Delaware | 001-35339 | 27-2440197 | ||||
(State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
1030 E. Washington Street Indianapolis, IN 46202 | ||||
(Address of principal executive offices, including zip code) |
(888) 888-5478 | ||
(Registrant’s telephone number, including area code) |
Not Applicable | ||
(Former name or former address, if changed since last report) |
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
1. | With respect to the election of the five Class II nominees as directors of Angie's List: |
For | Withheld | Broker Non-Votes | |||
George D. Bell | 42,374,816 | 60,505 | 9,559,376 | ||
Angela R. Hicks Bowman | 41,740,601 | 694,720 | 9,559,376 | ||
Steven M. Kapner | 42,058,931 | 376,390 | 9,559,376 | ||
David B. Mullen | 28,097,658 | 14,337,663 | 9,559,376 | ||
Michael D. Sands | 42,374,716 | 60,605 | 9,559,376 |
2. | With respect to the ratification of the appointment of Ernst & Young, LLP as the independent registered public accounting firm of Angie's List for the fiscal year ending December 31, 2016: |
For | Against | Abstain | ||
51,696,912 | 211,537 | 86,248 |
3. | With respect to the advisory vote to approve executive compensation: |
For | Against | Abstain | Broker Non-Votes | |||
42,311,280 | 102,935 | 21,106 | 9,559,376 |
Exhibit No. | Exhibit Description | |
10.01 | First Amendment to Financing Agreement, dated as of June 10, 2016, by and among Angie's List, Inc., subsidiaries of Angie's List, Inc., the lenders party thereto and TCW Asset Management Company as Collateral Agent and Administrative Agent | |
10.02 | Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of June 10, 2016, by AL Real Estate Holdings, LLC to and for the benefit of TCW Asset Management Company |
ANGIE'S LIST, INC. |
/s/ SHANNON M. SHAW |
By: Shannon M. Shaw |
Its: Chief Legal Officer & Corporate Secretary |
Exhibit No. | Exhibit Description | |
10.01 | First Amendment to Financing Agreement, dated as of June 10, 2016, by and among Angie's List, Inc., subsidiaries of Angie's List, Inc., the lenders party thereto and TCW Asset Management Company as Collateral Agent and Administrative Agent | |
10.02 | Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of June 10, 2016, by AL Real Estate Holdings, LLC to and for the benefit of TCW Asset Management Company |
1. | Defined Terms. Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Financing Agreement. |
2. | Amendments to Financing Agreement. Upon satisfaction of the conditions to effectiveness set forth in Section 3 below, the Financing Agreement is hereby amended as follows: |
(a) | Section 1.01 of the Financing Agreement is hereby amended by adding the following definitions in the correct alphabetical order as follows: |
Applicable Interest Rate | Tier 1 Applicable Margin | Tier 2 Applicable Margin |
LIBOR Rate | 7.25% | 6.75% |
Reference Rate | 6.25% | 5.75% |
(b) | The definition of “Applicable Prepayment Premium” in Section 1.01 of the Financing Agreement is hereby amended and restated in its entirety as follows: |
(c) | Section 2.03(a) of the Financing Agreement is hereby amended by replacing “2016” where it is used therein and replacing such language with “2017”. |
(d) | Section 2.04(a) of the Financing Agreement is hereby amended and restated in its entirety as follows: |
(a) | Term Loans. Subject to the terms of this Agreement, at the option of the Administrative Borrower, each Loan or any portion thereof shall be either a Reference Rate Loan or a LIBOR Rate Loan. Each portion of a Loan that is a Reference Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of the Loan until repaid, at a rate per annum equal to the Reference Rate plus the applicable Applicable Margin. Each portion of a Loan that is a LIBOR Rate Loan shall bear interest on the principal amount thereof from time to time outstanding, from the date of the Loan until repaid, at a rate per annum equal to the LIBOR Rate for the Interest Period in effect for such Loan (or such portion thereof) plus the applicable Applicable Margin. |
(e) | The table set forth in Section 7.03(a) of the Financing Agreement is hereby amended and restated in its entirety as follows: |
Fiscal Period End | Consolidated EBITDA |
1 fiscal quarter ending December 31, 2014 | $13,600,000 |
2 consecutive fiscal quarters ending March 31, 2015 | $15,000,000 |
3 consecutive fiscal quarters ending June 30, 2015 | $6,600,000 |
4 consecutive fiscal quarters ending September 30, 2015 | $7,900,000 |
4 consecutive fiscal quarters ending December 31, 2015 | $12,300,000 |
4 consecutive fiscal quarters ending March 31, 2016 | $17,700,000 |
4 consecutive fiscal quarters ending June 30, 2016 | $21,900,000 |
