dxlg-8k_20210316.htm
false 0000813298 true NONE 0000813298 2021-03-16 2021-03-16

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): March 16, 2021

 

DESTINATION XL GROUP, INC.

(Exact name of Registrant as Specified in Its Charter)

 

 

Delaware

01-34219

04-2623104

(State or Other Jurisdiction

of Incorporation)

(Commission File Number)

(IRS Employer

Identification No.)

 

 

 

555 Turnpike Street,

Canton, Massachusetts

 

02021

(Address of Principal Executive Offices)

 

(Zip Code)

Registrant’s Telephone Number, Including Area Code: (781) 828-9300

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below):

 

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))

 

Securities registered pursuant to Section 12(b) of the Act. None

Title of each class

Trading symbol(s)

Name of each exchange on which registered

 

 

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

Emerging growth company 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. 


 

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 

On March 16, 2021, Destination XL Group, Inc. (the “Company”) refinanced its existing $15.0 million first-in, last-out term loan (the “existing FILO Loan”) under its Seventh Amended and Restated Credit Agreement, with Bank of America, N.A. as amended (the “Credit Agreement”).  The Company entered into a new $17.5 million FILO loan facility (the “new FILO Loan”) by executing the Fourth Amendment to the Credit Agreement (the “Fourth Amendment”).  The Company elected to refinance because it was able to increase the applicable advance rates and expects the new FILO Loan to provide additional borrowing capacity of approximately $5.0 to $10.0 million as compared to the existing FILO Loan.  There was no prepayment penalty incurred by the Company on retiring the existing FILO Loan.

The Fourth Amendment amended the Credit Facility to, among other things:

 

Replace the existing FILO Loan of $15.0 million with a new FILO Loan of $17.5 million. The new FILO Loan will be subject to quarterly principal repayments of $218,750 beginning December 31, 2021.

 

Add Pathlight Capital Fund II LP as a FILO lender and PLC Agent LLC, as agent for the FILO lender.

 

Modify the applicable margin rate such that, for the first six months from the effective date of the Fourth Amendment, the applicable margin rate for the new FILO Loan will be 7.50% (a 250 to 300 basis point increase from the existing FILO Loan).  Thereafter, the applicable margin rate will be 7.50% for so long as the Company’s 12-month trailing consolidated EBITDA (as defined in the Fourth Amendment) measured as of the end of each month is less than $18.0 million, or 7.00% when 12-month trailing consolidated EBITDA is equal to or greater than $18.0 million.

 

Increase the FILO Inventory Advance Rate to 15.0%, which will decrease each quarter by 20 basis points beginning on December 31, 2021.  Under the existing FILO Loan the advance rate was 7.5% and scheduled to decrease to 5.0% on May 24, 2021.

 

Increase the FILO IP advance rate to 50.0%, which will decrease each quarter by 20 basis points beginning on December 31, 2021.  Under the existing FILO Loan the advance rate was 45.0% and scheduled to decrease to 40.0% on May 24, 2021.     

 

Increase the advance rate of credit card receivables to 10.0%.  Under the existing FILO Loan the advance rate was 7.5% and scheduled to decrease to 5.0% on May 24, 2021.

 

Add an in-transit advance rate of 25.0% to the FILO borrowing base, which will begin to decrease by 20 basis points each quarter beginning December 31, 2021.

 

Add a letter of credit inventory advance rate of 20.0% to the FILO borrowing Base, which will begin to decrease by 20 basis points each quarter beginning December 31, 2021.

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Add an advance rate of 15.0% against eligible Amazon receivables, up to a maximum of $1.4 million.

 

Add a prepayment premium with respect to any prepayment of the new FILO Loan within the first two years from the effective date of the Fourth Amendment.  If any portion of the principal for the new FILO Loan is prepaid during that two-year period, the Company will incur a cost equal to the greater of (i) the incremental interest that would have been incurred with respect to that principal repayment during the two year period and (ii) 3% of the principal prepayment, unless the prepayment occurs after March 16, 2022 in connection with the Company’s renegotiation of its Credit Agreement in which case the prepayment premium would be equal to 1% of the principal prepayment.

The maturity date remains May 24, 2023 but may be automatically extended in connection with any extension of the revolving facility under the Credit Agreement, but no later than March 16, 2026, without approval from the FILO lender.

 

The foregoing description of the Fourth Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Fourth Amendment, which is filed herewith as Exhibit 10.1 and is incorporated herein by reference.

 Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit

No.

 

Description

 

 

 

10.1

 

Fourth Amendment to the Seventh Amended and Restated Credit Agreement dated March 16, 2021, by and among Bank of America, N.A., as Administrative Agent and Collateral Agent, the Lenders identified therein, PLC Agent LLC, as FILO Agent, the Company, as Lead Borrower, the Company and CMRG Apparel, LLC, as Borrowers, and the Guarantors identified therein.

 

 

 

104

Cover Page Interactive Data File – The cover page interactive data file does not appear in the interactive data file because its XBRL tags are embedded within the Inline XBRL document.

 

 

 

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

 

 

 

DESTINATION XL GROUP, INC.

Date:

 

March 18, 2021

By:

/s/ Robert S. Molloy

 

 

 

 

Robert S. Molloy

 

 

 

 

General Counsel and Secretary

 

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dxlg-ex101_26.htm

 

Exhibit 10.1

FOURTH AMENDMENT TO SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT

FOURTH AMENDMENT TO SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Fourth Amendment”), dated as of March 16, 2021, by and among DESTINATION XL GROUP, INC., a Delaware corporation, for itself and as Lead Borrower (in such capacity, the “Lead Borrower”) for the other Borrowers (individually, a “Borrower” and, collectively, the “Borrowers”), the Borrowers, the Guarantors, the Lenders party hereto, BANK OF AMERICA, N.A., as Administrative Agent and Collateral Agent (in such capacities, the “Agent”), and PLC AGENT LLC, a Delaware limited liability company in its capacity as agent for the FILO Lenders (in such capacity, the “FILO Agent”).

W I T N E S S E T H:

WHEREAS, the Borrowers, the Guarantors, the Lenders and the Agent, among others, have entered into a certain Seventh Amended and Restated Credit Agreement, dated as of May 24, 2018, as amended by a certain First Amendment to Seventh Amended and Restated Credit Agreement, dated as of June 3, 2019, as amended by a certain Waiver and Second Amendment to Seventh Amended and Restated Credit Agreement, dated as of September 5, 2019, and as amended by a certain Third Amendment to Seventh Amended and Restated Credit Agreement as of April 15, 2020 (as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”);

WHEREAS, the Borrowers have requested, among other things, that the Agent and the Lenders agree to (a) the Borrowers repaying, refinancing, and replacing the existing first-in, last-out term loan provided under the Credit Agreement prior to the effectiveness of this Fourth Amendment (the “Existing FILO”) and held by the existing FILO Lenders party to the Credit Agreement prior to the effectiveness of this Fourth Amendment (such lenders, the “Existing FILO Lenders”) in full with a new first-in, last-out term loan facility by the FILO Lenders party hereto pursuant to this Fourth Amendment and (b) amend certain other provisions of the Credit Agreement, in each case, subject to the terms and conditions set forth herein; and

WHEREAS, the Borrowers, the Guarantors, the Agent, the FILO Agent, the Revolving Lenders, and the FILO Lenders have agreed to, on the terms and conditions set forth herein, (a) after giving effect to the Fourth Amendment, the Existing FILO Lenders having no further obligations to make FILO Loans under the Existing FILO, (b) the FILO Lenders party hereto making the FILO Loan on the Fourth Amendment Effective Date (as defined below) to the Borrowers to repay, refinance, and replace the Existing FILO in full, and (c) amend certain other provisions of the Credit Agreement.

NOW THEREFORE, in consideration of the mutual promises and agreements herein contained, the parties hereto hereby agree as follows:

1.

Incorporation of Terms and Conditions of Credit Agreement.  Except as amended hereby, all of the terms and conditions of the Credit Agreement (including, without limitation, all definitions set forth therein) are specifically incorporated herein by reference.  Except as amended hereby, all capitalized terms used (including in the preamble hereto) but not otherwise defined herein shall have the same meaning as in the Credit Agreement, as applicable.

2.

Representations and Warranties.  Each Loan Party hereby represents and warrants that, as of the Fourth Amendment Effective Date:

 


 

 

a.

the transactions contemplated hereby are within each Loan Party’s corporate powers and have been duly authorized by all necessary corporate, membership, partnership or other necessary action.  This Fourth Amendment has been duly executed and delivered by each Loan Party that is a party hereto and this Fourth Amendment and the other Loan Documents to which any Loan Party is a party, when executed and delivered by such Loan Party, will constitute a legal, valid and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law;

 

b.

the transactions to be entered into and contemplated by this Fourth Amendment (i) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except for such as have been obtained or made and are in full force and effect and except filings and recordings necessary to perfect Liens created under the Loan Documents, (ii) will not violate any applicable Law or the Organization Documents of any Loan Party, (iii) will not violate or result in a default under any Material Contract, any indenture or any other agreement, instrument or other evidence of Material Indebtedness or other material instrument binding upon any Loan Party or its assets, or give rise to a right thereunder to require any payment to be made by any Loan Party, except to the extent that such violation or default would not reasonably be expected to result in a Material Adverse Effect, and (iv) will not result in the creation or imposition of any Lien on any asset of any Loan Party, except Liens created under the Loan Documents; and

 

c.

(i) no Default or Event of Default exists under the Credit Agreement or under any other Loan Document and (ii) all representations and warranties contained in the Credit Agreement or in any other Loan Document are true and correct in all material respects, except (x) to the extent that such representations and warranties specifically refer to an earlier date, in which case, they are true and correct as of such earlier date and (y) in the case of any representation and warranty qualified by materiality, they are true and correct in all respects.

3.

Ratification of Loan Documents, Guaranties and Security Interests.  Each of the Loan Parties agrees that, after giving effect to this Fourth Amendment and except as otherwise expressly provided herein, all terms and conditions of the Credit Agreement, the Security Agreement, the Facility Guaranty, and the other Loan Documents remain in full force and effect, and each such Person reaffirms and confirms the continued validity of, and ratifies each Loan Document to which it is a party and agrees and confirms that it will perform and observe on and after the Fourth Amendment Effective Date, all Obligations (including, without limitation, the Revolving Obligations and the FILO Obligations), covenants and agreements to be performed by it under and in accordance with the Credit Agreement and the other Loan Documents.  Each of the Loan Parties hereby ratifies, confirms, and reaffirms that all representations and warranties of the Loan Parties contained in the Credit Agreement and other Loan Documents or otherwise made in writing in connection therewith are true and correct in all material respects as of the date hereof, except to the extent that (a) such representations and warranties are qualified as to “materiality”, “Material Adverse Effect” or similar language, in which case they are true and correct in all respects (as so qualified by “materiality”, “Material Adverse Effect” or similar language), and (b) such representations and warranties relate to an earlier date, in which case they are true and correct in all material respects (or in all respects, as applicable) on and as of such earlier date.  Each of the Guarantors hereby acknowledges, restates, confirms and agrees that the Guaranteed Obligations (as defined in the Facility Guaranty) include, without limitation, all Obligations (including, without limitation, the Revolving Obligations and the FILO Obligations) of the Loan Parties at any time (including,

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without limitation, Obligations incurred prior to the date hereof) and from time to time outstanding under the Credit Agreement and the other Loan Documents, as such Obligations (including, without limitation, the Revolving Obligations, and the FILO Obligations) have been amended pursuant to this Fourth Amendment.  Each Loan Party hereby acknowledges, ratifies, restates and affirms to the Agent, the FILO Agent, and each other Credit Party its grant of a continuing security interest and lien on, and hereby grants a security interest and lien on, all of the Collateral in favor of the Agent and each Credit Party as security for the Obligations (including, without limitation, the Revolving Obligations and the FILO Obligations), in each case, subject to no other Liens (other than Permitted Encumbrances).  The Loan Parties hereby acknowledge, confirm and agree (i) that the Security Documents and any and all Collateral previously pledged (except to the extent expressly released prior to the Fourth Amendment Effective Date) to the Agent, for the benefit of the Credit Parties, pursuant thereto, shall continue to secure all applicable Obligations (including, without limitation, the Revolving Obligations and the FILO Obligations) of the Loan Parties at any time and from time to time outstanding under the Credit Agreement and the other Loan Documents, as such Obligations (including, without limitation, the Revolving Obligations, and the FILO Obligations) have been amended pursuant to this Fourth Amendment, and (ii) nothing herein shall nor is it intended to (A) constitute a novation or accord and satisfaction with respect to the Loan Documents or (B) operate as a waiver of any right, power or remedy.

4.

Amendments to Credit Agreement.  Subject to the satisfaction or waiver of the conditions precedent set forth in Section 7 hereof:

 

a.

Credit Agreement.  The Credit Agreement is hereby amended to delete the bold, stricken text (indicated textually in the same manner as the following example:  stricken text) and to add the bold, double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Credit Agreement attached as Annex A hereto.

 

b.

Exhibits to Credit Agreement.  Exhibit A (Form of Committed Loan Notice), Exhibit C-3 (Form of FILO Loan Note), Exhibit D (Form of Compliance Certificate), Exhibit E (Form of Assignment and Assumption), and Exhibit F (Form of Borrowing Base Certificate) are hereby deleted in their entirety and a new Exhibit A, Exhibit C-3, Exhibit D, Exhibit E, and Exhibit F are substituted in their stead, each as attached hereto as Annex B.

 

c.

Schedules to Credit Agreement.  Each of the schedules to the Credit Agreement is hereby deleted in its entirety and substituted in its stead is each of the updated schedules attached hereto as Annex C.

5.

Appointment of FILO Agent.  Effective as of the Fourth Amendment Effective Date, the Credit Agreement is hereby amended to add PLC Agent LLC as the FILO Agent and, from and after such date, such Person will be bound by the terms of the Credit Agreement relating to the FILO Agent.

6.

Joinder of FILO Lenders; Acknowledgments of FILO Lenders.

 

(a)

Each FILO Lender, by its signature below, confirms that it has agreed to become a “Lender” and a “FILO Lender” under, and as defined in, the Credit Agreement holding FILO Loans in the amount set forth opposite such FILO Lender’s name on Schedule 2.01 attached hereto, effective on the Fourth Amendment Effective Date.  Each FILO Lender (i) acknowledges that in connection with it becoming a Lender and a FILO Lender it has received a copy of the Credit Agreement (including all schedules and exhibits thereto), together with copies of the most recent financial statements delivered by the Borrowers

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pursuant to the existing Credit Agreement, and such other documents and information as it has deemed appropriate to make its own credit and legal analysis and decision to become a Lender and a FILO Lender; and (ii) agrees that, upon it becoming a Lender and a FILO Lender on the Fourth Amendment Effective Date, it will, independently and without reliance upon the Agent, the FILO Agent, any L/C Issuer or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit and legal decisions in taking or not taking action under the Credit Agreement. In addition, each FILO Lender represents and warrants that it is duly organized and existing and it has full power and authority to take and has taken all action necessary to execute and deliver this Fourth Amendment and to consummate the transactions contemplated hereby and to become a Lender and a FILO Lender on the Fourth Amendment Effective Date.  Each FILO Lender acknowledges and agrees that, on the Fourth Amendment Effective Date, such FILO Lender shall become a Lender and a FILO Lender and, from and after such date, such FILO Lender will be bound by the terms of the Credit Agreement.

 

(b)

Each FILO Lender acknowledges that it has received such information and documents as it has deemed appropriate and has made its own credit analysis and decision to become a FILO Lender and make a FILO Loan to the Borrowers. Each FILO Lender acknowledges that the FILO Agent and its Affiliates’ activities in connection with the FILO Loans, this Fourth Amendment and the transactions contemplated hereby are undertaken by the FILO Agent or such Affiliates as a principal on an arm’s-length basis and neither the FILO Agent nor any of its Affiliates has any fiduciary, advisory or similar responsibilities in favor of such FILO Lender in connection with the FILO Loans, this Fourth Amendment or the transactions contemplated hereby or the process related thereto.  Each of the FILO Lenders hereby waives and releases, to the fullest extent permitted by law, any claims that it may have against the FILO Agent or any of its Affiliates with respect to any breach or alleged breach of agency or fiduciary duty.  In connection with all aspects of each transaction contemplated hereby, each FILO Lender acknowledges and agrees that:  (i) the FILO Agent and its Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of such FILO Lender and its Affiliates, and neither the FILO Agent nor any of its Affiliates has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship, (ii) the FILO Agent has not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby and such FILO Lender has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, (iii) (w) neither the FILO Agent nor any of its Affiliates bears any responsibility (or shall be liable) for the accuracy or completeness (or lack thereof) of any documents or information provided to such FILO Lender in connection with the FILO Loans, this Fourth Amendment and the transactions contemplated hereby; (x) no representation regarding any such documents or information is made by the FILO Agent or any of its Affiliates; (y) neither the FILO Agent nor any of its Affiliates has made any independent verification as to the accuracy or completeness of any such documents or information; and (z) the FILO Agent and its Affiliates shall have no obligation to update or supplement any such documents or information or otherwise provide additional information.  In connection with the transaction contemplated hereby, including its decision to become a FILO Lender and to make a FILO Loan to the Borrowers, each FILO Lender acknowledges and agrees that it is not relying upon any representations or warranties made by the FILO Agent or any of its Affiliates or, except as expressly set forth in this Fourth Amendment and the other Loan Documents, any other Person.

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7.

Conditions to Effectiveness.  This Fourth Amendment shall not be effective until each of the following conditions precedent has been fulfilled to the satisfaction of the Agent, the FILO Agent, and the Lenders party hereto (as applicable) (such date being the “Fourth Amendment Effective Date”):

 

a.

The Agent and the FILO Agent (or their respective counsel) shall have received each of the following, and in form and substance satisfactory to the Agent and the FILO Agent:

 

i.

counterparts of this Fourth Amendment duly executed and delivered by the Agent, the FILO Agent, each of the Lenders and each Loan Party;

 

ii.

a FILO Note executed by the Borrowers in favor of each FILO Lender requesting a FILO Note;

 

iii.

a Borrowing Base Certificate, dated as of the Fourth Amendment Effective Date, executed by a Responsible Officer of the Lead Borrower, relating to the Fiscal Month ending February 28, 2021, which shall demonstrate that Availability as of the Fourth Amendment Effective Date and after giving pro forma effect to this Fourth Amendment and the transactions contemplated hereby, is not less than twenty percent (20%) of the Revolving Loan Cap;

 

iv.

the FILO Fee Letter, executed by the Borrowers and the FILO Agent, shall be delivered to the FILO Agent;

 

v.

a completed information certificate of the Loan Parties in form consistent with the information certificate delivered on the Closing Date;

 

vi.

such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Agent may require evidencing (A) the authority of each Loan Party to enter into this Fourth Amendment and the other Loan Documents to which such Loan Party is a party or is to become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Fourth Amendment and the other Loan Documents to which such Loan Party is a party or is to become a party, and attaching copies of each Loan Party’s organizational documents and such other documents and certifications as the Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of formation;

 

vii.

a certificate from the chief financial officer of the Borrowers reasonably satisfactory in form and substance to the Agent, certifying that as of the Fourth Amendment Effective Date, after giving effect to the transactions contemplated hereby, (A) the Loan Parties, on a Consolidated basis, are Solvent, (B) all representations and warranties contained in this Fourth Amendment and the other Loan Documents or otherwise made in writing in connection herewith or therewith are true and correct in all material respects as of the Fourth Amendment Effective Date with the same effect as if made on and as of such date, except to the extent that (x) such representations and warranties are qualified as to “materiality”, “Material Adverse Effect” or similar language, in which case they are true and correct in all respects (as so qualified by “materiality”, “Material Adverse Effect”

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or similar language) on and as of such date, and (y) such representations and warranties that relate to an earlier date, in which case they are true and correct in all material respects on and as of such earlier date, and (C) no Default or Event of Default shall have occurred and be continuing; and

 

viii.

to the extent not previously delivered, there shall have been delivered to the Agent the additional instruments and documents described in the information certificate.

 

b.

The Agent, the FILO Agent, and the Lenders shall have received all documentation and other information reasonably requested by them that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act.

 

c.

