC 2301 Rosccrans Avenue, Suite 1 150 El Segundo. California 90245 Ann: General?Counsel Fax. No. (310) 727-0854 With a copy 10 (which shall not constitutc notice): Alex Chen, Esq. Fonis General Counsel 840 Apollo Street, Suite 306 El Segundo, California 90245 Fax No. (310) 356-330] 2. Address for Lender Bank of Ameyica, NA. 333 South Hope Street, Suite 1300 Mail Code Los Angeles, CA 90071 Attn: Julie Ynmauchi Phone: (213) 621-7181 Fax: (213) 457-2608 Email: julie.yamauchi@baml.com Lit EXHIBIT A FORM OF LOAN NOTICE Date: 201_ To: Re: Bank of America, N.A., as Lender Credit Agreement dated as of May 20i2 (as amended, modi?ed. supplemented or extended from time to time. the ?Credit Agreement") among Intelligent Beauty, Inc., a Delaware corporation (the "mm the Guarantor: and Bank of America, N.A.. as Lender. Capitalized terms used but not otherwise de?ned herein have the meanings provided in the Credit Agreement. Ladies and Gentlemen: The undersigned hereby requests (select one): A Borrowing of Revolving Loans A Borrowing of the Term Loan A conversion or continuation of Revolving Loans A conversion or continuation of the Term Loan l. 2. 3. 4. On . (which is a Business Day). in the amount of Comprised of (Type of Loan requested). For Barodotlar Rate Loans: with an Interest Period of months- The Borrower hereby represents and warrants that after giving effect. to any Borrowing'ol' Revolving loans. tlte Total Revolving Outstandings shall not exceed the Revolving Commitment and each of the conditions set forth in Section 5.02 of the Credit Agreement has been satis?ed on and as of the date of such Borrowing, conversion or continuation. INTELLIGENT BEAUTY, TNC., a Delaware corporation By: Name: Title: UMRIHZEIDTEVQ :1 If? :3 EXHIBIT FORM or REVOLVING NOTE FOR VALUE RECEIVED, the undersigned (the mower"). hereby promises to pay to BANK OF AMERICA. WA. or its registered assigns (the in accordance with the provisions of the Credit Agreement (as hereinafter de?ned), the principal amount of each Revolving Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement dated as of May ll, 2012 (as amended, modi?ed, supplemented or extended from time to time. the "Credit ?gmgmenl") among the Borrower, the Guarantors and Bank of America. N.A.. as Lender. Capitalized terms need but not otherwise de?ned herein have the meanings provided in the Credit Agreement. The Borrower promises to [my interest on the unpaid principal amount of each Revolving Loan from the date of such Revolving Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Credit Agreement. All payments of principal and interest shall be made to the Lender in Dollars in immediately available funds at the Lender?s Of?ce. If any amount is not paid in full when due hereunder. such unpaid amount shall bear interest, to be paid upon demand, ?om the dur: dale thereof until the date of actual payment (and before as well as a?erjudgment) computed at the per annum rate set forth in the Credit Agreement. This Revolving Note is one of the Revolving Notes referred to in the Credit Agreement, is entitled to the benc?ts thereof and may he prepaid in whole or in part subject to the terms and conditions piovlded therein. Upon lhe occurrence and continuation of one or more of the Events of Default speci?ed in the Credit Agreement, all amounts then remaining unpald on this Revolving Note shall become. or may be declared to be, immediately due and payable all as provided in the Credit Agreement. Revolving Leans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. ?the Lender may also attach schedules to this Revolving Note and endorse thereon the date. amount and maturity of its Revolving Loans and payments with respect thereto. The Borrower. for itself, its successors and assigns. hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and nonpayment of this Revolving Note. THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA. {Signature Page Follows] CI MRIUZG l078v2 INTELLIGENT BEAUTY, INC., a Delaware corporation By; Name:. Title: 1:31 FORM OF TERM NOTE {Date} FOR VALUE RECEIVED. the undersigned (the "Bonower'?, hereby promises to pay to BANK OF AMERICA. N.A. or registered assigns (the "Lander"; in accordance with the provisions of the Credit Agreement (as hereinafter de?ned), the principal amount of the Term Loan made by the Lender to the Borrower under that certain Credit Agreement dated of May ll, 2012 (as amended, modified. sepplemented or extended from time to time, the "Credit Agreement") among? the Borrower, the Guarantors and Bank of America, N.A., as Lender. Capitalized terms used but not otherwise de?ned herein have the meanings provided in the Credit Agreement. The Borrower promises to pay interest on the unpaid principal amount of the Term Loan from the date of the Term Loan until such principal amount is paid in full. at such interest rates and at such times as provided in the Credit Agreement. All payments of principal and interest shall be made to the in Dollars in immediately available funds at the Lender's Of?ce. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand. from the due date thereof until the date of actual payment (and before as well as a?erjudgmont) computed at the per annum rate set forth in the Credit Agreement. This Term Note is one of the Term Notes referred to in the Credit Agreement, is entitled to the bene?ts thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or more oi' the Events of Default speci?ed in the Credit Agreement. all amounts then remaining unpaid on this Term Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement.~ The Term Loan made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Term Note and endorse thereon the date, amount and maturity of the Term Loan and payments with respect thereto. The Borrowar. for itself, its successors and assigns. hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and nonpayment of this Term Note. Ti-iiS TERM NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE THE LAW OF THE STATE OF CALIFORNIA. [Signature Page Follows] CHARHDGIOTEVZ INTELLIGENT BEAUTY, INC, a Delaware corporation By: Name: Title: FORM OF COMPLIANCE CERTIFICATE Financial Statement Date: 201W 1 To: Bank of America, N.A., as Lender Re: Credit Agreement dated as of May ll, 2012 (as amended, modi?ed, supplemented or extended from time to time, the ?Cmdit Agreement") among Intelligent Beauty, inc. a Delaware corporation (the ?Borrgwer? the Guarantor! and Bank ofAmeriea. NA. as Lender. Capitalized terms used but not otherwise de?ned herein have the meanings provided in the Credit Agreement. Ladies and Gentlemen: The undersigned Responsible 0f?cer.hercby certi?es as of the date hereof that [helshe] is the of the Borrower, and that, in capacity as such, [hdshe] is authorized to execute and deliver this compliance certi?cate _(this "Ccrti?eate") to the Lender on behalf of the Borrower, and that: [Use following paragraph 1 for the ?scal year-end ?nancial statements:} ii. Attached hereto as Schedule are the year-end audited consolidated and consolidating ?nancial statements required by Section 7.019) of the Credit Agreement for the ?scal year of Holdings and its Subsidiaries ended as of the above date, together with the report and opinion ofon independent certified public accountant required by such scelion.] [Use following paragraph I for ?scal quarter-end ?nancial statements:] Attached hereto as are the unaudited consolidated ?nancial statements required by ?ection 7.0l(b1(i) of the Credit Agreement for the fiscal quarter of the Borrower and its Subsidiaries ended as of the above date. Such ?nancial statements fairly present the ?nancial condition, results of operations and cash ?ows of the Borrower and its Subsidiaries in accordance with GAAP (ether than with respect to cash ?ows) as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes and were prepared in a manner consistent with the interim Financial Statements] 2. The undersigned has reviewed and is familiar with the terms of the Loan Documents and has made, or has caused to be made, a detailed review of the transactions and condition (?nancial or otherwise) of the Loan Parties during the accounting period covered by the attached ?nancial statements. A review of the activities of the Loan Parties during such ?scal period has been made under the supervision of the undersigned with a view to determining whether during such ?scal period the Loan Parties performed and observed all their obligations under the Loan Documents, and [select one-.] {to the best knowledge of the undersigned during such ?scal period, each Loan Party perforated and observed each covenant and condition oftho Loan Documents applicable to it.] [on] [the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:] 4. The ?nancial covenant analyses and calculation of Consolidated and the Consolidated Fixed Charge Coverage Ratio set forth on ?chcdulg 2 attached hereto are true and accurate on and as of the date of this Certi?cate. 5. Set forth on Schedule fl hereto is a true and accurate list as required by Section 7-020) 0mm Credit Agreement on and as of the date of this Certi?cate of all applications, if any, by any Loan Party for COpyrights, Patents or Trademarks, all issuanees of registrations or letters on existing applications, if any, made by any Loan Party for Copyrights, Patents and Trademarks and all Trademark Licenses. Copyright Licenses and Patent Licenses, if any, entered into by 'any Loan Party, in each case since lite [date of the prior Coraniance'Certi?eatchlosing Date]. 6. Set forth on is information regarding the amount of all Diapositions. Involuntary Dispositions, Debt lssuances, Equity lssuances, Extraordinary Receipts and Acquisitions that occurred during the period covered by the ?nancial statements attached hereto as Schedule 1, including Identification ofthc type(s and amount of consideration paid for each such Acquisition. 7. Attached as hereto is the insurance binder Or other evidence of Insurance for any insurance coverage of any Loan Party or any Subsidiary that was renovited, replaced or modi?ed during the period covered by the ?nancial statements attached hereto as ?chedpte I. [Signature Page Follows] CHARNIGIMSVJ IN WITNESS MIERBOF, the undersigned has executed this Certi?cate as of 2m_. CHAR \ 26l078v2 INTELLIGENT BEAUTY. a Delawam corporation By: Name: Title: 'l schedule ?2 to compliance Certi?cate1 1. Consolidated for the six month period ending on the Financial Statement Date Consolidated Net income for such period Consolidated interest Charges for such period provision for federal, state, local and foreign taxw on or measured by income (including franchise taxes) payable by the Borrowu and its Subsidiaries fer such period depreciation and amortizatiOn expense for such period 3 with to the ?scal quarter ended December 3 l, 2011 only. those certain one-time non-recurring expenses in an aggregate amount not to exceed $750,000 (0 all non-cash expenses, charges and losses (excluding any non-cash expenses. charges or losses related to receivables) for such period which do not represent a cash item in such period or any t'uture period (3) all earnings attributed to Dr. Alan Hirsch with respect to his Equity interests in Sense 5 all non-cash income or gains for such period (including without limitation management fee income charged to Subsidiaries of Holdings that are not the Borrower or any of its Subsidiaries) depreciation and amortizatltm expense for such period added back to ?Consolidated pursuant to clause that is attributable to Subsidiaries of Holdings that are not the Borrower or any of its Subsidiaries 0) all losses attributed to Dr. Alan Hirsch with rupee! to his Equity interests in Sense 1(0 1(3) 400- lti)? 10)] To the extent that the computation of the ?nancial covenants included herein varies ?om the Credit Agreement, the Credit Agreement shall control. E, {Tit 2. Consolidated Fixed Charge Coverage Ratio (8) Consolidated EBITDA for the period oftho four ?scal quarters most recently ended (ii) (iv) (V) (vi) (vii) CHARHIZGIOFSVII (M (X) on Consolidated Net income for such period .5 Consolidated Interest Charges for such period provision for federal, state, local and foreign taxes on or measured by income (including franchise taxes) payable by the Borrower and its Subsidiaries for such period . depreciation and amortization expense for such period 3 with respect to the ?scal quarter ended December 3 l, 20? only. those certain one-time non-recurring expenses in an aggregate amount not to exceed $750,000 all non-cash expenses, charges and losses (excluding any non-cash expenses, charges . or losses related to receivables) for such period which do not represent tt cash item in such period or on future period . all earnings attributed to Dr. Alan Hirsch with respect to his Equity interests in Sensa ail non-cash income or gains for such period (including without limitation management fee income charged to Subsidiaries of Holdings that are not the Borrower or any of its Subsidiaries) 3 depreciation and amortization expense for such period added back to ?Consolidated pursuant to clause 2(a)(iv) that is attributable to Subsidiaries of Holdings that are not the Borrower or any of its Subsidiaries . all losses attributed to Dr. Alan Hirsch with respect to his Equity interests in Sensa SW 2mm) 2(a)(iv) 2(a)(vii) - 203mm) 2(a)(ix) 2cm 11?; :1 Consolidated Capital Expenditures for such period (0) Consolidated Fixed Charges for the period of the four ?scal quarters most recently ended1 . Consolidated Cash Taxes for such period 3 (ii) cash portion of Consolidated Interest Charges for such period Consolidated Scheduled Funded Debt Payments for such period (iv) Restricted Payments made in cash in such period (other than the Restricted Payments made pursuant to Section 8.06(c) of the Credit Agreement) (V) 2(3)03) Consolidated Fixed Charge C0verage Ratio :1 ,0 2 With respect to the calculation of Consolidated Fixed Charges for use in determining compliance with the ?nancial covenant set forth in Section 1(8) of the Credit Ayeernent, for the measurement periods ending June 30, 20l2. September 30. 2012. December 20l2 and March 31. 2013, (I) Consolidated Scheduled Funded Debt Payments under the Existing Credit Agreement shall be disregarded and instead Consolidated Scheduled Fuadcd Debt Payments on account of the Term Loan shall be used, which Consolidated Scheduled Funded Debt Payments strait be deemed to equal the following amounts with respect to each such measurement period: $3,333,332 for the measurement period ending June 30. 20l2, (ii) $3,333.33! for the measurement period ending September 30. 20l2 and $3,333,332 for the measurement period ending December 3t. 20l2 and (iv) $3,333,332 for the measurement period ending March 3t, 2013 and Consolidated interest Charges for the {our ?scal quarter period ending as of June 30. 2012 shall be based on Consolidated interest Charges for the one tiseal~quarter period then ended multiplied by four (4), (It) Consolidated Interest Charges for the four ?scal quarter period ending as of September 30. 20l2 shall be based on Consolidated interest Charges for the two ?scal-quarter period then ended multiplied by two (2) and Consolidated Interest Charges for the {our ?scal quarter period ending as of December 20l2 shall be based on Consolidated interest Charges for the three ?scal-quarter period then ended multiplied by four-thirds (413) and for the measurement periods ending June 30. 20?, September 30. 2014, December 20M and March 31,2015, Consolidated Scheduled Funded Debt Payments on account of the Term Loan forthe ?scal quarter ending June 30. 2014 shall be deemed to be $833,333. if}. {.24 EXHIBIT FORM OF AGREEMENT THIS JOINDER AGREEMENT (the ?gment") dated as of 201_ is by and ?twain 3 (the and Bank of America N.A., in its capacity as Lender under that certain Credit Agreement dated as of May it, 2012 (as amended, modified, supplemented or extended from time to time, the "Credit Agreemgnt?) among Intelligent Beauty, Inc, a Delaware corporation (the ??orrower??, the Guarantors and Bank of America, N.A., as Lender. Capitalized terms used herein and not otherwise de?ned herein shall have the meanings assigned to such terms in the Credit Agreement. The Loan Parties are required by Section 7,12 of the Credit Agreement to cause the New Subsidiary to become a "Guarantor" thereunder. Accordingly, the New Subsidiary hereby agrees as follows with the Lender, for the bene?t of the holders of the Obligations: I. The New Subsidiary hereby acknowledges. agrees and confirms that, by its execution of this Agreement, the New Subsidiary will be deemed to be a party to the Credit Agreement and a "Guarantor" for all purposes of the Credit Agreement, and shall have all of the obligations of a Guarantor thereunder as if it had executed the Credit Agreement. The New Subsidiary hereby rati?es, as of the date hereof. and agrees to be bound by. all of the terms, provisions and conditions appliCable to the Guarantors contained in the Credit Agreement. Without limiting the generality of the foregoing terms of this paragraph l, the New Subsidiary hereby jointly and severally together with the other Guarantors, guarantees to the Lender and the other holders of the Obligations, as provided in AgieIe l! of the Credit Agreement,~the prompt payment and performance of the Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise) strictly in accordance with the terms thereof. . 2. The New Subsidiary hereby acknowledges, agrees and con?rms that, by its execution of this Agreement, the New Subsidiary will be deemed to be a party to the Security Agreement and a "Grantor" for all purposes of the Security Agreement, and shall have all the obligations of a Greater thereunder as if it had executed the Security Agreement. The New Subsidiary hereby rati?es. as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Security Agreement. Without limiting the generality of the foregoing terms of this paragraph 2, the New Subsidiary hereby grants to the Leader, for the bene?t of the holders of the Obligations, a continuing security interest in, and a right of set off against, any and all right, title and interest of the New Subsidiary in and to the Collateral (as de?ned in the Security Agreement) of the New Subsidiary to secure the prompt payment and perfomtance in full when due, whether by lapse of time, acceleration, mandatory prepayment or otherwise, of the Secured Obligations (as de?ned in the Security Agreement). 3. The New Subsidiary hereby acknowledges, grees and con?rms that, by its execution of this Agreement, the New Subsidiary will be deemed to be a party to the Pledge Agreement and a "Pledgor" for all purposes of the Pledge Agreement, and shall have all the obligations of a Pledgor thereunder as if it had executed the Pledge Agreement. The New Subsidiary hereby rati?es, as ofthc date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Pledge Agreement. Without limiting the generality of the foregoing terms of this paragraph 3, the New Subsidiary hereby grants, pledges and assigns to the Lender, for the bene?t of the holders of the Obligations, a continuing security interest in any and all right, title and interest of the New Subsidiary in and to the Equity interests identified on Schedule 6 hereto and all other Piedged Collateral (as de?ned in the Pledge Agreement) of the New Subsidiary to secure the prompt payment and performance in full when 26107810. due. whether by lapse of time. acceleration, mandatory prepayment or otherwise. of the Secured Obligations (as de?ned in the Pledge Agreement). 4. The New Subsidiary hereby represents and warrants to the Lender that: The New Subsidiary's exact legal name and state of formation are as set forth on the signature pages hereto. The New Subsidiary?s taxpayer identi?cation number and organization number are '1 set forth on ?ch?gle I hereto. Other than as forth on 2 hereto, the New Subsidiary has not changed its legal name, changed its state offom'ration. been party to a merger, consolidation or other change in structure in the ?ve years preceding the date hereof. Schedule 3 hereto includes all of the IF Rights registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Of?ce and owned by the New Subsidiary as of the date hereof. None of the Rights of the Now Subsidiary set forth in Schedule 3 hereto is subject to any licensing agreement or similar arrangement, except as set forth on Sch?ulel hereto. 5 hereto includes all Commercial Tort Claims asserted in any judicial action before any Authorin by or in favor of the New Subsidiary as of the date hereof. lc' hereto lists all real property loeated in the United States that is owned or leased by the New Subsidiary as of the date hereof. hereto lists each Subsidiary of the New Subsidiary, together with jurisdiction of formation, (ii) number of shares of each class of Equity interests outstanding, the certi?cate number(s) of the certi?cates evidencing such Equity Interests and number and percentage of outstanding shares of each class owned by the New Subsidiary (directly or indirectly) of such Equity Interests and (iv) number and effect. if exercised, of all outstanding options, warrants, rights of conversion or purchase and all other similar rights with respect thereto. 5. The address of the New Subsidiary for purposes of all notices and other communications is the address designated for all Loan Parties on Schedule 10.9; to the Credit Agreement or such other address as the New Subsidiary may from time to time notify the Lender in writing. 6. This Agreement may be executed in multiple counterparts. each of which shall constitute an original but all of which when taken together shall one contract. 7. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND IN ACCORDANCE WITH THE LAWS OF THE STATE. OF CALIFORNIA. [Signature Pages Follow] 1 IN WITNESS WHEREOF. the New Subsidiary has caused this Joinch Agreement to duly executed by its authorizad of?cer, and the Lender has causcd the same to be by Its authoriud of?cer, as of the day and year ?rst abova written. By: Namc; Tillc: Acknowledged and accepted: BANK OF MRICA, N.A., as Lanch By: Name: Title: Schedule I Taxpayer identi?cation Number; Organizational Number CHAR l? 7133 .. I L3 Schedule 2 Changes in Legal Name or State ofFonnation: Mergers, Consolidations and other Changes in Structure CIMRFUZEIONVZ Schedule 3 JP Rights CHARMIZH Schedule 4 Commercial Tort Claims CHARHUMMSVI Schedule 5 Real Property Locations .171 CHAR ?125mm EXHIBIT 2 135,. lift 11.1] SECURITY AG REEMENT SECURITY AGREEMENT dated as of May 1 l, 20l2 (as amended, modi?ed, restated or supplemented from time to time, the ecurigg Agreement") is by and among the parties identi?ed as ?Grantors? on the signature pages hereto and such other parties as may become Grantors hereunder after the date hereof (individually a ?Grantor?, and collectively the ?Grantors?) and Bank of America, N.A., as Lender. WITNESSETH WHEREAS, a credit facility has been established in favor of intelligent Beauty, Inc., a Delaware corporation (the Borrower?), pursuant to the terms of that certain Credit Agreement dated as of the date hereof (as amended, modi?ed, supplemented or extended from time to time, the "Credit Agreement") among the Borrower, the Guarantors and Bank of America, N.A., as Lender; WHEREAS, it is required under the terms of the Credit Agreement that the Grantors shall have granted the security interests and undertaken the obligations contemplated by this Security Agreement; and NOW, THEREFORE, in consideration of these premises and other good and valuable consideration, the receipt and suf?ciency of which are hereby acknowledged, the parties hereto agree as follows: I. De?nitions. Capitalized terms used and not otherwise de?ned herein shall have the meanings provided in the Credit Agreement. The following terms shall have the meanings assigned thereto in the UCC: Accession, Account, As-Extractcd Collateral, Chanel Paper, Commercial Tort Claim, Consumer Goods, Deposit Account, Document, Electronic Chattel Paper, Equipment, Farm Products, Fixtures, General intangible, Goods, Instrument, inventory, lnvestrnent Property, Letter-of?Credit Right, Manufactured Home, Payment intangibles, Proceeds, Software, Supporting Obligation and Tangible Chattel Paper. As used herein, the following temis shall have the meanings set forth below: ?Collateral? has the meaning provided in Section 2 hereof. ?Secured Obligations" means, without duplication, all Obligations and all costs and expenses incurred in connection with enforcement and collection of the Obligations, Including the fees, charges and disbursements of counsel. means the Uniform Commercial Code as in effect from time to time in the State of Califomia. 2. Grant of Security interest in the Collateral. To secure the prompt payment and performance in full when due, whether by lapse of time, acceleration, mandatory prepayment or othenavise, of the Secured Obligations, each Grantor hereby grants to the Lender, for the benefit of the Lender and the other holders of {he Secured Obligations, a continuing security interest in, and a right to set off against, any and all right, title and interest of such Grantor in and to all of the following, whether now owned or existing or owned, acquired, or arising hereafter (collectively, the "Collateral?): all Accounts; (C) hereto; (6) (D U) (I) (I) (10 all cash and currency; all Chattel Paper; all Commercial Tort Claims, including those identi?ed on Schedule 2(d1 attached all Cepyrights; all Copyright Licenses; all Deposit Aacounts; all Documents; all Equipment; all Fixtures; all General Intangibles; all Goods; all Instruments; all Inventory; all Investment Property; all Letter-of-Credit Rights; all Patents; all Patent Licenses; all Payment Intangibles; all So?ware; all Supporting Obligations; all Trademarks; all Trademark Licenses; and all Accessions and all Proceeds of any and all of the foregoing. Notwithstanding anything to the contrary contained herein, the security interests granted under this Security Agreement shall not extend to Excluded Property, and (ii) any General Intangible, permit, lease, license, contract or other Instrument of a Grantor if the grant of a security interest in such General Intangible, permit, lease, license, contract or other Instrument in the manner contemplated by this Security Agreement, under the terms thereof or under applicable Law, is prohibited and would result in the tennination thereof or give the other parties thereto the right to terminate, accelerate or otherwise alter such Grantor?s rights, titles and interests thereunder (including upon the giving of notice or the lapse of time or both); provided that any such limitation described in the foregoing clause (ii) on the security interests granted hereunder shall only apply to the extent that any such prohibition could not be rendered ineffective pursuant to the UCC or any other applicable Law (including Debtor Relief Laws) or principles of equity and in the event of the termination or elimination of any such prohibition or the requirement for any consent contained in any applicable Law, General Intangible, permit, lease, license, contract or other Instrument, to the extent suf?cient to permit any such item to become Collateral hereunder, or upon the granting of any such consent, or waiving or terminating any requirement for such consent, a security intcrest in such General Intangible, permit, lease, license, contract or other Instrument shall be automatically and simultaneously granted hereunder and shall be included as Collateral hereunder. The Grantors and the Lender, on behalf of the Lender and the other holders of the Secured Obligations, hereby acknowledge and agree that the Security interest created hereby in the Collateral constitutes continuing collateral security for all of the Secured Obligations, whether new existing or hereafter arising and (ii) is not and shall not be construed as an assignment of any Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks or Trademark Licenses. 3. Provisions Relating to Accounts. (21) Anything herein to the contrary notwithstanding, each of the Grantors shall remain liable under each of the Accounts to observe and perform all the conditions and obligations to be observed and perfonned by it thereunder. all in accordance with the terms of any agreement giving rise to each such Account. Neither the Lender nor any other Itoldcr of the Secured Obligations shall have any obligation or liability under any Account (or any agreemcnt giving rise'thereto) by reason of or arising out of this Security Agreement or the receipt by the Lender 0r such holder of any payment relating to such Account pursuant hereto, nor shall the Lender or any other holder of the SeCured Obligations be obligated in any manner to perform any of the obligations of a Grantor under or pursuant to any ACCount (or any agreement giving rise thereto), to make any payment, to make any inquiry as to the nature or the suf?ciency of any payment received by it or as to the sufficiency of any performance by any party under any Account (or any agreement giving rise thereto), to present or ?le any claim, to take any action to enforce any performance or to collect the payment of any amounts that may have been assigned to it or to which it may be entitled at any time or times. At any time after the occurrence and during the continuation of an Event of Default, the Lender shall have the right, but not the obligation, to make test veri?cations of the Accounts in any manner and through any medium that it reasonably considers advisable, and the Grantors shall ?tmish all such assistance and information as the Lender may reasonably require in connection with such test veri?cations, (ii) upon the Lender's request and at the expense of the Grantors. the Grantom shall cause independent public accountants or others satisfactory to the Lender to furnish to the Lender reports showing reconciliations. aging and test veri?cations of, and trial balancas for, the Accounts and the Lender in its own name or in the name of others may communicate with account debtors 0n the Accounts to verify with them to the Lender?s satisfaction the existence, amount and terms of any Accounts. 4. Representations and Warranties. Each Grantor hereby represents and warrants to the Lender that: Legal Name. Each Grantor?s exact legal name (and for the prior ?ve years or since the date of its formation has been), and each Grantor?s taxpayer identi?cation number and organization identi?cation number are as set forth on Schedule 6.20112) to the Credit Agreement. Li) 13:52: 3111.] (ii) Each Grantor?s state of formation is (and for the prior five years or since the date of its formation has been) as set forth on Schedule 6.29m to the Credit Agreement. Other than as set forth on Schedule 629(c1 to the Credit Agreement, no Grantor has been party to a merger, consolidation or other change in structure in the ?ve years prior to the Closing Date. Ownership. Each Grantor is the legal and beneficial owner of its Collateral and has the right to pledge, sell, assign or transfer the same. Security Interest/Priorig. This Security Agreement creates a valid security interest in favor of the Lender, for the bene?t of the Lender and the other holders of the Secured Obligations, in the Collateral of such Grantor and, when properly perfected by ?ling, shall constitute a valid, perfected security interest in such Collateral, to the extent such security interest can be perfected by ?ling under the UCC, free and clear of all Liens except for Permitted Liens. T3535 of Collateral. None of the Collateral consists of, or is the or the Proceeds of, As?Extraeted Collateral, Consumer Goods, Farm Products, Manufactured Homes, or standing timber. Accounts. With respect to the Accounts of the Grantors re?ected as accounts receivable on the consolidated and/or consolidating balance sheet of the Borrower and its Subsidiaries or Holdings and its Subsidiaries,_ as applicable, most recently delivered to the Lender pursuant to the Credit Agreement, each Account of the Grantors and the papers and documents relating thereto are genuine and in all material respects what they purport to be, (ii) each Account arises out of (A) a bona ?dc sale of goods sold and delivered by such Grantor (or is in the precess of being delivered) or (B) services theretofore actually rendered by such Grantor to, the account debtor named therein, any Account of a Grantor evidenced by any Instrument or Chattel Paper has, to the extent requested by the Lender, been endorsed over and delivered to, or submitted to the control of, the Lender and (iv) no surety bond was required or given in connection with any Account of a Grantor or the contracts or purchase orders out of which they arose. (0 Inventory. No lnvenmry ofa Grantor is held by any Person other than a Grant0r pursuant to consignment, sale or return, sale on approval or similar arrangement. lP Rights. Each lP Right material to a Grantor?s business is valid, subsisting, unexpired, enforceable and has not been abandoned as ofthe date hereof. Each Grantor and its Subsidiaries has perf0rmed all acts and has paid all required fees, costs, expenses and taxes to maintain such lP Rights in full force and effect throughout the world, as applicable. (ii) No holding, decision or judgment has been rendered by any GOVenrmental Authority that would limit, cancel or question the validity of any lP Right material to a Grantor?s business. No action or proceeding is pending seeking to limit, cancel or question the validity of any lP Right material to a Grantor?s business, or that, if adversely detemiined, could reasonably be expected to have a material adverse effect on the value of any lP Right material to a Grantor's business. CHAR l\126 076v2 23:3 I. 33:5: r3172. i. it Ll (iv) All applications pertaining to the 1P Rights of each Grantor material to such Grantor's business have been duly and properly ?led, and all registrations or letters pertaining to such lP Rights have been duly and properly ?led and issued. No Grantor has made any assignment or agreement in con?ict with the security interest in the Rights of any Grantor hereunder. (vi) Schedule 6. 7 to the Credit Agreement lists all Cepyrights, Cepyright Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses owned by any Grantor in its own name, or to which any Grantor is a party, as of the date hereof and registered in the name of such Grantor. Commercial Tort Claims. Such Grantor has no commercial tort claims other than those listed on Schedule or (ii) as to which the actions required by Section have been taken. 5. Covenants. Each Grantor covenants that, so long as any of the Secured Obligations remains outstanding and until all of the commitments relating thereto have been terminated, such Grantor shall: (3) Other Liens. Defend the Collateral against Liens therein other than Permitted Liens. instruments/Tangible Chattel Pager/Documents. if any amount payable under or in connection with any of the Collateral shall be or beconre evidenced by any Instrument or Tangible Chattel Paper, or if any property constituting Collateral shall be stored or shipped subject to a D0cument, ensure that such Tangible Chattel Paper or Document is either in the possession of such Grantor at all times or, if requested by the Lender, is immediately delivered to the Lender, duly endorsed in a manner satisfactory to the Lender and (ii) ensure that any Collateral consisting of Tangible Chattel Paper is marked with a legend acceptable to the Lender indicating the Lender's security interest in such Tangible Chattel Paper. Perfection of Securitvl_nterest. Execute and deliver to the Lender such agreements, assignments or instruments and do all such other things as the Lender may reasonably deem necessary, appropriate or convenient to assure to the Lender the effectiveness, perfection and priority of its security interests in the Collateral hereunder, including (A) such instruments as the Lender may from time to time reasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, (B) with regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for ?ling with the United States Copyright Of?ce in the form of Exhibit Stcxi) attached hereto, (C) with regard to Patents, 3 Notice of Grant of Security Interest in Patents for ?ling with the United States Patent and Trademark Of?ce in the form of Exhibit 5(cXii) attached hereto and (D) with regard to Trademarks registered with the United States Patent and Trademark Of?ce and all applications for Trademarks ?led with the United States Patent and Trademark Ol?ee, a Notice of Grant of Security Interest in Trademarks for ?ling with the United States Patent and Trademark Of?ce in the mer of Exhibit attached hereto, (ii) to consummate the transactions contemplated hereby and to otherwise protect and assure the Lender of its rights and interests hereunder. To that end, each Grantor authorizes the Lender to ?le one or more ?nancing statements (with collateral descriptions broader, including without limitation ?all assets" and/or ?all personal property" collateral descriptions, and/or less speci?c than the description of the Collateral contained herein) disclosing the Lender's security interest in any 0r all ofthe Collateral of such Grantor without such Grantor's signature thereon, and Further each Grantor also hereby irrevocably makes, constitutes and appoints the Lender, its nominee or any other Person whom the Lender may designate, as such Grantor's attorney-in-fact with full power and for the limited purpose to sign in the name of such Grantor any such ?nancing statements (including renewal statements), amendments and supplements, notices or any similar documents that in the Lender?s reasonable discretion would be necessary, appropriate or convenient in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or any . such ?nancing statement is sufficient for ?ling as a ?nancing statement by the Lender without notice thereof to such Grantor wherever the Lender may in its sole discretion desire to ?le the same. In the event for any reason the law of any jurisdiction other than California becomes or is applicable to the Collateral of any Grantor or any part thereof, or to any of the Secured Obligations, such Grantor agrees to execute and deliver all such instruments and to do all such other things as the Lender in its sole discretion reasonably deems necessary, appropriate or convenient to preserve, protect and enforce the security interests of the Lender under the law of such other jurisdiction (and, if a Grantor shall fail to do so upon the request of the Lender, then the Lender may execute any and all such requested documents on behalf of such Grantor pursuant to the power of attorney granted hereinabove). If any Collateral is in the possession or control of a Grantor?s agents and the Lender so requests after the Occurrence and during the continuation of an Event of Default, such Grantor agrees to notify such agents in writing of the Lender's security interest therein and, upon the Lender's request, instruct them to hold all such Collateral for the account of the Lender for the bene?t of the Lender and the other holders of the Secured Obligations, subject to the Lender?s instructions. Each Grantor agrees to mark its books and records to re?ect the security interest of the Lender in the Collateral. Control. Execute and deliver (and cause to be executed and delivered) all agreements, assignments, instruments or other documents as the Lender shall reasonably request for the purpose of obtaining and maintaining control within the meaning of the UCC with respect to any Collateral consisting of Deposit Accounts, Investment Property, Letter-of-Credit Rights and Electronic Chattel Paper. Collateral held bmrehouseman?ilee, etc. if any Collateral is at any time in the possession or control ofa warehouseman, bailee, agent or processor of such Grantor and is expected to remain in possession and control of such third party, notify the Lender of such possession or control, (ii) notify such Person of the Lender?s security interest in such Collateral, alter the occurrence and during the continuation of an Event of Default, instruct such Person to hold all such Collateral for the Lender's account and subject to the Lender's instructions and (iv) obtain an acknowledgment from such Person that it is holding such Collateral for the bene?t of the Lender. Treatment of Accounts. Not grant or extend the time for payment of any Account, or compromise or settle any Account for less than the full amount thereof, or release any Person or property, in whole or in part, from payment thereof, or allow any credit or discount thereon, in each case other than as normal and customary in the ordinary course of a Grantor?s business or as required by Law. Covenants Relating to Copyrights. Not do any act or knowingly omit to do any act whereby any Copyright owned by it may become invalidated and (A) not do any act, or knowingly omit to do any act, whereby any Copyright owned by it may become injected into the public domain; (8) notify the Lender immediately if it knows that any Copyright Owned by it may become injected into the public domain or of any adverse detemtination or development (including, without limitation, the institution of, or any such determination or development in, any court or tribunal in the United States or any other country) regarding a Grantor?s ownership of any such Copyright or its validity; (C) take all necessary steps as it shall deem appropriate under the circumstances, to maintain and pursue each application (and to obtain the relevant registration) of each Copyright owned by a Grantor and material to such Grantor?s business F- and to maintain each registration of each Copyright owned by a Grantor and material to such Grantor's business including, without limitation, ?ling of applications for renewal where neceSSary; and (D) notify the Lender of any infringement of any Copyright of a Grantor material to such Grantor's business of which it becomes aware and take such actions as it shall reasonably deem apprOpriate under the circumstances to protect such Copyright, including, where appropriate, the bringing of suit fer infringement, seeking injunctive relief and seeking to recover any and all damages for such in?'ingement. (ii) Not make any assignment or agreement in con?ict with the security interest in the Copyrights of each Grantor hereunder (other than in connection with a Permitted Lien or as otherwise provided in the Credit Agreement). Covenants Relating to Patents and Trademarks. (A) Continue to use each Trademark material to a Grantor?s business on each and every trademark class of goods applicable to its current line as re?ected in its current catalogs, brochures and price lists in order to maintain such Trademark in ?rll force free from any claim of abandonment for non-use, (B) maintain as in the past the quality of products and services offered under such Trademark, (C) employ such Trademark with the appropriate notice of registration, if applicable, (D) not adopt or use any mark that is confusingly similar or a colorable imitation of such Trademark unless the Lender, for the bene?t of the holders of the Secured Obligations, shall obtain a perfected security interest in such Trademark pursuant to this Security Agreement, and (E) not (and not permit any licensee or sublicensee thereof to) do any act or knewingly omit to do any act whereby any such Trademark owned by a Grantor and material to the business of such Grantor may become invalidated. (ii) Not do any act, or omit to do any act, whereby any Patent owned by a Grantor and material to the business of such Grantor may become abandoned or dedicated. Notify the Lender if it knows that any application or registration relating to any Patent or Trademark owned by a Grantor and material to the business of such Grantor may become abandoned or dedicated, or of any adverse determination 0r devel0pment (including, without limitation, the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Of?ce or any court or tribunal in any country) regarding a Grantor?s ownership of any Patent or Trademark or its right to register the same or to keep and maintain the samc. (iv) Whenever a Grantor, either by itself or through an agent, employee, licensee or designee, shall ?le an application for the registration of any Patent or Trademark with the United States Patent and Trademark Of?ce or any similar of?ce or agency in any other country or any political subdivision thereof, such Grantor shall report such ?ling to the Lender as required by the Credit Agreement. Upon request of the Lender, such Grantor shall execute and deliver any and all agreements, instruments, documents and papers as the Lender may reasonably request to evidence the security interest of the Lender in any Patent or Trademark in the Collateral and the goodwill and general intangibles of a Grantor relating thereto or represented thereby. Take all reasonable and necessary steps, including, without limitation, in any preceeding before the United States Patent and Trademark Of?ce, or any similar of?ce or agency in any other country or any political subdivision thereof, to maintain and pursue each application (and to obtain the relevant registration) and to maintain each registration of each Patent and Trademark owned by a Grantor and material to the business of such Grantor, including, without limitation, ?ling of applications for renewal, affidavits of use and affidavits of incontestability. (vi) notify the Lender after it learns that any Patent or Trademark included in the Collateral is infringed, misappropriated or diluted by a third party and take such acu'ons as it shall reasonably deem appropriate under the circumstances to protect such Patent or Trademark (vii) Not make any assignment or agreement in con?ict with the security interest in the Patents or Trademarks of each Grantor hereunder (other than in connection with a Permitted Lien or as otherwise provided in the Credit Agreement). insurance. insure, repair and replace the Collateral of such Grantor as set forth in the Credit Agreement. All insurance proceeds shall be subject to the security interest of the Lender hereunder. 