4 consecutive fiscal quarters ending September 30, 2016 | $22,500,000 |
4 consecutive fiscal quarters ending December 31, 2016 | $22,500,000 |
4 consecutive fiscal quarters ending March 31, 2017 | $25,000,000 |
4 consecutive fiscal quarters ending June 30, 2017 | $25,000,000 |
4 consecutive fiscal quarters ending September 30, 2017 | $27,500,000 |
4 consecutive fiscal quarters ending December 31, 2017 and each period of 4 consecutive fiscal quarters ending each March 31, June 30, September 30 and December 31 thereafter | $32,500,000 |
(f) | Section 7.03(b) of the Financing Agreement is hereby amended by deleting “$10,000,000” where it is used therein and replacing such language with “$30,000,000”. |
(g) | Section 7.03(c) of the Financing Agreement is hereby amended and restated in its entirety as follows: |
Fiscal Period End | Membership Revenue |
4 consecutive fiscal quarter ending December 31, 2014 | $54,600,000 |
4 consecutive fiscal quarters ending March 31, 2015 | $54,100,000 |
4 consecutive fiscal quarters ending June 30, 2015 | $53,500,000 |
4 consecutive fiscal quarters ending September 30, 2015 | $53,200,000 |
4 consecutive fiscal quarters ending December 31, 2015 | $53,000,000 |
4 consecutive fiscal quarters ending March 31, 2016 | $52,700,000 |
4 consecutive fiscal quarters ending June 30, 2016 and each period of 4 consecutive fiscal quarters ending each September 30, December 31, March 31 and June 30 thereafter | N/A |
(h) | Schedule 6.01(f) of the Financing Agreement is hereby amended and restated in its entirety with the information set forth on Schedule I hereto and making a part of such Schedule 6.01(f) of the Financing Agreement in all respects. |
(i) | Schedule 6.01(ee) of the Financing Agreement is hereby amended and restated in its entirety with the information set forth on Schedule II hereto and making a part of such Schedule 6.01(ee) of the Financing Agreement in all respects. |
3. | Conditions. The effectiveness of this Amendment is subject to the following conditions: |
(a) | the execution and delivery of this Amendment by the Borrower, Guarantors, Agents, and the Required Lenders; |
(b) | after giving effect to this Amendment the representations and warranties set forth herein shall be true and correct and no Default or Event of Default shall exist and be continuing; and |
(c) | the Borrower shall have paid all fees, costs and expenses of the Agents and Lenders in connection with this Amendment, including, without limitation, reasonable fees, costs and expenses of Agents’ and Lenders’ counsel. |
4. | Representations and Warranties. The Loan Parties hereby represent and warrant to each Lender as follows: |
(a) | each Loan Party is a corporation or limited liability company, as applicable, duly organized, validly existing and in good standing or in existence, as applicable, under the laws of the jurisdiction of its formation; |
(b) | each Loan Party has the power and authority to execute, deliver and perform its obligations under this Amendment; |
(c) | the execution, delivery and performance by the Loan Parties of this Amendment, has been duly authorized by all necessary action and does not and will not require any registration with, consent or approval of, notice to or action by, any Person (including any Governmental Authority); |
(d) | this Amendment constitutes the legal, valid and binding obligation of the Loan Parties, enforceable against each Loan Party in accordance with its terms; |
(e) | immediately before and after giving effect to this Amendment, no Default or Event of Default exists or shall exist immediately following the consummation of the changes contemplated hereby; |
(f) | after giving effect to this Amendment and the supplements to the Financing Agreement set forth on Schedules I and II hereto, all representations and warranties contained in the Financing Agreement are true and correct as of the date hereof, except to the extent made as of a specific date, in which case each such representation and warranty are true and correct as of such date; and |
(g) | by its signature below, each Loan Party agrees that it shall constitute an Event of Default if any representation or warranty made herein is untrue or incorrect in as of the date when made or deemed made. |