At least five (5) Business Days prior to the Fourth Amendment Effective Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests in writing to the Lead Borrower at least five (5) Business Days prior to the Fourth Amendment Effective Date, a Beneficial Ownership Certification in relation to such Borrower.

 

d.

The Agent shall have received a favorable opinion of Greenberg Traurig, LLP, counsel to the Loan Parties, addressed to the Agent, the FILO Agent, and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request.

 

e.

Results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements reasonably satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Agent for the delivery of such termination statements, releases, satisfactions and discharges and subordinations have been made.

 

f.

The Agent and the FILO Agent shall have completed business and legal due diligence, including, without limitation, 2021 monthly projected financial statements.

 

g.

All accrued fees and expenses of the Agent, the FILO Agent and the Lenders (including the reasonable fees and expenses of counsel (including any local counsel) for the FILO Agent) due and owing as of the Fourth Amendment Effective Date and invoiced not less than one (1) Business Day prior to the Fourth Amendment Effective Date shall have been (or concurrently therewith, will be) paid in full, including, for the avoidance of doubt, any fees payable pursuant to the Fee Letter and the FILO Fee Letter that are due and payable on the date hereof.

 

h.

After giving effect to this Fourth Amendment, no Default or Event of Default shall have occurred and be continuing.

 

i.

All action on the part of each Loan Party necessary for the valid execution, delivery and performance by such Loan Party of this Fourth Amendment shall have been duly and effectively taken.

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j.

Since February 2, 2020, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.

 

k.

The absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Borrowers, threatened in writing in any court or before any arbitrator or governmental authority in which there is a reasonable possibility of a decision which would reasonably be expected to have a Material Adverse Effect.

 

l.

To the extent not previously delivered, the Agent and the FILO Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements and any amendments thereto, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and substantially concurrently herewith, all such documents and instruments shall be so filed, registered, published or recorded to the satisfaction of the Agent, and all filing and recording fees and taxes in connection therewith shall be duly paid.

 

m.

The FILO Agent shall have received, at least three (3) Business Days prior to the Fourth Amendment Effective Date, a Committed Loan Notice with respect to the FILO Loan, which shall, among other things, specify the proposed Fourth Amendment Effective Date.

8.

Post-Closing Covenants.

 

a.

Within thirty (30) days (or such longer period as agreed by the Agent in its sole discretion) following the Fourth Amendment Effective Date, the Borrowers shall deliver to Agent in form and substance satisfactory to the Agent, updated insurance certificates and insurance endorsements as required pursuant to Section 6.07 of the Credit Agreement.

 

b.

Within sixty (60) days (or such longer period as agreed by the Agent in its sole discretion following the Fourth Amendment Effective Date, the Borrowers shall use commercially reasonable efforts to deliver to the Agent in form and substance satisfactory to the Agent, a Customs Broker/ Carrier Agreement duly executed by the applicable Loan Party and each customs broker, freight forwarder, consolidator, or carrier, as applicable, engaged by any Loan Party as of the Fourth Amendment Effective Date.

9.

Loan Document.  This Fourth Amendment shall constitute a Loan Document for all purposes.

10.

Binding Effect.  The terms and provisions hereof shall be binding upon the parties hereto and their successors and assigns and shall inure to the benefit of the Agent, the FILO Agent and each Lender and their respective successors and assigns.

11.

Multiple Counterparts.  This Fourth Amendment 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.  Delivery of an executed counterpart of a signature page of this Fourth Amendment by telecopy, pdf or other electronic transmission shall be as effective as delivery of a manually executed counterpart of this Fourth Amendment.

12.

Severability.  If any provision of this Fourth Amendment is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Fourth Amendment shall not be affected or impaired thereby and (b) the parties shall endeavor in good

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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.

13.

Headings.  The headings at various places in this Fourth Amendment are intended for convenience only and shall not affect the interpretation of this Fourth Amendment.

14.

Governing Law.  THIS FOURTH AMENDMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS FOURTH AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, this Fourth Amendment has been duly executed and delivered by each of the parties hereto as of the date first above written and is intended to take effect as a sealed instrument.

 

 

BORROWERS:

 

 

 

 

DESTINATION XL GROUP, INC., as a Lead Borrower and a Borrower

 

By:

/s/ Peter H. Stratton, Jr.

 

 

Name: Peter H. Stratton, Jr

 

 

Title: Chief Financial Officer

 

 

CMRG APPAREL, LLC, as a Borrower

 

By:

/s/ Peter H. Stratton, Jr.

 

 

Name: Peter H. Stratton, Jr

 

 

Title: Chief Financial Officer

 

 

 

 

[DXL – Signature Page to Fourth Amendment to Seventh Amended and Restated Credit Agreement]

 


 

 

 

 

GUARANTORS:

 

 

 

 

CASUAL MALE RBT, LLC, as a Guarantor

 

By:

/s/ Peter H. Stratton, Jr.

 

 

Name: Peter H. Stratton, Jr

 

 

Title: Chief Financial Officer

 

 

 

 

CAPTURE, LLC, as a Guarantor

 

By:

/s/ Peter H. Stratton, Jr.

 

 

Name: Peter H. Stratton, Jr

 

 

Title: Chief Financial Officer

 

 

 

 

CASUAL MALE STORE, LLC, as a Guarantor

 

By:

/s/ Peter H. Stratton, Jr.

 

 

Name: Peter H. Stratton, Jr

 

 

Title: Chief Financial Officer

 

 

 

 

CASUAL MALE RETAIL STORE, LLC, as a Guarantor

 

By:

/s/ Peter H. Stratton, Jr.

 

 

Name: Peter H. Stratton, Jr

 

 

Title: Chief Financial Officer

 

 

 

 

CASUAL MALE DIRECT, LLC, as a Guarantor

 

By:

/s/ Peter H. Stratton, Jr.

 

 

Name: Peter H. Stratton, Jr

 

 

Title: Chief Financial Officer

 

 

 

 

THINK BIG PRODUCTS, LLC, as a Guarantor

 

By:

/s/ Peter H. Stratton, Jr.

 

 

Name: Peter H. Stratton, Jr

 

 

Title: Chief Financial Officer

 

 

 

 

CMRG HOLDCO, LLC, as a Guarantor

 

By:

/s/ Peter H. Stratton, Jr.

 

 

Name: Peter H. Stratton, Jr

 

 

Title: Chief Financial Officer

 

 

 

[DXL – Signature Page to Fourth Amendment to Seventh Amended and Restated Credit Agreement]

 


 

 

 

 

DXLG WHOLESALE, LLC, as a Guarantor

 

By:

/s/ Peter H. Stratton, Jr.

 

 

Name: Peter H. Stratton, Jr

 

 

Title: Chief Financial Officer

 

 

CMRG APPAREL MANAGEMENT, INC., as a Guarantor

 

By:

/s/ Peter H. Stratton, Jr.

 

 

Name: Peter H. Stratton, Jr

 

 

Title: Chief Financial Officer

 

 

CMXL APPAREL, LP, as a Guarantor

 

By:

/s/ Peter H. Stratton, Jr.

 

 

Name: Peter H. Stratton, Jr

 

 

Title: Chief Financial Officer

 

 

CASUAL MALE (EUROPE), LLC, as a Guarantor

 

By:

/s/ Peter H. Stratton, Jr.

 

 

Name: Peter H. Stratton, Jr

 

 

Title: Chief Financial Officer

 


[DXL – Signature Page to Fourth Amendment to Seventh Amended and Restated Credit Agreement]

 


 

 

 

AGENT:

 

 

 

 

bank of america, n.a., as Administrative Agent and as Collateral Agent

 

By:

/s/ Christine Hutchinson

 

 

Name: Christine Hutchinson

 

 

Title: Senior Vice President

 

 

 

 

 

[DXL – Signature Page to Fourth Amendment to Seventh Amended and Restated Credit Agreement]

 


 

 

 

 

FILO AGENT:

 

 

 

 

PLC AGENT LLC, as FILO Agent

 

By: PATHLIGHT CAPITAL LP, its Sole Member

 

By:

PATHLIGHT GP LLC, its General Partner

 

By:

/s/ Matthew Williams

 

 

Name: Matthew Williams

 

 

Title: Managing Director

 


[DXL – Signature Page to Fourth Amendment to Seventh Amended and Restated Credit Agreement]

 


 

 

 

LENDERS:

 

 

 

 

bank of america, n.a., as a Revolving Lender, L/C Issuer and Swing Line Lender

 

By:

/s/ Christine Hutchinson

 

 

Name: Christine Hutchinson

 

 

Title: Senior Vice President

 


[DXL – Signature Page to Fourth Amendment to Seventh Amended and Restated Credit Agreement]

 


 

 

 

WELLS FARGO BANK, NATIONAL

ASSOCIATION, as a Revolving Lender

 

By:

/s/ Dan Hurley

 

 

Name: Dan Hurley

 

 

Title: Assistant Vice President

 


[DXL – Signature Page to Fourth Amendment to Seventh Amended and Restated Credit Agreement]

 


 

 

 

CITIZENS BANK, N.A., as a Revolving Lender

 

By:

/s/ Madison Burns

 

 

Name: Madison Burns

 

 

Title: Assistant Vice President

 


[DXL – Signature Page to Fourth Amendment to Seventh Amended and Restated Credit Agreement]

 


 

 

 

PATHLIGHT CAPITAL FUND II LP, as a FILO Lender

 

By:  PATHLIGHT PARTNERS II GP LLC, its General Partner

 

By:

/s/ Matthew Williams

 

 

Name: Matthew Williams

 

 

Title: Managing Director

 

 

 

[DXL – Signature Page to Fourth Amendment to Seventh Amended and Restated Credit Agreement]

 


 

 

 

 

ANNEX A

Conformed Credit Agreement

See attached.

 

 

 


Annex A – Conformed Through Thirdthrough Fourth Amendment

 

 

 

 

SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT

Dated as of May 24, 2018,
as amended on June 3, 2019,
as amended on September 5, 2019,
as amended on April 15, 2020,
as amended on March 16, 2021

among

DESTINATION XL GROUP, INC.,
as the Lead Borrower

For

The Borrowers Named Herein

The Guarantors Named Herein

Bank of America, N.A.,
as Administrative Agent and Collateral Agent

and

PLC AGENT LLC,
as FILO Agent

and

The Other Lenders Party Hereto

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Syndication Agent

BANK OF AMERICA, N.A.,
as Sole Lead Arranger and Sole Bookrunner

 

 

 


 

 

TABLE OF CONTENTS

 

Section

 

Page

 

 

 

ARTICLE I DEFINITIONS AND ACCOUNTING TERMS

2

 

 

1.01

Defined Terms

2

1.02

Other Interpretive Provisions

58

1.03

Accounting Terms

60

1.04

Rounding

60

1.05

Times of Day

60

1.06

Letter of Credit Amounts

60

1.07

Interest Rates

61

 

ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS

61

 

 

2.01

Committed Loans; Reserves

61

2.02

Borrowings, Conversions and Continuations of Committed Loans

61

2.03

Letters of Credit

64

2.04

Swing Line Loans

72

2.05

Prepayments

75

2.06

Termination or Reduction of Revolving Commitments

77

2.07

Repayment of Obligations

77

2.08

Interest

77

2.09

Fees

78

2.10

Computation of Interest and Fees

79

2.11

Evidence of Debt

79

2.12

Payments Generally; Agent’s Clawback

80

2.13

Sharing of Payments by Lenders

82

2.14

Settlement Amongst Revolving Lenders

82

2.15

Increase in Commitments

83

2.16

Defaulting Lenders

83

 

 

ARTICLE III  TAXES, YIELD PROTECTION AND ILLEGALITY; APPOINTMENT OF LEAD BORROWER

86

 

 

 

3.01

Taxes

86

3.02

Illegality

90

3.03

Inability to Determine Rates

91

3.04

Increased Costs; Reserves on LIBOR Rate Loans

95

3.05

Compensation for Losses

96

3.06

Mitigation Obligations; Replacement of Lenders

97

3.07

Survival

97

3.08

Designation of Lead Borrower as Borrowers’ Agent; Joint and Several Liability

97

 

 

 

ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

98

 

 

 

4.01

Conditions of Effectiveness of this Agreement and Credit Extensionon on the Closing Date

98

4.02

Conditions to all Credit Extensions

101

 

 

ARTICLE V REPRESENTATIONS AND WARRANTIES

102

 

 

5.01

Existence, Qualification and Power

102

5.02

Authorization; No Contravention

103

(i)

 


 

5.03

Governmental Authorization; Other Consents

103

5.04

Binding Effect

103

5.05

Financial Statements; No Material Adverse Effect

103

5.06

Litigation

104

5.07

No Default

104

5.08

Ownership of Property; Liens

104

5.09

Environmental Compliance

105

5.10

Insurance

105

5.11

Taxes

105

5.12

ERISA Compliance

106

5.13

Subsidiaries; Equity Interests

106

5.14

Margin Regulations; Investment Company Act

107

5.15

Disclosure

107

5.16

Compliance with Laws

107

5.17

Intellectual Property; Licenses, Etc

107

5.18

Labor Matters

108

5.19

Security Documents

108

5.20

Solvency

109

5.21

Deposit Accounts; Credit Card Arrangements

109

5.22

Brokers

109

5.23

Customer and Trade Relations

109

5.24

Material Contracts

109

5.25

Casualty

109

5.26

EEA Financial Institution

110

5.27

OFAC; Sanctions

110

5.28

Beneficial Ownership Certification

110

 

 

ARTICLE VI AFFIRMATIVE COVENANTS

110

 

 

6.01

Financial Statements

110

6.02

Certificates; Other Information

112

6.03

Notices

114

6.04

Payment of Obligations

115

6.05

Preservation of Existence, Etc

115

6.06

Maintenance of Properties

115

6.07

Maintenance of Insurance

115

6.08

Compliance with Laws

117

6.09

Books and Records; Accountants

117

6.10

Inspection Rights

117

6.11

Additional Loan Parties

118

6.12

Cash Management

119

6.13

Information Regarding the Collateral

120

6.14

Physical Inventories

120

6.15

Environmental Laws

121

6.16

Further Assurances

121

6.17

Compliance with Terms of Leaseholds

121

6.18

Material Contracts

122

6.19

OFAC; Sanctions

122

6.20

FILO Push Down Reserve

122

 

 

ARTICLE VII NEGATIVE COVENANTS

122

 

 

 

7.01

Liens

122

(ii)

 


 

7.02

Investments

122

7.03

Indebtedness; Disqualified Stock; Equity Issuances

123

7.04

Fundamental Changes

123

7.05

Dispositions

123

7.06

Restricted Payments

124

7.07

Prepayments of Indebtedness

124

7.08

Change in Nature of Business

124

7.09

Transactions with Affiliates

125

7.10

Burdensome Agreements

125

7.11

Use of Proceeds

125

7.12

Amendment of Material Documents

126

7.13

Fiscal Year

126

7.14

Deposit Accounts; Credit Card Processors

126

7.15

Financial Covenant

126

7.16

Excess Cash Amounts

126

 

 

ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES

126

 

 

 

8.01

Events of Default

128

8.02

Remedies Upon Event of Default

129

8.03

Application of FundsProceeds of Collateral (Other than FILO Collateral)

131

8.04

Application of Proceeds of FILO Collateral

133

8.05

DIP Financings; Proceeds under Debtor Relief Laws

135

8.06

Avoidance and Reinstatement

137

8.07

Payments Over

137

8.08

Subrogation

137

 

 

 

ARTICLE IX THE AGENTAGENTS

138

 

 

9.01

Appointment and Authority

138

9.02

Rights as a Lender

138

9.03

Exculpatory Provisions

138

9.04

Reliance by Agent

140

9.05

Delegation of Duties

140

9.06

Resignation of Agent

140

9.07

Non-Reliance on Agent and Other Lenders

141

9.08

No Other Duties, Etc

142

9.09

Agent May File Proofs of Claim

142

9.10

Collateral and Guaranty Matters

143

9.11

Notice of Transfer

144

9.12

Reports and Financial Statements

144

9.13

Agency for Perfection

145

9.14

Indemnification of Agent

145

9.15

Relation among Lenders

146

9.16

Reserves

146

9.17

Certain ERISA Matters

146

9.18

FILO Agent

147

9.19

Recovery of Erroneous Payments

148

 

 

ARTICLE X MISCELLANEOUS

148

 

 

 

10.01

Amendments, Etc

148

10.02

Notices; Effectiveness; Electronic Communications

156

(iii)

 


 

10.03

No Waiver; Cumulative Remedies

157

10.04

Expenses; Indemnity; Damage Waiver

158

10.05

Payments Set Aside

159

10.06

Successors and Assigns

159

10.07

Treatment of Certain Information; Confidentiality

163

10.08

Right of Setoff

164

10.09

Interest Rate Limitation

165

10.10

Counterparts; Integration; Effectiveness

165

10.11

Survival

165

10.12

Severability

166

10.13

Replacement of Lenders

166

10.14

Governing Law; Jurisdiction; Etc

167

10.15

Waiver of Jury Trial

167

10.16

No Advisory or Fiduciary Responsibility

168

10.17

USA PATRIOT Act Notice

168

10.18

Foreign AssetAssets Control Regulations

169

10.19

Time of the Essence

169

10.20

Press Releases

169

10.21

Additional Waivers

169

10.22

No Strict Construction

171

10.23

Attachments

171

10.24

Electronic Execution of Assignments and Certain Other Documents

171

10.25

Keepwell

172

10.26

Acknowledgement Regarding Any Supported QFCs

172

10.27

Acknowledgement and Consent to Bail-In of EEAAffected Financial Institutions

173

10.28

Amendment and Restatement

173

 

 

 

SIGNATURES

S-1, 3, 4

 


(iv)

 


 

SCHEDULES

 

1.01

Borrowers

 

0

Commitments and Applicable Percentages

 

2.03

Existing Letters of Credit

 

5.01

Loan Parties Organizational Information

 

0

Litigation

 

5.08(b)(1)

Owned Real Estate

 

5.08(b)(2)

Leased Real Estate

 

5.10

Insurance

 

0

Subsidiaries; Other Equity Investments; Equity Interests in the Borrowers

 

0

Intellectual Property Matters

 

5.18

Collective Bargaining Agreements

 

5.21(a)

DDAs

 

5.21(b)

Credit Card Arrangements

 

5.24

Material Contracts

 

6.02

Financial and Collateral Reporting

 

0

Existing Liens

 

7.02

Existing Investments

 

0

Existing Indebtedness

 

7.09

Affiliate Transactions

 

0

Agent’s Office; Certain Addresses for Notices

EXHIBITS

Form of

 

A

Committed Loan Notice

 

B

Swing Line Loan Notice

 

C-1

Revolving Note

 

C-2

Swing Line Note

 

C-3

FILO Loan Note

 

D

Compliance Certificate

 

E

Assignment and Assumption

 

F

Borrowing Base Certificate

 

G-1 – G-4

Tax Compliance Certificates

 

 

(v)

 


 

 

SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT

This SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of May 24, 2018, as amended on June 3, 2019, and as further amended on September 5, 2019, and as further amended on April 15, 2020, and a further amended on March 16, 2021, among:

DESTINATION XL GROUP, INC., a Delaware corporation (the “Lead Borrower”),

the Persons named on Schedule 1.01 hereto (collectively, the “Borrowers”),

the Guarantors,

each Revolving Lender and each FILO Lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”),

BANK OF AMERICA, N.A., a national banking association with offices at 100 Federal Street, Boston, Massachusetts 02110, as Administrative Agent and Collateral Agent,

PLC AGENT LLC, a Delaware limited liability company, with offices at 18 Shipyard Drive, Suite 2C, Hingham, Massachusetts 02043, as the FILO Agent, and

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Syndication Agent.

W I T N E S S E T H:

WHEREAS, the Borrowers have requested that (x) the Revolving Lenders provide a revolving credit facility, and the Revolving Lenders have indicated their willingness to lend and the L/C Issuer has indicated its willingness to issue Letters of Credit, in each case on the terms and conditions set forth herein, and (y) the FILO Lenders provide a first in, last out term loan facility as of the Fourth Amendment Effective Date, and the FILO Lenders have indicated their willingness to lend on the terms and conditions set forth herein;

WHEREAS, the Borrowers have entered into a Sixth Amended and Restated Loan and Security Agreement, dated as of November 10, 2010 (as amended and in effect, the “Existing Credit Agreement”), among such Borrowers, the “Lenders” as defined therein, and Bank of America, N.A. as “Administrative Agent” and “Collateral Agent”; and

WHEREAS, in accordance with ARTICLE 15.1 of the Existing Credit Agreement, the Borrowers, the Lenders and the Agent desire to amend and restate the Existing Credit Agreement as provided herein and in the Security Agreement.

NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth in this Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, the undersigned hereby agree that the Existing Credit Agreement shall be amended and restated as set forth herein and in the Security Agreement in its entirety to read as follows:

 


 

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

1.01Defined Terms

.  As used in this Agreement, the following terms shall have the meanings set forth below:

“Accelerated Borrowing Base Delivery Event” means either (i) the occurrence and continuance of any Event of Default, or (ii) the failure of the Borrowers to maintain Availability at least equal to fifteen percent (15%) of the Revolving Loan Cap (calculated without giving effect to the FILO Push Down Reserve).  For purposes of this Agreement, the occurrence of an Accelerated Borrowing Base Delivery Event shall be deemed continuing at the Agent’s option (i) so long as such Event of Default has not been waived or is no longer continuing, and/or (ii) if the Accelerated Borrowing Base Delivery Event arises as a result of the Borrowers’ failure to achieve Availability as required hereunder, until Availability has exceeded fifteen percent (15%) of the Revolving Loan Cap (calculated without giving effect to the FILO Push Down Reserve) for sixty (60) consecutive calendar days, in which case an Accelerated Borrowing Base Delivery Event shall no longer be deemed to be continuing for purposes of this Agreement. The termination of an Accelerated Borrowing Base Delivery Event as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Accelerated Borrowing Base Delivery Event in the event that the conditions set forth in this definition again arise.

“Acceptable Document of Title” means, with respect to any Inventory, a tangible, negotiable bill of lading or other Document (as defined in the UCC) that (a) is issued by a common carrier which is not an Affiliate of the Approved Foreign Vendor or any Loan Party which is in actual possession of such Inventory, (b) is issued to the order of a Loan Party or, if so requested by the Agent, to the order of the Agent, (c) names the Agent as a notify party and bears a conspicuous notation on its face of the Agent’s security interest therein, (d) is not subject to any Lien (other than in favor of the Agent), and (e) is on terms otherwise reasonably acceptable to the Agent.

“ACH” means automated clearing house transfers.

“Accommodation Payment” [as defined]has the meaning set forth in Section 0.

“Account” means “accounts” as defined in the UCC, and also means a right to payment of a monetary obligation, whether or not earned by performance, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, or (b) for services rendered or to be rendered.

“Account Control Agreement” has the meaning specified in the Security Agreement.

“Acquisition” means, with respect to any Person (a) a purchase of a Controlling interest in, the Equity Interests of any other Person, (b) a purchase or other acquisition of all or substantially all of the assets or properties of, another Person or of any business unit of another Person, (c) any merger or consolidation of such Person with any other Person or other transaction or series of transactions resulting in the acquisition of all or substantially all of the assets, or a Controlling interest in the Equity Interests, of any Person, or (d) any acquisition of any Store locations of any Person, in each case in any transaction or group of transactions which are part of a common plan, with an aggregate purchase price of $5,000,000.

“Act” [shall have]has the meaning [provided]set forth in Section 0.

“Additional Commitment Lender” [shall have]has the meaning [provided]set forth in Section 0.

-2-

 


 

[“Adjustment” has the meaning specified in Section 3.03(b).]

 

“Adjustment Date” means the first day of each Fiscal Quarter, commencing with November 5, 2018.

“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Agent.

“Affected Financial Institution” means any EEA Financial Institution or UK Financial Institution.

“Affiliate” means, with respect to any Person, (i) another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified, (ii) any director, officer, managing member, partner, trustee or beneficiary of that Person, (iii) any other Person directly or indirectly holding 25% or more of any class of the Equity Interests of that Person, and (iv) any other Person 25% or more of any class of whose Equity Interests is held directly or indirectly by that Person.

“Agent” means Bank of America in its capacity as administrative agent and collateral agent under any of the Loan Documents, or any successor thereto.

“Agent Parties” [shall have]has the meaning [specified]set forth in Section 0.

“Agent’s Office” means the Agent’s address set forth on Schedule 10.02, or such other address as the Agent may from time to time notify the Lead Borrower and the Lenders.

[“Aggregate Commitments” means the sum of the Aggregate Revolving Commitments and the FILO Commitment. As of the Closing Date, the Aggregate Commitments are $140,000,000.]

“Aggregate Revolving Commitments” means the sum of the Revolving Commitments of all the Revolving Lenders. As of the [Closing]Fourth Amendment Effective Date, the Aggregate Revolving Commitments are $125,000,000.

“Agreement” means this Credit Agreement.

“Allocable Amount” has the meaning [specified]set forth in Section 10.21(c).

“Amazon” means Amazon.com Services, Inc., a Delaware corporation, and its affiliates.

“Anti-Corruption Laws” means the FCPA, the U.K. Bribery Act of 2010, as amended, and all other applicable laws and regulations or ordinances concerning or relating to bribery, money laundering or corruption in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business.

“Anti-Money Laundering Laws” means the applicable laws or regulations in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto.

-3-

 


 

“Applicable Lenders” means the Required Lenders, the Required Revolving Lenders, the Required FILO Lenders, the Required Supermajority Lenders, all affected Lenders, or all Lenders, as the context may require.

“Applicable Margin” means:

(a)From and after the Closing Date until the first Adjustment Date, the percentages set forth in Level I of the pricing grid below; and

(b)From and after the first Adjustment Date and on each Adjustment Date thereafter, the Applicable Margin shall be determined from the following pricing grid based upon the Average Revolving Availability as of the Fiscal Quarter ended immediately preceding such Adjustment Date; provided, however, if any Borrowing Base Certificates are at any time restated or otherwise revised (including as a result of an audit) or if the information set forth in  any Borrowing Base Certificates otherwise proves to be false or incorrect such that the Applicable Margin would have been higher than was otherwise in effect during any period, without constituting a waiver of any Default or Event of Default arising as a result thereof, interest due under this Agreement shall be immediately recalculated at such higher rate for any applicable periods and shall be due and payable on demand.

 

 

Level

Average Revolving Availability

Applicable Margin for Revolving Loans that are LIBOR Rate Loans

Applicable Margin for Revolving Loans that are Base Rate Loans

[Applicable Margin for FILO Loans that are LIBOR
Rate Loans from September 5, 2019 through May 24, 2021
]

[Applicable Margin for FILO Loans that are Base Rate Loans from September 5, 2019 through May 24, 2021]

[Applicable Margin for FILO Loans that are LIBOR
Rate Loans after May 24, 2021 through the Maturity Date
]

[Applicable Margin for FILO Loans that are Base Rate Loans after May 24, 2021 through the Maturity Date]

I

Greater than 35% of the Borrowing Base

2.75%

1.75%

[4.75%]

[3.75%]

[4.25%]

[3.25%]

II

Less than or equal to 35% of the Borrowing Base

3.00%

2.00%

[5.00%]

[4.00%]

[4.50%]

[3.50%]

 

“Applicable Percentage” means (a) with respect to any Revolving Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Revolving Commitments represented by such Revolving Lender’s Revolving Commitment at such time, (b) with respect to any FILO Lender at any time, the percentage (carried out to the ninth decimal place) of the outstanding principal balance of the FILO Loan represented by such FILO Lender’s outstanding FILO Loan at such time, and (c) any Lender at any time, the percentage (carried out to the ninth decimal place) of the sum of the Revolving Commitments

-4-

 


 

plus the outstanding portion of the FILO Loan, in each case represented by the sum of such Lender’s Aggregate Revolving Commitment plus the portion of the FILO Loan held by such Lender at such time, subject to adjustment provided in Section 0.  If the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 0 or Section 0 or if the Aggregate Revolving Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments.  The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

“Applicable Rate” means, at any time of calculation, (a) with respect to Commercial Letters of Credit, a per annum rate equal to the Applicable Margin for Revolving Loans which are LIBOR Rate Loans minus 0.50%, and (b) with respect to Standby Letters of Credit, a per annum rate equal to the Applicable Margin for Revolving Loans which are LIBOR Rate Loans.

“Appraised Value” means (a) with respect to Inventory, the appraised orderly liquidation value, net of costs and expenses to be incurred in connection with any such liquidation, which value is expressed as a percentage of Cost of Inventory as set forth in the inventory stock ledger of the Lead Borrower, which value shall be determined from time to time by the most recent appraisal undertaken by an independent appraiser engaged by the Agent, or (b) with respect to Eligible Trade Names, the forced liquidation value, net of costs and expenses to be incurred in connection with any such liquidation, which value shall be determined from time to time by the most recent appraisal undertaken by an independent appraiser engaged by the FILO Agent.

“Approved Foreign Vendor” means a Foreign Vendor which (a) is located in any country acceptable to the Agent in its discretion, (b) has received timely payment or performance of all obligations owed to it by the Loan Parties, (c) has not asserted and has no right to assert any reclamation, repossession, diversion, stoppage in transit, Lien or title retention rights in respect of such Inventory and (d), if so requested by the Agent, shall use commercially reasonable efforts to enter into the Foreign Vendor Agreement.

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender, (c) an entity or an Affiliate of an entity that administers or manages a Lender or (d) the same investment advisor or an advisor under common control with such Lender, Affiliate or advisor, as applicable.

“Arranger” means Bank of America, in its capacity as sole lead arranger and sole book manager.

“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 0), and accepted by the Agent, in substantially the form of Exhibit E or any other form approved by the Agent.

“Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease Obligation of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease or similar payments under the relevant lease or other applicable agreement or instrument that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease, agreement or instrument were accounted for as a capital lease.

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“Audited Financial Statements” means the audited consolidated balance sheet of the Lead Borrower and its Subsidiaries for the Fiscal Year ended February [3]1, [2018]2020, and the related consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Year of the Lead Borrower and its Subsidiaries, including the notes thereto.

“Auto-Extension Letter of Credit” [shall have]has the meaning [specified]set forth in Section 0.

“Availability” means, as of any date of determination thereof by the Agent, the result, if a positive number, of:

(a)The Revolving Loan Cap

Minus

(b)

The aggregate amount of the Total Revolving Outstandings.

In calculating Availability at any time and for any purpose under this Agreement, the Lead Borrower shall certify to the Agent that all accounts payable and Taxes are being paid on a timely basis.

“Availability Period” means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Revolving Commitments pursuant to Section 0, and (c) the date of termination of the Aggregate Revolving Commitments and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 0.

“Availability Reserves” means, without duplication of any other Reserves or items that are otherwise addressed or excluded through eligibility criteria, such reserves as the Agent, or, in the case of reserves implemented in respect of any FILO Collateral, the FILO Agent, from time to time determines in its discretion as being appropriate (a) to reflect the impediments to the Agent’s ability to realize upon the Collateral, (b) to reflect claims and liabilities that the Agent, or, with respect to FILO Collateral, the FILO Agent, determines will need to be satisfied in connection with the realization upon [the]such Collateral, (c) to reflect criteria, events, conditions, contingencies or risks which adversely affect any component of the Borrowing Base, the FILO Borrowing Base or the assets, business, financial performance or financial condition of any Loan Party, [or ](d) to reflect that a Default or an Event of Default then exists or (e) on account of Cash Management Services and Bank Products. Without limiting the generality of the foregoing, Availability Reserves may include, in the Agent’s (or, as applicable, the FILO Agent’s) discretion, (but are not limited to) reserves based on: (i) rent; (ii) customs duties, and other costs to release Inventory which is being imported into the United States; (iii) outstanding Taxes and other governmental charges, including, without limitation, ad valorem, real estate, personal property, sales, claims of the PBGC and other Taxes which may be pari passu with or have priority over the interests of the Agent in the Collateral; (iv) salaries, wages and benefits due to employees of any Borrower, (v) Customer Credit Liabilities, (vi) customer deposits, (vii) reserves for reasonably anticipated changes in the Appraised Value of Eligible Inventory or Eligible Trade Names between appraisals, (viii) warehousemen’s or bailee’s charges and other Permitted Encumbrances which are pari passu with or may have priority over the interests of the Agent in the Collateral, (ix) amounts due to vendors on account of consigned goods, (x) Cash Management Reserves, (xi) Bank Products Reserves, and (xii) royalties payable in respect of licensed merchandise.

“Average Revolving Availability” shall mean the average daily Availability for the immediately preceding Fiscal Quarter.

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“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

“Bail-In Legislation” means[,] with respect to (a) any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, or (b) the United Kingdom, Part I of the United Kingdom Banking Act 2009 and any other law applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

“Bank of America” means Bank of America, N.A. and its successors.

“Bank Product Reserves” means such reserves as the Agent from time to time determines in its reasonable discretion as being appropriate to reflect the liabilities and obligations of the Loan Parties with respect to Bank Products then provided or outstanding.

“Bank Products” means any services or facilities provided to any Loan Party by the Agent, any Lender, or any of their respective Affiliates (or by a Person that, at the time it entered into an agreement to provide such services or facilities, was the Agent, a Lender or an Affiliate thereof), including, without limitation, on account of (a) Swap Contracts, (b) leasing, (c) factoring, (d) purchase cards, (e) credit or debit cards and ([d]f) supply chain finance services (including, without limitation, trade payable services and supplier accounts receivable purchases), but excluding Cash Management Services.

“Bank Product Reserves” means such reserves as the Agent from time to time determines in its reasonable discretion as being appropriate to reflect the liabilities and obligations of the Loan Parties with respect to Bank Products then provided or outstanding.

“Banker’s Acceptance” means a time draft or bill of exchange or other deferred payment obligation relating to a Commercial Letter of Credit which has been accepted by the L/C Issuer.

“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,” and (c) the LIBOR Rate plus 1.00% (which rate, for the avoidance of doubt, shall not be less than the LIBOR Floor).  The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’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 such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03 hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.

“Base Rate Loan” means a Loan that bears interest based on the Base Rate.

“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association.

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“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

“Borrower Materials” has the meaning [specified]set forth in Section 0.

“Borrowers” has the meaning specified in the introductory paragraph hereto.

“Borrowing” means a Committed Borrowing, a Swing Line Borrowing or the borrowing of the FILO Loan on the [Closing]Fourth Amendment Effective Date, as the context may require.

“Borrowing Base” means, at any time of calculation, an amount equal to:

(a)the face amount of Eligible Credit Card Receivables multiplied by 90%;

plus

(b) the product of (i) the Inventory Advance Rate multiplied by (ii) the Appraised Value of Eligible Inventory (other than Eligible In-Transit Inventory or Eligible Letters of Credit) of the Loan Parties, multiplied by (iii) the Cost of Eligible Inventory (other than Eligible In-Transit Inventory or Eligible Letters of Credit) of the Loan Parties, net of Inventory Reserves;

plus

(c) the product (without duplication) of (i) the In-Transit Advance Rate multiplied by (ii) the Appraised Value of Eligible In-Transit Inventory of the Loan Parties, multiplied by (iii) the Cost of Eligible In-Transit Inventory of the Loan Parties, net of Inventory Reserves;

plus

(d)the product (without duplication) of (i) the Letter of Credit Inventory Advance Rate multiplied by (ii) the Appraised Value of the Inventory of the Loan Parties supported by the Eligible Letters of Credit, multiplied by (iii) the Cost of such Inventory when completed, net of Inventory Reserves;

plus

(e)the face amount of Eligible Amazon Receivables (net of Receivables Reserves applicable thereto) multiplied by 85%; provided that the amounts advanced under the Borrowing Base pursuant to this clause (e) shall at no time exceed $8,000,000;

minus

(f)the FILO Push Down Reserve;

minus

(g) the then amount of all Availability Reserves.

“Borrowing Base Certificate” means a certificate substantially in the form of Exhibit F hereto (with such changes therein as may be required by the Agent to reflect the components of and reserves against the

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Borrowing Base and the FILO Borrowing Base as provided for hereunder from time to time), executed and certified as accurate and complete by a Responsible Officer of the Lead Borrower which shall include appropriate exhibits, schedules, supporting documentation and additional reports as reasonably requested by the Agent.

“Business Day” 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 Agent’s Office is located and, if such day relates to any LIBOR Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank market.

“Capital Expenditures” means, with respect to any Person for any period, (a) all expenditures made (whether made in the form of cash or other property) or costs incurred for the acquisition or improvement of fixed or capital assets of such Person (excluding normal replacements and maintenance which are properly charged to current operations), in each case that are (or should be) set forth as capital expenditures in a Consolidated statement of cash flows of such Person for such period, in each case prepared in accordance with GAAP, and (b) Capital Lease Obligations incurred by a Person during such period.

“Capital Lease Obligations” means, with respect to any Person for any period, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as liabilities on a balance sheet of such Person under GAAP and the amount of which obligations shall be the capitalized amount thereof determined in accordance with GAAP.

“Cash Collateral Account” means a non-interest bearing account established by one or more of the Loan Parties with Bank of America, and in the name of, the Agent (or as the Agent shall otherwise direct) and under the sole and exclusive dominion and control of the Agent, in which deposits are required to be made in accordance with Section 0 or [0]8.02(a)(iii)0.

“Cash Collateralize” means to deposit in the Cash Collateral Account or to pledge and deposit with or deliver to the Agent, for the benefit of one or more of the Agent, the L/C Issuer or the Revolving Lenders, as collateral for L/C Obligations or obligations of the Revolving Lenders to fund participations in respect thereof (as the context may require), L/C Obligations, cash or deposit account balances or, if the Agent and the L/C Issuer shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Agent and the L/C Issuer. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

“Cash Dominion Event” means either (i) the occurrence and continuance of any Event of Default, or (ii) the failure of the Borrowers to maintain Availability at all times equal to or greater than twelve and one-half percent (12.5%) of the Revolving Loan Cap (calculated without giving effect to the FILO Push Down Reserve).  For purposes of this Agreement, the occurrence of a Cash Dominion Event shall be deemed continuing at the Agent’s option (i) so long as such Event of Default has not been waived or is no longer continuing, and/or (ii) if the Cash Dominion Event arises as a result of the Borrowers’ failure to achieve Availability as required hereunder, until Availability has equaled or exceeded twelve and one-half percent (12.5%) of the Revolving Loan Cap (calculated without giving effect to the FILO Push Down Reserve) for sixty (60) consecutive calendar days, in which case a Cash Dominion Event shall no longer be deemed to be continuing for purposes of this Agreement; provided that a Cash Dominion Event shall be deemed continuing (even if an Event of Default is no longer continuing and/or Availability exceeds the required amount for sixty (60) consecutive calendar days) at all times after a Cash Dominion Event has occurred and been discontinued on two (2) occasions after the Closing Date. The termination of a Cash

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Dominion Event as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Cash Dominion Event in the event that the conditions set forth in this definition again arise.

“Cash Management Reserves” means such reserves as the Agent, from time to time, determines in its reasonable discretion as being appropriate to reflect the reasonably anticipated liabilities and obligations of the Loan Parties with respect to Cash Management Services then provided or outstanding.

“Cash Management Services” means [any]the following cash management services provided to any Loan Party by the Agent or any Lender or any of their respective Affiliates (or by a Person that, at the time it entered into an agreement to provide such cash management services, was the Agent, a Lender or an Affiliate thereof), including, without limitation, (a) ACH transactions, (b) treasury and/or cash management services, including, without limitation, controlled disbursement services, treasury, depository, overdraft, and electronic funds transfer services[,] and (c) credit card processing services[, (d) purchase cards] and (e) credit or debit cardsother credit card merchant services (other than those constituting a line of credit).

“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq.

“CERCLIS” means the Comprehensive Environmental Response, Compensation, and Liability Information System maintained by the United States Environmental Protection Agency.

“CFC” means a Person that is a controlled foreign corporation under Section 957 of the Code.