0) Commercial Tort Claims. notify the Lender in writing of the initiation of any Commercial Tort Claim before any Governmental Authority by or in favor of such Grantor. (ii) Execute and deliver such statements, documents and notices and do and cause to be done all such things as the Lender may reasonably deem necessary, appropriate or convenient, or as are required by law, to create, perfect and maintain the Lender?s security interest in any Commercial Tort Claim. 6. Advances by Lender. On failure of any Grantor to perfonn any of the covenants and agreements contained herein, the Lender may, at its sole option and in its sole discretion, perform the same and in so doing may expend such sums as the Lender may reasonably deem advisable in the performance thereof, including, without limitation, the payment of any insurance premiums, the payment of any taxes, a payment to obtain a release of a Lien or potential Lien, expenditures made in defending against any adverse claim and all other expenditures that the Lender may make for the protection of the seCurity hereof or that may be compelled to make by Operation of law. All such sums and amounts so expended shall be repayable by the Grantors on a joint and several basis (subject to Section 2] hereof) upon timely notice thereof and demand therefor, shall constitute additional Secured Obligations and shall bear interest from the date said amounts are expended at the Default Rate. No such perfonuance of any covenant or agreement by the Lender on behalf of any Grantor, and no such advance or expenditure therefor, shall rclieVe the Grantors of any default under the terms of this Security Agreement, the other Loan Documents 0.- any other documents relating to the Secured Obligations. The Lender may make any payment hereby authorized in accordance with any bill, statement or estimate procured from the appropriate public of?ce or holder of the claim to be discharged, without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien, title or claim except to the extent such payment is being contested in good faith by a Grantor in appropriate preceedings and against which adequate reserves are being maintained in accordance with GAAP. 7. Remedies. General Remedies. Upon the occurrence ofan Event of Default and during the continuation thereof, the Lender and the other holders of the Secured Obligations shall have, in addition to the rights and remedies provided herein, in the Loan Documents, in any other documents relating to the Secured Obligations, or by law (including, without limitation, levy of attachment and garnishment), the rights and remedies ofa secured party under the Uniform Commercial Code of the jurisdiction applicable to the affected Collateral and, further, the Lender may, with or without judicial process or the aid and assistance of others to CHARl\l26l076v2 the extent permitted by applicable law, enter on any premises on which any of the Collateral may be located and, without resistance or interference by the Grantors, take possession of the Collateral, (ii) dispose of any Collateral on any such premises, require the GrantOrs to assemble and make available to the Lender at the expense of the Grantors any Collateral at any plaCe and time designated by the Lender that is reasonably convenient to both parties, (iv) remove any Collateral from any such premiSes for the purpose of effecting the sale or other disposition thereof, and/or without demand and without advertisement, notice, hearing or process of law, all of which each of the Grantors hereby waives to the fullest extent permitted by law, at any place and time or times, sell and deliver any or all Collateral held by or for it at public or private sale, by one or more contracts, in one or more parcels, for cash, upon credit or otherwise, at Such prices and upon such terms as the Lender deems advisable, in its sole discretion (subject to any and all mandatory legal requirements). Each of the Grantors acknowledges that any private sale referenced above may be at prices and on terms less favorable to the seller than the prices and terms that might have been obtained at a public sale. In addition to all other sums due the Lender and the other holders of the Secured Obligations with respect to the Secured Obligations, the Grantors shall pay the Lender and the other holders of the Secured Obligations all costs and expenses incurred by the Lender or such holder, in enforcing its remedies hereunder including, but not limited to, attemeys? fees and court costs, in obtaining or liquidating the Collateral, in enforcing payment of the Secured Obligations. or in the prosecution 0r defense of any action or proceeding by or against the Lender Or any such holder or the Grantors conCeming any matter arising out of or connected with this Security Agreement, any Collateral Or the Secured Obligations, including, without limitation, any of the f0regoing arising in, arising under or related to a case under the Debtor Relief Laws. To the extent the rights of notice cannot be legally waived hereunder, each Grantor agrees that any requirement of reasonable notice shall be met if such notice is personally served on or mailed, postage prepaid, to the Borrower in accordance with the notiCe provisions of Section l0.02 of the Credit Agreement at least ten Business Days before the time of sale or other event giving rise to the requirement oEsuch notice. The Lender shall not be obligated to make any sale or other disposition of the Collateral regardless of notice having been given. To the extent permitted by law, the Lender andfor any other holder of the Secured Obligations may be a purchaser at any such sale. To the extent permitted by applicable law, each of the Grantors hereby waives all of its rights of redemption with respect to any such sale. Subject to the provisions of applicable law, the Lender may postpone or cause the postponement of the sale of all or any portion of the Collateral by announcement at the time and place of such sale, and such sale may, without ?thher notice, to the extent permitted by law, be made at the time and place to which the sale was postponed, or the Lender may further postpone such sale by announcement made at such time and place. Remedies Relating to Accounts. Upon the occurrence of an Event of Default and during the continuation thereof, whether or not the Lender has exercised any or all of its rights and remedies hereunder, cach Grantor will upon request of the Lender instruct all account debtors to remit all payments in respect of Accounts to a mailing locatiOn selected by the Lender and (ii) the Lender shall have the right to enforce any Grantor's rights against its customers and account debtors, and the Lender or its designee may notify (or require any Grantor to notify) any Grantor?s customers and account debt0rs that the Accounts of such Grantor have been assigned to the Lender or of the Lender's security interest therein, and may (either in its own name or in the name of a Grantor or both) demand, collect (including without limitation by way ofa lockbox arrangement), receive, take receipt for, sell, sue for, compound, settle, compromise and give acquittance for any and all amounts due or to become due on any Account, and, in the Lender?s discretion, ?le any claim or take any other action or proceeding to protect and realize upon the security interest of the Lender, for the bene?t of the holders of the Secured Obligations, in the Accounts. Each Grantor acknowledges and agrees that the Proceeds of its Accounts remitted to or on behalf of the Lender in accordance with the provisions hereof shall be solely for the Lender's own convenience. The Lender shall have no liability or responsibility to any Grantor for acceptance ofa check, draft or other order for payment of money bearing the legend "payment in full" or words of similar import or any other restrictive legend or endorsement or be responsible for detennining the correctness of any remittance. Each Grantor hereby agrees to indemnify the Lender and the other holders of the Secured Obligations from and against all liabilities, damages, losses, actions, claims, judgments, costs, expenses, charges and attomeys' fees suffered or incurred by the Lender or such holder (each, an ndemni?cd Pam?) because of the maintenance of the l3?; foregoing arrangements except as relating to or arising out of the gross negligence or will?tl misconduct of an Indemni?ed Party or its officers, employees or agents. In the case of any investigation, litigation or other proceeding, the foregoing indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by a Grantor, its directors, shareholders or creditors or an Indemni?ed Party or any other Person or any other Indemni?ed Party is othentvise a party thereto. - Access. In addition to the rights and remedies hereunder, upon the occurrence of an Event of Default and during the continuation thereof, the Lender shall have the right to enter and remain upon the various premises of the Grantors without cost or charge to the Lender, and use the same, together with materials, supplies, books and records of the Grantors for the purpose of collecting and liquidating the Collateral, or for preparing for sale and conducting the sale of the Collateral, whether by foreclosure, auction or othenvise. In addition, the Lender may remove Collateral, or any part thereof, from such premiSes and/or any records with thereto, in order to effectively collect or liquidate such Collateral. NoneXClusive Nature of Remedies. Failure by the Lender or any other holder of the Secured Obligations to exercise any right, remedy or option under this Security Agreement, any other Loan Document, any other documents relating to the Secured Obligations, or as provided by law, or any delay by the Lender or any other holder of the Secured Obligations in exercising the same, shall not Operate'as a waiver of any such right, remedy or option. No waiver hereunder shall be effective unless it is in?writing, signed by the party against whom such waiver is sought to be enforced and then only to the? extent' speci?cally stated, which in the case of the Lender or any other holder of the Secured Obligations shall only be granted as pr0vided herein. To the extent permitted by law, neither the Lender nor any other holder of the Secured Obligations, nor any party acting as attorney for any such Person, shall be liable hereunder for any acts or omissions or?for any error of judgment or mistake of fact or law other than their gross negligence or willful misconduct hereunder. The rights and remedies of the Lender and each ?other holder of the Secured Obligations under this Security Agreement sltall be cumulative and not exclusive of any other right or remedy that any such Person may have. - Retention of Collateral. To the extent permitted under applicable law, in addition to the rights and remedies hereunder, upon the occurrence and during the continuance of an Event of Default, the Lender may, after providing the notices required by Sections 9-620 and 9-62] of the UCC (or any successor section) or othenvise complying with the requirements of applicable law of the relevant jurisdiction, accept or retain all or any portion of the Collateral in satisfaction of the Secured Obligations. Unless and until the Lender shall have provided such notices, however, the Lender shall not be deemed to have accepted or retained any Collateral in satisfaction of any Secured Obligations for any reason. (D De?ciency. In the event that the proceeds of any sale, collection or realization are insuf?cient to pay all amounts to which the Lender or any other holder of the Secured Obligations is legally entitled, the Grantors shall be jointly and severally liable for the de?ciency (subject to Section 21 hereof), together with interest thereon at the Default Rate, together with the costs of collection and attorneys? fees. Any surplus remaining after the full payment and satisfaction of the Secured Obligations shall be retumed to the Grantors or to whomsoever a court of competentjurisdiction shall determine to be entitled thereto. 8. Rights of the Lender. Power of Attorney. In addition to other powers of attOmey contained herein, each Grantor hereby designates and appoints the Lender, on behalf of itself and the other holders of the Secured Obligations, and each of its desiguees or agents, as attorney-in-fact of such Grantor, irrevocany and with power of substitution, with authority to take any or all of the foll0wing actions upon the occurrence and during the continuation of an Event of Default: 0) to demand, collect, settle, compromise and adjust, and give discharges and releases concerning the Collateral, all as the Lender may reasonably deem appropriate; 15:2. .I- ii"? i (ii) to oonunence and prosecute any actions at any court for the purposes of collecting any of the Collateral and enforcing any other right in respect thereof; to defend, settle or compromise any action, suit or proceeding brought and, in connection therewith, give such discharge or release as the Lender may reasonably deem appropriate; (iv) to receive, open and dispose of mail addressed to a Grantc-r and endorse checks. notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to the Collateral on behalf of and in the name of such Grantor, or securing, or relating to such Collateral; (V) to pay or discharge taxes, liens, security interests or other encumbrances levied or placed on or threatened against the Collateral; (vi) to direct any parties liable for any payment in connection with any of the Collateral to make payment of any and all monies due and to become due thereunder directly to the Lender or as the Lender shall direct; (vii) to receive payment of and receipt for any and all monies, claims, and other amounts due and to become due at any time in respect ofor arising out of any Collateral; to sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any Collateral or the goods or services that have given rise thereto, as fully and completely as though the Lender were the absolute owner thereof for all purposes; (ix) to adjust and settle claims under any insurance policy relating thereto; to execute and deliver all assignments, conveyances, statements, financing statements, renewal ?nancing statements, security and pledge agreements, af?davits, notices and other agreements, instruments and documents that the Lender may reasonably deem appropriate in order to perfect and maintain the security interests and liens granted in this Security Agreement and in order to fully consummate all ofthe transactions contemplated therein; (xi) to institute any foreclosure proceedings that the Lender may reasonably deem appropriate; and (xii) to do and perfomi all such other acts and things as the Lender may deem apprOpriate or convenient in connectiOn with the Collateral. This power of attorney is a power coupled with an interest and shall be irrevocable for so long as any of the Secured Obligations shall remain outstanding and until all of the commitments relating thereto shall have been terminated. The Lender shall be under no duty to exercise or withhold the exercise of any of the rights, powers, privileges and options expressly or implicitly granted to the Lender in this Security Agreement, and shall not be liable for any failure to do so or any delay in doing so. The Lender shall not be liable for any act or omission or for any error ofjudgment or any mistake of fact or law in its individual capacity or its capacity as attomey-in-fact except acts or omissions resulting from its gross negligence or will?il misconduct. This power of attorney is conferred on the Lender solely to protect, preserve and realize upon its security interest in the Collateral. The Lender?s Duty of Care. Other than the exercise of reasonable care to assure the safe custody of the Collateral while being held by the Lender hereunder and to account for all proceeds thereof, the Lender shall have no duty or liability to preserve rights pertaining thereto, it being understood and agreed tnat the Grantors shall be resp0nsible for preservation of all rights in the Collateral, and the Lender shall be relieved of all responsibility for the Collateral upon surrendering it or tendering the surrender of it to the Grantors. The Lender shall be deemed to have exercised reasonable care in the custody and preservation of he Collateral in its possession ifsuch Collateral is accorded treatment substantially equal to that which the Lender accords its own property, which shall be no less than the treatment employed by a reasonable and prudent agent in the industry, it being understood that the Lender shall not have reSponsibility for taking any recessary steps to preserve rights against any parties with respect to any of the Collateral. In the event of a public or private sale of Collateral pursuant to Section 7 hereof, the Lender shall have no obligation to clean, repair or otherwise prepare the Collateral for sale. 9. Application of Proceeds. Upon the occurrence and during the continuation of an Event of Default, any payments in respect of the Secured Obligations and any proceeds of the Collateral, when received by the Lender in cash or its equivalent, will be applied in reduction of the Secured Obligations in the crder set forth in Section 9.03 of the Credit Agreement, and each Grantor irrevocably waives the right to direct the application of such payments and proceeds and acknowledges and agrees that the Lender shall have the continuing and exclusive right to apply and reapply any and all such payments and proceeds in the Lender?s sole discretion, notwithstanding any entry to the contrary upon any of its books and records. 10. Continuing Agreement. This Security Agreement shall be a continuing agreement in every respect and shall remain in full force and effect so long as any of the Secured Obligations remains outstanding and until all of the commitments relating thereto have been terminated. Upon payment or other satisfaction of all Secured Obligations and termination of the commitmentsrelated thereto, this Security Agreement and the liens and Security interests of the Lender hereunder shall be automatically terminated and the Lender shall, upon the request and at the expense of the Grantors, execute and deliver all UCC termination statements and/or other documents reasonably requested by the Grantors evidencing such termination and retum to Grantors all Collateral in its pOSSession. Notwithstanding the foregoing, all releases and indemnities provided hereunder shall survive termination of this Security Agreement. This Security Agreement shall continue to be effective or be automatically reinstated, as the case may be, if at any time payment, in whole or in part, of any of the Secured Obligations is rescinded or must otherwise be restored or returned by the Lender or any other holder of the Secured Obligatiorrs as a preference, fraudulent conveyance or otherwise under any bankruptcy, insolvency or similar law, all as th0ugh such payment had not been made; provided that in the event payment of all or any part of the Secured Obligations is rescinded or must be restored or returned, all costs and expenses (including, without limitation, attorneys? fees and disbursements) incurred by the Lender or any other holder of the Secured Obligations in defending and enforcing such reinstatement shall be deemed to be included as a part of the Secured Obligations. I l. Amendments and Waivers. This Security Agreement and the provisions hereof may not be amended, waived, modi?ed, changed, discharged or terminated except as set forth in Section tom of the Credit Agreement. 12. Successors in interest. This Security Agreement shall create a continuing security interest in the Collateral and shall be binding upon each Grantor, its successors and assigns, and shall inure, together with the rights and remedies of the Lender and the other holders ofthe Secured Obligations hereunder, to the benefit of the Lender and the other holders of the Secured Obligations and their respective successors and permitted assigns; provided, however, none of the Grantors may assign its rights or delegate its duties hereunder without the prior written consent of the Lender. To the fullest extent permitted by law, each Grantor hereby releases the Lender, each other holdcr ofthe Secured Obligations, their respective successors and assigns and their respective officers, attorneys, employees and agents, from any liability for any act or omission or any error of judgment or mistake of fact or of law relating to this Security Agreement or the it.? i -: I 11;] Collateral, except for any liability arising from the gross negligence or will?Jl misconduct of the Lender or such holder, or their respective officers, attorneys, employees or agents. 