5. | Agreement in Full Force and Effect As Amended. Except as specifically amended hereby, the Financing Agreement and the other Loan Documents shall remain in full force and effect and are hereby ratified and confirmed as so amended. Except as expressly set forth herein, this Amendment shall not be deemed to be a waiver, amendment or modification of any provisions of the Financing Agreement or any other Loan Document or any right, power or remedy of the Lenders, nor constitute a waiver of any provision of the Financing Agreement, any other Loan Document, or any other document, instrument and/or agreement executed or delivered in connection therewith or of any Default or Event of Default under any of the foregoing, in each case, whether arising before or after the date hereof or as a result of performance hereunder or thereunder. This Amendment also shall not preclude the future exercise of any right, remedy, power, or privilege available to the Lenders whether under the Financing Agreement, the other Loan Documents, at law or otherwise and nothing contained herein shall constitute a course of conduct or dealing among the parties hereto. All references to the Financing Agreement shall be deemed to mean the Financing Agreement as modified hereby. This Amendment shall not constitute a novation or satisfaction and accord of the Financing Agreement or the other Loan Documents, but shall constitute an amendment thereof. The parties hereto agree to be bound by the terms and conditions of the Financing Agreement and the Loan Documents as amended by this Amendment, as though such terms and conditions were set forth herein. Each reference in the Financing Agreement to “this Amendment,” “hereunder,” “hereof,” “herein” or words of similar import shall mean and be a reference to the Financing Agreement as amended by this Amendment, and each reference herein or in any other Loan Document to the “Financing Agreement” shall mean and be a reference to the Financing Agreement as amended and modified by this Amendment. |
6. | Counterparts. This Amendment may be executed by one or more of the parties to this Amendment and any number of separate counterparts, each of which when so executed, shall be deemed an original and all said counterparts when taken together shall be deemed to constitute but one and the same instrument. |
7. | Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of each Loan Party and its successors and assigns and Lenders and their successors and assigns. |
8. | Further Assurance. Each Loan Party hereby agrees from time to time, as and when requested by any Lender, to execute and deliver or cause to be executed and delivered, all such documents, instruments and agreements and to take or cause to be taken such further or other action as such Lender may reasonably deem necessary or desirable in order to carry out the intent and purposes of this Amendment, the Financing Agreement, and the Loan Documents. |
9. | GOVERNING LAW. THIS AMENDMENT, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES (BUT INCLUDING AND GIVING EFFECT TO SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW). |
10. | Severability. Wherever possible, each provision of this Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Amendment. |
11. | Reaffirmation. Each Loan Party as debtor, grantor, pledgor, or in other any other similar capacity hereby ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of the Loan Documents to which it is a party. Each Loan Party hereby consents to this Amendment and acknowledges that each of the Loan Documents remains in full force and effect and is hereby ratified and reaffirmed. Except as expressly set forth herein, the execution of this Amendment shall not operate as a waiver of any right, power or remedy of the Lenders, constitute a waiver of any provision of any of the Loan Documents or serve to effect a novation of the Obligations. |
12. | Acknowledgment of Rights; Release of Claims. Each Loan Party hereby acknowledges that: (a) it has no defenses, claims or set-offs to the enforcement by any Lender or Agent of Loan Parties’ liabilities, obligations and agreements on the date hereof; (b) to its knowledge, each Lender and Agent have fully performed all undertakings and obligations owed to it as of the date hereof; and (c) except to the limited extent expressly set forth in this Amendment, each Lender and Agent do not waive, diminish or limit any term or condition contained in the Financing Agreement or any of the other Loan Documents. Each Loan Party hereby remises, releases, acquits, satisfies and forever discharges the Lenders and Agents, their agents, employees, officers, directors, predecessors, attorneys and all others acting or purporting to act on behalf of or at the direction of the Lenders and Agents (“Releasees”), of and from any and all manner of actions, causes of action, suit, debts, accounts, covenants, contracts, controversies, agreements, variances, damages, judgments, claims and demands whatsoever, in law or in equity, which any of such parties ever