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) 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 or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Change of Control” means an event or series of events by which:

(a) “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 35% or more of the Equity Interests of the Lead Borrower entitled to vote for members of the board of directors or equivalent governing body of the Lead Borrower on a fully-diluted basis (and taking into account all such Equity Interests that such “person” or “group” has the right to acquire pursuant to any option right); or

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(b)any “change in control” or “sale” or “disposition” or similar event as defined in any Organizational Document of any Loan Party or in any Material Contract, or any document governing Material Indebtedness of any Loan Party;

(c)at any time, occupation of a majority of the seats (other than vacant seats) on the board of directors of the Lead Borrower by Persons who were neither (i) nominated by the board of directors of the Lead Borrower nor (ii) appointed by directors so nominated; or

(d)the Lead Borrower fails at any time to own, directly or indirectly, 100% of the Equity Interests of each other Loan Party free and clear of all Liens (other than the Liens in favor of the Agent), except where such failure is as a result of a transaction permitted by the Loan Documents.

“Closing Date” means the first date all the conditions precedent in Section 0 [are]were satisfied or waived in accordance with Section 0.

“Closing Date Audited Financial Statements” means the audited consolidated balance sheet of the Lead Borrower and its Subsidiaries for the Fiscal Year ended February 3, 2018, and the related consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Year of the Lead Borrower and its Subsidiaries, including the notes thereto.

“Code” means the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder, as amended and in effect.

“Collateral” means any and all “Collateral” as defined in any applicable Security Document and all other property that is or is intended under the terms of the Security Documents to be subject to Liens in favor of the Agent.

“Collateral Access Agreement” means an agreement reasonably satisfactory in form and substance to the Agent executed by (a) a bailee or other Person in possession of Collateral, and/or (b) any landlord of Real Estate leased by any Loan Party, pursuant to which such Person (i) acknowledges the Agent’s Lien on the Collateral, (ii) releases or subordinates such Person’s Liens in the Collateral held by such Person or located on such Real Estate, (iii) provides the Agent with access to the Collateral held by such bailee or other Person or located in or on such Real Estate, (iv) as to any landlord, provides the Agent with a reasonable time to sell and dispose of the Collateral from such Real Estate, and (v) makes such other agreements with the Agent as the Agent may reasonably require.

“Collection Account” has the meaning [provided]set forth in Section 0.

“Commercial Letter of Credit” means any letter of credit or similar instrument (including, without limitation, Bankers’ Acceptances) issued for the purpose of providing the primary payment mechanism in connection with the purchase of any materials, goods or services by a Loan Party in the ordinary course of business of such Loan Party.

“Commitment” means the Revolving Commitments and the FILO Commitment.

“Commitment Fee” has the meaning [specified]set forth in Section 0.

“Commitment Fee Percentage” means 0.25% per annum.

“Commitment Increase” has the meaning [specified]set forth in Section 2.15(a).

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“Committed Borrowing” means a borrowing consisting of a[ Committed] Loan or simultaneous[ Committed] Loans of the same Type and, in the case of LIBOR Rate Loans, having the same Interest Period made by each of the Revolving Lenders pursuant to Section 0.

“Committed Loan” has the meaning [specified]set forth in Section 0.

“Committed Loan Notice” means a notice of (a) a[ Committed] Borrowing, (b) a Conversion of Committed Loans from one Type to the other, or (c) a continuation of LIBOR Rate Loans, pursuant to Section 0, which, if in writing, shall be substantially in the form of Exhibit A.

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

“Communication” has the meaning set forth in Section 10.24.

“Compliance Certificate” means a certificate substantially in the form of Exhibit D.

“Conforming DIP” shall has the meaning set forth in Section 8.04.

“Consent” means (a) actual consent given by a Lender from whom such consent is sought; or (b) except with respect to (x) matters set forth in Section 10.01(i) – (xi) (as to which matters actual written consent given by the Lender from whom such consent is sought shall be required) and (y) matters requiring the consent of the FILO Agent or any FILO Lender, the passage of seven (7) Business Days from receipt of written notice to a Lender from the Agent of a proposed course of action to be followed by the Agent without such Lender’s giving the Agent written notice of that Lender’s objection to such course of action; provided that the Agent and the FILO Agent may rely on such passage of time as consent by a Lender only if such written notice states that consent will be deemed effective if no object is received within such time period.

“Consolidated” means, when used to modify a financial term, test, statement, or report of a Person, the application or preparation of such term, test, statement or report (as applicable) based upon the consolidation, in accordance with GAAP, of the financial condition or operating results of such Person and its Subsidiaries.

“Consolidated EBITDA” means, at any date of determination, an amount equal to Consolidated Net Income of the Lead Borrower and its Subsidiaries on a Consolidated basis for the most recently completed Measurement Period, plus (a) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges, (ii) the provision for Federal, state, local and foreign income Taxes, (iii) depreciation and amortization expense and (iv) other non-recurring expenses reducing such Consolidated Net Income which do not represent a cash item in such period or any future period (in each case of or by the Lead Borrower and its Subsidiaries for such Measurement Period), minus (b) the following to the extent included in calculating such Consolidated Net Income: (i) Federal, state, local and foreign income tax credits and (ii) all non-cash items increasing Consolidated Net Income (in each case of or by the Lead Borrower and its Subsidiaries for such Measurement Period), all as determined on a Consolidated basis in accordance with GAAP.

“Consolidated Fixed Charge Coverage Ratio” means, at any date of determination, the ratio of (a) (i) Consolidated EBITDA for such period minus (ii) Capital Expenditures made during such period, minus (iii) the aggregate amount of Federal, state, local and foreign income taxes paid in cash during such period (but not less than zero) to (b) the sum of (i) Debt Service Charges plus (ii) for the purposes of calculating the Consolidated Fixed Charge Coverage Ratio when determining compliance with the RP Conditions for the making of any Restricted Payment, the amount of all Restricted Payments to be made at such time and

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previously made in reliance on the RP Conditions, in each case, of or by Lead Borrower and its Subsidiaries for the most recently completed Measurement Period, all as determined on a Consolidated basis in accordance with GAAP.

“Consolidated Interest Charges” means, for any Measurement Period, the sum of (a) 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, including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under Swap Contracts, but excluding any non-cash or deferred interest financing costs, and (b) the portion of rent expense with respect to such period under Capital Lease Obligations that is treated as interest in accordance with GAAP, in each case of or by the Lead Borrower and its Subsidiaries for the most recently completed Measurement Period, all as determined on a Consolidated basis in accordance with GAAP.

“Consolidated Net Income” means, as of any date of determination, the net income of the Lead Borrower and its Subsidiaries for the most recently completed Measurement Period, all as determined on a Consolidated basis in accordance with GAAP, provided, however, that there shall be excluded (a) the income (or loss) of any Subsidiary during such Measurement Period in which any other Person has a joint interest, except to the extent of the amount of cash dividends or other distributions actually paid in cash to the Lead Borrower during such period, (b) the income (or loss) of such Subsidiary during such Measurement Period and accrued prior to the date it becomes a Subsidiary of the Lead Borrower or any of its Subsidiaries or is merged into or consolidated the Lead Borrower or any of its Subsidiaries or that Person’s assets are acquired by the Lead Borrower or any of its Subsidiaries, and (c) the income of any direct or indirect Subsidiary of the Lead Borrower to the extent that the declaration or payment of dividends or similar distributions by that Subsidiary of that income is not at the time permitted by operation of the terms of its Organization Documents or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary, except that the Lead Borrower’s equity in any net loss of any such Subsidiary for such Measurement Period shall be included in determining Consolidated Net Income.

“Contractual Obligation” 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 which it or any of its property is bound.

“Control” 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 “Controlled” have meanings correlative thereto.

“Controlled Account” has the meaning [provided]set forth in Section 0.

“Controlled Account Bank” means each bank with whom deposit accounts are maintained in which any funds of any of the Loan Parties from one or more DDAs are concentrated and with whom an Account Control Agreement has been, or is required to be, executed in accordance with the terms hereof.

“Convert”, “Conversion” and “Converted” each refers to a conversion of Committed Loans of one Type into Committed Loans of the other Type.

“Cost” means the lower of cost or market value of Inventory, based upon the Borrowers’ accounting practices, known to the Agent, which practices are in effect on the [Closing]Fourth Amendment Effective Date as such calculated cost is determined from invoices received by the Borrowers, the Borrowers’

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purchase journals or the Borrowers’ stock ledger.  “Cost” does not include inventory capitalization costs or other non-purchase price charges (such as freight) used in the Borrowers’ calculation of cost of goods sold.

“Covered Entity” means any of the following:  (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

“Covered Party” has the meaning [specified]set forth in Section 10.26.

“Credit Card Issuer” shall mean any person (other than a Borrower or other Loan Party) who issues or whose members issue credit cards, including, without limitation, MasterCard or VISA bank credit or debit cards or other bank credit or debit cards issued through MasterCard International, Inc., Visa, U.S.A., Inc. or Visa International and American Express, Discover, Diners Club, Carte Blanche and other non-bank credit or debit cards, including, without limitation, credit or debit cards issued by or through American Express Travel Related Services Company, Inc.,  and Novus Services, Inc. and other issuers approved by the Agent.

“Credit Card Processor” shall mean any servicing or processing agent or any factor or financial intermediary who facilitates, services, processes or manages the credit authorization, billing transfer and/or payment procedures with respect to any Borrower’s sales transactions involving credit card or debit card purchases by customers using credit cards or debit cards issued by any Credit Card Issuer.

“Credit Card Receivables” means each “payment intangible” (as defined in the UCC) together with all income, payments and proceeds thereof, owed by a Credit Card Issuer or Credit Card Processor to a Loan Party resulting from charges by a customer of a Loan Party on credit or debit cards issued by such Credit Card Issuer in connection with the sale of goods by a Loan Party, or services performed by a Loan Party, in each case in the ordinary course of its business.

“Credit Extensions” mean each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

“Credit Party” or “Credit Parties” means (a) individually, (i) each Lender and its Affiliates, (ii) the Agent, (iii) the FILO Agent, (iv) each L/C Issuer, ([iv]v) the Arranger, ([v]vi) each beneficiary of each indemnification obligation undertaken by any Loan Party under any Loan Document, ([vi]vii) any other Person to whom Obligations under this Agreement and other Loan Documents are owing, and ([vii]viii) the successors and assigns of each of the foregoing, and (b) collectively, all of the foregoing.

“Credit Party Expenses” means (a) all reasonable out-of-pocket expenses incurred by the Agent, the Arranger and their respective Affiliates, in connection with this Agreement and the other Loan Documents, including without limitation (i) the reasonable fees, charges and disbursements of (A) counsel for the Agent and the Arranger, (B) outside consultants for the Agent, (C) appraisers, [and ](D) commercial finance examiners, and (E) all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of the Obligations, (ii) in connection with (A) the syndication of the credit facilities provided for herein, (B) the preparation, negotiation, administration, management, execution and delivery of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (C) the enforcement or protection of their rights in connection with this Agreement or the Loan Documents or efforts to preserve, protect, collect, or enforce the Collateral or in connection with any proceeding under any Debtor Relief Laws, or (D) any workout, restructuring or negotiations in respect of any Obligations, and (iii) all customary fees and charges (as adjusted from time to time) of the Agent with respect to the disbursement of funds (or the receipt of funds) to or for the account of Borrowers (whether by wire transfer or otherwise), together with any out-of-pocket costs and expenses incurred in connection therewith, [and (b](b) all reasonable out-of-pocket expenses incurred by the FILO Agent in connection with this Agreement and the other Loan Documents, including without limitation (i) the reasonable fees, charges and disbursements of (A) counsel for the FILO Agent, (B) outside consultants for the FILO Agent, (C) appraisers, (D) commercial finance examiners, and (E) all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of the Obligations, (ii) in connection with (A) the preparation, negotiation, administration, management, execution and delivery of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (B) the enforcement or protection of their rights in connection with this Agreement or the Loan Documents or efforts to preserve, protect, collect, or enforce the Collateral or in connection with any proceeding under any Debtor Relief Laws, or (C) any workout, restructuring or negotiations in respect of any Obligations, and (iii) all customary fees and charges (as adjusted from time to time) of the FILO Agent with respect to the disbursement of funds (or the receipt of funds) to or for the account of Borrowers (whether by wire transfer

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or otherwise), together with any out-of-pocket costs and expenses incurred in connection therewith; (c) with respect to the L/C Issuer, and its Affiliates, all reasonable out-of-pocket expenses incurred in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder; and ([c]d) all reasonable out-of-pocket expenses incurred by the Credit Parties who are not the Agent, the FILO Agent, the Arranger, the L/C Issuer or any Affiliate of any of them, after the occurrence and during the continuance of an Event of Default, provided that such Credit Parties shall be entitled to reimbursement for no more than one counsel representing all such Credit Parties (absent a conflict of interest in which case the Credit Parties may engage and be reimbursed for additional counsel).

“Customer Credit Liabilities” means at any time, the aggregate remaining value at such time of (a) outstanding gift certificates and gift cards of the Borrowers entitling the holder thereof to use all or a portion of the certificate or gift card to pay all or a portion of the purchase price for any Inventory, and (b) outstanding merchandise credits of the Borrowers.

“Customs Broker/Carrier Agreement” means an agreement in form and substance satisfactory to the Agent among a Loan Party, a customs broker, freight forwarder, consolidator, or carrier, and the Agent, in which the customs broker, freight forwarder, consolidator, or carrier acknowledges that it has control over and holds the documents evidencing ownership of the subject Inventory for the benefit of the Agent and agrees, upon notice from the Agent, to hold and dispose of the subject Inventory solely as directed by the Agent.

“DDA” means each checking, savings or other demand deposit account maintained by any of the Loan Parties.  All funds in each DDA shall be conclusively presumed to be Collateral and proceeds of Collateral and the Agent and the Lenders shall have no duty to inquire as to the source of the amounts on deposit in any DDA.

“Debt Service Charges” means for any Measurement Period, the sum of (a) Consolidated Interest Charges paid or required to be paid for such Measurement Period, plus (b) principal payments made or required to be made on account of Indebtedness (excluding the Obligations and any Synthetic Lease Obligations but including, without limitation, Capital Lease Obligations) for such Measurement Period, in each case determined on a Consolidated basis in accordance with GAAP.

“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.

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“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

“Default Rate” means (a) when used with respect to Loans, an interest rate equal to the interest rate (including the Applicable Margin) otherwise applicable to such Loan plus two percent (2%) per annum, (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate for Standby Letters of Credit or Commercial Letters of Credit, as applicable, plus two percent (2%) per annum, and (c) with respect to all other Obligations, an interest rate equal to the Base Rate, plus  the then Applicable Margin, plus two percent (2%) per annum.

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

“Defaulting Lender” means, subject to Section 0, any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder, or (ii) pay to the Agent, the L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two (2) Business Days of the date when due, (b) has notified the Lead Borrower, the Agent, the L/C Issuer or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect, (c) has failed, within three (3) Business Days after written request by the Agent or the Lead Borrower, to confirm in writing to the Agent and the Lead Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Agent and the Lead Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 0) as of the date established therefor by the Agent in a written notice of such determination, which shall be delivered by the Agent to the Lead Borrower, the L/C Issuer, the Swing Line Lender and each other Lender promptly following such determination.

“Dilution Reserve” means, for any period, that percentage reasonably determined by the[ Administrative] Agent by (i) dividing (A) the amount of charge-offs of Eligible Amazon Receivables and returns of goods purchased from the Borrowers during such period which had, at the time of sale, resulted in the creation of an Eligible Amazon Receivable, by (B) the amount of sales (exclusive of sales and other similar taxes) of the Borrowers during such period and thereafter (ii) deducting five percent (5%) (but in no event shall the Dilution Reserve be less than zero).

“DIP Financing” shall mean, in connection with a proceeding under any Debtor Relief Laws, with respect to a Loan Party, the consensual use of cash collateral by, or the provision of financing

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or financial accommodations to such Loan Party by one or more Credit Parties, permitted under and subject to applicable Law, and pursuant to an order of a court of competent jurisdiction.

“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction), whether in one transaction or in a series of transactions and whether effected pursuant to a Division or otherwise, of any property (including, without limitation, any Equity Interests other than Equity Interests of the Lead Borrower) by any Person (or the granting of any option or other right to do any of the foregoing), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith .

“Disqualified Stock” means any Equity Interest that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is ninety-one (91) days after the Latest Maturity Date (determined at the time of issuance).  The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Agreement will be the maximum amount that the Lead Borrower and its Subsidiaries may become obligated to pay upon maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock or portion thereof, plus accrued dividends.

“Dividing Person” has the meaning assigned to it in the definition of “Division.”

“Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.

“Dollars” and “$” mean lawful money of the United States.

“Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States of America, any State thereof or the District of Columbia (excluding, for the avoidance of doubt, any Subsidiary organized under the laws of Puerto Rico or any other territory).

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Electronic Copy” has the meaning set forth in Section 10.24.

“Electronic Record” has the meaning set forth in Section 10.24.

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“Electronic Signature” has the meaning set forth in Section 10.24.

“Eligible Amazon Receivables” means Accounts with respect to Amazon arising from the sale of the Loan Parties’ Inventory (but excluding, for the avoidance of doubt, Credit Card Receivables) that satisfies the following criteria at the time of creation and continues to meet the same at the time of such determination: such Account (i) has been earned by performance and represents the bona fide amounts due to a Loan Party from Amazon, and in each case is originated in the ordinary course of business of such Loan Party, and (ii) in each case is reasonably acceptable to the Agent in its discretion, and is not ineligible for inclusion in the calculation of the Borrowing Base and the FILO Borrowing Base pursuant to any of clauses (a) through (k) below.  Without limiting the foregoing, to qualify as an Eligible Amazon Receivable, an Account shall indicate no Person other than a Loan Party as payee or remittance party.  In determining the amount to be so included, the face amount of an Account shall be reduced by, without duplication, to the extent not reflected in such face amount, (i) the amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments, finance charges or other allowances (including any amount that a Loan Party may be obligated to rebate to a customer pursuant to the terms of any agreement or understanding (written or oral)) and (ii) the aggregate amount of all cash received in respect of such Account but not yet applied by the Loan Parties to reduce the amount of such Eligible Amazon Receivable.  Except as otherwise agreed by the Agent and the FILO Agent, any Account included within any of the following categories shall not constitute an Eligible Amazon Receivable:

(a)Accounts that have been outstanding for more than one hundred twenty (120) days from the date of sale or more than thirty (30) days past the due date;

(b)Accounts (i) that are not subject to a perfected first-priority security interest in favor of the Agent, or (ii) with respect to which a Loan Party does not have good and valid title thereto, free and clear of any Lien (other than Liens granted to the Agent pursuant to the Security Documents);

(c)Accounts which are disputed or with respect to which a claim, counterclaim, offset or chargeback has been asserted, but only to the extent of such dispute, counterclaim, offset or chargeback;

(d)Accounts which arise out of any sale (i) not made in the ordinary course of business, (ii) made on a basis other than upon credit terms usual to the business of the Loan Parties or (iii) are not payable in Dollars;

(e)Accounts for which all consents, approvals or authorizations of, or registrations or declarations with any Governmental Authority required to be obtained, effected or given in connection with the performance of such Account by Amazon or in connection with the enforcement of such Account by the Agent have not been duly obtained, effected or given and are not in full force and effect;

(f)all Accounts if Amazon is the subject of any bankruptcy or insolvency proceeding, has had a trustee or receiver appointed for all or a substantial part of its property, has made an assignment for the benefit of creditors or has suspended its business;

(g)Accounts representing any manufacturer’s or supplier’s credits, discounts, incentive plans or similar arrangements entitling a Loan Party or any of its Subsidiaries to discounts on future purchase therefrom;

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(h)Accounts arising out of sales on a bill-and-hold, guaranteed sale, sale-or-return, sale on approval or consignment basis or subject to any right of return;

(i)Accounts evidenced by [a promissory note]“chattel paper” or [other ]an “instrument” of any kind;

(j)Accounts consisting of amounts due from vendors as rebates or allowances; or

(k)Accounts which are in excess of the credit limit for Amazon established by the Loan Parties in the ordinary course of business and consistent with past practices.

“Eligible Assignee” means (a) a Credit Party or any of its Affiliates; (b) a bank, insurance company, or company engaged in the business of making commercial loans[, which]; provided that, solely with respect to the Revolving Facility, any such Person described in this clause (b), together with its Affiliates, has a combined capital and surplus in excess of $250,000,000; (c) an Approved Fund; (d) any Person to whom a Credit Party assigns its rights and obligations under this Agreement as part of an assignment and transfer of such Credit Party’s rights in and to a material portion of such Credit Party’s portfolio of asset based credit facilities, and (e) any other Person (other than a natural Person) approved by (i) (x) in the case of an assignment of the Revolving Commitment, the Agent, the L/C Issuer and the Swing Line Lender and (y) in the case of an assignment of the outstanding FILO Loan, the Agent and FILO Agent and (ii) unless a Default or Event of Default has occurred and is continuing, the Lead Borrower (each such approval not to be unreasonably withheld or delayed).