13. Notices. All notices required or permitted to be given under this Security Agreement shall be given as provided in Section [0.02 of the Credit Agreement. I4. Countemarts. This Security Agreement may be executed in any number of counterparts, each of which where so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. it shall not be necessary in making proof of this Security Agreement to produce or account for more than one such counterpart. IS. Headings. The headings of the sections and subsections hereof are provided for convenience only and shall not in any way affect the meaning or construction of any provision of this Security Agreement. Governing Law; Jurisdiction; Waiver of Right to lazy Trial, Etc. The terms of Sections IO. l3 and I0.l4 of the Credit Agreement with respect to g0verning law, submission to jurisdiction, venue and waiver of jury trial are incorporated herein by reference, murarir murandrir, and the parties hereto agree to such terms. l7. Sim. lfany provision ofthis Security Agreement is determined to be illegal, invalid or unenforceable, such provisi0n shall be ?rlly severable and the remaining provisions shall remain in full force and effect and shall be construed without giving effect to the illegal, invalid or unenforceable provisiOns. 18. Entireg. This Security Agreement, the other Loan Documens and the other documents relating to the Secured Obligations represent the entire agreement of the parties hereto and thereto, and mpersede all prior agreements and understandings, oral or written, if any, including any commitment letters cr comespondence relating to the Loan Documents, any other documents relating to the Secured Obligations, cr the transactions contemplated herein and therein. l9. Survival. All representations and wan?anties of the Grantors hereunder shall survive the execution and delivery of this Security Agreement, the other Loan Documents and the other documents relating to the Secured Obligations, the delivery of the Notes and the extension of credit thereunder or in connection therewith. 20. Other Security. To the extent that any of the Secured Obligations are now or herea?er secured by property other than the Collateral (including, without limitation, real property and securities owned by a Grantor), or by a guarantee, endorsement or property of any other PerSOn, then to the extent pennitted by applicable law the Lender shall have the right to proceed against such other property, guarantee or endorsement upon the occunence and during the continuation of any Event of Default, and the Lender shall have the right, in its sole discretion, to determine which rights, security, liens, security interests or remedies the Lender shall at any time pursue, relinquish, subordinate, modify or take with respect thereto, without in any way modifying or affecting any ofthem or the Secured Obligations or any ofthe rights ofthe Lender or any other holder of the Secured Obligations under this Security Agreement, under any of the other Loan Documents or under any other document relating to the Secured Obligations. Joint and Several Obligations ol'Gr-antors. Subject to subsection of this Section 21 each of the Grantors is accepting joint and Several liability hereunder in consideration of the ?nancial accommodation to be provided by the Lender and the other holders of the Secured Obligations, for the mutual bene?t, directly and indirectly, of each of the Crantors and in consideration of the undertakings of each of the Grantors to accept joint and several liability for the obligations of each of them. Subject to subsection of this Section 21, each of the Grantors jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Grantors with respect to the payment and performance of all of the Secured Obligations arising under this Security Agreement. the other Loan Documents and any other documents relating to the Secured Obligations, it being the intention of the parties hereto that all the Secured Obligations shall be the joint and several obligations of each of the Grantors without preferences or distinction among them. (6) Notwithstanding any provision to the contrary contained herein, in any other of the Loan Documents or in any other documents relating to the Secured Obligations, the obligations of each Grantor under the Credit Agreement, the other Loan Documents and the other documents relating to the Secured Obligations shall be limited to an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance 'under Section 548 of the United States Bankruptcy Code or any comparable provisions of any applicable state law. 22- M. At any time a?er the date of this Security Agreement, one or more additional Persons may become party hereto by executed and delivering to the Lender a Joinder Agreement. Immediately upon such execution and delivery of such Joinder Agreement (and without any further action), each such additional Person will become a party to this Security Agreement as a "Grantor" and have all of the rights and obligations of a Grantor hereunder and this Security Agreement and the Schedules hereto shall be deemed amended by such Joinder Agreement. [Signature Pages Follow] ?l ll Each of the parties hereto has caused a counterpart of this Security Agreement to be duly executed and delivered as of the date ?rst above written. WI INTELLIGENT I a Delaware corporation . By: Name: Title: SENSA PRODUCTS, LLC, a Delaware limited liability company Name: . Title: BRAND IDEAS, LLC, a Delaware limited liability company By: Name: 0 Title: INTELLIGENT BEAUTY, INC. SECURITY AGREEMENT Accepted and agreed to as of the date ?rst above written. BANK OF AMERICA, NA, as Lender By: - .. Name: Title: Senior Vice President INTELLIGENT BEAUTY. INC. SECURITY AGREEMENT 'at" 3'1 if? I E?m?s?r -, INSTKUGTDONS [a In Me CAREFULLY A. W: 5 WNEOFCONTMT AT FILER [opuonll] - Helen Nickel ma?.?c?.mc.wm?o?mm unawacmomwowm (Name McAdam) man 05:15 PM 05/11/2012 - mm mm; 2012 1835885 Moore Van Allen PLLC '1 m, 120552134 100 Norm Tryon Street Suite 4700 Charlene. NC 28202-4003 Blemickel?mvalaweom 1H3 ABOVE SPACE $5 FOR HUNG OFFICE UBEDHLY 1. 1 OROANBAWWE NAME - Intelligent Beauty, Inc. 0" 1b.uowouAL'sumNM nus: mu: ammume sumx 1c. Mumwm?? cm ems Po'?m cone 2301 Rosecrans Avenue El Segundo CA 90245 USA 16 mm mo RE meet :r..:umsucmu crewman-an 19- OMAWATDHAL Inn. :1 ?wm" lCarporaucm ,Deiaware [424205 I Elm 2. ADDITIONAL EXACV FULL LEGAL NAME .mnmy mama: a- march?: mm?; mum min-I h. on?amzahou?s Mme . OR an; rTnammE mate'?mh'? - 29. mum wins am: POSTAL De mumv as 21..?umsoncnonomaomumou no. a ammumn Damon Duane 3. SECURED NAME armament a; anomtzmoara we Bank of America, N.A., as Lender OR an mm NMTE as MNLImmaess sum: POSTAL woe CW 333 S. Hope Street, Suite 1300. Los Angeles CA 90071 USA 4. Thlu FINANCING our: IN ?Mu All assets of the Debtor, whether now owned or existing or owned. acquired or arising herea?er. a. customan 4 sable. Lessee-Lesson cousxuneaconmuaa anuemmoa aeusmuven mus" on-uocnuuo I I (I ION 01 In Dew, mm"! s. ennNAquEnnemucs mm F9 339 4 4 3 Fued ?nth: DE - Secretary of State (327000.01 1568) M4 94 631 FILING OFFICE UGO FINANCING STATEMENT (FORM UCCI) (REV. 06122102) I ENT OW from and back OAR LLY ANAMEAPHONEOFOONTACTATHLER [optional mamas mam or SM Helen Nickel (704) 331-3713 mag-.5 B.SEND To: (Nammnoam) F1130 .- 2012 1836206 Moore Van Allen ?1 m: 120552235 100 North Tryon Street Suite 4700 Charlotte, NC 28202?4003 . mam?: anew ran mum omc: quONLv 1. m-mwymauummau 1b)-dnmuhbrwiiwoamhlmum mm: OR Sousa Products, LLC mama ram?2"" 80er WW cm! . 3m: roam cone oouumv 2301 Rosecrans Avenue El Segundo CA 90245 USA Wm mm 147535 I TYPE 0; onomzmm 1Wmmu 19. 0007001an no a. "any - mm" LDC IDelawaro [4489318 2. ADDITIONAL EXACT FULL LEON. NAME - hurl 0N1 (he: a) ndondlunmb orwm?m mm.- 3 NAME OR a"m' amounvs wrume rum NAME Wow: mum . awe mucoo? comm ?at?6F?: 92' mum one on mum? mononuu M. ?Nani a MLWOADWESS MW woman? mm? I DNONE momamou-smlue Bank of Amenca, NA, as Lender OR su mama-swastika Timerwuae 100' 100' Is NAME s?r'nx 30 .umwmoon?i'f an em: coumnv 333 S. Hope Stree1, Suite 1300, CA9-IO3-13-01 Los Angeles CA 9007) USA 4. Thu 5mm BTATEUINT mm In Mining calm-r01: All assets of the Debtor, whether now owned or existing or owned, acquired or arising herea?er. 6. ALTERNATIVE DEWMW if! Ruble . BALEEJBMOR SELLEWBUYER AU HEN HUNG ?mg?u'wd?r Denm- om I own?: mom-emu man newmcemm 3394 4 4 Filed with: DB - Secretary of State (327000011568) FILING COPY UGO FINANCING STATEMENT (FORM UCGT) (REV. 0522102) 94 632 hi: I. E. 1.13 FOLLOW msrnuc IO and CAREFULLY A. NAME 5 OF CONTACT AT FILER [optional] Helen Nickel (704)331-37l3 B. SEN) WHOMEDGMENT TO: (Nam. and Address) Moore Van Allen PLLC 100 North Tryon Street Suite 4700 Charlene, NC 28202-4003 [Elemickel@mvalaw.oom ?1 mm mm OF STATE 11W mm EILED 05:10 PM 05/11/2012 0 2012 1835604 SRV: 120552092 SPACE IS FOR FILING OFFICE USE ONLY 1. 1.. omnm?norrs we Brand Ideas, LLC 0" . NAME I ME NAME Tum?no m?ss stale Foam. cone coumn'v 2301 Rosecrans Avenue El Segundo CA 90245 USA w, mum r'o?az or 1r Juamcmu 1g. ommzmoun In It. "any . momma mm I LLC JEN aware [4089248 mm 2. Amle EXACT FULL LEGAL ME man gonna-bin mm. (2m: 21:) . ch ?comm? nomu a. NAME OR a: ?ns-r um" SUFFIX a: name names . crn' suns roan woe ocumnv N. mm mm INFO RE mus or momma-am 2! JURISDICTION 29 Enommnouki ID I. in?, neuron 1 [1mg 3. SECURED Emma mom. - as. mamamoua mye Bank of AmencmNA" as Lender I OR an mauwara LAM-NAME FIRST NAME mucus NAME s'u'rr' Ix; gmummo?'fss cm: was POGTAI cone ecumm 333 3. Hope Street, Suite 1300, 03-13-01 L08 An geles CA 90071 USA 4.1m. nnmanc swam-3n mm in [mm cum-m. All assets of the Debtor, whether now owned or existing or owned, acquired or an'sing hereafter. 5. mannamve - 1m LESSEEILESSOR consmewcousmon BAILEBBAILOR smenrauven no. man ou-uocmmo flooded) Egg on blot-(I) NI mum, Mb? 5. DATA #33 9 4 4 .3 Filed wuh: DE - Secretary of State (327000.01 1568) AM 94 633 I FILING OFFICE COPY UGO FINANCING STATEMENT (FORM U001) (REV. 0322102) EXHIBIT 4 UNITED STATES PATENT AND TRADEMARK OFFICE UNDER SECRETARY OF Commas FOR INTELLECTUAL PROPERTYAND DIRECTOR OF ms UNITED STATES PATENT AND TRADEMARK OFFICE MAY 18, 2012 MOORE VAN ALLEN PLLC 430 DAVIS DRIVE. SUITE 500 MORRISVILLE, NC 27560 900223367 UNITED STATES PATENT AND TRADEMARK OFFICE NOTICE OF RECORDATION OF ASSIGNMENT DOCUMENT THE ENCLOSED DOCUMENT HAS BEEN RECORDED BY THE ASSIGNMENT RECORDATION BRANCH OF THE AND TRADEMARK OFFICE. A COMPLETE COPY IS AVAILABLE AT THE ASSIGNMENT SEARCH ROOM ON THE REEL AND FRAME NUMBER REFERENCED BELOW. PLEASE REVIEW ALL INFORMATION CONTAINED ON THIS NOTICE. THE INFORMATION CONTAINED ON THIS RECORDATION NOTICE REFLECTS THE DATA PRESENT IN THE PATENT AND TRADEMARK ASSIGNMENT SYSTEM. IF YOU SHOULD FIND ANY ERRORS OR HAVE QUESTIONS CONCERNING THIS NOTICE, YOU MAY CONTACT THE ASSIGNMENT RECORDATION BRANCH AT 571-272-3350. PLEASE SEND REQUEST FOR CORRECTION T0: 0.3. PATENT AND TRADEMARK OFFICE, MAIL STOP: ASSIGNMENT RECORDATION BRANCH, P.O. BOX 1450, ALEXANDRIA, VA 22313. RECORDATION DATE: 05/17/2012 4781/0986 NUMBER OF PAGES: 6 BRIEF: NOTICE OF GRANT OF SECURITY INTEREST IN TRADEMARKS DOCKET NUMBER: 327000-11568 JES ASSIGNOR: SENSA PRODUCTS. LLC DOC DATE: 05/11/2012 CITIZENSHIP: DELAWARE ENTITY: LIMITED LIABILITY COMPANY ASSIGNEE: BANK OF AMERICA, N.A., AS LENDER CITIZENSHIP: UNITED STATES ENTITY: NATIONAL BANKING ASSOCIATION 333 SOUTH HOPE STREET, SUITE 1300 MAIL CODE: CA9-193-13-01 LOS ANGELES, CALIFORNIA 90071 SERIAL NUMBER: 77388012 REGISTRATION NUMBER: 3613479 MARK: SENSA DRAWING TYPE: STANDARD CHARACTER MARK FILING DATE: 02/04/2003 REGISTRATION DATE: 04/28/2009 SERIAL NUMBER: 77529602 REGISTRATION NUMBER: 3583092 MARK: SENSA DRAWING TYPE: STANDARD CHARACTER MARK FILING DATE: 07/23/2008 REGISTRATION DATE: 03/03/2009 PO Box 1450. Alexandria. Virginia 22313-1450 - . - . 4781/0986 PAGE 2 1% ?3 v; T. .13 SERIAL NUMBER: 77934443 REGISTRATION NUMBER: 4023481 FILING DATE: REGISTRATION 02/12/2010 DATE: 09/06/2011 MARK: SPRINKLE DIET DRAWING TYPE: STANDARD CHARACTER MARK SERIAL NUMBER: 85177351 FILING DATE: 11/15/2010 REGISTRATION NUMBER: REGISTRATION DATE: MARK: SHAKE. EAT. LOSE. DRAWING TYPE: STANDARD CHARACTER MARK SERIAL NUMBER: 85177352 FILING DATE: 11/15/2010 REGISTRATION NUMBER: REGISTRATION DATE: MARK: SPRINKLE. EAT. LOSE. - DRAWING TYPE: STANDARD CHARACTER MARK SERIAL NUMBER: 85177355 FILING DATE: 11/15/2010 REGISTRATION NUMBER: REGISTRATION DATE: MARK: SPRINKLE AWAY THE POUNDS DRAWING TYPE: STANDARD CHARACTER MARK SERIAL NUMBER: 85177356 FILING DATE: 11/15/2010 REGISTRATION NUMBER: REGISTRATION DATE: MARK: SHAKE AWAY THE POUNDS DRAWING TYPE: STANDARD CHARACTER MARK SERIAL NUMBER: 85354669 FILING DATE: 06/23/2011 REGISTRATION NUMBER: REGISTRATION DATE: MARK: SHAKE. EAT. LOSE WEIGHT. DRAWING TYPE: STANDARD CHARACTER MARK SERIAL NUMBER: 85354680 FILING DATE: 06/23/2011 REGISTRATION NUMBER: REGISTRATION DATE: MARK: REAL PEOPLE. REAL RESULTS. DRAWING TYPE: STANDARD CHARACTER MARK SERIAL NUMBER: 85354688 FILING DATE: 06/23/2011 REGISTRATION NUMBER: REGISTRATION DATE: MARK: SHAKE YOUR SENSA DRAWING TYPE: STANDARD CHARACTER MARK SERIAL NUMBER: 85356008 FILING DATE: 06/24/2011 REGISTRATION REGISTRATION DATE: MARK: SPRINKLE. EAT. DRAWING TYPE: STANDARD CHARACTER ASSIGNMENT RECORDATION BRANCH PUBLIC RECORDS DIVISION LOSE WEIGHT. MARK Iirn LLI TRADEMARK ASSIGNMENT Electronic Version v1.1 Stylesheet Version v1.1 SUBMISSION TYPE: NEWASSIGNMENT NATURE Notice ol Grant of Security Interest in Trademarks Name Products, LLC CONVEYING PARTY DATA Execution Date ?2012 Entity Type MITED LIABILITY ANY: DELAWARE Name:- Address: Address: RECEIVING PARTY DATA Bank of America, MA. as Lender South Hope Street. Suite 1300 Mail Code: CA9-193-13-01 Los Angeles IA 71 association: UNITED STATES PROPERTY NUMBERS Total: 11 If Property Type Number Word Mark 7' begistmtion Number: 3583092 SENSA IRegIsIration Number: 3813479 SENSA [Eagisira?on Number: 4023481 EPRINKLE DIET Serial Number: @5358008 SPRINKLE. EAT. LOSE WEIGHT. Sen?aI Numben 85354888 SHAKE YOUR SENSA Serial Number: 85354680 REAL PEOPLE. REAL RESULTS. LSerial Number: 85354669 I SHAKE. EAT. LOSE WEIGHT. Serial Number: 85177356? SHAKE AWAY THE POUNDS Serial Number: [85177355 SPRINKLE AWAY THE POUNDS I Serial Number: 85177352 SPRINKLE. EAT. LOSE. Eerial Number: 85177351 I SHAKE. EAT. LOSE. CORRESPONDENCE DATA J. 1.157.? I UNITED STATES PATENT AND TRADEMARK OFFICE UNDER SECRETARY or COMMERCE FOR PROPERTY mo DIRECTOR or me Uuneu SWES Paremmu TRADEMARK OFFICE MAY 18, 2012 PTAS MOORE VAN ALLEN PLLC 430 DAVIS DRIVE SUITE 500 MORRISVILLE, NC 27560 501923843 UNITED STATES PATENT AND TRADEMARK OFFICE NOTICE OF RECORDATION OF ASSIGNMENT DOCUMENT THE ENCLOSED DOCUMENT HAS BEEN RECORDED BY THE ASSIGNMENT RECORDATION BRANCH OF THE 0.5. PATENT AND TRADEMARK OFFICE. A COMPLETE COPY IS AVAILABLE AT THE ASSIGNMENT SEARCH ROOM ON THE REEL AND FRAME NUMBER REFERENCED BELOW. PLEASE REVIEW ALL INFORMATION CONTAINED ON THIS NOTICE. THE INFORMATION CONTAINED ON THIS RECORDATION NOTICE REFLECTS THE DATA PRESENT IN THE PATENT AND TRADEMARK ASSIGNMENT SYSTEM. IF YOU SHOULD FIND ANY ERRORS OR HAVE QUESTIONS CONCERNING THIS NOTICE, YOU MAY CONTACT THE ASSIGNMENT RECORDATION BRANCH AT 571-272-3350. PLEASE SEND REQUEST FOR CORRECTION T0: 0.3. PATENT AND TRADEMARK OFFICE, MAIL STOP: ASSIGNMENT RECORDATION BRANCH, P.O. BOX 1450, ALEXANDRIA, VA 22313. 028224/0195 NUMBER OF PAGES: 6 RECORDATION DATE: 05/17/2012 BRIEF: NOTICE OF GRANT OF SECURITY INTEREST IN PATENTS DOCKET NUMBER: 327000-11568 JES ASSIGNOR: SENSA PRODUCTS, LLC DOC DATE: 05/11/2012 ASSIGNEE: - BANK OF AMERICA, N.A., AS LENDER 333 S. HOPE STREET. SUITE 1300 MAIL CODE: CA9-193-13-01 LOS ANGELES. CALIFORNIA 90071 APPLICATION NUMBER: 10306198 FILING DATE: 11/27/2002 PATENT NUMBER: 8143062 ISSUE DATE: 03/27/2012 TITLE: METHOD AND COMPOSITION FOR ENHANCING WEIGHT LOSS FILING DATE: 01/16/2009 ISSUE DATE: 03/27/2012 APPLICATION NUMBER: 12354940 PATENT NUMBER: 8143215 TITLE: METHOD OF PROMOTING WEIGHT LOSS APPLICATION NUMBER: 12355465 FILING DATE: 01/16/2009 PATENT NUMBER: . ISSUE DATE: TITLE: PACKAGED SATIETY ENHANCING COMPOSITION Po. Box 1450, Naxanana. Vu'glnla 22313-1450 . mrkusp'rosov 132323. .111] 11'721 I -IJ 028224/0195 PAGE 2 APPLICATION NUMBER: 12355494 PATENT NUMBER: 7820208 TITLE: FILING DATE: 01/16/2009 ISSUE DATE: 10/26/2010 METHOD OF ASSAYING SATIETY ENHANCING TASTANTS ASSIGNMENT RECORDATION BRANCH PUBLIC RECORDS DIVISION 2113.. I. Electronic Version v1.1 Stylesheet Version v1.1 "{3le I .I SUBMISSION TYPE: NEW ASSIGNMENT NATURE OF CONVEYANCE: Notice 01 Grant of Security Interest in Patents- CONVEYING PARTY DATA I Name Execution Date ISensa Products. LLC E5l11l2012 RECEIVING PARTY DATA INarne: . Bank of America. N.A., as Lender Street Address: 333 8. Hope Street, Suite 1300 Internal Address: Mail Code; CA9-193-13-01 City: Los Angeles stateICountry: CALIFORNIA IPostal Code: 90071 I PROPERTY NUMBERS Total: 4 Property Type Number PatentNumber: . 8143215 Patent Number: 8143062 Patent Number: 7820208 Application Number: 12355465 CORRESPONDENCE DATA Fax Number: (919)416-8328 Phone: 9192868041 Emall: Correspondence Ml] be sent to the email address ?rst; if that :29 unsuccessful, if m'll be sen! w?a US Mail. Correspondent Name: Moore Van Allen PLLC Address Line 1: 430 Davis Drive Address Line 2: Suite 500 Address Line 4: Morrisville. NORTH CAROLINA 27560 ATTORNEY DOCKET NUMBER: 3270001 1568 JES f, In} 33 I. I- UNITED STATES PATENT AND TRADEMARK OFFICE UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE UNITED Sm Es PATENT AND TRADEMARK OFFICE MAY 18, 2012 . PTAS MOORE VAN ALLEN PLLC 430 DAVIS DRIVE SUITE 500 MORRISVILLE, NC 27560 900223356 UNITED STATES PATENT AND TRADEMARK OFFICE NOTICE OF RECORDATION OF ASSIGNMENT DOCUMENT THE ENCLOSED DOCUMENT HAS BEEN RECORDED BY THE ASSIGNMENT OF THE 0.8. PATENT AND TRADEMARK OFFICE. A COMPLETE COPY IS AVAILABLE AT THE ASSIGNMENT SEARCH ROOM ON THE REEL AND FRAME NUMBER REFERENCED BELOW. PLEASE REVIEW ALL INFORMATION CONTAINED ON THIS NOTICE. THE INFORMATION CONTAINED ON THIS RECORDATION NOTICE REFLECTS THE DATA PRESENT IN THE PATENT AND TRADEMARK ASSIGNMENT SYSTEM. IF YOU SHOULD FIND ANY ERRORS OR HAVE QUESTIONS CONCERNING THIS NOTICE, YOU MAY CONTACT THE ASSIGNMENT RECORDATION BRANCH AT 571-272-3350. PLEASE SEND REQUEST FOR CORRECTION T0: 0.5. PATENT AND TRADEMARK OFFICE, MAIL STOP: ASSIGNMENT RECORDATION BRANCF, P.O. BOX 1450, ALEXANDRIA, VA 22313. 4'781/0895 NUMBER 6 RECORDATION DATE: 05/17/2012 BRIEF: TERMINATION AND RELEASE OF SECURITY INTEREST IN INTELLECTUAL PROPERTY DOCKET NUMBER: 327000?115?63 JES ASSIGNOR: SRF INVESTMENTS LLC DOC DATE: 05/11/2012 CITIZENSHIP: DELAWARE ENTITY: LIMITED LIABILITY COMPANY ASSIGNEE: INTELLIGENT BEAUTY, INC. CITIZENSHIP: DELAWARE ENTITY: CORPORATION 2301 ROSECRANS AVENUE, SUITE 1150 EL SEGUNDO, CALIFORNIA 90245 ASSIGNEE: SENSA PRODUCTS, LLC CITIZENSHIP: DELAWARE ENTITY: LIMITED LIABILITY COMPANY 2301 ROSECRANS AVENUE, SUITE 1150 EL SEGUNDO, CALIFORNIA 90245 FILING DATE: 01/10/1997 REGISTRATION DATE: 06/01/1999 SERIAL NUMBER: 75224016 REGISTRATION NUMBER: 2248533 MARK: MOJAVE DRAWING TYPE: TYPESET R0. Box 1450. Nexandria. VIrnga 22313-1450 - fi-F} 2 SERIAL NUMBER: 75422151 REGISTRATION NUMBER: 2742176 MARK: MDJAVE MAGIC DRAWING TYPE: TYPESET SERIAL NUMBER: 76227116 REGISTRATION NUMBER: 2580256 MARK: CREM DRAWING TYPE: TYPESET SERIAL NUMBER: 76245173 REGISTRATION NUMBER: 2753828 MARK: LIQUID STOCKINGS DRAWING TYPE: TYPESET SERIAL NUMBER: 77146594 REGISTRATION NUMBER: 3559516 MARK: IQ FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION DRAWING TYPE: AN ILLUSTRATION DRAWING WHICH INCLUDES SERIAL NUMBER: 77151450 REGISTRATION NUMBER: 3719012 MARK: IQ FILING DATE: REGISTRATION 01/23/1998- DATE: 07/29/2003 03/19/2001 DATE: 06/11/2002 04/09/2001 DATE: 08/19/2003 04/02/2007 DATE: 01/13/2009 04/08/2007 DRAWING TYPE: AN ILLUSTRATION DRAWING WITH IN STYLIZED FORM SERIAL NUMBER: 77173366 REGISTRATION NUMBER: 3619920 MARK: RAW NATURAL BEAUTY DRAWING TYPE: STANDARD CHARACTER MARK SERIAL NUMBER: 77173408 REGISTRATION NUMBER: 3603161 MARK: RAWSKINCARE DRAWING TYPE: STANDARD CHARACTER SERIAL NUMBER: 77371410 REGISTRATION NUMBER: 3607133 MARK: FIRMACEUTICALS DRAWING TYPE: STANDARD CHARACTER SERIAL NUMBER: 77371466 REGISTRATION NUMBER: 3574952 MARK: INTELLIGENT BEAUTY DRAWING TYPE: STANDARD CHARACTER SERIAL NUMBER: 77375632 REGISTRATION NUMBER: 3538407 MARK: BEAUTY FIX DRAWING TYPE: STANDARD CHARACTER SERIAL NUMBER: 77388012 REGISTRATION NUMBER: 3613479 MARK: SENSA DRAWING TYPE: STANDARD CHARACTER MARK MARK MARK MARK MARK FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION 05/04/2007 DATE: 05/12/2009 05/04/2007 DATE: 04/07/2009 01/14/2008 - DATE: 04/14/2009 01/14/2008 DATE: 02/17/2009 01/18/2008 DATE: 11/25/2008 02/04/2008 DATE: 04/28/2009 t} [8 4701/0095 PAGE 3 SERIAL NUMBER: 77446218 REGISTRATION NUMBER: 3720620 MARK: BEAUTY FIXE DRAWING TYPE: STANDARD CHARACTER MARK SERIAL NUMBER: 77461309 REGISTRATION NUMBER: 3801603 MARK: IQ DERMA CLEAR REMEDY DRAWING TYPE: STANDARD CHARACTER MARK SERIAL NUMBER: 77487902 REGISTRATION NUMBER: 3850583 MARK: BLUSH DRAWING TYPE: STANDARD CHARACTER MARK SERIAL NUMBER: 77492521 . REGISTRATION NUMBER: 3649738 MARK: IQ DERMA DRAWING TYPE: STANDARD CHARACTER MARK SERIAL NUMBER: 77512955 REGISTRATION NUMBER: 3637991 MARK: SKINTENSIVE DRAWING TYPE: STANDARD CHARACTER MARK SERIAL NUMBER: 77512963 REGISTRATION NUMBER: 4035322 MARK: BEAUTY FIX DRAWING TYPE: AN ILLUSTRATION DRAWING WITH STYLIZED FORM SERIAL NUMBER: 77529602 REGISTRATION NUMBER: 3583092 MARK: SENSA DRAWING TYPE: STANDARD CHARACTER MARK SERIAL NUMBER: 77568903 REGISTRATION NUMBER: 3790902 MARK: BEAUTY FIX DRAWING TYPE: STANDARD CHARACTER SERIAL NUMBER: 77586271 REGISTRATION NUMBER: 3938336 MARK: T-SFERE DRAWING TYPE: STANDARD CHARACTER SERIAL NUMBER: 77743614 REGISTRATION NUMBER: 3805682 MARK: KRONOS DRAWING TYPE: STANDARD CHARACTER SERIAL NUMBER: 77872000 REGISTRATION NUMBER: 4063894 MARK: SMARTLASH DRAWING TYPE: STANDARD CHARACTER SERIAL NUMBER: 77891039 REGISTRATION NUMBER: 4026688 MARK: BAG FABULOUS DRAWING TYPE: STANDARD CHARACTER FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION 04/11/2008 DATE: 12/08/2009 04/29/2008 DATE: 06/15/2010 05/30/2008 DATE: 09/21/2010 06/06/2008 DATE: 07/07/2009 07/01/2008- DATE: 06/16/2009 07/01/2000 DATE: 10/04/2011 IN 07/23/2008 DATE: 03/03/2009 09/12/2008 DATE: 05/18/2010 10/06/2008 DATE: 03/29/2011 05/22/2009 DATE: 06/22/2010 11/13/2009 DATE: 11/29/2011 12/10/2009 DATE: 09/13/2011 ?fr-E. 117:: T. 217; 4781/0895 PAGE 4 77891047 4026689 SERIAL NUMBER: REGISTRATION NUMBER: MARK: SHOE FABULOUS DRAWING TYPE: STANDARD CHARACTER MARK 77895105 4016502 SERIAL NUMBER: REGISTRATION NUMBER: MARK: SHOE FABULOUS DRAWING TYPE: SERIAL NUMBER: 78246675 REGISTRATION NUMBER: 2828064 MARK: DERMSTORE DRAWING