had, now has or, to the extent arising from or in connection with any act, omission or state of facts taken or existing on or prior to the date hereof, may have after the date hereof against the Releasees, for, upon or by reason of any matter, cause or thing whatsoever through the date hereof. Without limiting the generality of the foregoing, each Loan Party waives and affirmatively agrees not to allege or otherwise pursue any defenses, affirmative defenses, counterclaims, claims, causes of action, setoffs or other rights they do, shall or may have as of the date hereof, including, but not limited to, the rights to contest: (a) the right of each Agent and each Lender to exercise its rights and remedies described in this Amendment; (b) any provision of this Amendment or the Loan Documents; or (c) any conduct of the Lenders or other Releasees relating to or arising out of the Financing Agreement or the other Loan Documents on or prior to the date hereof. |
13. | Miscellaneous. This Amendment is a Loan Document. |
BORROWER: | |
ANGIE'S LIST, INC., | |
a Delaware corporation | |
By: | /s/ THOMAS R. FOX |
Name: | Thomas R. Fox |
Title: | Chief Financial Officer |
GUARANTORS: | |
AL BV INVESTMENT, INC., | |
a Delaware corporation | |
By: | /s/ THOMAS R. FOX |
Name: | Thomas R. Fox |
Title: | Chief Financial Officer |
AL CAMPUS KIDS, LLC, | |
an Indiana limited liability company | |
By: | /s/ CHUCK HUNDT |
Name: | Chuck Hundt |
Title: | President |
AL REAL ESTATE HOLDINGS, LLC, | |
an Indiana limited liability company | |
By: | /s/ J. MARK HOWELL |
Name: | J. Mark Howell |
Title: | Manager |
ADMINISTRATIVE AGENT AND COLLATERAL AGENT: | |
TCW ASSET MANAGEMENT COMPANY | |
By: | /s/ SUZANNE GROSSO |
Name: | Suzanne Grosso |
Title: | Managing Director |
REQUIRED LENDERS: | |
TCW DIRECT LENDING STRATEGIC VENTURES LLC | |
By: | /s/ SUZANNE GROSSO |
Name: | Suzanne Grosso |
Title: | Managing Director |
KAYNE SENIOR CREDIT FUND II, L.P. | |
By: Kayne Senior Credit II Manager, L.P., its Investment Manager | |
By: | /s/ DOUG GOODWILLIE |
Name: | Doug Goodwillie |
Title: | Managing Director |
KAYNE SENIOR CREDIT FUNDING II LLC | |
By: | /s/ DOUG GOODWILLIE |
Name: | Doug Goodwillie |
Title: | Vice President |
KAYNE SENIOR CREDIT II MINI-MASTER FUND, L.P. | |
By: | /s/ DOUG GOODWILLIE |
Name: | Doug Goodwillie |
Title: | Vice President |
SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY | |
By: Kayne Senior Credit II Manager, L.P., its Investment Manager | |
By: | /s/ DOUG GOODWILLIE |
Name: | Doug Goodwillie |
Title: | Managing Director |
KAYNE SENIOR CREDIT FUNDING II OFFSHORE LLC | |
By: | /s/ DOUG GOODWILLIE |
Name: | Doug Goodwillie |
Title: | Vice President |
BLUE CROSS OF CALIFORNIA | |
By: Kayne Senior Credit II Manager, L.P., its Investment Manager | |
By: | /s/ DOUG GOODWILLIE |
Name: | Doug Goodwillie |
Title: | Managing Director |
THE KOCH COMPANIES PENSION INVESTMENT COMMITTEE, AS NAMED FIDUCIARY FOR THE KOCH COMPANIES DEFINED BENEFIT MASTER TRUST | |
By: Kayne Anderson Capital Advisors, L.P., its Investment Manager | |
By: | /s/ MICHAEL O'NEIL |
Name: | Michael O'Neil |
Title: | Chief Compliance Officer |
1. | The following litigation matters have been filed: |
a. | Moore v. Angie's List, Inc., filed on March 11, 2015 in the U.S. District Court for the Eastern District of Pennsylvania. |
b. | Zygelman v Angie’s List, Inc., filed on January 15, 2016 in the United States District Court for the Northern District of California. |
c. | Glick v. Angie’s List, Inc., filed on February 1, 2016 the United States District Court for the District of New Jersey. |
d. | Location Services IP v. Angie’s List, Inc. filed on April 8, 2016 in the United States District Court for the Eastern District of Texas. |
e. | Crabtree v. Angie’s List, Inc., filed on April 19, 2016 in the United States District Court for the Southern District of Indiana. |
f. | Williams v. Angie’s List, Inc., filed on April 19, 2016 in the United States District Court for the Southern District of Indiana. |
g. | HomeAdvisor v. Angie’s List, Inc. filed on May 4, 2016, in the United States District Court for the District of Colorado. |
2. | The following litigation matter has been threatened: |
a. | Warner/Chappell Music, Inc. (“WB Music”) sent the Company letter alleging that the Company’s commercials were using a musical composition owned by WB Music. |
1. | 5696 Rolling Bluff Lane, Indianapolis, IN 46221 |
2. | 731 (Suite 200) and 650 Henry Street, Indianapolis, IN 46225 |
3. | 111 West Jackson Blvd. Suite 1600, Chicago, IL 60604 USA |
4. | See Schedule 6.01(o), as amended in January 2016 (adding 40. 1050 E. Washington, Indianapolis, IN 46202 and 41. 1122 E. Washington Indianapolis, IN 46202), as supplemented as follows: |
