Exhibit 10.4
ANYTHING HEREIN TO THE CONTRARY NOTWITHSTANDING, THE OBLIGATIONS, LIENS AND
SECURITY INTERESTS EVIDENCED BY THIS AGREEMENT, THE EXERCISE OF ANY RIGHT OR
REMEDY WITH RESPECT THERETO, AND CERTAIN OF THE RIGHTS OF THE CREDIT PARTIES
HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AND SUBORDINATION
AGREEMENT DATED AS OF NOVEMBER 16, 2016 (AS AMENDED, RESTATED, SUPPLEMENTED, OR
OTHERWISE MODIFIED FROM TIME TO TIME, THE "INTERCREDITOR AGREEMENT"), BY AND
BETWEEN ENCINA BUSINESS CREDIT SPV, LLC., AS FIRST LIEN AGENT, AND VICTORY PARK
MANAGEMENT, LLC, AS SECOND LIEN AGENT.
IN THE EVENT OF ANY CONFLICT BETWEEN THE
TERMS OF THE INTERCREDITOR AGREEMENT AND THIS SECOND LIEN CREDIT AND SECURITY
AGREEMENT, THE TERMS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL.
EHXIBIT A TO FIFTH AMENDMENT TO SECOND LIEN CREDIT AND SECURITY AGREEMENT DATED
NOVEMBER 16, 2016
SECOND LIEN CREDIT AND SECURITY AGREEMENT
Dated as of April 7, 2015
among
KATY INDUSTRIES, INC., A DELAWARE CORPORATION
CONTINENTAL COMMERCIAL PRODUCTS, LLC, A DELAWARE LIMITED LIABILITY COMPANY,
FTW HOLDINGS, INC., A DELAWARE CORPORATION,
FORT WAYNE PLASTICS, INC., AN INDIANA CORPORATION,
as Borrowers,
21557355 ONTARIO INC., AN ONTARIO CORPORATION,
CCP CANADA, INC., AN ONTARIO CORPORATION,
as Guarantors,
VICTORY PARK MANAGEMENT, LLC,
as Agent
and
VPC SBIC I, LP,
as a Lender
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
1
1.01
Defined Terms
1
1.02
Other Interpretive Provisions
29
1.03
Accounting Terms
29
1.04
Uniform Commercial Code
31
1.05
Rounding
31
1.06
Times of Day
31
1.07
Defined Terms in First Lien Loan Documents
31
ARTICLE II THE TERM LOAN COMMITMENTS AND CREDIT EXTENSIONS
31
2.01
Loans
31
2.02
[Reserved]
33
2.03
[Reserved]
33
2.04
Repayment of Loans
33
2.05
Prepayments
33
2.06
[Reserved]
36
2.07
Interest
36
2.08
Fees
38
2.09
[Reserved]
38
2.10
Evidence of Debt
38
2.11
Payments Generally
39
2.12
Nature and Extent of Each Borrower's Liability
39
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
41
3.01
Taxes
41
3.02
[Reserved]
44
3.03
[Reserved]
44
3.04
Increased Costs; Reserves on LIBOR (One Month) Rate Loans
44
3.05
[Reserved]
46
3.06
[Reserved]
46
3.07
Certificate of Lender
46
3.08
Survival
46
ARTICLE IV SECURITY AND ADMINISTRATION OF COLLATERAL
46
4.01
Security Interest in Collateral
46
4.02
Other Collateral
47
4.03
Collateral Administration
50
4.04
Further Assurances
52
4.05
Cash Management
52
4.06
Information Regarding Collateral
53
ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSION
54
5.01
Conditions of Credit Extension
54
ARTICLE VI REPRESENTATIONS AND WARRANTIES
57
6.01
Existence, Qualification and Power
57
6.02
Authorization; No Contravention
57
i
TABLE OF CONTENTS
(continued)
Page
6.03
Governmental Authorization; Other Consents
57
6.04
Binding Effect
57
6.05
Financial Statements; No Material Adverse Effect
57
6.06
Litigation
58
6.07
No Default
58
6.08
Ownership of Property; Liens
58
6.09
Environmental Compliance
59
6.10
Insurance
59
6.11
Taxes
60
6.12
ERISA Compliance
60
6.13
Subsidiaries; Equity Interests
61
6.14
Margin Regulations; Investment Company Act
61
6.15
Disclosure
62
6.16
Compliance with Laws
62
6.17
Intellectual Property; Licenses, Etc
62
6.18