TYPE: TYPESET SERIAL NUMBER: 78251074 REGISTRATION NUMBER: 2868041 POSSIBLE DRAWING TYPE: TYPESET NUMBER: 78486226 REGISTRATION NUMBER: 3596510 MARK: MOJAVE DRAWING TYPE: STANDARD CHARACTER MARK 78550830 3131102 SERIAL NUMBER: REGISTRATION NUMBER: MARK: GLOW DRAWING TYPE: STANDARD CHARACTER MARK SERIAL NUMBER: 78554565 REGISTRATION NUMBER: 3122009 MARK: DELIVERING BEAUTY DRAWING TYPE: STANDARD CHARACTER MARK SERIAL NUMBER: 78554583 REGISTRATION NUMBER: 3122010 MARK: DELIVERING BEAUTY TO YOUR DOOR DRAWING TYPE: STANDARD CHARACTER MARK 78564873 3497010 SERIAL NUMBER: REGISTRATION NUMBER: MARK: REDPOINT DRAWING TYPE: STANDARD CHARACTER MARK 78724559 3525751 SERIAL NUMBER: REGISTRATION NUMBER: MARK: RAW COLOR . DRAWING TYPE: STANDARD CHARACTER MARK SERIAL NUMBER: 78835982 REGISTRATION NUMBER: 3514212 MARK: BEAUTY WITH INTELLIGENCE DRAWING TYPE: STANDARD CHARACTER MARK 78978471 3263290 SERIAL NUMBER: REGISTRATION NUMBER: MARK: REDPOINT DRAWING TYPE: STANDARD CHARACTER MARK FILING DATE: REGISTRATION FILING DATE: REGISTRATION AN ILLUSTRATION DRAWING WHICH INCLUDES FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION FILING DATE: REGISTRATION 12/10/2009 DATE: 09/13/2011 12/16/2009 DATE: 08/23/2011 05/07/2003 DATE: 03/30/2004 05/16/2003 DATE: 07/27/2004 09/20/2004 DATE: 03/24/2009 01/20/2005 DATE: 08/15/2006 01/26/2005 DATE: 07/25/2006 01/26/2005 DATE: 07/25/2006 02/10/2005 DATE: 09/02/2008 09/30/2005 DATE: 10/28/2008 03/13/2006 DATE: 10/07/2008 02/10/2005 DATE: 07/10/2007 Fe. [-51 [a 4781/0895 PAGE 5 ASSIGNMENT RECORDATION BRANCH PUBLIC RECORDS DIVISION I313 I13 2 "El. ['51 TRADEMARK ASSIGNMENT Electronic Version v1.1 Stylesheet Version v1.1 SUBMISSION TYPE: NEW ASSIGNMENT. NATURE OF COMVEYANCE: Termination and Release at Security Interest in Intellectual Property PARTY DATA Name Execution Date SRF Investments LLC 05/1112012 MITED LIABILITY ANY: DELAWARE RECEIVING PARTY DATA Name: . Inc. Address: 1 Rosecrans Avenue. Suite 1150 telCountty; IFORNIA Postal Code: 45 Entity RPORATION: DELAWARE Name: Street Address: Products. LLC 1 Rosecrans Avenue. Suite 1150 FORNIA 45 LIMITED LIABILITY COMPANY: DELAWARE PROPERTY NUMBERS Total: 36 Property Type I Number I Word Mark Registration Number: 3263290 REDPOINT Registration Number: 3525751 IRAW COLOR Registration Number: 3497010 REDPOINT Registration Number: 3122010 DELIVERING BEAUTY TO YOUR DOOR Registration Number: I 3122009 IDELIVERING BEAUTY Registration Number: I 3131102 IGLOW Registration Number: 3596510 IMOJAVE Registration Number: 2868041 IPOSSIBLE m. :11.21 UNITED STATES PATENT AND TRADEMARK OFFICE UNDER or COMMERCE ron PROPERTY AND or IHE UNHED PATENTAND TRADEMARK OFFICE MAY 18, 2012 PTAS 900223357 SUITE 500 MORRISVILLE, NC 27560 UNITED STATES PATENT AND TRADEMARK OFFICE NOTICE OF RECORDATION OF ASSIGNMENT DOCUMENT THE ENCLOSED DOCUMENT HAS BEEN RECORDED BY THE ASSIGNMENT RECORDATION BRANCH OF THE 0.8. PATENT AND TRADEMARK OFFICE. A COMPLETE COPY IS AVAILABLE AT THE ASSIGNMENT SEARCH ROOM ON THE REEL AND FRAME NUMBER REFERENCED BELOW. PLEASE REVIEW ALL INFORMATION CONTAINED ON THIS NOTICE. THE INFORMATION CONTAINED ON THIS RECORDATION NOTICE REFLECTS THE DATA PRESENT IN THE PATENT AND TRADEMARK ASSIGNMENT SYSTEM. IF YOU SHOULD FIND ANY ERRORS OR HAVE QUESTIONS CONCERNING THIS NOTICE, YOU MAY CONTACT THE ASSIGNMENT RECORDATION BRANCH AT 571?272-3350. PLEASE SEND REQUEST FOR CORRECTION T0: 0.5. PATENT AND TRADEMARK OFFICE, MAIL STOP: ASSIGNMENT RECORDATION BRANCH, P.O. BOX 1450, ALEXANDRIA, VA 22313. RECORDATION DATE: 05/17/2012 4781/0884 NUMBER OF PAGES: 5 BRIEF: TERMINATION AND RELEASE OF SECURITY INTEREST IN INTELLECTUAL PROPERTY DOCKET NUMBER: -327000?11568 JES ASSIGNOR: TRIPLEPOINT CAPITAL LLC DOC DATE: 05/09/2012 CITIZENSHIP: DELAWARE . ENTITY: LIMITED LIABILITY COMPANY ASSIGNEE: BRAND IDEAS, INC. CITIZENSHIP: DELAWARE ENTITY: CORPORATION 2301 ROSECRANS AVENUE, SUITE 1150 EL SEGUNDO, CALIFORNIA 90245 78835982 FILING DATE: 03/13/2006 REGISTRATION NUMBER: 3514212 REGISTRATION DATE: 10/07/2008 MARK: BEAUTY WITH INTELLIGENCE DRAWING TYPE: STANDARD CHARACTER MARK ASSIGNMENT RECORDATION BRANCH PUBLIC RECORDS DIVISION PO. Box 1450. Alexand?a, Virginia 223 ?54450 - TRADEMARK ASSIGNMENT Electronic Version v1.1 Stylesheet Version v1.1 SUBMISSION TYPE: NEW ASSIGNMENT NATURE OF Termination and Release of Security Interest in Intellectual Property GONVEYING PARTY DATA Correspondence will be sent to Me email address ?rst; if that :19 unsuccesle it will be sent via US Mail Phone: 9192868041 Email: Correspondent Name: Moore 8. Van Allen PLLC Address Line 1: 430 Davis Drive Address Line 2: Suite 500 Address Line 4: Morrisville, NORTH CAROLINA 27560 ATTORNEY DOCKET NUMBER: 327000-11568 JES NAME OF SUBMITTER: John E. SIaughter Signature: lJohn E. Slaughterl II Name Formerty Execution Date Entity Type . . . LIMITED LIABILITY Tnplepornt Capital LLC 05/09/2012 COMPANY: DELAWARE RECEIVING PARTY DATA Name: Brand Ideas, Inc. I ?ge'et Address: 2301 Rosecrans Avenue. Suite 1150 City: El? Segundo State/Country: CALIFORNIA I Postal Code: 90245 1 Entity Type: IEORPORATION: DELAWARE - PROPERTY NUMBERS Total: 1 Property Type I Number Word Mark Registration Number: 3514212 BEAUTY WITH INTELLIGENCE CORRESPONDENCE DATA . Fax Number: 9194168328 a ?l Tm! i. i 11.1 UNITED STATES PATENT AND TRADEMARK OFFICE UNDER SECRE1ARY or COMMERCE ron Pnopemmo Dmec TOR OF m5 UNITED Smes PATENT AND TRADEMARK OFFICE MAY 18, 2012 PTAS 900223359 SUITE 500 MORRISVILLE, NC 27560 UNITED STATES PATENT AND TRADEMARK OFFICE NOTICE OF RECORDATION OF ASSIGNMENT DOCUMENT THE ENCLOSED DOCUMENT HAS BEEN RECORDED BY THE ASSIGNMENT RECORDATION BRANCH OF THE U.S. PATENT AND TRADEMARK OFFICE. A COMPLETE COPY IS AVAILABLE AT THE ASSIGNMENT SEARCH ROOM ON THE REEL AND FRAME NUMBER REFERENCED BELOW. PLEASE REVIEW ALL INFORMATION CONTAINED ON THIS NOTICE. THE INFORMATION CONTAINED ON THIS RECORDATION NOTICE REFLECTS THE DATA PRESENT IN THE PATENT AND TRADEMARK ASSIGNMENT SYSTEM. IF YOU SHOULD FIND ANY ERRORS OR HAVE QUESTIONS CONCERNING THIS NOTICE, YOU MAY CONTACT THE ASSIGNMENT RECORDATION BRANCH AT 571?272-3350. PLEASE SEND REQUEST FOR CORRECTION TO: U.S. PATENT AND TRADEMARK OFFICE, MAIL STOP: ASSIGNMENT RECORDATION BRANCH, P.O. BOX 1450, ALEXANDRIA, VA 22313. RECORDATION DATE: 05/17/2012 4781/0911 NUMBER OF PAGES: 5 BRIEF: TERMINATION AND RELEASE OF SECURITY INTEREST IN INTELLECTUAL PROPERTY DOCKET NUMBER: 327000-11568 'Jas ASSIGNOR: CAPITAL LLC DOC DATE: 05/09/2012 CITIZENSHIP: DELAWARE ENTITY: LIMITED LIABILITY COMPANY ASSIGNEE: JOHNSON MARKETING GROUP, INC. CITIZENSHIP: NEVADA ENTITY: CORPORATION 2301 ROSECRANS AVENUE, SUITE 1150 - EL SEGUNDO, CALIFORNIA 902%5 SERIAL NUMBER: 75224016 FILING DATE: 01/10/1997 REGISTRATION NUMBER: 2248533 REGISTRATION DATE: 06/01/1999 MARK: MOJAVE DRAWING TYPE: TYPESET SERIAL NUMBER: 75422151 FILING DATE: 01/23/1998 REGISTRATION NUMBER: 2742176 REGISTRATION DATE: 07/29/2003 MARK: MOJAVE MAGIC DRAWING TYPE: TYPESET PO. Box 1450. Aloxandrla. 22313-1450 - USPTO.GOV 4781/0911 PAGE 2 FILING DATE: REGISTRATION SERIAL NUMBER: 76245173 REGISTRATION NUMBER: 2753828 MARK: LIQUID STOCKINGS DRAWING TYPE: TYPESET FILING DATE: REGISTRATION SERIAL NUMBER: REGISTRATION NUMBER: MARK: POSSIBLE DRAWING TYPE: TYPESET 78251074 2868041 FILING DATE: REGISTRATION SERIAL NUMBER: 78486226 REGISTRATION MARK: MOJAVE DRAWING TYPE: STANDARD CHARACTER MARK FILING DATE: REGISTRATION SERIAL NUMBER: 78564873 REGISTRATION NUMBER: 3497010 MARK: REDPOINT DRAWING TYPE: STANDARD CHARACTER MARK FILING DATE: REGISTRATION SERIAL NUMBER: 78978471 REGISTRATION NUMBER: 3263290 MARK: REDPOINT DRAWING TYPE: STANDARD CHARACTER MARK ASSIGNMENT RECORDATION BRANCH PUBLIC RECORDS DIVISION 04/09/2001 DATE: 08/19/2003 05/16/2003 DATE: 07/27/2004 09/20/2004 DATE: 03/24/2009 02/10/2005 DATE: 09/02/2008 02/10/2005 DATE: 07/10/2007 I TRADEMARK ASSIGNMENT Electronic Version v1.1 Stylesheel Version v1.1 SUBMISSION TYPE: NEW ASSIGNMENT NATURE OF CONVEYANCE: I Termination and Release of Security Interest in Intellectual Property CONVEYING PARTY DATA I Name WI Formeriy Execution Date Entity Type LIMITED LIABILITY Triplepoint Capital LLC 05/09/2012 DELAWARE RECEIVING PARTY DATA Name: Marketing . Inc. Address: 1 Rosecrans Avenue. Suite 1150 . Segundo telCountry: FORNIA Code: 45 I Entity RPORATION: NEVADA PROPERTY-NUMBERS Total: 7 Property Type Number I Word Mark Registration Number: 3263290 Eamon I Registration Number: 3497010 IIEDPOINT Registration Number: 3596510 I Registration Number: 2868041 I POSSIBLE I Registration Number: 2753828 LIQUID STOCKINGS I Registration Number: 2742176 MAGIC Registration Number: 2249533 MOJAVE CORRESPONDENCE DATA 1' r} Fax Number: 9194168328 Correspondence will be sent to the emarl? address ?rst; if that :16 unsuccessful, i! will be sent via US Mail. I. If?: Phone: 9192868041 Email: Correspondent Name: Moore Van Allen PLLC to; Address Line 1: 430 Davis Drive Ii?lil I- 17.1 UNITED STATES PATENT AND TRADEMARK UNDER SEOREIARV OF COMMERCE FOR PROPERTY-AND DIRECTOR OF me UNITED STATES PATENJ AND TRADEMARK OFFICE MAY 18, 2012 PTAS 900223361 SUITE 500 MORRISVILLE, NC 27560 UNITED STATES PATENT AND TRADEMARK OFFICE NOTICE OF RECORDATION OF ASSIGNMENT DOCUMENT THE ENCLOSED DOCUMENT HAS BEEN RECORDED BY THE ASSIGNMENT RECORDATION BRANCH OF THE U.S. PATENT AND TRADEMARK OFFICE. A COMPLETE COPY IS AVAILABLE AT THE ASSIGNMENT SEARCH ROOM ON THE REEL AND FRAME NUMBER REFERENCED BELOW. PLEASE REVIEW ALL INFORMATION CONTAINED ON THIS NOTICE. THE INFORMATION CONTAINED ON THIS RECORDATION NOTICE REFLECTS THE DATA PRESENT IN THE PATENT AND TRADEMARK ASSIGNMENT SYSTEM. IF YOU SHOULD FIND ANY ERRORS OR HAVE QUESTIONS CONCERNING THIS NOTICE, YOU MAY CONTACT THE ASSIGNMENT RECORDATION BRANCH AT 5717272-3350. PLEASE SEND REQUEST FOR CORRECTION TO: U.S. PATENT AND TRADEMARK OFFICE, MAIL STOP: ASSIGNMENT RECORDATION BRANCH, P.O. BOX 1450, ALEXANDRIA, VA 22313. RECORDATION DATE: 05/17/2012 4781/0918 NUMBER OF PAGES: 5 BRIEF: TERMINATION AND RELEASE OF SECURITY INTEREST IN INTELLECTUAL PROPERTY DOCKET NUMBER: 327000~11565 JES ASSIGNOR: TRIPLEPOINT CAPITAL LLC DOC DATE: 05/09/2012 CITIZENSHIP: DELAWARE ENTITY: LIMITED LIABILITY COMPANY ASSIGNEE: INTELLIGENT BEAUTY, LLC CITIZENSHIP: DELAWARE ENTITY: LIMITED LIABILITY COMPANY 2301 ROSECRANS AVENUE, SUITE 1150 EL SEGUNDO, CALIFORNIA 90425 SERIAL NUMBER: 77146594 FILING DATE: 04/02/2007 REGISTRATION NUMBER: 3559516 REGISTRATION DATE: 01/13/2009 MARK: IQ DRAWING TYPE: AN ILLUSTRATION DRAWING WHICH INCLUDES PO. Box 1450. Aluxandna. Virginia 22313-1450 - A ?3 13.1 4781/0918 PAGE 2 FILING DATE: 04/08/2007 REGISTRATION DATE: 12/01/2009 SERIAL NUMBER: 77151450 REGISTRATION NUMBER: 3719012 MARK: IQ DRAWING TYPE: AN ILLUSTRATION DRAWING WITH IN STYLIZED FORM FILING DATE: 05/04/2007 REGISTRATION DATE: 05/12/2009 SERIAL NUMBER: 77173366 REGISTRATION NUMBER: 3619920 MARK: RAW NATURAL BEAUTY DRAWING TYPE: STANDARD CHARACTER MARK FILING DATE: 05/04/2007 REGISTRATION DATE: 04/07/2009 SERIAL NUMBER: 77173408 REGISTRATION NUMBER: 3603161 MARK: RAWSKINCARE DRAWING TYPE: STANDARD CHARACTER MARK FILING DATE: 01/14/2008 REGISTRATION DATE: 04/14/2009 SERIAL NUMBER: 77371410 REGISTRATION NUMBER: 3607133 MARK: FIRMACEUTICALS DRAWING TYPE: STANDARD CHARACTER MARK FILING DATE: 04/29/2008 REGISTRATION DATE: 06/15/2010 SERIAL NUMBER: 77461309 REGISTRATION NUMBER: 3801603 MARK: IQ DERMA CLEAR REMEDY DRAWING TYPE: STANDARD CHARACTER MARK FILING DATE: 06/06/2008 REGISTRATION DATE: 07/07/2009 SERIAL NUMBER: 77492521 REGISTRATION NUMBER: 3649738 MARK: IQ DERMA DRAWING TYPE: STANDARD CHARACTER MARK FILING DATE: 07/01/2008 REGISTRATION DATE: 06/16/2009 SERIAL NUMBER: 77512955 REGISTRATION NUMBER: 3637991 MARK: SKINTENSIVE DRAWING TYPE: STANDARD CHARACTER MARK FILING DATE: 07/01/2008 REGISTRATION DATE: 10/04/2011 SERIAL NUMBER: 77512963. REGISTRATION NUMBER: 4035322 MARK: BEAUTY FIX DRAWING TYPE: AN ILLUSTRATION DRAWING WITH IN STYLIZED FORM FILING DATE: 09/12/2008 REGISTRATION DATE: 05/18/2010 SERIAL NUMBER: 77568903 REGISTRATION NUMBER: 3790902 MARK: BEAUTY FIX DRAWING TYPE: STANDARD CHARACTER MARK FILING DATE: 09/30/2005 SERIAL NUMBER: 78724559 . REGISTRATION DATE: 10/28/2008 REGISTRATION NUMBER: 3525751 MARK: RAW COLOR DRAWING TYPE: STANDARD CHARACTER MARK ASSIGNMENT RECORDATION BRANCH PUBLIC RECORDS DIVISION TRADEMARK ASSIGNMENT Electronic Version v1.1 Stylesheet Version v1.1 SUBMISSION TYPE: NEW ASSIGNMENT NATURE OF CONVEYANCE: Termination and Release of Security Interest in Intellectual Property CONVEYING PARTY DATA Name Execution Date Entity 12 MITED LIABILITY nplepornt Capital LLC DELAWARE RECEIVING PARTY DATA Name: . LLC Address: 1 Rosecrans avenue. Suite 1150 El Se FORNIA Postal Code: EntityT IMITED LIABILITY COMPANY: DELAWARE PROPERTY NUMBERS Total: 11 Property Type Number Word Mark Number. 4035322 BEAUTY FIX Registration Number: 3637991 SKINTENSIVE Registration Number: 3649738 IQ DERMA Registration Number: 3801603 to DERMA CLEAR REMEDY [Registration Number: 3790902 BEAUTY FIX Registration Number: 3525751 COLOR Registration Number: 3607133 FIRMACEUTICALS I Number. E03161 RAWSKINCARE Registration Nurnber: 3619920 RAW NATURAL BEAUTY Registration Number: ?5719012 IQ Registration Number: ?3559516 IQ - CORRESPONDENCE DATA Fax Number. 9194168328 UNDER SECRETARY OF Commence ma INTELLECTUAL Pnorenwnm DIRECTOR OF m2 Unnso Smes PATENT AND TRADEMARK OFFICE MAY 18, 2012 PTAS MOORE VAN ALLEN PLLC 430 DAVIS DRIVE SUITE 500 MORRISVILLE, NC 27560 900223362 UNITED STATES PATENT AND TRADEMARK OFFICE NOTICE OF RECORDATION OF ASSIGNMENT DOCUMENT THE ENCLOSED DOCUMENT HAS BEEN RECORDED BY THE ASSIGNMENT RECORDATION BRANCH OF THE 0.5. PATENT AND TRADEMARK OFFICE. A COMPLETE COPY IS AVAILABLE AT THE ASSIGNMENT SEARCH ROOM ON THE REEL AND FRAME NUMBER REFERENCED BELOW. PLEASE REVIEW ALL INFORMATION CONTAINED ON THIS NOTICE. THE INFORMATION CONTAINED ON THIS RECORDATION NOTICE REFLECTS THE DATA PRESENT IN THE PATENT AND TRADEMARK ASSIGNMENT SYSTEM. IF YOU SHOULD FIND ANY ERRORS OR HAVE QUESTIONS CONCERNING THIS NOTICE, YOU MAY CONTACT THE ASSIGNMENT RECORDATION BRANCH AT 571?272-3350. PLEASE SEND REQUEST FOR CORRECTION T0: 0.8. PATENT AND TRADEMARK OFFICE, MAIL STOP: ASSIGNMENT RECORDATION BRANCH, P.O. BOX 1450, ALEXANDRIA, VA 22313. RECORDATION DATE: 05/17/2012 4781/0926 NUMBER OF PAGES: 5 BRIEF: TERMINATION AND RELEASE OF SECURITY INTEREST IN INTELLECTUAL PROPERTY DOCKET NUMBER: JES ASSIGNOR: . TRIPLEPOINT CAPITAL LLC DOC DATE: 05/09/2012 CITIZENSHIP: DELAWARE ENTITY: LIMITED LIABILITY COMPANY ASSIGNEE: BLUSH MEDIA, LLC CITIZENSHIP: DELAWARE ENTITY: LIMITED LIABILITY COMPANY 2301 ROSECRANS AVENUE, SUITE 1150 - EL SEGUNDO, CALIFORNIA 90245 SERIAL NUMBER: 77487902 REGISTRATION NUMBER: 3850583 MARK: BLUSH DRAWING TYPE: STANDARD CHARACTER MARK FILING DATE: 05/30/2008 REGISTRATION DATE: 09/21/2010 ASSIGNMENT RECORDATION BRANCH PUBLIC RECORDS DIVISION P.O. Box 1450, Alexandria, 22313-1450 - USPTO.GOV ?11. 11?] . IT- TRADEMARK ASSIGNMENT Electronic Version v1.1 Stylesheet Version v1.1 SUBMISSION TYPE: NEW ASSIGNMENT NATURE OF CONVEYANCE: Termination and Release of Security Interest in intellectual Properly CONVEYING PARTY DATA Name Formerly IExecution Date I Entity Type . . . LIMITED LIABILITY Tnplepornl Capital LLC 0510912012 COMPANY: DELAWARE RECEIVING PARTY DATA Name: Blush Media, LLC Street Address: 2301 Rosecrans Avenue, Suite 1150 City: El Segundo StatelCountry: CALIFORNIA lPostal Code:' [90245 [guy Type: LIABILITY COMPANY: DELAWARE II PROPERTY NUMBERS Total: 1 Property Type Number Word Mark I Registration Number. 3850583 BLUSH I .1 CORRESPONDENCE DATA Fax Number: 9194168328 Correspondence Mil be sent ah the e-mail address ?rst; if that is unsuccessful: it m'll be sent via US Mail. Phone: 9192868041 Email: . Correspondent Name: Moore Van Allen PLLC Address Line 1: 430 Davis Drive Address Line 2: Suite 500 Address Line 4: Mom'sville, NORTH CAROLINA 27560 ATTORNEY DOCKET NUMBER: 327000-11568JES NAME OF SUBMITTER: John E. Slaughter Signature: [John E. Slaughter/ 11 SEE-.- 5132. Trig: UNITED STATES PATENT AND TRADEMARK OFFICE UNDER SECRETARY or COMMERCE FOR INTELLECTUAL PROFERWAND DIRECTOR or THE STATES PATENTAND TRADEMARK OFFICE MAY 18, 2012 PTAS MOORE VAN ALLEN PLLC 430 DAVIS DRIVE SUITE 500 MORRISVILLE, NC 27560 900223364 UNITED STATES PATENT AND TRADEMARK OFFICE NOTICE OF RECORDATION OF ASSIGNMENT DOCUMENT THE ENCLOSED DOCUMENT HAS BEEN RECORDED BY THE ASSIGNMENT RECORDATION BRANCH OF THE 0.5. PATENT AND TRADEMARK OFFICE. A COMPLETE COPY IS AVAILABLE AT THE ASSIGNMENT SEARCH ROOM ON THE REEL AND FRAME NUMBER REFERENCED BELOW. PLEASE REVIEW ALL INFORMATION CONTAINED ON THIS NOTICE. THE INFORMATION - CONTAINED ON THIS RECORDATION NOTICE REFLECTS THE DATA PRESENT IN THE PATENT AND TRADEMARK ASSIGNMENT SYSTEM. IF YOU SHOULD FIND ANY ERRORS OR HAVE QUESTIONS CONCERNING THIS NOTICE, YOU MAY CONTACT THE ASSIGNMENT RECORDATION BRANCH AT 571?272-3350. PLEASE SEND REQUEST FOR CORRECTION TO: U.S. PATENT AND TRADEMARK OFFICE, MAIL STOP: ASSIGNMENT RECORDATION BRANCH, P.O. BOX 1450, ALEXANDRIA, VA 22313. 4781/0957 NUMBER OF PAGES: 5 RECORDATION DATE: 05/17/2012 BRIEF: TERMINATION AND RELEASE OF SECURITY INTEREST IN INTELLECTUAL PROPERTY DOCKET NUMBER: 327000~11568 JES ASSIGNOR: TRIPLEPOINT CAPITAL LLC DOC DATE: 05/09/2012 CITIZENSHIP: DELAWARE ENTITY: LIMITED LIABILITY COMPANY ASSIGNEE: SENSA PRODUCTS. LLC CITIZENSHIP: DELAWARE ENTITY: LIMITED LIABILITY COMPANY 2301 EOSECRANS AVENUE, SUITE 1150 EL SEGUNDO, CALIFORNIA 90245 SERIAL NUMBER: 77388012 REGISTRATION NUMBER: 3613479 MARK: SENSA DRAWING TYPE: STANDARD CHARACTER MARK FILING DATE: 02/04/2008 REGISTRATION DATE: 04/28/2009 FILING DATE: 07/23/2008 REGISTRATION DATE: 03/03/2009 SERIAL NUMBER: 77529602 REGISTRATION NUMBER: 3583092 MARK: SENSA DRAWING TYPE: STANDARD CHARACTER MARK PO. Bo: 1450, Aluxandrla. Virgfma 22313-1450 - MWLUSPTO.GOV 1' 3% 4781/0957 PAGE 2 ASSIGNMENT RBCORDATION BRANCH PUBLIC RECORDS DIVISION TRADEMARK ASSIGNMENT Electronic Version v1.1 Stylesheet Version v1.1 SUBMISSION TYPE: NEW ASSIGNMENT NATURE OF CONVEYANCE: Termination and Release of Security Interest in Intellectual Property CONVEYING PARTY DATA Name Formerly lLExecution Date Entity Type . . . LIMITED LIABILITY Tnpiepomt Capite? LLC 0510912012 COMPANY: DELAWARE RECEIVING PARTY DATA Name: Sense Products. LLC Street Address: 2301 Rosecrans Avenue. Suite 1150 City: El Segundo State/Country: CALIFORNIA Postal Code: L90245 IEntity Type: IMMTED LIABILITY COMPANY: DELAWARE PROPERTY NUMBERS Total: 2 Property Type Number 7 Word Mark ,3 Registration Number: 3583092 7 SENSA 5, Registration Number: 3613479 I SENSA i CORRESPONDENCE DATA Fax Number: 9194168328 Correspondence val/be sent to the e?ma? address [1731; if that is unsuccessml, it will be sent w?a US Mail. Phone: 9192868041 Email: Correspondent Name: Moore Van Allen PLLC Address Line 1: 430 Davis Drive Address Line 2: Suite 500 Address Line 4: Morrisville. CAROLINA 27560 ATTORNEY DOCKET NUMBER: 327000-11568 JES NAME OF SUBMITTER: John E. Slaughter {1.11 E3 11 1.. I 1 UNITED STATES PATENT AND TRADEMARK OFFICE UNDER OF Commence FOR INTELLECTUAL PROPERTY mm DIRECTOR or THE Unneo PATENT mo Tunme OFFICE MAY 18, 2012 PTAS MOORE a VAN ALLEN PLLC 430 DAVIS DRIVE SUITE 500 MORRISVILLE, NC 27560 '501923827 UNITED STATES PATENT AND TRADEMARK OFFICE NOTICE OF RECORDATION OF ASSIGNMENT DOCUMENT THE ENCLOSED DOCUMENT HAS BEEN RECORDED BY THE ASSIGNMENT RECORDATION BRANCH OF THE 0.3. PATENT AND TRADEMARK OFFICE. A COMPLETE COPY IS AVAILABLE AT THE ASSIGNMENT SEARCH THE REEL AND FRAME NUMBER REFERENCED BELOW. PLEASE REVIEW ALL INFORMATION CONTAINED ON THIS NOTICE. THE INFORMATION CONTAINED ON THIS RECORDATION NOTICE REFLECTS THE DATA PRESENT IN THE PATENT AND TRADEMARK ASSIGNMENT SYSTEM. IF YOU SHOULD FIND ANY ERRORS OR HAVE QUESTICNS CONCERNING THIS NOTICE, YOU MAY CONTACT THE ASSIGNMENT RECORDATION BRANCH AT 571-272-3350. PLEASE SEND REQUEST FOR CORRECTION TO: U.S. PATENT AND TRADEMARK OFFICE, MAIL STOP: ASSIGNMENT RECORDATION BRANCH, P.O. BOX A1450, ALEXANDRIA, VA 22313. 028224/0179 NUMBER OF PAGES: 5 RECORDATION DATE: 05/17/2012 BRIEF: TERMINATION AND RELEASE OF SECURITY INTEREST IN INTELLECTUAL PROPERTY DOCKET NUMBER: 327000-11563 JES ASSIGNOR: TRIPLEPOINT CAPITAL LLC DOC DATE: 05/09/2012 ASSIGNEE: SENSA.PRODUCTS, LLC 2301 ROSECRANS AVENUE, SUITE 1150 EL SESUNDO, CALIFORNIA 90425 FILING DATE: 11/14/1995 ISSUE DATE: 06/02/1998 METHOD OF ALTERING PERCEPTION OF RELATIVE SPACE OF AN AREA. APPLICATION NUMBER: 08557528 PATENT NUMBER: 5759521 TITLE: APPLICATION NUMBER: 08606544 PATENT NUMBER: 5885614 TITLE: FILING DATE: 02/23/1996 ISSUE DATE: 03/23/1999 USE OF ODORANTS TO TREAT MALE IMPOTENCE, AND ARTICLE OF MANUFACTURE THEREFOR APPLICATION NUMBER: 08610730 PATENT NUMBER: 5904916 TITLE: FILING DATE: 03/05/1996 ISSUE DATE: 05/18/1999 NSE 0F ODORANTS TO ALTER LEARNING CAPACITY RC. 80:: 1450. Alexandria. Virginia 22313-1450 - 11? 1 I 023224/0179 PAGE 2 APPLICATION NUMBER: 08870160 FILING DATE: 06/06/1997 PATENT NUMBER: 6106837 ISSUE DATE: 08/22/2000 TITLE: METHOD OF TREATING HEADACHES, AND ARTICLE OF MANUFACTURE THEREFOR I APPLICATION NUMBER: 09211507 FILING DATE: 12/14/1998 PATENT NUMBER: 7067162 ISSUE DATE: 06/27/2006 TITLE: USE OF ODORANTS TO ALTER BLOOD FLOW TO THE VAGINA APPLICATION NUMBER: 09707655 FILING DATE: 11/07/2000 PATENT NUMBER: 7103372 ISSUE DATE: 09/19/2006 TITLE: USE OF ODORANTS To ALTER BLOOD FLOW To THE VAGINA, AND ARTICLE OF MANUFACTURE THEREOF APPLICATION NUMBER: 10306198 . FILING DATE: 11/27/2002 PATENT NUMBER: 8143062 ISSUE DATE: 03/27/2012 TITLE: METHOD AND COMPOSITION FOR ENHANCING WEIGHT LOSS APPLICATION NUMBER: 10690791 FILING DATE: 10/22/2003 PATENT NUMBER: ISSUE DATE: TITLE: METHOD OF ALTERING WEIGHT PERCEPTION APPLICATION NUMBER: 11200542 FILING DATE: 08/09/2005 PATENT NUMBER: ISSUE DATE: TITLE: METHOD OF ALTERING AGE PERCEPTION APPLICATION NUMBER: 11617039 FILING DATE: 12/28/2006 PATENT NUMBER: 7838486 ISSUE DATE: 11/23/2010 TITLE: METHOD OF ENHANCING SPORTS SCORES ASSIGNMENT RECORDATION BRANCH PUBLIC RECORDS DIVISION 1.77.731 11:3 Iii} I PATENT ASSIGNMENT I Electronic Version v1.1 Stylesheet Version v1.1 SUBMISSION TYPE: NEW ASSIGNMENT NATURE OF CONVEYANCE: Termination and Release of Securin Interest in Intellectual Property CONVEYING PARTY DATA [Tn'plepoint Capital LLC Name I Execution Date RECEIVING PARTY DATA Address: El State/Country: Name: Sensa Products. LLC 1 Rosecrans Avenue, Suite 1150 FORNIA Postal Code: 25 PROPERTY NUMBERS Total: 10 I'o'nY-l? I via US Mar]. Property Type Number Patent Number: 8143062 Patent Number: 7838486 Patent Number: 7108872 Patent Number: 7067162 Patent Number: 6106837 Patent Number: 5904916 Patent Number: 5885614 Patent Number. 