• | Add 42. 114 Dickson Street, Indianapolis, IN 46202 (real property acquired on October 6, 2015) |
• | Add 43. 118 Dickson Street, Indianapolis, IN 46202 (real property acquired on October 6, 2015) |
• | Add 44. 122 Dickson Street, Indianapolis, IN 46202 (real property acquired on October 6, 2015) |
• | Add 45. 126 Dickson Street, Indianapolis, IN 46202 (real property acquired on October 6, 2015) |
• | Add 46. 1142 Southeastern Ave. , Indianapolis, IN 46202 (real property acquired on Dec. 29, 2014) |
RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: | SPACE ABOVE LINE RESERVED FOR OFFICIAL RECORDER'S USE |
PROSKAUER ROSE LLP | |
2049 CENTURY PARK EAST, SUITE 3200 | |
LOS ANGELES, CALIFORNIA 90067 | |
ATTENTION: D. ERIC REMENSPERGER, ESQ. |
(a) | As used herein, the following terms shall have the following meanings: |
(b) | Capitalized terms not otherwise defined in this Mortgage shall have the meanings ascribed to such terms in the Credit Agreement. |
(a) | Condemnation Awards. Subject to Mortgagor's rights to use awards and compensation for any condemnation or other taking or any purchase in lieu thereof in accordance with the terms and conditions of the Credit Agreement, Mortgagor assigns to Agent all such awards and compensation for any condemnation or other taking and Mortgagor authorizes Agent to collect and receive such awards and compensation and to give proper receipts and acquittances therefor, subject to the terms and conditions of the Credit Agreement. |
(b) | Insurance Proceeds. Subject to Mortgagor’s rights to use all proceeds of any insurance policies insuring against loss or damage to the Collateral in accordance with the terms of the Credit Agreement, Mortgagor assigns to Agent all proceeds of any insurance policies insuring against loss or damage to the Collateral. Subject to the terms and conditions of the Credit Agreement, Mortgagor authorizes Agent to collect and receive such proceeds, to give proper receipts and acquittances therefor, and authorizes and directs the issuer of each of such insurance policies to make payment for all such losses directly to Agent, instead of to Mortgagor and Agent jointly. |
(a) | Mortgagor shall maintain, preserve, protect and keep the Property in good repair, working order and condition, in accordance with Section 7.01(g) of the Credit Agreement. |
(b) | Notwithstanding anything to the contrary herein contained, subject to compliance in all respects with any applicable requirements set forth in the Credit Agreement, Mortgagor shall be entitled to remove and replace the Improvements and Fixtures located on the Land provided (i) that Mortgagee shall provide Mortgagor with copies of the final plans and specifications for any new improvements, (ii) all work shall be done in a good an workman like manner and pursuant to such permits as may be required under applicable law, and (iii) Mortgagee shall be required to pay all contractors, subcontractors and suppliers and not allow any liens to be filed against the Property other than as permitted by the terms of the Credit Agreement. |
(c) | Without limiting the generality of the foregoing, if and so long as operations shall be taking place in the Improvements on the Property, Mortgagor shall be required to keep the same and good repair, working order and condition, in accordance with Section 7.01(g) of the Credit Agreement. |
(a) | Acceleration. Declare the Obligations to be immediately due and payable, without further notice, presentment, protest, notice of intent to accelerate, notice of acceleration, demand or action of any nature whatsoever (each of which hereby is expressly waived by Mortgagor), whereupon the same shall become immediately due and payable and, immediately upon the occurrence and during the continuance of an Event of Default, interest shall accrue on the outstanding principal balance of the Obligations at the default rate of interest provided for under the Credit Agreement. |
(b) | Entry on Collateral. To the extent permitted by applicable law, enter the Property and take exclusive possession of the Collateral and of all books, records and accounts relating thereto. If Mortgagor remains in possession of the Collateral during the existence of an Event of Default and without Agent’s written consent (to be issued or withheld in Agent’s sole and absolute discretion), Agent may invoke any applicable legal remedies to dispossess Mortgagor. |