“Eligible Credit Card Receivables” means at the time of any determination thereof, each Credit Card Receivable that satisfies the following criteria at the time of creation and continues to meet the same at the time of such determination: such Credit Card Receivable (i) has been earned by performance and represents the bona fide amounts due to a Loan Party from a Credit Card Issuer or Credit Card Processor, and in each case is originated in the ordinary course of business of such Loan Party, and (ii) in each case is acceptable to the Agent in its reasonable discretion, and is not ineligible for inclusion in the calculation of the Borrowing Base and the FILO Borrowing Base pursuant to any of clauses (a) through (i) below.  Without limiting the foregoing, to qualify as an Eligible Credit Card Receivable, such Credit Card Receivable shall indicate no Person other than a Loan Party as payee or remittance party.  In determining the amount to be so included, the face amount of a Credit Card Receivable shall be reduced by, without duplication, to the extent not reflected in such face amount, (i) the amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments, finance charges or other allowances (including any amount that a Loan Party may be obligated to rebate to a customer, a Credit Card Issuer or Credit Card Processor pursuant to the terms of any agreement or understanding (written or oral)) and (ii) the aggregate amount of all cash received in respect of such Credit Card Receivable but not yet applied by the Loan Parties to reduce the amount of such Credit Card Receivable.  Except as otherwise agreed by the Agent and the FILO Agent, any Credit Card Receivable included within any of the following categories shall not constitute an Eligible Credit Card Receivable:

(a)Credit Card Receivables which do not constitute a “payment intangible” (as defined in the UCC);

(b)Credit Card Receivables that have been outstanding for more than five (5) Business Days from the date of sale;

(c)Credit Card Receivables (i) that are not subject to a perfected first-priority security interest in favor of the Agent, or (ii) with respect to which a Loan Party does not have good and

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valid title thereto, free and clear of any Lien (other than Liens granted to the Agent pursuant to the Security Documents);

(d)Credit Card Receivables which are disputed, are with recourse, or with respect to which a claim, counterclaim, offset or chargeback has been asserted (to the extent of such claim, counterclaim, offset or chargeback);

(e)Credit Card Receivables as to which a Credit Card Issuer or a Credit Card Processor has the right under certain circumstances to require a Loan Party to repurchase the Credit Card Receivables from such Credit Card Issuer or Credit Card Processor;

(f)Credit Card Receivables due from a Credit Card Issuer or a Credit Card Processor of the applicable credit card which (i) is the subject of a proceeding under any [bankruptcy or insolvency proceedings]Debtor Relief Law or (ii) is a target of Sanctions;

(g) Credit Card Receivables which are not a valid, legally enforceable obligation of the applicable Credit Card Issuer or a Credit Card Processor with respect thereto;

(h)Credit Card Receivables which do not conform to all representations, warranties or other provisions in the Loan Documents relating to Credit Card Receivables;

(i)Credit Card Receivables which are evidenced by “chattel paper” or an “instrument” of any kind unless such “chattel paper” or “instrument” is in the possession of the Agent, and to the extent necessary or appropriate, endorsed to the Agent; or

(j)Credit Card Receivables which the Agent determines in its reasonable discretion to be uncertain of collection or which do not meet such other reasonable eligibility criteria for Credit Card Receivables as the Agent may determine.

“Eligible In-Transit Inventory” means, as of any date of determination thereof, without duplication of other Eligible Inventory, In-Transit Inventory:

(a)[Which]which has been shipped from a foreign location for receipt by a Loan Party, but which has not yet been delivered to such Loan Party, which In-Transit Inventory has been in transit for forty-five (45) days or less from the date of shipment of such Inventory;

(b)[For]for which the purchase order is in the name of a Loan Party and title and risk of loss has passed to such Loan Party;

(c)[For]for which an Acceptable Document of Title has been issued, and in each case as to which the Agent has control (as defined in the UCC) over the documents of title which evidence ownership of the subject Inventory (including, if requested by the Agent, by the delivery of a Customs Broker/Carrier Agreement);

(d)[Which]which is insured to the reasonable satisfaction of the Agent (including, without limitation, pursuant to marine cargo insurance);

(e)the Foreign Vendor with respect to such In-Transit Inventory is an Approved Foreign Vendor;

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(f)[For]for which payment of the purchase price has been made by the Borrowers or the purchase price is supported by a Commercial Letter of Credit; and

(g)[Which]which otherwise would constitute Eligible Inventory;

provided that the Agent may, in its discretion, exclude any particular Inventory from the definition of “Eligible In-Transit Inventory” in the event the Agent determines that such Inventory is subject to any Person’s right of reclamation, repudiation, stoppage in transit or any event has occurred or is reasonably anticipated by the Agent to arise which may otherwise adversely impact the value of such Inventory or the ability of the Agent to realize upon such Inventory.

“Eligible Inventory” means, as of the date of determination thereof, without duplication, (i) Eligible In-Transit Inventory, (ii) Eligible Letters of Credit and (iii) items of Inventory of a Loan Party that are finished goods, merchantable and readily saleable to the public in the ordinary course of the Loan Party’s business deemed by the Agent in its reasonable discretion to be eligible for inclusion in the calculation of the Borrowing Base and the FILO Borrowing Base, in each case that, except as otherwise agreed by the Agent and the FILO Agent, (A) complies with each of the representations and warranties respecting Inventory made by the Loan Parties in the Loan Documents, and (B) is not excluded as ineligible by virtue of one or more of the criteria set forth below.  Except as otherwise agreed by the Agent[, in its reasonable discretion] and the FILO Agent, the following items of Inventory shall not be included in Eligible Inventory:

(a)Inventory that is not solely owned by a Loan Party or a Loan Party does not have good and valid title thereto free and clear of any Lien (other than Liens granted to the Agent pursuant to the Security Documents);

(b)Inventory that is leased by or is on consignment to a Loan Party or which is consigned by a Loan Party to a Person which is not a Loan Party;

(c)Inventory (other than Eligible In-Transit Inventory) that is not located in the United States of America (excluding territories or possessions of the United States) at a location that is owned or leased by a Loan Party, except (i) Inventory in transit between such owned or leased locations of such Person, or (ii) to the extent that the Loan Parties have furnished the Agent with (A) any UCC financing statements or other documents that the Agent may determine to be necessary to perfect its security interest in such Inventory at such location, and (B) a Collateral Access Agreement executed by the Person owning any such location to the extent required by the Agent;

(d)Inventory that is located in a distribution center leased by a Loan Party unless the applicable lessor has delivered to the Agent a Collateral Access Agreement;

(e)Inventory that is comprised of goods which (i) are damaged, defective, “seconds,” or otherwise unmerchantable, (ii) are to be returned to the vendor, (iii) are obsolete or slow moving, or custom items, work-in-process, raw materials, or that constitute samples, spare parts, promotional, marketing, labels, bags and other packaging and shipping materials or supplies used or consumed in a Loan Party’s business, (iv) are seasonal in nature and which have been packed away for sale in the subsequent season, (v) not in compliance with all standards imposed by any Governmental Authority having regulatory authority over such Inventory, its use or sale, or (vi) are bill and hold goods;

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(f)Inventory that is not subject to a perfected first-priority security interest in favor of the Agent;

(g)Inventory that is not insured in compliance with the provisions of Section 0[ hereof];

(h)Inventory that has been sold to a buyer but not yet delivered to such buyer or as to which a Loan Party has accepted a deposit;  

(i)Inventory that is subject to any licensing, patent, royalty, trademark, trade name or copyright agreement with any third party from which any Loan Party or any of its Subsidiaries has received notice of a dispute in respect of any such agreement; or

(j)Inventory acquired in a Permitted Acquisition or which is not of the type usually sold in the ordinary course of the Borrowers’ business, unless and until the Agent has completed or received (A) an appraisal of such Inventory from appraisers satisfactory to the Agent and establishes Inventory Reserves (if applicable) therefor, and otherwise agrees that such Inventory shall be deemed Eligible Inventory, and (B) such other due diligence as the Agent may require, all of the results of the foregoing to be reasonably satisfactory to the Agent.

“Eligible Letter of Credit” means, as of any date of determination thereof, a Commercial Letter of Credit which supports the purchase of Inventory, (a) which Inventory does not constitute Eligible In-Transit Inventory and for which no documents of title have then been issued; (b) which Inventory otherwise would constitute Eligible Inventory when completed, (c) which Commercial Letter of Credit has an expiry within one hundred and eighty (180) days of the date of initial issuance of such Commercial Letter of Credit, (d) which Inventory has been in transit for forty-five (45) days or less from the date of shipment of such Inventory, (e) which Commercial Letter of Credit provides that it may be drawn only after the Inventory is completed and after an Acceptable Document of Title has been issued for such Inventory reflecting a Loan Party or the Agent as consignee of such Inventory, and (f) which will constitute Eligible In-Transit Inventory upon satisfaction of the requirements of clause (e) hereof.

“Eligible Trade Names” means each Trademark of the Loan Parties deemed by the FILO Agent in its reasonable discretion to be eligible for inclusion in the calculation of the FILO Borrowing Base that, except as otherwise agreed by the FILO Agent, complies with the following criteria:

(a)such Trademark is validly registered with the United States Patent and Trademark Office;  

(b)a Loan Party owns such Trademark, free and clear of any Liens other than Liens granted to the Agent;

(c)such Loan Party is in compliance in all material respects (subject to any materiality requirements set forth therein) with the representations, warranties and covenants set forth in the Loan Documents relating to such Trademark;

(d)the FILO Agent shall have received an appraisal (based upon Appraised Value) of such Trademark by a third party appraiser reasonably acceptable to the FILO Agent and otherwise in form and substance reasonably satisfactory to the FILO Agent; and

(e)the FILO Agent shall have received evidence reasonably satisfactory to the FILO Agent that (i) all actions have been taken that the FILO Agent may reasonably deem necessary or

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appropriate in order to create valid first and subsisting Liens in favor of the Agent, and (ii) all filings reasonably requested by the FILO Agent have been filed with the United States Patent and Trademark Office to further evidence the Agent’s Lien on such Trademark.

“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.

“Environmental Liability” means any liability, obligation, damage, loss, claim, action, suit, judgment, order, fine, penalty, fee, expense, or cost, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal or presence of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Equipment” has the meaning set forth in the UCC.

“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit 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 profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or non-voting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrowers within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Borrowers or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrowers or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other

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than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon  the Borrowers or any ERISA Affiliate.

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“Event of Default” has the meaning specified in Section 0.  An Event of Default shall be deemed to be continuing unless and until that Event of Default has been duly waived as provided in Section 0 or, if applicable, Section 10.01-A hereof.

“Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Loan Party under the Facility Guaranty of, or the grant under a Loan Document by such Loan Party of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act (or the application or official interpretation thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 10.25 hereof and any and all guarantees of such Loan Party’s Swap Obligations by other Loan Parties) at the time the guaranty of such Loan Party, or grant by such Loan Party of a security interest, becomes effective with respect to such Swap Obligation.  If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such guaranty or security interest becomes illegal.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient  or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrowers under Section 0) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 0 or (c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 0 and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.

“Executive Order” has the meaning set forth in Section 0.

“Existing Credit Agreement” means that certain Sixth Amended and Restated Loan and Security Agreement, dated as of November 10, 2010, among the Loan Parties, Bank of America, as agent, and a syndicate of lenders.

“Existing Letters of Credit” means the letters of credit issued under the Existing Credit Agreement and set forth on Schedule 2.03 hereto.

“Existing Term Loan Agreement” means that certain Term Loan Agreement, dated as of October 29, 2014, by and among the Borrowers, the lenders party thereto, and Wells Fargo Bank, National Association, as agent (the “Term Loan Agent”).

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“Facility Guaranty” means the Second Amended and Restated Guaranty dated as of the Closing Date and made by the Guarantors in favor of the Agent and the other Credit Parties, in form reasonably satisfactory to the Agent.

“FASB” means the Financial Accounting Standards Board, which promulgates accounting standards.

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code.

“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.

“Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

“Fee Letter” means the letter agreement, dated May 7, 2018, among the Lead Borrower, the Agent and the Arranger, as amended, restated, amended and restated, supplemented, or otherwise modified from time to time in accordance with the terms thereof.

 

“FILO [Advance Rate” shall mean]Applicable Margin” means:

(a)from and after the Fourth Amendment Effective Date and until the date that is six (6) months after the Fourth Amendment Effective Date, the percentages set forth in Level II of the pricing grid below[: ]

[Period]

[FILO Advance Rate]

[From the Third Amendment Effective Date through December 31, 2020]

[10%]

[From January 1, 2021 until May 24, 2021]

[7.5%]

[From May 25, 2021 until the Maturity Date]

[5%]

; and

(b)thereafter, the FILO Applicable Margin shall be determined from the following pricing grid based upon the TTM EBITDA by reference to the TTM EBITDA as set forth in the most recent Compliance Certificate delivered to the FILO Agent pursuant to Section 6.02.  Any increase or decrease in the FILO Applicable Margin resulting from a change in the TTM EBITDA shall become effective as of the first day of the immediately succeeding calendar month following the date a Compliance Certificate is delivered to the FILO Agent pursuant to Section 6.02; provided that, if a Compliance Certificate is not delivered to the FILO Agent when due in accordance with Section 6.02,

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then Level II of the pricing grid below shall apply as of the first day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered.  If any financial statements are at any time restated or otherwise revised (including as a result of an audit) or if the information set forth in such financial statements otherwise proves to be false or incorrect such that the FILO Applicable Margin would have been higher than was otherwise in effect during any period, without constituting a waiver of any Default or Event of Default arising as a result thereof, interest due under this Agreement shall be immediately and retroactively recalculated at such higher rate for any applicable periods and shall be due and payable on demand.

FILO Applicable Margin

Level

TTM EBITDA

FILO Rate for FILO Loans

I

Greater than or equal to $18,000,000

7.00%

II

Less than $18,000,000

7.50%

 

“FILO Agent” means PLC Agent LLC, a Delaware limited liability company, in its capacity as agent for the FILO Lenders, or any successor thereto.

“FILO Borrowing Base” means, at any time of calculation, an amount equal to:

[(a)the lesser of (i) the product of the FILO IP Advance Rate multiplied by the Appraised Value of Eligible Trade Names of the Loan Parties, and (ii) $4,000,000; ]

 

(a)the face amount of Eligible Credit Card Receivables multiplied by 10%;

plus

[(b)the product of (i) the FILO Advance Rate multiplied by the face amount of ]Eligible Credit Card Receivables[; ]

 

(b)the face amount of Eligible Amazon Receivables (net of Receivables Reserves applicable thereto) multiplied by 15%; provided that the amounts advanced under the FILO Borrowing Base pursuant to this clause (b) shall at no time exceed $1,400,000;

plus

(c)[  (c) ]the product (without duplication) of (i) the [FILO]Inventory Advance Rate multiplied by (ii) the Appraised Value  of Eligible Inventory ([excluding any]other than Eligible In-

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Transit Inventory or Eligible Letters of Credit) of the Loan Parties, multiplied by  (iii) the Cost of Eligible Inventory ([excluding any]other than Eligible In-Transit Inventory or Eligible Letters of Credit) of the Loan Parties,  net of Inventory Reserves;

plus

(d)the product (without duplication) of (i) the In-Transit Advance Rate multiplied by (ii) the Appraised Value of Eligible In-Transit Inventory of the Loan Parties, multiplied by (iii) the Cost of Eligible In-Transit Inventory of the Loan Parties, net of Inventory Reserves;

plus

(e)the product (without duplication) of (i) the Letter of Credit Inventory Advance Rate multiplied by (ii) the Appraised Value of the Inventory of the Loan Parties supported by the Eligible Letters of Credit, multiplied by (iii) the Cost of such Inventory when completed, net of Inventory Reserves;

plus

(f)the FILO IP Advance Rate multiplied by the Appraised Value of Eligible Trade Names of the Loan Parties;

minus

[(d)]

(g)without duplication of Reserves maintained against the Borrowing Base, the then amount of all Availability Reserves;

provided that, for every $1,000,000 in aggregate principal amount of the FILO Loans prepaid or repaid (other than pursuant to Section 2.07(b))by the Borrowers, each of the Inventory Advance Rate, the In-Transit Advance Rate and the Letter of Credit Inventory Advance Rate, in each case, with respect to the FILO Borrowing Base shall be reduced based on a rate of one hundred (100) basis points for every $1,000,000 (e.g., if the amount of such repayment or prepayment was $1,000,000 and the relevant advance rate prior to such prepayment was 10%, such advance rate will be reduced to 9%).  Such reduction shall be effective on the next succeeding date following the date of the relevant prepayment on which a Borrowing Base Certificate is required to be delivered under Section 6.02(b).

“FILO Collateral” means:

(a)means all Intellectual Property, including, without limitation, license rights, patents, industrial designs, trademarks, tradenames, domain names, trade secrets, copyrights, and proceeds and products of the foregoing;

(b)Supporting Obligations to the extent arising out of, or related to, or derivative of, the property or interests described in this definition;

(c)contracts, contract rights and other General Intangibles, Commercial Tort Claims, Documents, Chattel Paper, and Instruments (including promissory notes), in each case, to the extent

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arising out of, or related to, or derivative of the property or interests in property described in this definition;

(d)books and records relating to [Eligible Trade Names]the items referred to in the preceding clauses (a) though (c) (including books, databases, data processing software, customer lists, engineer drawings, and Records, whether tangible or electronic, which contain any information relating to any of the items referred to in the preceding clauses (a) through (c));

(e)all proceeds from the sale, license, assignment or other disposition of any of the property described in the foregoing clauses (a) through (d); and

(f)all proceeds of any of the foregoing, including collateral security and guarantees with respect to any of the foregoing.

“FILO Commitment” means, as to each FILO Lender, its obligation to make the FILO Loan to the Borrowers on the [Closing]Fourth Amendment Effective Date pursuant to Article II in the amount set forth opposite such FILO Lender’s name on Schedule 2.01.

[ “FILO IP Advance Rate” shall mean the percentages set forth below:]

[Period]

[FILO IP Advance Rate]

[From the Third Amendment Effective Date through December 31, 2020]

[50%]

[From January 1, 2021 through May 24, 2021]

[45%]

[From May 25, 2021 through May 24, 2022]

[40%]

[From May 25, 2022 through the Maturity Date]

[35%]

 

“FILO Credit Party” or “FILO Credit Parties” means (a) individually, (i) each FILO Lender and its Affiliates, (ii) the FILO Agent, (iii) any other Person to whom FILO Obligations under this Agreement and other Loan Documents are owing, and (iv) the successors and assigns of each of the foregoing, and (b) collectively, all of the foregoing.

“FILO Default Rate” means an interest rate equal to the interest rate (including any FILO Applicable Margin) otherwise applicable to the FILO Loans plus two percent (2.00%) per annum, to the fullest extent permitted by applicable Laws.

“FILO Event of Default” means (a) an Event of Default under Section 8.01(a) with respect to the FILO Loans or any other FILO Obligations, (b) an Event of Default under Section 8.01(a) with respect to the Obligations (other than the FILO Obligations) as a result of failure of the Borrowers to pay all such Obligations then due and owing due on the Termination Date for the Revolving Facility and (c) an Event of Default under Section 8.01(b) or Section 8.01(c), as applicable, but only to the extent such Event of Default arises from the Loan Parties’ failure to comply with the provisions of Section 6.02(b), Section 6.20 or Section 7.15.  Each determination of whether a FILO Event of Default has occurred and is continuing shall be made without giving effect to any waiver or

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modification of any such provision effected pursuant to the terms hereof without the consent of the FILO Agent.

“FILO [Lenders]Facility” means[ Lenders having], at any time, the FILO Commitments and the FILO Loans made pursuant to Article II.

“FILO Fee Letter” means the letter agreement, dated as of the Fourth Amendment Effective Date, among the Lead Borrower and the FILO Agent.