5759521 Application Number: 11200542 Application Number: 10690791 CORRESPONDENCE DATA Fax Number: (919)416-8328 Phone: 9192868041 Email: Correspondence the sen! to the e?mail address ?rst; if (ha! is unsuccessful, it w?l be sent - i. UNITED STATES PATENT AND TRADEMARK OFFICE UNDER SECRETARV OF COMMERCE 50R Paupenwmo DIRECTOR OF THE Umreo STATES Pmam AND OFFICE MAY 18, 2012 PTAS MOORE VAN ALLEN PLLC 430 DAVIS DRIVE SUITE 500 MORRISVILLE, NC 27560 501923834 UNITED STATES PATENT AND TRADEMARK OFFICE NOTICE OF RECORDATION OF ASSIGNMENT DOCUMENT THE ENCLOSED DOCUMENT HAS BEEN RECORDED BY THE ASSIGNMENT RECORDATION BRANCH OF THE U.S. PATENT AND TRADEMARK OFFICE. A COMPLETE COPY IS AVAILABLE AT THE ASSIGNMENT SEARCH ROOM ON THE REEL AND FRAME NUMBER REFERENCED BELOW. PLEASE REVIEW ALL INFORMATION CONTAINED ON THIS NOTICE. THE INFORMATION CONTAINED ON THIS RECORDATION NOTICE REFLECTS THE DATA PRESENT IN THE PATENT AND TRADEMARK ASSIGNMENT SYSTEM. IF YOU SHOULD FIND ANY ERRORS OR HAVE QUESTIONS CONCERNING THIS NOTICE, YOU MAY CONTACT THE ASSIGNMENT RECORDATION BRANCH AT 571?272-3350. PLEASE SEND REQUEST FOR CORRECTION T0: U.S. PATENT AND TRADEMARK OFFICE, MAIL STOP: ASSIGNMENT RECORDATION BRANCH, P.O. BOX 1450, ALEXANDRIA, VA 22313. 02822470152 NUMBER OF PAGES: 5 RECORDATION DATE: 05/17/2012 BRIEF: TERMINATION AND RELEASE OF SECURITY INTEREST IN INTELLECTUAL PROPERTY DOCKET NUMBER: 327000-11568 JES ASSIGNOR: TRIPLEPOINT CAPITAL LLC DOC DATE: 05/09/2012 ASSIGNEE: SCIENCE OF SMELL, LLC 2301 ROSECRANS AVENUE, SUITE 1150 EL SEGUNDO, CALIFORNIA 90425 APPLICATION NUMBER: 08606544 FILING DATE: 02/23/1996 PATENT NUMBER: 5885614 . ISSUE DATE: 03/23/1999 TITLE: USE OF ODORANTS TO TREAT MALE IMPOTENCE, AND ARTICLE OF MANUFACTURE THEREFOR APPLICATION NUMBER: 09211507 FILING DATE: 12/14/1998 PATENT NUMBER: 7067162 ISSUE DATE: 06/27/2006 TITLE: USE OF ODORANTS T0 ALTER BLOOD FLOW TO THE VAGINA APPLICATION NUMBER: 09707655 FILING DATE: 11/07/2000 PATENT NUMBER: 7108872 ISSUE DATE: 09/19/2006 TITLE: USE OF ODORANTS TO ALTER BLOOD FLOW TO THE VAGINA, AND ARTICLE OF MANUFACTURE THEREOF PO. Box 1450. Alexandria. Virginia 22313-1450 - 1 {5.21 AL . 028224/0152 PAGE 2 APPLICATION NUMBER: 10306198 FILING DATE: 11/27/2002 PATENT NUMBER: 8143062 ISSUE DATE: 03/27/2012 TITLE: METHOD AND COMPOSITION FOR ENHANCING WEIGHT LOSS APPLICATION NUMBER: 10690791 FILING DATE: 10/22/2003 PATENT NUMBER: ISSUE DATE: TITLE: METHOD OF ALTERING WEIGHT PERCEPTION ASSIGNMENT RECORDATION BRANCH PUBLIC RECORDS DIVISION .. PATENTASSIGNMENT Electronic Version v1.1 Stylesheet Version v1.1 SUBMISSION TYPE: NEW ASSIGNMENT NATURE OF CONVEYANCE: Termination and Release of Security Interest in Intellectual Property CONVEYING PARTY DATA Name ExecutionDate I Irriptepoint Capital LLC RECEIVING PARTY DATA Name: of Smell, LLC Address: 1 Rosecrans Avenue, Suite 1150 FORNIA Postal Code: 25 PROPERTY NUMBERS Total: 5 .r T. [-33 Property Type Patent Number: 8143062 a Patent Number: 7108872 Patent Number: 7067162 Patent Number: 5885614 Application Number: 10690791 CORRESPONDENCE DATA Fax Number.? (919)416-8328 Phone: . 9192868041 Email: Correspondence be sent to the e?ma? address ?rst; if that is unsuccessM, ii be sent via US M317. Correspondent Name: Moore Van Allen PLLC Address Line 1: 430 Davis Drive Address Line 2: Suite 500 Address Line 4: Morrisville, NORTH CAROLINA 27560 ATTORNEY DOCKET NUMBER: 327000-11568 JES I EXHIBIT 5 ORBEARANCE AGREEMENT This Forbearance Agreement (?Agreement?) is entered into as of the 18th day of December, 2013, and is made by and between Bank of America, NA. (?Lender?), on the one hand; and Sensa, Inc., formerly knownas Intelligent Beauty, Inc., a Delaware corporation (?Borrower?), on the other hand. This Agreement is made with reference to the following facts: A. Borrower and Lender are parties to that certain ?Credit Agreement? dated as of May 11, 2012 (as amended and modi?ed from time to time, the ?Credit Agreement?). All capitalized terms not otherwise de?ned herein have the meanings given for said terms in the Credit Agreement. B. In accordance with the Credit Agreement, Lender made available to Borrower a term loan in the original principal amount of $10,000,000.00 (the ?Term Loan?) and a revolving line of credit up to the principal amount of $15,000,000.00 (the ?Revolving Loan? and, together with the Term Loan, the ?Loans?). C. In order to guaranty Borrower?s Obligations under the Credit Agreement, Sensa Products, LLC, a Delaware limited liability company (?Sensa Products?), and Brand Ideas, LLC, a Delaware limited liability company (?Brand Ideas? and, collectively, with Sensa Products, ?Guarantors?), pursuant to Article IV of the Credit Agreement, each of the Guarantors, jointly, severally and unconditionally guaranteed and promised to pay Lender, on demand, any and all Obligations owed by Borrower to Lender under the Credit Agreement (collectively, the ?Guaranties?). D. In order to secure their respective obligations under the Credit Agreement, Loan Parties each executed and delivered to Lender that certain ?Security Agreement? dated as of May 1 1, 2012 (as amended and modi?ed from time to time, the ?Security Agmement?). Pursuant to the Security Agreement, Loan Parties each granted toLender a security interest in all collateral described in the Security Agreement, including, among other things, all inventory, machinery, ?xtures, deposit accounts, instruments, chattel paper, accounts, accounts receivable, rights to payment and general intangibles (each as defined in the Security Agreement), together with all accessions, additions, replacements, and substitutions relating to any of the foregoing; all recOrds of any kind relating to any of the foregoing; and all proceeds relating to any of the foregoing (including insurance, general intangibles and other accounts proceeds) (collectively, the ?Business Assets?). Lender perfected its security interest in the Business Assets by duly recording multiple Financing Statements with the Of?ce of the Secretary of State of Delaware (collectively, and as amended and/or continued from time to time the ?Financing Statements?). E. In order to secure their respective obligations under?the Credit Agreement, Loan Parties each granted to Lender a security interest in certain patents, trademarks and other intellectual prOperty (collectively, the Assets?). Lender perfected its security interest in the IP Assets by duly recording the Financing Statements and? by duly recording multiple notices of I recordation and assignment documents (as amended and/or continued from time to time the Filings?) with the United States Patent And Trademark Of?ce (the F. In order to secure their respective obligations under the Credit Agreement, Loan Parties executed and delivered to Lender that certain ?Pledge Agreement? dated as of May 11, US_l0008967lv6_213955-00169 12/18/2013 2:13 PM 2012 (as amended and modi?ed from time to time, the ?Pledge Agreement?). Pursuant to the Pledge Agreement, Loan Parties each granted to Lender a security interest in certain pledged securities more particularly described in the Pledge Agreement (collectively, the ?Pledged Shares?). Lender perfected its security interest in the Pledged Shares by taking possession of the original certi?cates evidencing the Pledged Shares. . G. In connection with the Credit Agreement, Subordinated Indebtedness Holders each executed and delivered to Lender the Subordination Agreement. Pursuant to the Subordination Agreement, each of the Subordinated Indebtedness Holders subordinated the Subordinated Indebtedness (in the principal amount not to exceed $10,000,000.00) owing from Loan Parties to the Subordinated Indebtedness Holders to the senior Obligations owing from Loan Parties to Lender under the Credit Agreement. H. In addition to the Credit Agreement, the Security Agreement, the Financing Statements, the PTO Filings, the Pledge Agreement and the Subordination Agreement, the Loans are also evidenced by other documents, instruments and agreements executed by Loan Parties in connection with the Loans (collectively, with the Credit Agreement and this Agreement, the ?Loan Documents?). I. The Loan Documents specifically include all documents, instruments and agreements (collectively, the ?Credit Card Documents?) whereby Lender provided to Borrower a credit card services facility (the ?Credit Card Facility?). - J. The Loan Documents speci?cally include all documents, instruments and agreements (collectively, the ?Purchase Card Documents?) whereby Lender provided to Sensa? Products a purchase card services facility (the ?Purchase Card Facility"). K. Lender has advanced funds to Borrower pursuant to the Credit Agreement and the other Loan Documents, and Lender has performed all other terms and conditions of the Credit Agreement and the other Loan Documents on its part to be performed. L. The following Events of Default have occurred and are continuing, and may occur during the Forbearance Period (as defined below), uncured, under the Credit Agreement: Borrower?sNon-compliance with the Consolidated Fixed Charge Coverage Ratio covenant Covenant?) for the reporting period ending December 31, 2012, and all reporting periods thereafter, including and throughout the Forbearance Period, in violation of Sections 8.11 and 9.01(b) of the Credit Agreement; (ii) Borrower?s Non-compliance with the Minimum Consolidated covenant Covenant?) for the reporting period ending December 31, 2012 and all reporting periods thereafter, including and throughout the Forbearance Period, in violation of Sections 8.11 and 9.01 of the Credit Agreement; and Holdings failure to deliver audited ?nancial statements and other required ?nancial reports by May 31, 2013, in violation of Sections 7.01 and 9.01(c) of the Credit Agreement (collectively, the ?Existing Defaults?). M. Loan Parties have requested that Lender temporarily forbear from exercising any remedies under the Loan Documents as to the Existing Defaults, and that Lender amend certain terms and provisions of the Loan Documents, as set forth herein. 2:13 PM T. 1111'. if. If." N. Lender is willing to temporarily forbear from exercising any remedies under the Loan Documents as to the Existing Defaults, and to amend certain terms and provisions of the Loan Documents, only in accordance with this Agreement. 0. IT IS THE INTENT OF THE PARTIES HERETO THAT THIS AGREEMENT ADDRESS THE DEBTS OBLIGATIONS OF LOAN PARTIES TO LENDER WHICH ARE FULLY DESCRIBED HEREIN AND REFLECTED IN THE LOAN DOCUMENTS. THIS AGREEMENT DOES NOT TO THE OTHER CREDIT FACILITIES, INDEBTEDNESS OR OBLIGATIONS OF LOAN PARTIES TO LENDER NOT SPECIFICALLY ADDRESSED IN THIS AGREEMENT. ALL TERMS AND PROVISIONS OF THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS NOT SPECIFICALLY MODIFIED HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT IN ACCORDANCE WITH THEIR ORIGINAL TERMS. NOW, THEREFORE, in consideration of: the above recitals and the mutual promises contained in this Agreement; (ii) the eXecution of this Agreement; the satisfaction bf all Conditions Precedent set forth in Section below; and for other and further valuable consideration, the receipt and suf?ciency of which is hereby acknowledged, it is hereby agreed as follows: I. Incorporation of Recitals. Each of the foregoing Recitals is incorporated herein by this reference, and the parties agree that each of such Recitals is true and correct in all respects. II. Effective Date of Agreement. This Agreement shall be deemed effective as of December 18, 2013 (the ?Effective Date?), regardless of the date of execution of this Agreement, subject to the timely and complete satisfaction of each and all of the Conditions Precedent set forth in Section below. Acknowledgment of the Loan Documents and the Obligations. A. Execution of the Loan Documents. Loan Parties each acknowledge and agree that Loan Parties have executed, among others, the following Loan Documents, true and correct copies of which are attached hereto as exhibits and are incorporated herein by this reference, as follows: 1. Credit Agreement Exhibit 2. Security Agreement Exhibit 3. Pledge Agreement (Exhibit 4. Credit Card Documents 5. Purchase Card Documents (Exhibit and 6. Subordination Agreement (Exhibit Enforceabilitv of the Loan Documents. Loan Parties each expressly acknowledge and agree that: Loan Parties agreed to repay all amounts advanced by Lender to Loan Parties pursuant to the Loan Documents, together with interest thereon at the applicable rates set forth in 3955-00169 12/18/2013 21l3 PM if. . 32:1 the Loan Documents, together with all applicable fees and charges set forth in the Loan Documents; (ii) the Existing Defaults have occurred and are continuing under the Loan Documents as set forth in the Recitals above; the Loan Documents have not been amended except as set forth herein; (iv) the Loan Documents constitute duly authorized, valid, binding and continuing Agreements and obligations of Loan Parties to Lender, enforceable in accordance with their terms; and none of the Loan Parties has any claims, cross?claims, counterclaims, setoffs or defenses of any kind or nature which would in any way reduce or offset their reSpective obligations to Lender under the Loan Documents as of the date of execution of this Agreement. C. The Collateral. Loan Parties each expressly acknowledge and agree that: the Security Agreement, the Financing Statements, the PTO Filing, the Pledge Agreement, delivery of the Pledged Shares and the other Loan Documents provide Lender with duly authorized, valid, binding, continuing and perfected, security'interests in the Business Assets, the 1P Assets and the Pledged Shares (collectively, the ?Collateral?); (ii) such perfected security interests in the Collateral were granted to Lender for purposes of securing the Obligations and Loan Parties? continuing obligations to Lender under the Loan Documents; and Loan Parties have no claims, counterclaims, cross-claims, setoffs or defenses of any kind or nature which would in any way invalidate, result in the subordination of, delay the execution of, or otherwise negatively impact the security interests granted to Lender in the Collateral as of the date of execution of this Agreement. D. The Obligations. Loan Parties each expressly acknowledge and agree that by virtue of the Loan Documents, there is presently a balance on the Loans outstanding from Loan Parties to Lender in the following amounts as of December 18, 2013 (the ?Obligations?): 0 Term Loan principal: $5,833,335.00; 0 Term Loan interest: 37,636.99; 0 Revolving Loan principal: $14,466,666.00; Revolving Loan interest: 97,894.52; and 0 Fees costs for both Loans: 75,545.00. Loan Parties each expressly acknowledge and agree that interest on both Loans continues to accrue on and after December 18, 2013; as well as all other fees, costs and additional charges due under the terms of this Agreement, the Credit Agreement and any of the other Loan Documents, including but not limited to all of Lender?s reasonable outside counsel?s attomeys? fees and costs; together with all other reasonable fees, costs and other amounts owing. In addition, Loan Parties each expressly acknowledge and agree that the Obligations include all indebtedness, liabilities and other amounts owed by Loan (Parties under the Credit Card Facility and the Purchase Card Facility. IV. Limited Scope of Agreement. Nothing contained in this Agreement shall be interpreted as or be deemed a release or a waiver by Lender of any of the terms or conditions of the Credit Agreement, the other Loan Documents, or any other documents, instruments and/or agreements US_l0008967iv6_213955:00169 12/13/20? 2:13 PM between the parties hereto except as speci?cally provided in this Agreement. Unless speci?cally modi?ed herein, all other terms and provisions of the Credit Agreement and the other Loan Documents shall remain in full force and effect in accordance with their original terms. This Agreement does not constitute a waiver or release by Lender of any obligations between any Loan Party and Lender, nor a waiver by Lender of any defaults by Loan Parties under any of the Loan Documents, unless expressly so provided herein, nor between Lender and any other person or entity. V. Lender?s Agreement To Forbear During Forbearance?Period. Subject to Loan Parties? satisfaction of all Conditions Precedent set forth in Section below; and so long as no New Event of Default (as de?ned below) occurs: A. Subject to Section immediately below, Lender hereby agrees to forbear from exercising its remedies solely as to existence and continuation of the Existing Defaults through the close of business on May 12, 2014 (the ?Forbearance Period?). B. Loan Parties each acknowledge and agree that immediately after the Forbearance Period expires, or upon the occurrence of a New Event of Default (as described below), Lender may, without further notice, exercise all of the rights and remedies contained in this Agreement, in the Credit Agreement, in any of the other Loan Documents, and available under applicable law, without further notice. VI. No Waiver. The agreement of Lender under Section of this Agreement to conditionally forbear from exercising its remedies as to the Existing Defaults throughout the Forbearance Period shall not constitute a waiver of any of the Existing Defaults. Lender hereby expressly reserves all of its rights and remedies in connection with the Existing Defaults, subject to the terms of this Agreement. VII. Amendments to the Credit Agreement: Additional Covenants. As additional consideration for Lender entering into this Agreement, Lender and Loan Parties each agree that: the following provisions of the Credit Agreement are hereby permanently modi?ed; provided, however, that all terms and provisions of the Credit Agreement not speci?cally modi?ed in this Agreement shall remain in full force and effect in accordance with their original terms; (ii) to the extent not already contained in the Credit Agreement, the following additional covenants are hereby added to the Credit Agreement; and all of the amendments, modi?cations and new covenants provided below shall survive the expiration of the Forbearance Period and shall remain in full force and effect until all of the Obligations are repaid in full, except as otherwise set forth below: A. New De?nition of ?Borrower?. The de?nition of ?Borrower? throughout the Credit Agreement and the other Loan Documents is hereby changed from ?lntelli gent Beauty, - Inc.? to ?Sensa, Inc.?. B. New De?nition of ?Obligations? The following new clause is added to the last sentence in the de?nition of ?Obligations? throughout the Credit Agreement and the other Loan Documents: ?and all obligations under any credit card agreements, purchase card agreements and similar credit facilities between any Loan Party and the Lender.? US_10003967lv6_213955-00169 12118/2013 22l3 PM 117,21 C. Additional De?nitions. The following additional de?nitions are hereby added to Section 1.01 of the Credit Agreement in their appropriate alphabetical order: ?Capital Expenditures?: means, for any period, with respect to Loan Parties, the aggregate of all expenditures (whether paid in cash or other consideration or accrued as a liability and including that portion of Capital Lease obligations which is capitalized on the balance sheet of Loan Parties) during such period for the acquisition or leasing (pursuant to a Capital Lease) of ?xed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) that, in conformity with GAAP, are included in ?additions to property, plant or equipment? or comparable items re?ected in the consolidated statement of cash ?ows of Loan Parties. ?Forbearance Amement? means that certain ?Forbearance Agreement? dated as of December 18, 2013, by and between Borrower, Lender and the other Loan Parties signatory thereto, as amended from time to time. ?Forbearance Period? has the meaning given for said term in the Forbearance Agreement. ?Minimum Liquidity Covenant? has the meaning set forth in Section D. RevolvingCommitrnent Eliminated. The ?Revolving Commitment?, as de?ned in Section 1.01 of the Credit Agreement, is hereby permanently eliminated. For the avoidance of doubt, no Revolving Loans, advances, issuances of Letters of Credit or other extensions of credit may be requested by Borrower or shall be made by Lender. E. Chang?m Interest Rates. Notwithstanding any other term or provision contained in this Agreement, the Credit Agreement or the other Loan Documents, all Loans shall accrue interest at 2.5% above Lender?s ?prime rate?, as ?prime rate? is de?ned in Section 1.01 of the Credit Agreement, until all Obligations are paid in full. F. Change in Default Rate. Notwithstanding any other term or provision contained in the Credit Agreement, the applicable margin of per annum? set forth in the de?nition of ?Default Rate? in Section 1.1 of the Credit Agreement is hereby amended to be per annum?, until all Obligations are paid in full. G. Additional Financial Statements. Immediately following Section 7.01(e) of the Credit Agreement, a new Section 7.0] is hereby added as follows: morting Remrements. Notwithstanding any provision contained in Sections 7.01(a) through inclusive, so long as any Loan or other Obligations hereunder shall remain unpaid or unsatis?ed, the Loan Parties shall and shall cause each Subsidiary to provide Lender with the following ?nancial reports on a instead of quarterly-- basis: Loan Parties? interim co-prepared consolidated ?nancial statements and compliance certi?cate; and (ii) all ?nancial statements (including budget to actual comparisons) and compliance certi?cates within thirty (30) days after each month?s end, including a budget to actual comparison with variances explained, all in form and substance satisfactory l2/18/2013 2.13 PM . to Lender and its counsel. Borrower shall also deliver to Lender a 2014 forecast by no later. than December 31, 2013. H. Additional Restricted Paments. Immediately following Section 8.06(d) of the Credit Agreement, a new Section 8.06(e) is hereby added as follows: No Distributions/Dividends during Forbeagance PeriOd. Notwithstanding any provision contained in Sections 8.06(a) through inclusive, no Loan Party 7 shall, nor shall it permit any Subsidiary to, directly or indirectly, declare or make any loans, advances, dividends, distributions, payments, capital returns or any other amounts whatsoever to any owner, insider or Af?liate (including, but not limited to, Dr. Hirsch) during the Forbearance Period; provided, however, that so long as an Event of Default has not occurred, Loan Parties shall be permitted to make advances to Dr. Hirsch in an amount not to exceed $150,000.00 per month. I. Suspension of inancial Covenants during Forbearance Period. During the Forbearance Period only, Loan Parties shall not be required to comply with the CCR Covenant or the EBITDA Covenant contained in Sections 8.11(a) and of the Credit Agreement. J. Minimum Liquidity Covenant. Immediately following Section of the Credit Agreement, a new Section 8.1 is hereby added as follows: Minimum Liquidity Covenant. Permit the aggregate cash balance in Borrower?s and Sensa Products, deposit accounts at Lender to fall below $3,600,000.00 at any time, as measured on a basis at the end of each calendar month.? K. Additional Negative Covenants. Immediately following Section 8.15 of the Credit Agreement, the following new sections 8.16 and 8.17 are hereby added in consecutive order: ?8.16 One-Time Charges. Create, incur, assume or suffer to exist any obligation (contingent or otherwise) or expend any funds for legal work, consulting work, clinical studies or severance for of?cers, solely in connection with or related to the FTC Settlement (as de?ned below), which exceeds $2,900,000.00, in the aggregate for ?scal 3Q2013 and ?scal 4Q2013. 