(c) | Operation of Collateral. To the extent permitted by applicable law and subject to Section 3.9(b), hold, lease, develop, manage, operate or otherwise use the Collateral upon such terms and conditions as Agent may deem reasonable under the circumstances (including making such repairs, alterations, additions and improvements and taking other actions, from time to time, as Agent reasonably deems necessary or desirable to preserve the value of the Collateral), and apply all Rents and other amounts collected by Agent in connection therewith in accordance with the provisions of Section 4.7. |
(d) | Foreclosure and Sale. Subject to Section 8.3 and to the greatest extent permitted by applicable law, sell or offer for sale the Collateral in such portions, order and parcels as Agent may determine, with or without having first taken possession of same, to the highest bidder for cash at public auction. Such sale shall be made in accordance with the laws of the State in which the Property is located relating to the sale of real estate or by Article 9 of the UCC relating to the sale of collateral after default by a debtor (as such laws now exist or may be hereafter amended or succeeded), or by any other present or subsequent articles or enactments relating to same. With respect to any notices required or permitted under the UCC, Mortgagor agrees that ten (10) days’ prior written notice shall be deemed commercially reasonable. At any such sale (i) whether made under the UCC, any other legal requirement or by virtue of any judicial foreclosure proceedings or any other legal right, remedy or recourse, it shall not be necessary for Agent to be physically present at or to have constructive possession of the Collateral (Mortgagor shall deliver to Agent any portion of the Collateral not actually or constructively possessed by Agent immediately upon demand by Agent), and the title to and right of possession of any such property shall pass to the purchaser thereof as completely as if Agent had been actually present and delivered to purchaser at such sale, (ii) each instrument of conveyance executed by Agent shall contain a special warranty of title binding upon Mortgagor, subject to the Permitted Liens, (iii) each recital contained in any instrument of conveyance made by Agent shall conclusively establish the truth and accuracy of the matters recited therein, including nonpayment of the Obligations, advertisement and conduct of such sale in the manner provided herein and otherwise by applicable law, (iv) any prerequisites to the validity of such sale shall be conclusively presumed to have been performed, (v) the receipt of Agent or other party making the sale shall be a sufficient discharge to the purchaser or purchasers for its or their purchase money and no such purchaser or purchasers, or its or their assigns or personal representatives, shall thereafter be obligated to see to the application of such purchase money or be in any way answerable for any loss, misapplication or nonapplication thereof, and (vi) to the fullest extent permitted by applicable law, Mortgagor shall be completely and irrevocably divested of all of its right, title, interest, claim, equity, equity of redemption, and demand whatsoever, either at law or in equity, in and to the property sold and such sale shall be a perpetual bar both at law and in equity against Mortgagor, and against all other persons claiming or to claim the property sold or any part thereof, by, through or under Mortgagor. Agent or any Lender may be a purchaser at such sale and if Agent or such Lender is the highest bidder, may credit the portion of the purchase price that would be distributed to Agent against the Obligations in lieu of paying cash. |
(e) | Receiver. Make application to a court of competent jurisdiction for, and obtain from such court as a matter of strict right and, to the extent permitted by applicable law, without notice to Mortgagor or regard to the adequacy of the Collateral for the repayment of the Obligations, the appointment of a receiver of the Collateral, and Mortgagor irrevocably consents to such appointment. Any such receiver shall serve without posting a bond and shall have all the usual powers and duties of receivers in similar cases pursuant to applicable law, including the full power to rent, maintain and otherwise operate the Collateral upon such terms as may be approved by the court, and shall apply such Rents in accordance with the provisions of Section 4.7. |
(f) | Other. Exercise all other rights, remedies and recourses granted under the Loan Documents or otherwise available at law or in equity (including an action for specific performance of any covenant contained in the Loan Documents during any proceeding to enforce this Mortgage). |