“FILO IP Advance Rate” means 50%; provided that the then-applicable percentage shall decrease by twenty (20) basis points beginning on December 31, 2021 and on the last day of each calendar quarter thereafter (e.g., the FILO IP Advance Rate on each of December 31, 2021, March 31, 2022 and June 30, 2022 shall be 49.8%, 49.6% and 49.4%, respectively).

“FILO Lender” means, at any time, each Person that makes all or a portion of the FILO Loan to the Borrowers in the amount set forth opposite such Lender’s name on Schedule 2.01 hereto or as may be subsequently set forth in the Register from time to time[ or at any time].

“FILO Loan” means the extension of credit by the FILO Lenders to the Borrowers under Article II on the [Closing]Fourth Amendment Effective Date in the original principal amount of $[15,000,000]17,500,000.

“FILO Note” means a promissory note made by the Borrowers in favor of a FILO Lender evidencing the portion of the FILO Loan made by such FILO Lender, substantially in the form of Exhibit C-3.

[ “FILO Push Down Reserve” means the amount, if any, by which the outstanding amount of the FILO Loan exceeds the FILO Borrowing Base as the Agent determines in its reasonable discretion.]

[“First Amendment Effective Date”: means June 3, 2019.]

 

“FILO Obligations” means (a) the due and punctual payment of (i) the principal of, and interest (including all interest that accrues after the commencement of any case or proceeding by or against any Loan Party under any Debtor Relief Laws, whether or not allowed in such case or proceeding) on the FILO Loans, as and when due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, and (ii) all other monetary obligations, including fees (including, without limitation, the FILO Prepayment Premium, if applicable), costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise, of the Loan Parties to the FILO Agent and FILO Lenders under this Agreement and the other Loan Documents, including, without limitation, for all such items that accrue after the commencement of any case or proceeding by or against any Loan Party under any Debtor Relief Laws, whether or not allowed in such case or proceeding, and (b) the due and punctual payment and performance of all the covenants, agreements, obligations and liabilities of each Loan Party under or pursuant to this Agreement and the other Loan Documents related to the FILO Loans.

“FILO Prepayment Premium” shall have the meaning given to such term in the FILO Fee Letter.

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“FILO Push Down Reserve” means the amount, if any, by which the then-outstanding amount of the FILO Loan exceeds the FILO Borrowing Base as reflected in the most recent Borrowing Base Certificate furnished by the Lead Borrower to the Agent and the FILO Agent; provided, however, that if (x) any Borrowing Base Certificate is not furnished by the Lead Borrower when due or (y) the FILO Agent determines in good faith that there has been a mathematical error in calculating the FILO Push Down Reserve, the FILO Agent may notify the Agent (and shall notify the Lead Borrower) thereof, setting forth the amount of the FILO Push Down Reserve to be established as calculated by the FILO Agent and the basis for its determination, together with its detailed calculation(provided that no such calculation shall be required by the FILO Agent in the event that the Borrowing Base Certificate is not furnished by the Lead Borrower when due, in which case the FILO Push Down Reserve may be reasonably estimated by the FILO Agent).  Within three (3) Business Days after receipt of such notice from the FILO Agent, the Agent shall establish a FILO Push Down Reserve in the amount requested by the FILO Agent (in the absence of manifest error).  The Agent shall have no obligation to investigate the basis for the FILO Agent’s dispute or calculation, may conclusively rely on the notice furnished by the FILO Agent with respect thereto, and shall have no liability to any Loan Party or Credit Party for following the instructions of the FILO Agent.  If at any time the circumstances giving rise to any imposition of the FILO Push Down Reserve have ceased to exist then immediately following receipt of a Borrowing Base Certificate in accordance with the terms hereof reflecting that no FILO Push Down Reserve is then applicable, the Agent shall remove such FILO Push Down Reserve, without need for further instruction from the FILO Agent; provided that the Agent shall be entitled to verify with the FILO Agent that such circumstances have ceased to exist.

“FILO Rate” means, the higher of (a) 1.00% per annum, and (b) the rate per annum (rounded upwards, if necessary, to the nearest 1/100th), determined on the first day of each calendar month, appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service, or any successor to or substitute for such service as determined by the FILO Agent) as the London interbank offered rate for deposits in Dollars for an interest period of three (3) months as of such date (but if more than one rate is specified on such page, the rate will be an arithmetic average of all such rates).

“FILO Standstill Period” means, with respect to an FILO Event of Default, the period commencing on the date of the Agent’s and the Lead Borrower’s receipt of written notice from the FILO Agent that a FILO Event of Default has occurred and is continuing and that the FILO Agent is requesting the Agent to commence the enforcement of remedies, and ending on the date which is sixty (60) days after receipt of such notice with respect to any FILO Event of Default.

“Fiscal Month” means any fiscal month of any Fiscal Year, which month shall generally end on the last Saturday of each calendar month in accordance with the fiscal accounting calendar of the Loan Parties.

“Fiscal Quarter” means any fiscal quarter of any Fiscal Year, which quarters shall generally end on the last Saturday of each April, July, October and January of such Fiscal Year in accordance with the fiscal accounting calendar of the Loan Parties.

“Fiscal Year” means any period of twelve consecutive months ending on the Saturday closest to January 31 of any calendar year.

“Foreign [Asset]Assets Control Regulations” has the meaning set forth in Section 0.

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“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction other than that in which the Lead Borrower is resident for tax purposes.  For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

“Foreign Vendor” means a Person that sells In-Transit Inventory to a Loan Party.

“Foreign Vendor Agreement” means an agreement between a Foreign Vendor and the Agent in form and substance satisfactory to the Agent and pursuant to which, among other things, the parties shall agree upon their relative rights with respect to In-Transit Inventory of a Loan Party purchased from such Foreign Vendor.

“Fourth Amendment Effective Date” means March 16, 2021.

“FRB” means the Board of Governors of the Federal Reserve System of the United States.

“Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Revolving Facility Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders in accordance with the terms hereof.

“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the FASB and the American Institute of Certified Public Accountants and statements and pronouncements of the FASB or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.

“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, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“Guarantee” means, as to any Person, (a) 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, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow 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 obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee

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against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation 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 Guarantee 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 maximum reasonably anticipated liability in respect thereof.  The term “Guarantee” as a verb has a corresponding meaning.

“Guarantor” means (a) each Domestic Subsidiary of the Lead Borrower (other than any CFC, the Immaterial Subsidiary or any Borrower) existing on the Closing Date and (b) each other Subsidiary of the Lead Borrower that shall be required to execute and deliver a Facility Guaranty pursuant to Section 0.

“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, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

“Honor Date” has the meaning [specified]set forth in Section 0.

“Immaterial Subsidiary” means (a) Canton PL Liquidating Corp., a Nevada corporation, and (b) Casual Male RBT (U.K.) LLC, a Delaware limited liability company, in each case so long as such Person ([a]i) does not have assets in an amount greater than or equal to 3.0% of the consolidated assets of the Lead Borrower and its Subsidiaries as of the last day of the most recently completed Fiscal Quarter, as determined in accordance with GAAP for such period, and ([b]ii) does not hold legal or beneficial title to any assets of the type included in the Borrowing Base or the FILO Borrowing Base.

“Increase Effective Date” [shall have]has the meaning [provided therefor]set forth in Section 0.

“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a)all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(b)the maximum amount of all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;

(c)net obligations of such Person under any Swap Contract;

(d)all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business[)] and[, in each case,] not past due for more than sixty (60) days after the date on which such trade account payable was created);

(e)indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

(f)[All]all Attributable Indebtedness of such Person;

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(g)all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person (including, without limitation, Disqualified Stock), or any warrant, right or option to acquire such Equity Interest, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and

(h)all Guarantees of such Person in respect of any of the foregoing.

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person.  The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

“[Indemnitees]Indemnitee” has the meaning [specified]set forth in Section 0.

“Information” has the meaning [specified]set forth in Section 0.

“Intellectual Property” [has the meaning given to]means Patents, Trademarks, Copyrights, Licenses and Goodwill (as each such term is defined in the Security Agreement).

“Interest Payment Date” means, (a) as to any LIBOR Rate Loan, the last day of each Interest Period applicable to such Loan and the [Maturity]Termination Date; provided, however, that if any Interest Period for a LIBOR Rate Loan exceeds three (3) months, the respective dates that fall every three (3) months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the first calendar day of each month and the [Maturity]Termination Date.

“Interest Payment Date for FILO Loans” means with respect to any FILO Loans, (a) the first day of each calendar month, (b) the Termination Date, and (c) each date of any prepayment of the FILO Loans (with regard to the amount so prepaid).

“Interest Period” means, as to each LIBOR Rate Loan, the period commencing on the date such LIBOR Rate Loan is disbursed or Converted to or continued as a LIBOR Rate Loan and ending on the date one week or one (1), two (2), three (3) or six (6) months thereafter, as selected by the Lead Borrower in its Committed Loan Notice; provided that:

([i]a)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 such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

([ii]b)any Interest Period 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 month at the end of such Interest Period;

([iii]c)no Interest Period shall extend beyond the Maturity Date; and

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([iv]d)notwithstanding the provisions of clause (iii), no Interest Period shall have a duration of less than one (1) week, and if any Interest Period applicable to a LIBOR Borrowing would be for a shorter period, such Interest Period shall not be available hereunder.

For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent Conversion or continuation of such Borrowing.

“Internal Control Event” means a material weakness in, or fraud that involves management or other employees who have a significant role in, the Lead Borrower’s and/or its Subsidiaries’ internal controls over financial reporting.

“In-Transit Advance Rate” means [80%](a) with respect to the Borrowing Base, 80% and (b) with respect to the FILO Borrowing Base, 25%; provided that the then-applicable percentage with respect to the FILO Borrowing Base shall decrease by twenty (20) basis points beginning on December 31, 2021 and on the last day of each calendar quarter thereafter (e.g., the In-Transit Advance Rate on each of December 31, 2021, March 31, 2022 and June 30, 2022, in each case, with respect to the FILO Borrowing Base, shall be 24.8%, 24.6% and 24.4%, respectively).

“In-Transit Inventory” means Inventory of a Loan Party which is in the possession of a common carrier and is in transit from a Foreign Vendor of a Loan Party from a location outside of the continental United States to a location of a Loan Party that is within the continental United States.

“Inventory” has the meaning given that term in the UCC, and shall also include, without limitation, all: (a) goods which (i) are leased by a Person as lessor, (ii) are held by a Person for sale or lease or to be furnished under a contract of service, (iii) are furnished by a Person under a contract of service, or (iv) consist of raw materials, work in process, or materials used or consumed in a business; (b) goods of said description in transit; (c) goods of said description which are returned, repossessed or rejected; and (d) packaging, advertising, and shipping materials related to any of the foregoing.

“Inventory Advance Rate” means [90%](a) with respect to the Borrowing Base, 90% and (b) with respect to the FILO Borrowing Base, 15%; provided that the then-applicable percentage with respect to the FILO Borrowing Base shall decrease by twenty (20) basis points beginning on December 31, 2021 and on the last day of each calendar quarter thereafter (e.g., the Inventory Advance Rate on each of December 31, 2021, March 31, 2022 and June 30, 2022, in each case, with respect to the FILO Borrowing Base, shall be 14.8%, 14.6% and 14.4%, respectively).

“Inventory Reserves” means such reserves as may be established from time to time by the Agent in its discretion with respect to the determination of the saleability, at retail, of the Eligible Inventory, which reflect such other factors as affect the market value of the Eligible Inventory or which reflect claims and liabilities that the Agent determines will need to be satisfied in connection with the realization upon the Inventory. Without limiting the generality of the foregoing, Inventory Reserves may, in the Agent’s discretion, include (but are not limited to) reserves based on:

(a)Obsolescence;

(b)Seasonality;

(c)Shrink;

(d)Imbalance;

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(e)Change in Inventory character;

(f)Change in Inventory composition;

(g)Change in Inventory mix;

(h)Mark-downs (both permanent and point of sale);

(i)Retail mark-ons and mark-ups inconsistent with prior period practice and performance, industry standards, current business plans or advertising calendar and planned advertising events; and

(j)Out-of-date and/or expired Inventory.

“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or interest in, another Person, or (c) any Acquisition, or (d) any other investment of money or capital in order to obtain a profitable return.  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.

“IRS” means the United States Internal Revenue Service.

“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.

“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).

“Issuer Documents” means with respect to any Letter of Credit, the Letter Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and any Borrower (or any Subsidiary) or in favor the L/C Issuer and relating to any such Letter of Credit.

“Joinder Agreement” means an agreement, in form satisfactory to the Agent pursuant to which, among other things, a Person becomes a party to, and bound by the terms of, this Agreement and/or the other Loan Documents in the same capacity and to the same extent as either a Borrower or a Guarantor, as the Agent may determine.

 

“[Landlord Lien State” means such state(s) in which a landlord’s claim for rent may have priority over the Lien of the Agent in any of the Collateral]Latest Maturity Date” means, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time.

“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities,

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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 Governmental Authority, in each case whether or not having the force of law.

“L/C Advance” means, with respect to each Revolving Lender, such Revolving Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.

“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Committed Borrowing.

“L/C Credit Extension” 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.

“L/C Issuer” means (a) Bank of America in its capacity as issuer of Letters of Credit hereunder, or (b) any successor issuer of Letters of Credit hereunder, which successor may only be a Lender selected by the Agent in its discretion.  The L/C Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the L/C Issuer, in which case the term “L/C Issuer” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.

“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.  For purposes 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 0.  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 ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

“Lease” means any agreement, whether written or oral, no matter how styled or structured, pursuant to which a Loan Party is entitled to the use or occupancy of any real property for any period of time.

“Lender” has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the Revolving Lenders, the FILO Lenders and the Swing Line Lender.

“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Lead Borrower and the Agent.

“Letter of Credit” means each Banker’s Acceptance, each Standby Letter of Credit and each Commercial Letter of Credit issued hereunder and shall include the Existing Letters of Credit.

“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.

“Letter of Credit Expiration Date” means the day that is seven days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).

“Letter of Credit Fee” has the meaning [specified]set forth in Section 0.

“Letter of Credit Inventory Advance Rate” means [85%](a) with respect to the Borrowing Base, 85% and (b) with respect to the FILO Borrowing Base, 20%; provided that the then-applicable

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percentage with respect to the FILO Borrowing Base shall decrease by twenty (20) basis points beginning on December 31, 2021 and on the last day of each calendar quarter thereafter (e.g., the Letter of Credit Inventory Advance Rate on each of December 31, 2021, March 31, 2022 and June 30, 2022, in each case, with respect to the FILO Borrowing Base, shall be 19.8%, 19.6% and 19.4%, respectively).

“Letter of Credit Sublimit” means an amount equal to $20,000,000.  The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.  A permanent reduction of the Aggregate Revolving Commitments shall not require a corresponding pro rata reduction in the Letter of Credit Sublimit; provided, however, that if the Aggregate Revolving Commitments are reduced to an amount less than the Letter of Credit Sublimit, then the Letter of Credit Sublimit shall be reduced to an amount equal to (or, at Lead Borrower’s option, less than) the Aggregate Revolving Commitments.

“LIBOR” has the meaning specified in the definition of LIBOR Rate.

“LIBOR Borrowing” means a Borrowing comprised of LIBOR Rate Loans.

“LIBOR Floor” means 1.00% per annum.

“LIBOR Rate” means the higher of:

(i) the LIBOR Floor, and

(ii) (a)   for any Interest Period with respect to a LIBOR Rate Loan, the rate per annum equal to the London Interbank Offered Rate as administered by ICE Benchmark Administration or any other Person that takes over the administration of such rate for U.S. Dollars for a period equal in length to such Interest Period (“LIBOR”) as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and

(b)for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two London Banking Days prior to such date for U.S. Dollar deposits with a term of one month commencing that day.

“LIBOR Rate Loan” means a Committed Loan or the portion of the FILO Loan, as applicable, that bears interest at a rate based on the LIBOR Rate.

“LIBOR Replacement Date” has the meaning set forth in Section 3.03(c).

“LIBOR Screen Rate” means the LIBOR quote on the applicable screen page the Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be designated by the Agent from time to time).

“LIBOR Successor Rate” has the meaning [specified]set forth in Section 3.03([b]c).

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“LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters as may be appropriate, in the discretion of the Agent, to reflect the adoption and implementation of such LIBOR Successor Rate and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Agent determines is reasonably necessary in connection with the administration of this Agreement).

“Lien” means (a) any mortgage, deed of trust, pledge, hypothecation, 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 whatsoever (including any conditional sale, Capital Lease Obligation, Synthetic Lease Obligation, or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing) and (b) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

“Liquidation” means the exercise by the Agent of those rights and remedies accorded to the Agent under the Loan Documents and applicable Laws as a creditor of the Loan Parties with respect to the realization on the Collateral, including (after the occurrence and during the continuation of an Event of Default) the conduct by the Loan Parties acting with the consent of the Agent, of any public, private or “going-out-of-business”, “store closing” or other similar sale or any other disposition of the Collateral for the purpose of liquidating the Collateral.  Derivations of the word “Liquidation” (such as “Liquidate”) are used with like meaning in this Agreement.

“Loan” means an extension of credit by a Lender to the Borrowers under Article 0 in the form of a Committed Loan, a Swing Line Loan or the FILO Loan.

“Loan Account” has the meaning [assigned to such term]set forth in Section 0.

“Loan Documents” means this Agreement, each Note, each Issuer Document, the Fee Letter, the FILO Fee Letter, all Borrowing Base Certificates, the Account Control Agreements, the Credit Card Notifications, the Security Documents, the Facility Guaranty, and any other instrument or agreement now or hereafter executed and delivered in connection herewith, or in connection with any transaction arising out of any Cash Management Services and Bank Products provided by any Lender or any of its Affiliates, each as amended and in effect from time to time.

“Loan Parties” means, collectively, each Borrower and each Guarantor.

“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

“Master Agreement” has the meaning set forth in the definition of “Swap Contract.”

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent), condition (financial or otherwise) or prospects of any Loan Party or the Lead Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a material impairment of the rights and remedies of the Agent or the Lenders under any Loan Document or a material adverse effect upon the legality, validity, binding effect or

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enforceability against any Loan Party of any Loan Document to which it is a party.  In determining whether any individual event would result in a Material Adverse Effect, notwithstanding that such event in and of itself does not have such effect, a Material Adverse Effect shall be deemed to have occurred if the cumulative effect of such event and all other then -existing events would result in a Material Adverse Effect.

“Material Contract” means, with respect to any Person, each contract to which such Person is a party material to the business, condition (financial or otherwise), operations, performance, properties or prospects of such Person.

“Material Indebtedness” means Indebtedness (other than the Obligations) of the Loan Parties in an aggregate principal amount exceeding $5,000,000.   For purposes of determining the amount of Material Indebtedness at any time, (a) the amount of the obligations in respect of any Swap Contract at such time shall be calculated at the Swap Termination Value thereof, (b) undrawn committed or available amounts shall be included, and (c) all amounts owing to all creditors under any combined or syndicated credit arrangement shall be included.

“Maturity Date” means May 24, 2023; provided that, to the extent the Maturity Date for the Revolving Facility is extended pursuant to Section 10.01 or, if applicable, Section 10.01-A of this Agreement, the Maturity Date for the FILO Facility shall also be automatically extended, but in no event shall the Maturity Date of the FILO Facility be extended to a date later than March 16, 2026 without the consent of each FILO Lender.

“Maximum Rate” has the meaning [provided therefor]set forth in Section 0.

“Maximum Revolving Insolvency Amount” means the sum of (i) (A) the Borrowing Base minus (B) the minimum Availability required to be maintained under Section 7.15, plus (ii) Permitted Overadvances that satisfy the requirements contained in clauses (a) and (b) of the definition thereof (subject to the limitations set forth in clause (b) of such definition), plus (iii) in addition to the Permitted Overadvances described in clause (ii), Permitted Overadvances that satisfy the requirements contained in clause (a) of the definition thereof to fund payroll (and any associated payroll taxes) in an amount not to exceed the aggregate amount required (and actually used) to fund (A) payroll requests of the Loan Parties for a two-week period and (B) rent at the Loan Parties’ distribution centers and warehouses for a one (1) month period, plus (iv) after the commencement of any proceeding with respect to any Debtor Relief Laws, an amount not to exceed the result of (1) five percent (5.00%) of the Borrowing Base minus (2) the then outstanding amount of any Permitted Overadvances; provided that the amount set forth in this clause (iv) shall not be less than zero, plus (v) the amount of all Unintentional Overadvances.