8.17 Capital Expenditures. Create, incur, assume or suffer to exist any obligation any obligation (contingent or otherwise) or expend any funds for Capital Expenditures, which exceeds $250,000.00 for ?scal 3Q2013 and $170,000.00 for ?scal Reduction in Credit Card Facility. The Credit Card Documents are hereby modi?ed such that Borrower?s maximum credit card limit is hereby reduced to $300,000.00. IX. Reduction in Purchase Card Facility. The Purchase Card Documents are hereby modi?ed such that Sensa Products? maximum purchase limit is hereby reduced to $1,000,000.00. US_l0008967lv6_213955-00169 12/18/2013 2:13 PM ii. {it 1234 X. Other Covenants and Agreements. As additional consideration for Lender to enter into this Agreement, Lender and Loan Parties agree to the following covenants and agreements: A. FTC Settlement. Any payments required to be made by Loan Parties under their - settlement with the Federal Trade Commission Settlement?) shall be paid in full within ten (10) calendar days after the order approving the FTC Settlement is entered by the United States District Court for the Northern District of Illinois. B. Sale of Dermstore/Minimum Proceeds. Borrower shall provide to Lender evidence satisfactory to Lender in its reasonable discretion that the proceeds from the sale of Dermstore, LLC (?Dermstore Proceeds?) are suf?cient to pay the FTC Settlement. All Dermstore Proceeds shall be held in a segregated escrow account at the law ?rm of Kelley Drye and shall be used solely for payment of the FTC Settlement. C. Payment of Class Action Claims. Borrower shall provide to Lender evidence satisfactory to Lender in its reasonable discretion, of the final payment of all class action claims, demands and lawsuits pertaining to orrea v. Sensa Products, LLC and any and all related actions (the ?Class Actions?), by no later than February 28, 20l4. D. Clinical Studies. Borrower shall provide Lender with evidence of completion of clinical studies supporting Borrower?s satiety claims on or before February 15, 2014. E. Issuance of Sub-Debt. Borrower shall commence a process by which it will raise at least $10,000,000 in subordinated debt from its Af?liate, IB Holding, LLC. in either one or two tranches, by no later than January 31, 2014 provided. however, that: the Sub?Debt must be loaned from IBH to Borrower; and (ii) the Sub-Debt shall be deeply subordinated, both contractually and collaterally (and including all bankruptcy or insolvency proceedings), to all Obligations owed by Borrower to Lender. For the avoidance of doubt, Borrower and IBH shall each agree that: no principal, interest or other amounts in connection with the Sub-Debt will be permitted until all principal, interest, fees and costs owing from Borrower to Lender are paid in full: (ii) the Sub-Debt will clearly be in second position behind Lender?s Loans to Borrower; IBH will not be permitted to take any collection or foreclosure action, even in a default or bankruptcy of Borrower-- only Lender will be permitted to enforce rights; (iv) the Sub-Debt'will not be assignable by Borrower or and Borrower, Lender and IBH will enter into an Intercreditor Agreement satisfactory to Lender, in its sole and absolute discretion, re?ecting these terms. F. Waiver of Negative Covenants in Connection with Issuance of the Sub-Debt. So long as the Sub-Debt is obtained during the Forbearance Period in accordance with Section above, Lender will waive the mandatory prepayment provisions contained in Section of the Credit Agreement, such that Borrower will not be required, at issuance, to prepay the Loans with 100% of the net cash proceeds received in connection with the Sub-Debt. Furthermore, Lender agrees and acknowledges that the issuance of the Sub-Debt shall be excluded from all negative covenants set forth in the Credit Agreement (including, but not limited to, Section 8.03 of the Credit Agreement). G. Retention of Investment Bankingjirm in Connection with Sub-Debt. If Borrower retains an investment banking firm(s) (each a ?Firm?) to assist with the Sub-Debt, Borrower will provide Lender with a duly executed copy of all engagement/retention letters executed in 1211812013 2:13 PM H..- .i A a i "it. connection with each Firm within thirty (30) days after execution of same. Borrower and the Firm shall also provide Lender with complete access to all data rooms, information memoranda, due?diligence materials and other work product prepared by the Firm. XI. Forbearance Fee/Payment on Obligations. A. Forbearance Fee. As consideration for entering into this Agreement, Borrower shall pay to Lender a one-time Forbearance Fee in the amount of $245,000.00 (the ?Forbearance Eei?). The Forbearance Fee shall be fully earned as of the Effective Date and shall be due and payable as a condition precedent to the effectiveness of this Agreement. - B. Term Loan Reduction. On or prior to January 31, 2014, Borrower shall make a permanent reduction?of the Term Loan Obligations by at least $1,000,000.00. XII. Lender?s Fees and Costs. Borrower shall reimburse Lender for all of Lender?s ongoing costs and expenses, including reasonable attomeys? fees of Lender?s outside counsel incurred in connection with the preparation, due diligence, administration, negotiation, documentation, implementation and enforcement of this Agreement as a condition precedent to the effectiveness of this Agreement (collectively, the ?Transaction Costs?). In addition to the Transaction Costs, Borrower shall also reimburse Lender for its ongoing reasonable attorneys? fees and expenses of Lender?s outside counsel incurred both before and after the Effective Date hereof in connection with the ongoing negotiation, documentation, implementation, monitoring and enforcement of this Agreement and the other Loan Documents (collectively, the ?Ongoing Exmses?) within five (5) business days after receipt by Borrower of an invoice ?'om Lender or Lender?s agent. COnditions Precedent. This Agreement shall not be binding upon Lender unless and until each of the following cOnditions precedent (each a ?Condition Precedent?) is met in a timely fashion, or is waived in writing by Lender (at which time this Agreement shall become effective): A. Execution and Delivery of this Agreement. Lender shall have received this Agreement, duly executed by an authorized of?cer of Borrower, by no later than December 24, 2013; B. Consent of Guarantors. Guarantors shall each have executed the Consent And Reaf?rrnation Of Guarantors attached to the end of this Agreement, by no later than December 24, 2013; . C. Release of Claims. Loan Parties shall each have signed the Release of Claims (?Release?) set forth below in Section XIV below, with such signature indicating that Loan Parties have each read and accepted the terms of such Release, by no later than December 24, 2013; D. Amendment to Security Agreement. Loan Parties shall each have executed an Amendment to the Security Agreement to provide that the Security Agreement shall secure the Credit Card Facility and the Purchase Card Facility, as well as all other Obligations, by no later than December 24, 2013; E. Corporate Matters. Lender shall have received each of the following in form and subStance reasonably satisfactory to Lender, by no later than December 24, 2013: 12/18/2013 2:13 PM 7E) It; 11:. 1221 I El It 1 1L Of?cer?s Certi?cate. A certi?cate from a Responsible Of?cer of each Loan Party to the effect that: (A) all representations and warranties of the Loan Parties contained in this Agreement, the Credit Agreement and the other Loan Documents are true, correct and complete; (B) none of the Loan Parties is in violation of any of the covenantscontained in this Agreement, the Credit Agreement or any of the other Loan Documents; (C) except as speci?cally addressed in this Agreement, after giving effect to the transactions contemplated in this Agreement, no Default or Event of Default has occurred and is continuing; (D) except as speci?cally disclosed to Lender in writing, no event has occurred or condition arisen, either individually or in the aggregate, that could reasonably be expected to have a Material Adverse Effect; and (E) each of the Loan Parties, as applicable, has satis?ed each of the conditions precedent set forth in this Section of the Agreement. 2. Certi?cate of SecretarLof each Loan Party. A certi?cate of a Responsible Of?cer of each Loan Party certifying as to the incumbency and genuineness of the signature of each of?cer of such Loan Party executing the Agreement and all other Loan Documents to which it is a party, and certifying that attached thereto is a true, correct and complete copy of: (A) the articles or certi?cate of incorporation or formation of such Loan Party and all amendments thereto, certi?ed as of a recent date by the appropriate Governmental Authority in its jurisdiction of incorporation or formation, (B) the bylaws or other governing document of such Loan Party as in effect on the Effective Date, and (C) resolutions duly adopted by the board of directors (or other governing body) of such Loan Party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Agreement and the other Loan Documents to w'hich?it is a party. 3. Certi?cates of Good Standing. Certi?cates as of a recent date of the good standing of each Loan Party under the laws of its jurisdiction of organization and, to the extent requested by Lender, each other jurisdiction where such Loan Party is quali?ed to do business and, to the extent available, a certi?cate of the relevant taxing authorities of such jurisdictions certifying that such Loan Party has ?led required tax returns and owes no delinquent taxes. F. Receipt of the Forbearance Fee. Lender shall have received the Forbearance Fee by no later than December 24, 2013. G. Reimbursement of Transaction Costs. Borrower shall have reimbursed Lender for all Transaction Costs required by Section XII of this Agreement, by no later than December 24, 2013;and H. Other Approvals. Lender shall have received such other documents, instruments and Agreements, and obtained all necessary internal approvals as Lender may require, by no later than December 24, 2013. US_10008967lv6_2l3955-00169 12/13/2013 2:13 PM i. 12:3. {Bil I .J XIV. Release of Claims. Loan Parties each represent and agree that each has diligently and thoroughly investigated the existence of any Claim (as de?ned below), and, to its knowledge and belief, no Claim exists and no facts exist that could give rise to or support a Claim. As additional consideration for Lender to enter into this Agreement, Loan Parties, by their respective execution of this Agreement and their respective signatures immediately below, and each of Loan Parties? respective agents, employees, directors, of?cers, attorneys, af?liates, subsidiaries, shareholders, trusts, owners, successors and assigns (each a ?Releasing Party? and collectively, the,?Releasing Parties?), hereby releases and forever discharges Lender, and each of Lender?s agents, direct and indirect shareholders, employees, directors, of?cers, attorneys, subsidiaries, predecessors, successors and assigns (each a ?Released Party? and collectively, the ?Released Parties?), from all damages, losses, claims, demands, liabilities, obligations, actions and causes of action whatsoever from the beginning of time through and including the Effective Date (collectively, the ?Claims?) that the Releasing Parties or any of them may, as of the date hereof, have or claim to have against any or all of the Released Parties, in each case whether currently known or unknown or with 'reSpect to which the facts are known (or should have been known), that could give rise to or support a Claim and of every nature and extent whatsoever on account of or in any way relating to, arising out of or based upon: the Loans; the Credit Agreement and the other Loan Documents, and the obligations evidenced thereby, including, without implied limitation, the terms thereof; any alleged oral or written agreements or understandings by and between any of Releasing Parties and any of Released Parties in any way arising out of or related to the Loan, the Loan Documents, the Collateral, the Obligations, or any amendments, modi?cations, representations or warranties in relation thereto; the disbursement, administration and modi?cation of the Loan and the Loan Documents; and/or the respective business relationships between each of Loan Parties and Lender from the beginning of time through and including the Effective Date (collectively, the ?Claims?). Loan Parties each further covenant and agree that they have not heretofore assigned, and will not hereafter sue any Released Party upon, any Claim released or purported to be released under this section, and Loan Parties each agree to indemnify and hold harmless the Released Parties against any loss or liability on account of any actions brought by any Loan Party or its assigns or prosecuted on behalf of any Loan Party relating to any Claim released or purported to be released under this Section XIV. It is further understood and agreed that any and all rights under the provisions of Section 1542 of the California Civil Code, and other similar rights or laws in other states, are expressly waived by each of the Loan Parties. Section 1542 of the California Civil Code provides as follows: - - - 11 PM a] 11.: EB if} GENERAL RELEASE DOES NOT EXTEND T0 CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM 0R HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE elawa corporation By: Name: KgiErIM?gr/w CK Title: (1E0 SENSA PRO LC, a Delaware limited Ii bility?eompanym 1- ?6 Name: Kman Title: CEO BRAND IDEAS, LLC, a Delaware limited liability company By: Name: Title: XV. New Events of Default. A ?New Event of Default? shall occm' under this Agreement if any one or more of the following events occurs: A. Borrower or any other Loan Party shall fail to make any of the payments required in this Agreement; or B. Borrower or any other Loan Party shall violate any covenant, term or condition of this Agreement, the Credit Agreement or any of the other Loan Documents, other than the Existing Defaults; or C. Any representation or warranty made under this Agreement, or any certi?cate or statement furnished or made in writing to Lender pursuant hereto, or any financial information furnished to Lender pursuant to this Agreement, shall prove to be untrue in any material respect as of the date on which such representation or warranty is made or as of the date such ?nancial information was furnished to Lender; or D. Any Loan Party shall make any illegal expenditures, or any expenditures that violate this Agreement; or B. Any Loan Party shall take any action, or claim that this Agreement is not a legal, valid and binding agreement enforceable against any party executing same, or attempt in any way to terminate or declare ineffective or inoperative, or shall in any way whatsoever cease to give or provide the respective liens, security interests, rights, titles, interests, remedies, powers or privileges intended to be created thereby; or - 12_ 8/20l3 2:l3 PM GENERAL RELEASE DOES NOT EXTEND T0 CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR EXIST IN HIS 0R HER FAVOR TIME, OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS 0R HER SETTLEMENT WITH THE SENSA, INC., a Delaware corporation By: Name: Title: SENSA PRODUCTS, LLC, a Delaware limited liability company By: Name: . Title: LLC, a Delaware limited liability company By: Name: v-J 142d XV. New Events of Default. A ?New Event of Default? shall occur under this Agreement if any one or more of the following events occurs: A. Borrower or any other Loan Party shall fail-to make any of the payments required in this Agreement; or B. Borrower or any other Loan Party shall violate any covenant, term or condition of this Agreement, the Credit Agreement or any of the other Loan Documents, other than the Existing Defaults; or C. Any representation or Warranty made under this Agreement, or any certi?cate or statement furnished or made in writing to Lender pursuant hereto, or any ?nancial information furnished to Lender pursuant to this Agreement, shall prove to be untrue in any material respect as of the date on which such representation or warranty is made or as of the date such ?nancial information was tarnished to Lender; or D. Any Loan Party shall make any illegal expenditures, or any eXpenditures that violate this Agreement; or B. Any Loan Party shall take any action, or claim that this Agreement is not a legal, valid and binding agreement enforceable against any party executing same, or attempt in any Way to terminate or declare ineffective or inoperative, or shall?in any way whatsoever cease to give or provide the respective liens, security interests, rights, titles, interests, remedies, powers or privileges intended to be created thereby; or 121l8l2013 PM I. I T. E) 11'" F. An Event of Default, other than the Existing Defaults, shall occur in the performance of any term, condition, covenant or agreement contained in this Agreement, the Credit Agreement or in any of the ?other Loan Documents. - XVI. Remedies. If a New Event of Default occurs, Lender may exercise, at its election, and without notice, demand, protest or presentment (which notice, demand, protest and presentment are expressly waived), in addition to all rights and remedies granted to it in the this Agreement, the Credit Agreement, any of the other Loan Documents any or all of the following: A. Lender?s limited agreement to forbear under this Agreement shall immediately and automatically cease, and Lender may exercise all of its rights and remedies available under this Agreement, the Credit Agreement, any of the other Loan Documents and applicable law; and/or B. Lender may declare all of the Obligations to be immediately due and payable in full; and/or C. Lender may impose the Default Rate of interest on all Obligations; and/or D. Lender may proceed to enforce this Agreement, the Credit Agreement and any of the other Loan Documents and exercise any or all of the rights and remedies afforded to Lender by the California Commercial Code, the California Civil Code, the California Code of Civil Procedure or otherwise possessed by Lender. XVII. Revival Clause. If the incurring of any debt or the payment of money or transfer of property made to Lender by or on behalf of any of the Loan Parties should for any reason subsequently be declared to be ?fraudulent? or ?preferential? within the meaning of any state or federal law relating to creditor?s rights, including, without limitation, fraudulent conveyances, preferences or Otherwise voidable or recoverable payments of money or transfers of property, in whole or in part, for any reason (collectively, ?Voidable Transfers?) under the Bankruptcy Code or any other federal or state law, and Lender is required to repay or restore any such Voidable Transfer or the amount or any portion thereof, or upon the advice of its in-house counsel or outside counsel is advised to do so, then, as to such Voidable Transfer or the amount repaid or restored (including all reasonable costs, expenses and attorneys? fees of Lender related thereto), the respective liability of Loan Parties under this Agreement, the Credit Agreement and the other Loan Documents, and all of Lender?s rights and remedies under this Agreement, the Credit Agreement and the other Loan Documents shall automatically be revived, reinstated and restored and shall exist as though such Voidable Transfer had never been made to the extent of any harm to Lender. Loan Parties each represent and warrant that the execution, delivery and performance of this Agreement will not: render any Loan Party insolvent as that term is defined below; (ii) leave any Loan Party with remaining assets which constitute unreasonably small capital given the nature of each Loan Party?s respective business; or result in the incurrence of Debts (as de?ned below) beyond each Loan Parties? ability to pay them when and as they mature and become due and payable. For the purposes of this paragraph, ?Insolvent? means that the present fair salable value of assets is less than the amount that will be required to pay the probable liability on existing Debts as they become absolute and matured. For the purposes of this paragraph, ?Debts? includes any legal liability for indebtedness, whether matured or 0008967lv6_213955-00169 12/18/2013 2:13 PM I':l . XXI. unmatured, liquidated or unliquidated, absolute, ?xed or contingent. Loan Parties each hereby acknowledge and warrant that each has derived or expects to derive a ?nancial or other bene?t or advantage from this Agreement. Reference to and Effect on Loan Documents. On and after the Effective Date of this Agreement, each reference in the Credit Agreement to ?this Agreement,? ?hereunder,? ?hereof,? ?herein? or any other expression of like import referring to the Credit Agreement, and each reference in the Loan Documents ?to ?the Credit Agreement,? the ?Agreement,? ?thereunder,? ?thereof,? ?therein? or any other expression of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as amended by this Agreement. XIX. Payment of Exmnses. In the event any action (whether or not in a court proceeding) shall be required to interpret, implement, modify, or enforce the terms and provisions of this Agreement and/or to declare rights under same, the prevailing party in such action shall recover from the losing party all of its reasonable fees and costs, including, but not limited to, the reasonable attorneys? fees and costs of Lender?s outside counsel. XX. Governing Law. This Agreement shall be construed and interpreted in accordance with and shall be governed by the laws of the State of California. Successors. Assignment. This Agreement shall be binding on and inure to the bene?t of all of the parties hereto, and upon .the heirs, executors, administrators, legal representatives, successors and assigns of the parties hereto, and each of them. The terms and provisions of this Agreement are for the exclusive bene?t of Loan Parties and Lender, and may not be transferred, assigned, pledged, set over or negotiated to any person or entity without the prior express written consent of Lender. Notwithstanding any other provisions contained herein, Lender may sell, transfer, negotiate, assign or grant participations in all or a portion of its rights in this Agreement and in any of the Loan Documents to any person or entity without prior notice to Loan Parties, provided, however, that any such assignee shall be bound by the terms and provisions of this Agreement and the other Loan Documents. XXII. Complete Agreement of Parties. This Agreement constitutes the entire Agreement between Lender and Loan Parties arising out of, related to or connected with the subject matter of this Agreement. Any supplements, modi?cations, waivers or terminations of this Agreement shall not be binding unless executed in writing by the parties to be bound thereby. No waiver of any provision of this Agreement shall constitute a waiver of any other provision of this Agreement (whether similar or not), nor shall such waiver constitute a continuing waiver unless otherwise expressly so provided. Representations and Warranties. Loan Parties each hereby represent and warrant that each of the representations and warranties set forth in the Credit Agreement remain true and accurate as of the date of this Agreement. XXIV. Authority. Loan Parties each represent and warrant that: each has full authority to execute this Agreement; (ii) the execution, delivery and performance of this Agreement does not require the consent or approval of any person, entity, governmental body, trust, trustor or other authority; this Agreement is a valid, binding and legal obligation of Loan Parties enforceable in accordance with its terms, and does not contravene or con?ict with any other agreement, indenture or undertaking to which anyObligor is a party; and (iv) Loan Parties are each the sole 1. 