(a) | If Mortgagor shall fail, refuse or neglect to make any payment or perform any act required by the Loan Documents and such failure constitutes an Event of Default, then without notice to or demand upon Mortgagor or any other Person, and without waiving or releasing any other right, remedy or recourse Agent may have because of such Event of Default, Agent may (but shall not be obligated to) make such payment |
(b) | Mortgagor shall pay, or at Agent’s option, reimburse Agent on demand for, all third party out-of-pocket expenses (including reasonable attorneys’ fees and expenses) of or incidental to the perfection and enforcement of this Mortgage and the other Loan Documents, or the enforcement, compromise or settlement of the Obligations or any claim under this Mortgage and the other Loan Documents, or for defending or asserting the rights and claims of Agent in respect thereof, by litigation or otherwise. Such expenses shall include third party out-of-pocket expenses (including the reasonable fees and expenses of outside counsel for Agent) incurred in connection with (i) the preservation and enforcement of Agent’s liens and security interests under this Mortgage, (ii) the protection, exercise or enforcement of Agent’s rights with respect to the Property including Agent’s rights hereunder to (1) collect or take possession of the Property and the proceeds thereof, (2) hold the Property, (3) prepare the Property for sale or other disposition and (4) sell or otherwise dispose of the Property, and (iii) the assertion, protection, exercise or enforcement of Agent’s rights in any proceeding under the United States Bankruptcy Code, including the preparation, filing and prosecution of (1) proofs of claim, (2) motions for relief from the automatic stay, (3) motions for adequate protection, and (4) complaints, answers and other pleadings in adversary proceedings by or against Agent or relating in any way to the Property. The duties and obligations of Agent under this Section 4.9(b) are in addition to, and not in lieu of, Agent’s duties and obligations under the Credit Agreement. |
(a) | During the existence of an Event of Default, Agent shall have the rights and remedies of a secured party under the UCC as well as all other rights and remedies available at law or in equity or under this Mortgage. |
(b) | A description of the Land which relates to the fixtures is set forth in Exhibit A. |
(c) | Terms defined in the UCC and not otherwise defined in this Mortgage shall have the same meanings in this Article as are set forth in the UCC. In the event that a term is used in Article 9 of the UCC and also in another Article of the UCC, the term used in this Article is that used in Article 9. |
(d) | Solely with respect to personal property, in the event of any conflict between the provisions of this Article 6 and the provisions of the Security Agreement, the provisions of the Security Agreement shall control. |
(a) | Applicable Law means constitutional, statutory and case law in the State of Indiana (the “State”), including, but not by way of limitation, Mortgages, Ind. Code 32-29, Mortgage Foreclosure Actions, Ind. Code 32-30-10, Receiverships, Ind. Code 32-30-5, and the Uniform Commercial Code - Secured Transactions, Ind. Code 26-1-9.1 (the “UCC”), as amended, modified and/or recodified from time to time and all references in this Mortgage to Article 9 shall mean Article 9.1 of the UCC adopted in the State; provided, however, if by reason of mandatory provisions of law, the perfection, the effect of perfection or nonperfection, and the priority of the security interests in any collateral are governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State, UCC shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to perfection, effect of perfection or non-perfection, and the priority of the security interests in any such collateral. |
(b) | County means the County in the State in which the Land is located. |
Name of Debtor: | AL Real Estate Holdings, LLC c/o Angie's List, Inc. |
Address of Debtor: | 1030 East Washington Street Indianapolis, Indiana 46202 |
Type of Organization: | Corporation |
State of Organization: | Delaware |
Name of Secured Party: | TCW Asset Management Company, as Agent |
Address of Secured Party: | 865 South Figueroa Street, Suite 1800 Los Angeles, CA 90017 |
AL Real Estate Holdings, LLC, an Indiana limited liability company | |
By: | /s/ J. Mark Howell |
Name: | J. Mark Howell |
Title: | Manager and President |
STATE OF INDIANA | ) | |
) SS | ||
COUNTY OF | Marion | ) |
/s/ JANE R. DUCHARME | |
Notary Public | |
Printed Name: | Jane R. Ducharme |
My Commission Expires: | 10/21/23 |
My County of Residence: | Marion |