“Measurement Period” means, at any date of determination, the most recently completed twelve (12) Fiscal Months of the Lead Borrower.

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Lead Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five 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 Lead 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 ERISA.

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“Net Proceeds” means (a) with respect to any Disposition by any Loan Party or any of its Subsidiaries, the excess, if any, of (i) the sum of cash and cash equivalents received in connection with such transaction (including any cash or cash equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) minus (ii) the sum of (A) the principal amount of any Indebtedness that is secured by the applicable asset by a Lien permitted hereunder which is senior to the Agent’s Lien on such asset and that is required to be repaid (or to establish an escrow for the future repayment thereof) in connection with such transaction (other than Indebtedness under the Loan Documents), and (B) the reasonable and customary out-of-pocket expenses incurred by such Loan Party or such Subsidiary in connection with such transaction (including, without limitation, appraisals, and brokerage, legal, title and recording or transfer tax expenses and commissions) paid by any Loan Party to third parties (other than Affiliates); and

(b)with respect to the sale or issuance of any Equity Interest by any Loan Party or any of its Subsidiaries, or the incurrence or issuance of any Indebtedness by any Loan Party or any of its Subsidiaries, the excess of (i) the sum of the cash and cash equivalents received in connection with such transaction minus (ii) the underwriting discounts and commissions, and other reasonable and customary out-of-pocket expenses, incurred by such Loan Party or such Subsidiary in connection therewith.

“Non-Consenting Lender” has the meaning [provided therefor]set forth in Section 0.

“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

“Non-Extension Notice Date” has the meaning [specified]set forth in Section 0.

“Note” means (a) a promissory note made by the Borrowers in favor of a Lender evidencing Committed Loans made by such Lender, substantially in the form of Exhibit C-1 (the “Revolving Note”), (b) the Swing Line Note and (c) the FILO Note, as each may be amended, supplemented or modified from time to time.

“NPL” means the National Priorities List under CERCLA.

 

“Obligations” means[ (a) all advances to, and debts (including principal, interest, fees, costs, and expenses), liabilities, obligations, covenants, indemnities, and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit (including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral therefor), 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, fees, costs, expenses and indemnities that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, fees costs, expenses and indemnities are allowed claims in such proceeding, and (b) any Other Liabilities; provided that] Obligations of a Loan Party shall exclude any Excluded Swap Obligations with respect to such Loan Party, the Revolving Obligations and/or the FILO Obligations, as the context may require.

“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

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“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; (c) 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, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity, and (d) in each case, all shareholder or other equity holder agreements, voting trusts and similar arrangements to which such Person is a party or which is applicable to its Equity Interests and all other arrangements relating to the Control or management of such Person.

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

“Other Liabilities” means any obligation on account of (a) any Cash Management Services furnished to any of the Loan Parties or any of their Subsidiaries and/or (b) any Bank Product furnished to any of the Loan Parties and/or any of their Subsidiaries.

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 0).

“Outstanding Amount” means (i) with respect to Committed Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Loans occurring on such date; (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrowers of Unreimbursed Amounts; and (iii) with respect to the FILO Loan on any date, the amount of the aggregate outstanding principal amount thereof after giving effect to any prepayments or repayments of the FILO Loan occurring on such date.

“Overadvance” means a Credit Extension (other than the making of the FILO Loan) to the extent that, immediately after its having been made, Availability is less than zero.

“Participant” has the meaning [specified]set forth in Section 0.

“[Participation]Participant Register” has the meaning [provided therefor]set forth in Section 0.

“Payment Conditions” means, at the time of determination with respect to any specified transaction or payment, that (a) no Default or Event of Default then exists or would arise as a result of entering into such transaction or the making of such payment, and (b) (i) for each day during the thirty (30) day period prior to the consummation of such transaction or payment and after giving pro forma effect to such transaction or payment, Availability will be equal to or greater than the greater of (x) twelve and one-half percent (12.5%) of the Revolving Loan Cap (calculated without giving effect to the FILO Push Down

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Reserve) and (y) $12,500,000, and (ii) after giving pro forma effect to such transaction or payment, the Consolidated Fixed Charge Coverage Ratio, tested on a trailing twelve month basis, is equal to or greater than 1.0:1.0; provided that this clause (b)(ii) shall not apply if Availability for each day during the thirty (30) day period prior to the consummation of such transaction or payment and after giving pro forma effect to such transaction or payment was equal to or greater than the greater of (x) seventeen and one-half percent (17.5%) of the Revolving Loan Cap (calculated without giving effect to the FILO Push Down Reserve) and (y) $17,500,000.   Prior to undertaking any transaction or payment which is subject to the Payment Conditions, the Lead Borrower shall deliver to the Agent (i) a certificate signed by the Chief Executive Officer, President or Chief Financial Officer of the Lead Borrower certifying that the conditions contained in clauses (a) and (b) of the preceding sentence have been satisfied, and (ii) evidence of satisfaction of the conditions contained in clause (b) (including a reasonably detailed calculation).

“PBGC” means the Pension Benefit Guaranty Corporation.

“PCAOB” means the Public Company Accounting Oversight Board.

“Pension Act” means the Pension Protection Act of 2006.

“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) 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 Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.

“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that (a) is maintained or is contributed to by the Lead Borrower [and]or (b) with respect to which the Lead Borrower has any liability or contingent liability (including on account of any ERISA Affiliate) and, in each case, is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.

“Permitted Acquisition” means an Acquisition in which all of the following conditions are satisfied:

(a)Such Acquisition shall have been approved by the Board of Directors of the Person (or similar governing body if such Person is not a corporation) which is the subject of such Acquisition and such Person shall not have announced that it will oppose such Acquisition or shall not have commenced any action which alleges that such Acquisition shall violate applicable Law;

(b)The Lead Borrower shall have furnished the Agent with thirty (30) days’ prior written notice of such intended Acquisition and shall have furnished the Agent with a current draft of the Acquisition Documents (and final copies thereof as and when executed), a summary of any due diligence undertaken by the Loan Parties in connection with such Acquisition, appropriate financial statements of the Person which is the subject of such Acquisition, pro forma projected financial statements for the twelve (12) month period following such Acquisition after giving effect to such Acquisition (including balance sheets, cash flows and income statements by month for the acquired Person, individually, and on a Consolidated basis with all Loan Parties), and such other information as the Agent may reasonably require, all of which shall be in form reasonably satisfactory to the Agent;

(c)The legal structure of the Acquisition shall be acceptable to the Agent in its discretion;

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(d)After giving effect to the Acquisition, if the Acquisition is an Acquisition of Equity Interests, a Loan Party shall acquire and own, directly or indirectly, a majority of the Equity Interests in the Person being acquired and shall Control a majority of any voting interests or shall otherwise Control the governance of the Person being acquired;

(e)Any assets acquired shall be utilized in, and if the Acquisition involves a merger, consolidation or acquisition of Equity Interests, the Person which is the subject of such Acquisition shall be engaged in, a business otherwise permitted to be engaged in by a Borrower under this Agreement;

(f)If the Person which is the subject of such Acquisition will be maintained as a Subsidiary of a Loan Party, such Subsidiary shall have been joined as a “Borrower” hereunder or as a Guarantor, as the Agent shall determine, and the Agent shall have received a first priority security interest in such Subsidiary’s Equity Interests and property of such Subsidiary and of the same nature as constitutes Collateral under the Security Documents in accordance with Section 6.16; and

(g)The Loan Parties shall have satisfied the Payment Conditions.

“Permitted Disposition” means any of the following:

(a)[dispositions]Dispositions of Inventory in the ordinary course of business;

(b)Dispositions (including those made in connection with bulk sales or other dispositions of the Inventory of a Loan Party not in the ordinary course of business) at arm’s length in connection with Permitted Store Closings;

(c)non-exclusive licenses of Intellectual Property of a Loan Party or any of its Subsidiaries in the ordinary course of business;

(d)licenses for the conduct of licensed departments within the Loan Parties’ Stores in the ordinary course of business; provided that, if requested by the Agent, the Agent shall have entered into an intercreditor agreement with the Person operating such licensed department on terms and conditions reasonably satisfactory to the Agent;

(e)[dispositions]Dispositions of Equipment in the ordinary course of business that is substantially worn, damaged, obsolete or, in the judgment of a Loan Party, no longer useful or necessary in its business or that of any Subsidiary;

(f)[Sales, transfers and dispositions]Dispositions among the Loan Parties or by any Subsidiary to a Loan Party;

(g)Sales, transfers and dispositions by any Subsidiary which is not a Loan Party to another Subsidiary that is not a Loan Party; and

(h)as long as no Default or Event of Default then exists or would arise therefrom, [sales]Dispositions of Real Estate of any Loan Party (or [sales]Dispositions of any Person or Persons created to hold such Real Estate or the Equity Interests in such Person or Persons), including sale-leaseback transactions involving any such Real Estate pursuant to leases on market terms, as long as, (A) such [sale]Disposition is made for fair market value, and (B) in the case of any sale-leaseback transaction permitted hereunder, the Agent shall have received from each such

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purchaser or transferee a Collateral Access Agreement on terms and conditions reasonably satisfactory to the Agent.

“Permitted Encumbrances” means:

(a)Liens imposed by law for Taxes that are not yet due or are being contested in compliance with Section 0;

(b)Carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by applicable Laws, arising in the ordinary course of business and securing obligations that are not overdue by more than thirty (30) days or are being contested in compliance with Section 0;

(c)Pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations, other than any Lien imposed by ERISA;

(d)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;

(e)Liens in respect of judgments that would not constitute an Event of Default hereunder;

(f)Easements, covenants, conditions, restrictions, building code laws, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or materially interfere with the ordinary conduct of business of a Loan Party and such other minor title defects or survey matters that are disclosed by current surveys that, in each case, do not materially interfere with the current use of the real property;

(g)Liens existing on the [Closing]Fourth Amendment Effective Date listed on Schedule 0 and Liens to secure any Permitted Refinancings of the Indebtedness with respect thereto;

(h)Liens on fixed or capital assets or on Real Estate of any Loan Party which secure Indebtedness permitted under clauses (c) and/or (d) of the definition of Permitted Indebtedness so long as (i) such Liens and the Indebtedness secured thereby are incurred prior to or within ninety (90) days after such acquisition, (ii) the Indebtedness secured thereby does not exceed the cost of acquisition of the applicable assets, and (iii) such Liens shall attach only to the assets or Real estate acquired, improved or refinanced with such Indebtedness and shall not extend to any other property or assets of the Loan Parties;

(i)Liens in favor of the Agent;

(j)Landlords’ and lessors’ statutory Liens in respect of rent not in default;

(k)Possessory Liens in favor of brokers and dealers arising in connection with the acquisition or disposition of Investments owned as of the Closing Date and other Permitted Investments, provided that such liens (a) attach only to such Investments and (b) secure only

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obligations incurred in the ordinary course and arising in connection with the acquisition or disposition of such Investments and not any obligation in connection with margin financing;

(l)Liens arising solely by virtue of any statutory or common law provisions relating to banker’s Liens, Liens in favor of securities intermediaries, rights of setoff or similar rights and remedies as to deposit accounts or securities accounts or other funds maintained with depository institutions or securities intermediaries;

(m)Liens arising from precautionary UCC filings regarding “true” operating leases or, to the extent permitted under the Loan Documents, the consignment of goods to a Loan Party;

(n)voluntary Liens on property (other than property of the type included in the Borrowing Base or the FILO Borrowing Base) in existence at the time such property is acquired pursuant to a Permitted Acquisition or on such property of a Subsidiary of a Loan Party in existence at the time such Subsidiary is acquired pursuant to a Permitted Acquisition; provided, that such Liens are not incurred in connection with or in anticipation of such Permitted Acquisition and do not attach to any other assets of any Loan Party or any Subsidiary; and

(o)Liens in favor of customs and revenues authorities imposed by applicable Laws arising in the ordinary course of business in connection with the importation of goods and securing obligations (i) that are not overdue by more than thirty (30) days, or (ii)(A) that are being contested in good faith by appropriate proceedings, (B) the applicable Loan Party or Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (C) such contest effectively suspends collection of the contested obligation and enforcement of any Lien securing such obligation.

“Permitted Indebtedness” means each of the following:

(a)Indebtedness outstanding on the [Closing]Fourth Amendment Effective Date listed on Schedule 0 and any Permitted Refinancing thereof;

(b)Indebtedness of any Loan Party to any other Loan Party;

(c)Purchase money Indebtedness of any Loan Party to finance the acquisition of any personal property consisting solely of fixed or capital assets, including Capital Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof, provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed $5,000,000 at any time outstanding and further provided that, if requested by the Agent, the Loan Parties shall use commercially reasonable efforts to cause the holders of such Indebtedness to enter into a Collateral Access Agreement on terms reasonably satisfactory to the Agent;

(d)Indebtedness incurred for the construction or acquisition or improvement of, or to finance or to refinance, any Real Estate owned by any Loan Party (including therein any Indebtedness incurred in connection with sale-leaseback transactions permitted hereunder and any Synthetic Lease Obligations), provided that, the Loan Parties shall use commercially reasonable efforts to cause the holders of such Indebtedness and the lessors under any sale-leaseback transaction to enter into a Collateral Access Agreement on terms reasonably satisfactory to the Agent;

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(e)Contingent liabilities under surety bonds or similar instruments incurred in the ordinary course of business in connection with the construction or improvement of Stores;

(f) obligations (contingent or otherwise) of any Loan Party or any Subsidiary thereof existing or arising under any Swap Contract, provided that (i) 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 fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;

(g)Indebtedness with respect to the deferred purchase price for any Permitted Acquisition, provided that such Indebtedness does not require the payment in cash of principal (other than in respect of working capital adjustments) prior to the Maturity Date, has a final maturity which extends beyond the Maturity Date, and is subordinated to the Obligations on terms reasonably acceptable to the Agent;

(h)Indebtedness of any Person that becomes a Subsidiary of a Loan Party in a Permitted Acquisition, which Indebtedness is existing at the time such Person becomes a Subsidiary of a Loan Party (other than Indebtedness incurred solely in contemplation of such Person’s becoming a Subsidiary of a Loan Party);

(i)[The]the Obligations;

(j)Indebtedness evidenced by promissory notes entered into with merchandise vendors in satisfaction of outstanding account payables balances for existing goods that have already been shipped and with interest rates, maturity and other terms that are otherwise acceptable to the Agent in an aggregate principal amount not to exceed $15,000,000 in the aggregate; and

(k)Indebtedness not otherwise specifically described herein in an aggregate principal amount not to exceed $5,000,000 at any time outstanding.

“Permitted Investments” means each of the following:

(a)readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof having maturities of not more than 360 days from the date of acquisition thereof; provided that the full faith and credit of the United States of America is pledged in support thereof;

(b)commercial paper issued by any Person organized under the laws of any state of the United States of America and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than 180 days from the date of acquisition thereof;

(c)time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States of America, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States of America, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause (b) of this definition and (iii)

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has combined capital and surplus of at least $1,000,000,000, in each case with maturities of not more than one hundred eighty (180) days from the date of acquisition thereof;

(d)Fully collateralized repurchase agreements with a term of not more than thirty (30) days for securities described in clause (a) above (without regard to the limitation on maturity contained in such clause) and entered into with a financial institution satisfying the criteria described in clause (c) above or with any primary dealer and having a market value at the time that such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such counterparty entity with whom such repurchase agreement has been entered into;

(e)Investments, classified in accordance with GAAP as current assets of the Loan Parties, in any money market fund, mutual fund, or other investment companies that are registered under the Investment Company Act of 1940, as amended, which are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P, and which invest solely in one or more of the types of securities described in clauses (a) through (d) above;

(f)Investments existing on the [Closing]Fourth Amendment Effective Date set forth on Schedule 7.02, but not any increase in the amount thereof or any other modification of the terms thereof;

(g)(i) Investments by any Loan Party and its Subsidiaries in their respective Subsidiaries outstanding on the Closing Date, (ii) additional Investments by any Loan Party and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Loan Parties that are not Loan Parties in other Subsidiaries that are not Loan Parties and (iv) so long as no Default or Event of Default has occurred and is continuing or would result from such Investment, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties; provided that (A) such Investments may only be made following the Closing Date to the extent that such Investments, together with the principal amount of any other intercompany loans permitted under this Agreement, shall not exceed $10,000,000 in the aggregate from and after the Closing Date, and (B) in the event that the aggregate amount of such Investments, together with the principal amount of any other intercompany loans permitted under this Agreement, exceeds $5,000,000, the Payment Conditions shall have been satisfied;

(h)Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;

(i)Guarantees constituting Permitted Indebtedness;

(j)so long as no Default or Event of Default has occurred and is continuing or would result from such Investment, Investments by any Loan Party in Swap Contracts permitted hereunder;

(k)Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;

(l)advances to officers, directors and employees of the Loan Parties and Subsidiaries in the ordinary course of business in an aggregate amount not to exceed $400,000 at any time outstanding; provided that each such advance is for a term of not more than ninety (90) days from

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the date on which it is made and is paid within such 90-day period; provided that, all amounts due on account of advances permitted under this clause (l) shall constitute Collateral and shall be pledged to the Agent for the benefit of the Revolving Lenders;

(m)Investments constituting Permitted Acquisitions; and

(n)Other Investments not otherwise specifically described herein if the Payment Conditions are satisfied when such Investments are made and immediately after giving effect thereto.

provided, however, that notwithstanding the foregoing, (i) after the occurrence and during the continuance of a Cash Dominion Event, no such Investments specified in clauses (a) through (e) and clause (n) shall be permitted unless either (A) no Loans or, if then required to be Cash Collateralized, Letters of Credit are then outstanding, or (B) the Investment is a temporary Investment pending expiration of an Interest Period for a LIBOR Rate Loan, the proceeds of which Investment will be applied to the Obligations after the expiration of such Interest Period, and (ii) such Investments shall be pledged to the Agent as additional collateral for the Obligations pursuant to such agreements as may be reasonably required by the Agent.

“Permitted Overadvance” means an Overadvance made by the Agent, in its discretion, which:

(a)[Is]is made to maintain, protect or preserve the Collateral and/or the Credit Parties’ rights under the Loan Documents or which is otherwise for the benefit of the Credit Parties; or

(b)[Is]is made to enhance the likelihood of, or to maximize the amount of, repayment of any Obligation;

(c)[Is]is made to pay any other amount chargeable to any Loan Party hereunder; and

(d)[Together]together with all other Permitted Overadvances then outstanding, shall not (i) exceed [ten]five percent ([10]5%) of the Borrowing Base at any time or (ii) unless a Liquidation is occurring, remain outstanding for more than forty-five (45) consecutive Business Days or more than twice in any twelve month period, unless in each case, the Required Revolving Lenders and the FILO Agent otherwise agree[.];

provided however, that the foregoing shall not (i) modify or abrogate any of the provisions of Section 0 regarding the Revolving Lenders’ obligations with respect to Letters of Credit or Section 0 regarding the Revolving Lenders’ obligations with respect to Swing Line Loans, or (ii) result in any claim or liability against the Agent (regardless of the amount of any Overadvance) for Unintentional Overadvances, and such Unintentional Overadvances shall not reduce the amount of Permitted Overadvances allowed hereunder[,]; and further, provided that in no event shall the Agent make an Overadvance, if after giving effect thereto, the principal amount of the Total Revolving Outstandings would exceed the Aggregate Revolving Commitments (as in effect prior to any termination of the Revolving Commitments pursuant to Sections 0 or 0 hereof).