14 US_10008967lv6_213955-00169 12/18l2013 2.13 PM {:21 and lawful owners of all right, title, and interest in and to every claim and other matter which Loan Parties purport to settle or compromise herein. XXV. Execution In Counterparts. This Agreement may be executed in any number of counterparts each of which, when so executed and delivered, shall be deemed an original, and all of which together shall constitute but one and the same Agreement. XXVI. In the event that any term or provision of this Agreement contradicts any term or provision of any other document, instrument or agreement between the parties including, but not limited to, the Credit Agreement or any of the other Loan Documents, the terms of this Agreement shall control. If any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, such provision shall be severable from all other provisions of this Agreement, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not be adversely affected or impaired, and shall thereby remain in full force and effect. XXVII. Headings. All headings contained herein are for convenience purposes only, and shall not be considered when interpreting this Agreement. Continuing Cooperation. The parties hereto shall cooperate with each other in carrying out the terms and intent of this Agreement, and shall execute such other documents, instruments and Agreements as are reasonably required to effectuate the terms and intent of this Agreement. XXIX. Consultation With Counsel. Each party hereto acknowledges that it is freely and voluntarily entering into this Agreement. Moreover, each party hereto also acknowledges that it has been represented by counsel of its own choice at each stage in the negotiation of this Agreement, or has knowingly and voluntarily elected not to be represented by counsel at each stage in the negotiation of this Agreement. To the extent any party was represented by counsel, and without waiving the attorney-client and attorney work product privileges, said party acknowledges that: it has relied on such counsel?s advice throughout all of the negotiations which preceded the execution of this Agreement, and in connection with the" preparation and execution of this Agreement; (ii) such counsel has read and approved this Agreement; and such counsel has advised such party concerning the validity and effectiveness of this Agreement, and the transactions to be consummated in accordance therewith. Notices. All notices, payments, requests, information and demands which any party hereto may desire, or may be required to giVe or make to the other party shall be given or made to such party in accordance with the existing provisions of the Credit Agreement and the other Loan Documents. Consent to Restructuring. Lender understands and acknowledges that the Loan Parties have advised Lender that they plan to engage in the Restructuring (as de?ned below), and notwithstanding any restriction in the Loan Documents, Lender consents and agrees, subject to satisfactory loan and collateral documentation in Lender?s sole and absolute discretion, to such Restructuring; provided, however, that Lender maintains an uninterrupted, ?rst priority, security interest in all Collateral, all Guarantors reaf?rm their obligations, and New Sensa (as de?ned below) executes all documents, instruments and agreements necessary to assume all Obligations and collateral obligations. ?Restructuring? shall mean the following: ?rst, the formation of a - 15 12/] 8/2013 2:!3 PM an, 1 T, 13-1 ?33 new corporation, organized under the laws of the State of Delaware, be incorporated Sensa?); (ii) second, IB Holding, LLC and Dr. Hirsch will enter into a Stock Purchase and Contribution Agreement, pursuant to which IB Holding, LLC will contribute 100% of the stock of Sensa, Inc. to New Sensa, and Dr. Hirsch will contribute his 10% membership interest in Sensa Products, LLC to New Sensa in exchange for 90% and 10% of the common stock of New Sensa, respectively; third, each of Sensa, Inc. and Sensa Products, LLC will merge with and into New Sensa with New Sensa as the survivor of each merger; and (iv) ?nally, an employee bene?t program will be created in the form of either a company sale bonus program or stock option plan. AGREED AND ACCEPTED: LENDER: BORROWER: GUARANTOR: GUARANTOR: By: BANK OF AMERICA, N.A. Nil/me: g& Dag Its: ?aw SENSA, INC, a Delaware corporation By: Name: Title: SENSA PRODUCTS, LLC, a Delaware limited liability company Name: Title: BRAND IDEAS, LLC, a Delaware limited liability company By: Name: Title: US~10008967lv6_2l 3955-00l69 12/18/2013 2:13 PM new corporation, organized under the laws of the State of Delaware, be incorporated Sensa?); (ii) second, 13 Holding, LLC and Dr. Hirsch will enter into a Stack Purchase and Contribution Agreement, pursuant to which IB Holding, LLC will contribute 100% of the stock of Sensa, Inc. to New Sensa, and Dr. Hirsch will contribute his 10% membership interest in Sensa Products, LLC to New Sensa in exchange for 90% and 10% of the common stock of New Sensa, respectively; third, each of Sensa, Inc. and Sensa Products, LLC will merge with and into New S?nsa with New Sensa as the survivor of each merger; and (iv) ?nally, an employee benefit program will be created in the form of either a company sale bonus program or stock option plan. AGREED ACCEPTED: LENDER: BANK OF AMERICA, N.A. By: Name: Its: BORROWER: SENSA, INC., a Delaware corporation By: Name: KalsTm We.me Title: GUARANTOR: SENSA PRODUCTS, LLC, a Delaware limited liability company Name: Title: CEO GUARANTOR: BRAND IDEAS, LLC, a Delaware limited liability company By: Name: Title: - 16 US_10008967lv6_213955?00169 1le 8/2013 2:13 PM E. If: 3% .2111 new corporation, organized under the laws of the State of Delaware, be incorporated Sensa?); (ii) second, IB Holding, LLC and Dr. Hirsch will enter into a StockPur'chase and I Contribution Agreement, pursuant to which I Holding, LLC will contribute 100% of the stock of Sensa, Inc. to New Sensa, and Dr. Hirsch will contribute his 10% membership interest in Sensa Products, LLC to New Sensa in exchange for 90% and 10% of'the common stock of New Sensa, respectively; third, each of Sensa, Inc. and Sensa will merge. with and into New Sensa with New Sensa as the survivor of each merger; and.(iv) ?nally, an employee bene?t program will be created in the form of either a company sale bonus program or stock option plan. AGREED AND ACCEPTED: LENDER: BANK OF AMERICA, N.A. By: Name: Its: BORROWER: SENSA, a Delaware corporation By: Name: Title: GUARANTOR: SENSA PRODUCTS, LLC, a Delaware limited liability company By: Name: Title: GUARANTOR: BRAND IDEAS, LLC, a Delaware limited liability US_10008967lv6_2l3955-00169 2:13 PM .CONSENT AND REAFFIRMATION OF GUARANTORS This Consent And Reaf?rmation of Guarantors (this ?Consent?) is made with reference to that certain ?Forbearance Agreement? dated as of December 18, 2013, by and between Bank of America, NA. (?Lender?), on the one hand; and Sensa, Inc., formerly known as Intelligent Beauty, Inc., a Delaware corporation (?Borrower?), on the other hand (?Forbearance Agreemen All capitalized terms not otherwise de?ned herein have the meanings given for said terms in the Forbearance Agreement. In order to guaranty Borrower?s Obligations to Lender, pursuant to Article IV of the Credit Agreement, the undersigned, Sensa Products, LLC, a Delaware limited liability company corporation (?Sensa Products?), and Brand Ideas, LLC, a Delaware limited liability company (?Brand Ideas? and, collectively, with Sensa Products, ?Guarantors?), eachjointly, severally and unconditionally guaranteed and promised to pay Lender, on demand, any and all Obligations owed by Borrower to Lender. By executing below, each of Guarantors hereby: acknowledges and consents to Borrower?s execution of the Forbearance Agreement: (ii) consents to all terms and conditions of the transactionscontemplated in the Forbearance Agreement; rati?es and af?rms all of the terms, covenants, conditions and obligations contained in Article IV of the Credit Agreement both before and after the Effective Date of the Forbearance Agreement; (iv) reaf?rms the continuing validity and enforceability of their respective Guaranti es; hereby con?rms that each of their respective Guaranties continues in full force and effect notwithstanding the execution of the Forbearance Agreement; and (vi) knowingly and voluntarily agrees tojoin in and be bound to the terms of the Release of Claims contained in Section XIV of the Forbearance Agreement. AGREED AND ACCEPTED AS OF THIS 18TH DAY OF DECEMBER, 2013 SENSA PRODUCTS, LLC, a Delaware limited liability company BMW Name: Kg 61"? 034 NICK Title: CEO GUA RANTOR: BRAND IDEAS, LLC, a Delaware limited liability company By: Name: Title: GUARANTOR: - 17.. US_100089671v6_2r3955-00169 12/18/2013 2:13 PM lg] 111:: :1 CONSENT AND EAFFIRMATION OF GUARANTORS This Consent And Reaf?rmation of Guarantors (this ?Consent?-?) is made with reference to that certain ?Forbearance Agreement? dated as of December 20133,, byand betweenBank of America, (?Lender? ., On the one hand;:and Sensa,.Inc,, as Intelligent Beauty, Inc., a Delaware corporatiOn (?Borrower?), on the other hand (?Forbearance Agreement?). All capitalized terms not otherwise de?ned herein have the meanings given for said terms in the Forbearance Agreement. In order to guaranty Borrower?s Obligations to Lender, pursuant to Article IV of the Credit Agreement, the undersigned, Sensa Products, LLC, a Delaware limited liability company corporation (?Sensa Products?), and Brand Ideas, LLC, a Delaware limited liability company (?Brand Ideas? and, collectively, with Sensa Products, ?Guarantors?), each jointly, severally and unconditionally guaranteed and promised to pay Lender, on demand, any and all Obligations owed by Borrower to Lender. A By executing below, each of Guarantors hereby: acknowledges and consents to Borroiver?s execution of the Forbearance Agreement: (ii) consents to all terms and conditions of the transactions contemplated in the Forbearance Agreement; rati?es and af?rms all of the terms, covenants, conditions and obligations contained in Article IV of the Credit Agreement both before and after the Effective Date of the Forbearance Agreement; (iv) reaf?rms the continuing =validity- and=:enforceability of their respective-Guaranties; hereby con?rms 'that' each of theirrespectiveaGuaranties contim?res in full force and e?ect nonvithstandin'gtthe execution of the Forbearance Agreement; and (vi) knowingly and voluntarily agrees tojoin in and be bound to the terms of the Release of Claims contained in Section XIV of the Forbearance Agreement. AGREEDAND ACCEPTED .As; OF THIS-J 8TH DAY or GUARANTOR: . SENSA PRODUCT-S, a:Delawar.e limited liability company By: Name: Title: GUARANTOR: BRAND LLC, a Delaware limited liability com an? - -l7- 12/18l20l3 2:3 PM EXHIBIT 6 gpm?a I i ?i El: BankofAmerica. WA1-501-17-09 800 Fifth Ave. Floor 17 Seattle. WA 98 I 04-3 76 Susanne M. Perkins Senior \?ce President Special Assets Group Tel 650.726.4507 Fax 415.343.7556 Susanne. September 24, 2014 NOTICE. OF LIEN AND DEMAND FOR PAYMENT OF ACCOUNTS RECEIVABLE IN ACCORDANCE WITH CALIFORNIA COMMERCIAL CODE SECTION 9607(2) VIA ELECTRONIC MAIL AND OVERNIGHT DELIVERY Just Fabulous, Inc., a/k/a .IustFab 2301 Rosecrans Avenue, Suite 5 I 00 El Segundo, CA. 90245 Attn: Mr. Adam Goldenberg, Co-Chief Executive Attn: Matt Fujot, Esq., General Counsel Re: Amounts owed by Just Fabulous, Inc., a/k/a JustFab (?JustFab?) to Bank of America, N.A. (?Lender?) Dear Mr. Goldenberg and Mr. Fujot: As you are aware, JustFab?s affiliate, Brand Ideas, LLC (?Brand Ideas?), is presently indebted to Lender arising from loan obligations owed by Brand Ideas to Lender, which loan obligations are in default. ?Brand Ideas? loan obligations to Lender are collateralized by a valid and perfected ?rst-priority security interest in, among other things, all existing and future contract rights, accounts receivable, rights to payment, chattel paper, notes, accounts and drafts of Brand Ideas (collectively, the ?Brand Ideas Accounts?). This notice is made in accordance with California Commercial Code Section In accordance with this statute, .IustFab is hereby formally noti?ed of Lender?s ?rst-priority, perfected, security interest in all Brand Ideas Accounts.- By this notice JustFab is also hereby noti?ed and instructed to remit payment of the full amount of the Brand Ideas Accounts, together with all other accounts owed by JustFab to Brand Ideas, directly to Lender at the address set forth below. If the full amount of all Brand Ideas Accounts [7.31 1' September 24, 2014 Page 2 is not received by Lender within seven (7) calendar days ofthe date ofthis letter, Lender will - initiate all appropriate legal remedies against JustFab. Please make all payments by mail to the following address: Susanne M. Perkins Senior Vice President Senior Portfolio Officer Bank of America NA. Mailing Address Only Fifth Avenue Plaza 800 5th Ave WAI-SOI-I7-09 Seattle, WA 98104-3176 In accordance with this notice, only Lender?not Brand Ideas?is entitled to payment and proceeds of the Brand Ideas Accounts and all other amounts due or to become due from JustFab to Brand Ideas. In order that there be no misunderstanding as to Lender's exclusive right to immediate payment of all Brand Ideas Accounts, we refer you to California Commercial Code Section which provides that JustFab must make payment as demanded above after your receipt of this notification and demand for payment. Your failure to do so may subject IustFab to double liability-- liability to Brand Ideas and liability to Lender. Please conduct yourself accordingly. If you have any questions regarding the meaning or enforceability of this notice and demand, we suggest that you consult with legal counsel ofyour choice. A For any inquiries regarding this notice and demand, please contact the undersigned at 650-726- 4507. In the meantime, we trust you will take this final Opportunity to avoid litigation in this matter. - Very truly yours, BANK OF AMERICA, N.A. Susanne M. Perkins Jeffrey Reisner, Esq. (Sensa, Inc. counsel) Peter Gilhuly, Esq. (.IustFab counsel and Brand Ideas counsel) William B. Freeman, Esq. (Lender counsel) I. BankofAmerica. 800 Fifth Ave. Floor 17 Seattle. WA 98104-3176 Susanne M. Perkins Senior Vice President Special Assels Group Tel 650.726.4507 Fax 415.343.7556 September 24, 2014 .NOTICE OF LIEN AND DEMAND FOR PAYMENT OF ACCOUNTS RECEIVABLE IN ACCORDANCE WITH CALIFORNIA COMMERCIAL CODE SECTION 9?607La) VIA ELECTRONIC MAIL AND OVERNIGHT DELIVERY. Just Fabulous, Inc., a/k/a JustFab 2301 Rosecrans Avenue, Suite 5100 El Segundo, CA. 90245 Attn: Mr. Adam Goldenberg, Co-Chief Executive Attn: Matt Fujot, Esq., General Counsel Re: Amounts owed by Just Fabulous, Inc., a/k/a IustFab (?JustFab?) to Bank of America, NA. ("Lender") Dear Mr. Goldenberg and Mr. Fujot: As you are aware, JustFab?s affiliate, Sensa, Inc., formerly known as Intelligent Beauty, lnc. (?Sensa?), is presently indebted to Lender arising from loan obligations owed by Sensa to Lender, which loan obligations are in default. Sensa?s loan obligations to Lender are collateralized by a valid and perfected first-priority security interest in, among other things, all existing and future contract rights, accounts receivable, rights to payment, chattel paper, notes, accounts and drafts of Sensa (collectively, the ?Sensa Accounts?); This notice is made in accordance with California Commercial Code Section In accordance with this statute, JustFab is hereby formally notified of Lender?s ?rst-priority, perfected, security interest in all Sensa Accounts. By this notice IuStFab is also hereby notified and instructed to remit payment ofthe full amount of the Sensa Accounts, together with all other accounts owed by .lustFab to Sensa, directly to Lender at the address sot forth below. lfthe full amount of all Sensa Accounts is not received by :l 1332. if} September 24, 2014 Page 2 Lender within seven (7) calendar days of the date of this letter, Lender will initiate all appropriate legal remedies against JustFab. Please make all payments by mail to the following address: Susanne M. Perkins Senior Vice President Senior Portfolio Of?cer Bank of America NA. Mailing Address Only Fifth Avenue Plaza 800 5th Ave Seattle, WA 98l04-3l76 In accordance with this notiCe, only Lender-??not Sensa?is entitled to payment and proceeds of thevSensa Accounts and all other amounts due or to become due from ?JustFab to Sensa. In order that there be no misunderstanding as to Lender's exclusive right to immediate payment of all Sensa Accounts, we refer you to California Commercial Code Section which provides that 'JustFab must make payment as demanded above after your receipt of this noti?cation and demand for payment. Your failure to do so may subject JustFab to double liability-- liability to Sensa and liability to Lender. Please conduct yourself accordingly. If you have any questions regarding the meaning or enforceability of this notice and demand, we 'suggest that you consult with legal counsel of your choice. For any inquiries regarding this notice and demand, please contact the undersigned at 650-726- 4507. In the meantime, we trust y0u will take this ?nal opportunity to avoid litigation in this matter. Very truly yours, BANK OF AMERICA, N.A. WAG Susanne M. Perkins Jeffrey M. Reisner, Esq. (Sensa counsel) Peter Gilhuly, Esq. (JustFab counsel) William B. Freeman, Esq. (Lender counsel) 10200494 0 PROOF OF SERVICE I declare that I am over the age of eighteen (18) and not a party to this action. My business address is 2029 Century Park East, Suite 2600, Los Angeles, California 90067. On September 8, 2015, I served the A following FIRST AMENDED COMPLAINT on the interested parties in this action by placing a true and correct copy of each document thereof, enclosed in a sealed envelope, addressed as follows: Attorneys for Defendants Just Fabulous, Inc. aka Justfab; IB Holding, Adam Goldenberg; and Don Ressler Gregory 0. Lunt, Esq. Abelson Halpern LLP 333 South Grand Avenue, Suite 1550 Los Angeles, CA 90071 Attorneys for Defendants Sensa, Inc. f/k/a Intelligent Beauty, Inc.; Sensa Products, Brand Ideas, LLC Jonathan S. Shenson, Esq. Lauren N. Gans, Esq. Shenson Law Group PC 1901 Avenue of the Stars, Suite 200 Los Angeles, CA 90067 (X) (BY ELECTRONIC MAIL) I hereby certify that I served the above-described document on the interested parties in this action by attaching an electronic copy of the document to an email addressed to the parties listed below at their most recent e-mail address of record in this action. 1 did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. (X) (BY MAIL) I am ?readily familiar? with the normal business routine for collection and processing of correspondence for mailing with the United States Postal Service. I know that the correspondence is deposited with the United States Postal Service on the same day this declaration was executed in the ordinary Course of business. I know that the envelope was sealed and, with postage thereon fully prepaid, placed for collection and mailing on this date, following ordinary business practices, in the United States mail at Los Angeles, California. i Executed on September 8, 2015 at Los Angeles, California. (X). (State) I declare under of the State of California that the perjury under the . . above is true and correct. PROOF OF SERVICE