“Permitted Refinancing” means, with respect to any Person, any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”), the Indebtedness being Refinanced (or previous refinancings thereof constituting a Permitted Refinancing); provided, that (a) the principal amount (or accreted value, if applicable) of such Permitted Refinancing does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued interest and premiums thereon and underwriting discounts, defeasance costs, fees, commissions and expenses), (b) the weighted average life

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to maturity of such Permitted Refinancing is greater than or equal to the weighted average life to maturity of the Indebtedness being Refinanced (c) such Permitted Refinancing shall not require any scheduled principal payments due prior to the Maturity Date, (d) if the Indebtedness being Refinanced is subordinated in right of payment to the Obligations under this Agreement, such Permitted Refinancing shall be subordinated in right of payment to such Obligations on terms at least as favorable to the Credit Parties as those contained in the documentation governing the Indebtedness being Refinanced (e) no Permitted Refinancing shall have direct or indirect obligors who were not also obligors of the Indebtedness being Refinanced, or greater guarantees or security, than the Indebtedness being Refinanced, (f) such Permitted Refinancing shall be otherwise on terms not materially less favorable to the Credit Parties than those contained in the documentation governing the Indebtedness being Refinanced, including, without limitation, with respect to financial and other covenants and events of default, (g) the interest rate applicable to any such Permitted Refinancing shall not exceed the then applicable market interest rate, and (h) at the time thereof, no Default or Event of Default shall have occurred and be continuing.

“Permitted Store Closings” means (a) Store closures and related Inventory dispositions which do not exceed (i) in any Fiscal Year of the Lead Borrower and its Subsidiaries, ten percent (10%) of the number of the Loan Parties’ Stores as of the beginning of such Fiscal Year (net of new Store openings) and (ii) in the aggregate from and after the Closing Date, thirty-five percent (35%) of the number of the Loan Parties’ Stores in existence as of the Closing Date (net of new Store openings), and (b) the related Inventory is either moved to a distribution center or another retail location of the Loan Parties for future sale in the ordinary course of business or is disposed of at such Stores in accordance with liquidation agreements and with professional liquidators reasonably acceptable to the Agent.

“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, limited partnership, Governmental Authority or other entity.

“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan but excluding a Multiemployer Plan), maintained [for employees of]by the Lead Borrower or [any ERISA Affiliate or any such Plan]under or with respect to which the Lead Borrower [or]has any liability or contingent liability (including on account of any ERISA Affiliate[ is required to contribute on behalf of any of its employees]).

“Platform” has the meaning specified in Section 0.

“Pre-Adjustment Successor Rate” has the meaning specified in Section 3.03(c).

“Public Lender” has the meaning specified in Section 0.

“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

“Purchase Option Event” has the meaning provided in Section 10.01.

“QFC Credit Support” has the meaning specified in Section 10.26.

“Qualified ECP Guarantor” means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

“Recovery” has the meaning specified in Section 8.05.

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“Real Estate” means all Leases and all land, together with the buildings, structures, parking areas, and other improvements thereon, now or hereafter owned by any Loan Party, including all easements, rights-of-way, and similar rights relating thereto and all leases, tenancies, and occupancies thereof.

“Receivables Reserves” means such Reserves as may be established from time to time by the Agent in the Agent’s discretion with respect to the determination of the collectability in the ordinary course of Eligible Amazon Receivables, including, without limitation, Dilution Reserves.

“Recipient” means the Agent, the FILO Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.

“Register” has the meaning specified in Section 0.

“Registered Public Accounting Firm” has the meaning specified by the Securities Laws and shall be independent of the Lead Borrower and its Subsidiaries as prescribed by the Securities Laws.

“Related Adjustment” means, in determining any LIBOR Successor Rate, the first relevant available alternative set forth in the order below that can be determined by the Agent applicable to such LIBOR Successor Rate:

(a)the spread adjustment, or method for calculating or determining such spread adjustment, that has been selected or recommended by the Relevant Governmental Body for the relevant Pre-Adjustment Successor Rate (taking into account the interest period, interest payment date or payment period for interest calculated and/or tenor thereto) and which adjustment or method (x) is published on an information service as selected by the Agent from time to time in its reasonable discretion or (y) solely with respect to Term SOFR, if not currently published, which was previously so recommended for Term SOFR and published on an information service acceptable to the Agent; or

(b)the spread adjustment that would apply (or has previously been applied) to the fallback rate for a derivative transaction referencing the ISDA Definitions (taking into account the interest period, interest payment date or payment period for interest calculated and/or tenor thereto).

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

“Relevant Governmental Body” means the [Federal Reserve Board]FRB and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the [Federal Reserve Board]FRB and/or the Federal Reserve Bank of New York[ for the purpose of recommending a benchmark rate to replace LIBOR Rate in loan agreements similar to this Agreement].

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty (30) day notice period has been waived.

“Reports” has the meaning provided in Section 0.

“Request for Credit Extension” means (a) with respect to a Borrowing, Conversion or continuation of Committed Loans or a Borrowing of the FILO Loan, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.

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“Required FILO Lenders” means, as of any date of determination, FILO Lenders holding FILO Loans aggregating more than fifty percent (50%) of the aggregate amount of the FILO Loans outstanding.

“Required Lenders” means, as of any date of determination, Lenders holding more than 50% of the sum of the Aggregate Revolving Commitments and the Outstanding Amount of the FILO Loan or, if the Aggregate Revolving Commitments and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated, Lenders holding in the aggregate more than 50% of the Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition); provided that (i) the Revolving Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders and (ii) at any time there are two or more Lenders (who are not Affiliates of one another or Defaulting Lenders), “Required Lenders” must include [a]at least two Lenders (who are not Affiliates of one another or Defaulting Lenders).

“Required Revolving Lenders” means, as of any date of determination, Revolving Lenders holding more than 50% of the sum of the Aggregate Revolving Commitments or, if the Aggregate Revolving Commitments and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated, Lenders holding in the aggregate more than 50% of the Total Revolving Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition); provided that (i) the Revolving Commitment of, and the portion of the Total Revolving Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders and (ii) at any time there are two or more Revolving Lenders (who are not Affiliates of one another or Defaulting Lenders), “Required Revolving Lenders” must include at least two Revolving Lenders (who are not Affiliates of one another or Defaulting Lenders).

“Required Supermajority Lenders” means, as of any date of determination, Lenders holding more than 66 2/3% of the sum of the Aggregate Revolving Commitments and the Outstanding Amount of the FILO Loan or, if the Aggregate Revolving Commitments and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated, Lenders holding in the aggregate more than 66 2/3% of the Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition); provided that (i) the Revolving Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Supermajority Lenders and (ii) at any time there are two (2) or more Lenders (who are not Affiliates of one another or Defaulting Lenders), “Required Supermajority Lenders” must include [a]at least two Lenders (who are not Affiliates of one another or Defaulting Lenders).

“Rescindable Amount” has the meaning provided in Section 2.12 (b)(ii).

“Reserves” means all Inventory Reserves, Availability Reserves, Receivables Reserves and the FILO Push Down Reserve. The Agent, and in the case of Reserves in respect of any FILO Collateral, the FILO Agent, shall have the right, at any time and from time to time after the [Closing]Fourth Amendment Effective Date in its reasonable discretion to establish, modify or eliminate Reserves, in each case subject to Section 9.16.

“Resolution Authority” an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

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“Responsible Officer” means the chief executive officer, president, chief financial officer, treasurer or assistant treasurer of a Loan Party or any of the other individuals designated in writing to the Agent by an existing Responsible Officer of a Loan Party as an authorized signatory of any certificate or other document to be delivered hereunder.  Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or 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.

“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of any Person or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to such Person’s stockholders, partners or members (or the equivalent of any thereof), or any option, warrant or other right to acquire any such dividend or other distribution or payment.  Without limiting the foregoing, “Restricted Payments” with respect to any Person shall also include all payments made by such Person with any proceeds of a dissolution or liquidation of such Person.

“Revolving Commitments” means, as to each Revolving Lender, its obligation to (a) make Committed Loans to the Borrowers pursuant to Article II and (b) purchase participations in L/C Obligations and in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Revolving Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Revolving Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

“Revolving Facility” means, at any time, the revolving credit facility provided in this Agreement for the making of the Revolving Loans and the issuance of Letters of Credit.

“Revolving Lenders” means Lenders having Revolving Commitments from time to time or at any time.

“Revolving Loan” means a Committed Loan or Swing Line Loan, as the context may require.

“Revolving Loan Cap” means, at any time of determination, the lesser of (a) the Aggregate Revolving Commitments or (b) the Borrowing Base.

“Revolving Obligations” means (a) the due and punctual payment of (i) the principal of, and interest (including all interest that accrues after the commencement of any case or proceeding by or against any Loan Party under any Debtor Relief Laws, whether or not allowed in such case or proceeding) on the Revolving Loans, as and when due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by the Loan Parties under this Agreement or any other Loan Document in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral and (iii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise, of the Loan Parties to the Credit Parties (other than the FILO Agent and the FILO Lenders) under this Agreement and the other Loan Documents, including, without limitation, for all such items that accrue after the commencement of any case or proceeding by or against any Loan Party under any Debtor Relief Laws, whether or not allowed in such case or proceeding, (b) the due and punctual payment and performance of all the covenants, agreements, obligations and liabilities of each Loan Party under or pursuant to this Agreement and the other Loan Documents (other than those related

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to the FILO Loan), and (c) Other Liabilities; provided that Revolving Obligations of a Loan Party shall exclude any Excluded Swap Obligations with respect to such Loan Party.

“Revolving Purchase Date” has the meaning provided in Section 10.01.

“Revolving Purchase Notice” has the meaning provided in Section 10.01.

“Revolving Purchasing Creditors” has the meaning provided in Section 10.01.

“RP Conditions” means, at the time of determination with respect to the making of any Restricted Payment, that (a) no Default or Event of Default then exists or would arise as a result of the making of such Restricted Payment, and (b)(i) for the thirty (30) day period prior to the making of such Restricted Payment and after giving pro forma effect to such Restricted Payment, the Availability will be equal to or greater than the greater of (x) fifteen percent (15%) of the Revolving Loan Cap (calculated without giving effect to the FILO Push Down Reserve) and (y) $15,000,000, and (ii) after giving pro forma effect to such Restricted Payment, the Consolidated Fixed Charge Coverage Ratio, tested on a trailing twelve month basis, is equal to or greater than 1.0:1.0; provided that this clause (b)(ii) shall not apply if Availability for the thirty (30) day period prior to the making of such Restricted Payment and after giving pro forma effect to such Restricted Payment was equal to or greater than the greater of (x) twenty percent (20%) of the Revolving Loan Cap (calculated without giving effect to the FILO Push Down Reserve) and (y) $20,000,000.   Prior to undertaking any Restricted Payment which is subject to the RP Conditions, the Lead Borrower shall deliver to the Agent (i) a certificate signed by the Chief Executive Officer, President or Chief Financial Officer of the Lead Borrower certifying that the conditions contained in clauses (a) and (b) of the preceding sentence have been satisfied, and (ii) evidence of satisfaction of the conditions contained in clause (b) (including a reasonably detailed calculation).

“Sanctioned Entity” means (a) a country or a government of a country, (b) an agency of the government of a country, (c) an organization directly or indirectly controlled by a country or its government, or (d) a Person resident in or determined to be resident in a country, in each case of clauses (a) through (d) that is a target of Sanctions, including a target of any country sanctions program administered and enforced by OFAC.

“Sanctioned Person” means, at any time (a) any Person named on the list of Specially Designated Nationals and Blocked Persons maintained by OFAC (“SDN”), OFAC’s consolidated Non-SDN list or any other Sanctions-related list maintained by any Governmental Authority, (b) a Person or legal entity that is a target of Sanctions, (c) any Person operating, organized or resident in a Sanctioned Entity, or (d) any Person directly or indirectly owned or controlled (individually or in the aggregate) by or acting on behalf of any such Person or Persons described in clauses (a) through (c) above.

“Sanctions” means individually and collectively, respectively, any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes anti-terrorism laws and other sanctions laws, regulations or embargoes, including those imposed, administered or enforced from time to time by:  (a) the United States of America, including those administered by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or through any existing or future executive order, (b) the United Nations Security Council, (c) the European Union or any European Union member state, (d) Her Majesty’s Treasury of the United Kingdom, or (e) any other Governmental Authority with jurisdiction over any Credit Party or any Loan Party or any of their respective Subsidiaries or Affiliates.

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.

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“Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.

“Scheduled Unavailability Date” has the meaning [specified]set forth in Section 3.03([b]c).

“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

“Second Amendment Effective Date”[:] means September 5, 2019.

“Securities Laws” means the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, Sarbanes-Oxley, and the applicable accounting and auditing principles, rules, standards and practices promulgated, approved or incorporated by the SEC or the PCAOB.

“Security Agreement” means the Second Amended and Restated Security Agreement dated as of the Closing Date among the Loan Parties and the Agent.

“Security Documents” means the Security Agreement, the Account Control Agreements, the Credit Card Notifications, and each other security agreement or other instrument or document executed and delivered to the Agent pursuant to this Agreement or any other Loan Document granting a Lien to secure any of the Obligations.

“Settlement Date” has the meaning [provided]set forth in Section 0.

“Shareholders’ Equity” means, as of any date of determination, consolidated shareholders’ equity of the Lead Borrower and its Subsidiaries as of that date determined in accordance with GAAP.

“Shrink” means Inventory which has been lost, misplaced, stolen, or is otherwise unaccounted for.

“SOFR” with respect to any [day]Business Day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source) at approximately 8:00 a.m. (New York City time) on the immediately succeeding Business Day and, in each case, that has been selected or recommended by the Relevant Governmental Body.

[“SOFR-Based Rate” means SOFR or Term SOFR.]

“Solvent” and “Solvency” means, with respect to any Person on a particular date, that on such date (a) at fair valuation, all of the properties and assets of such Person are greater than the sum of the debts, including contingent liabilities, of such Person, (b) the present fair saleable value of the properties and assets of such Person is not less than the amount that would be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person is able to realize upon its properties and assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (d) such Person does not intend to, and does not believe that it will, incur debts beyond such Person’s ability to pay as such debts mature, and (e) such Person is not engaged in a business or a transaction, and is not about to engage in a business or transaction, for which such Person’s properties and assets would constitute unreasonably small capital after giving due consideration to the prevailing practices in the industry in which such Person is engaged.  The amount of all guarantees at any time shall be computed as the amount that, in light of all the facts and circumstances existing at the time, can reasonably be expected to become an actual or matured liability.

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“Specified Loan Party” means any Loan Party that is not then an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 10.25).

[“Spot Rate” for a currency means the rate determined by the Agent to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two (2) Business Days prior to the date of such determination; provided that the Agent may obtain such spot rate from another financial institution designated by the Agent if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency.]

“Standby Letter of Credit” means any Letter of Credit that is not a Commercial Letter of Credit and that (a) is used in lieu or in support of performance guaranties or performance, surety or similar bonds (excluding appeal bonds) arising in the ordinary course of business, (b) is used in lieu or in support of stay or appeal bonds, (c) supports the payment of insurance premiums for reasonably necessary casualty insurance carried by any of the Loan Parties, or (d) supports payment or performance for identified purchases or exchanges of products or services in the ordinary course of business.

“Stated Amount” means at any time the maximum amount for which a Letter of Credit may be honored.

“Store” means any retail store (which may include any Real Estate, fixtures, Equipment, Inventory and other property related thereto) operated, or to be operated, by any Loan Party.

“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the Equity Interests having ordinary voting power for the election of directors or other governing body are 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 specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of a Loan Party.

“Supported QFC” has the meaning [specified]set forth in Section 10.26.

“Swap Contract” means (a) 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 (b) any and all transactions of any kind, and the related confirmations, 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 International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

“Swap Obligations” means with respect to any Loan Party any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

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“Swap Termination Value” 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, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(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 a Lender or any Affiliate of a Lender).

“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 0.

“Swing Line Lender” means Bank of America, in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.

“Swing Line Loan” has the meaning [specified]set forth in Section 0.

“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 0, which, if in writing, shall be substantially in the form of Exhibit B.

“Swing Line Note” means the promissory note of the Borrowers substantially in the form of Exhibit C-2, payable to the order of the Swing Line Lender, evidencing the Swing Line Loans made by the Swing Line Lender.

“Swing Line Sublimit” means an amount equal to the lesser of (a) $15,000,000 and (b) the Aggregate Revolving Commitments.  The Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments. A permanent reduction of the Aggregate Revolving Commitments shall not require a corresponding pro rata reduction in the Swing Line Sublimit; provided, however, that if the Aggregate Revolving Commitments are reduced to an amount less than the Swing Line Sublimit, then the Swing Line Sublimit shall be reduced to an amount equal to (or, at Lead Borrower’s option, less than) the Aggregate Revolving Commitments.

“Syndication Agent” means Wells Fargo Bank, National Association.

“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property (including sale and leaseback transactions), in each case, creating obligations that do not appear on the balance sheet of such Person but which, upon the application of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).

“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.

[“Termination Date” means the earliest to occur of (i) the Maturity Date, (ii) the date on which the maturity of the] Obligations is accelerated (or deemed accelerated) and the Aggregate Revolving Commitments are irrevocably terminated (or deemed terminated) in accordance with Article [0], or (iii) the termination of the Aggregate Revolving Commitments in accordance with the provisions of Section [0] hereof[.]

“Term SOFR” means the forward-looking term rate for any period that is approximately (as determined by the Agent) as long as any of the Interest Period options set forth in the definition of “Interest Period” and that is based on SOFR and that has been selected or recommended by the Relevant

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Governmental Body, in each case as published on an information service as selected by the Agent from time to time in its reasonable discretion.

“Termination Date” means (a) with respect to Revolving Obligations, the earliest to occur of (i) the Maturity Date, (ii) the date on which the maturity of the Revolving Obligations is accelerated (or deemed accelerated) and the Aggregate Revolving Commitments are irrevocably terminated (or deemed terminated) in accordance with Article 0, or (iii) the termination of the Aggregate Revolving Commitments in accordance with the provisions of Section 0 hereof; and (b) with respect to the FILO Obligations, the earliest to occur of (i) the Maturity Date or (ii) the date on which the maturity of the FILO Obligations are accelerated (or deemed accelerated) in accordance with Article VIII.

“Third Amendment Effective Date” means April 15, 2020.

“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.

“Total Revolving Outstandings” means the aggregate Outstanding Amount of all Committed Loans, Swing Line Loans and all L/C Obligations.

“Trademark” has the meaning specified in the Security Agreement.

“Trading with the Enemy Act” has the meaning set forth in Section 0.

“TTM EBITDA” means, as of any date of determination, the Consolidated EBITDA of the Lead Borrower and its Subsidiaries for the most recently ended Measurement Period for which financial statements have been (or are required to be) delivered pursuant to Section 6.01.

“Type” means, with respect to a Committed[ Loan or the outstanding portion of the FILO] Loan, its character as a Base Rate Loan or a LIBOR Rate Loan.

“UCC” or “Uniform Commercial Code” shall have the meaning given to such term in the Security Agreement.

“UCP 600” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).

“UFCA” has the meaning [specified]set forth in Section 10.21(c).

“UFTA” has the meaning [specified]set forth in Section 10.21(c).

“UK Financial Institution” means any BRRD Undertaking (as defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

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“Unintentional Overadvance” means an Overadvance which, to the Agent’s knowledge, did not constitute an Overadvance when made but which has become an Overadvance resulting from changed circumstances beyond the control of the Credit Parties, including, without limitation, a reduction in the Appraised Value of property or assets included in the Borrowing Base or the FILO Borrowing Base or misrepresentation by the Loan Parties.

“United States” and “U.S.” mean the United States of America.

“Unreimbursed Amount” has the meaning [specified]set forth in Section 0.

“Use Period” means the period commencing on the date that the Agent commences the liquidation and sale of the Collateral (other than the FILO Collateral) and ending 120 days thereafter. If a court of competent jurisdiction has entered any stay or other order that prohibits the Agent from commencing and continuing any enforcement action or disposing of the Collateral, such 120-day period shall be tolled during the pendency of any such stay or other order and the Use Period shall be so extended.

“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

“U.S. Special Resolution Regimes” has the meaning [specified]set forth in Section 10.26.

“U.S. Tax Compliance Certificate” has the meaning [specified]set forth in Section 0(III).

“Write-Down and Conversion Powers” means[, with respect to any EEA Resolution Authority,] (a) the write-down and conversion powers of [such]the applicable EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which [write-down and conversion ]powers are described in the EU Bail-In Legislation Schedule; or (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

1.02Other Interpretive Provisions.  

With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

(a)The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will” shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i) any definition 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 from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth

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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, (iii) the words “herein,” “hereof” and “hereunder,” 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, (v) any reference to any law shall include all statutory and regulatory rules, regulations, orders and provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

(b)In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”

(c)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 Document.

(d)Any reference herein or in any other Loan Document to the satisfaction, repayment, or payment in full of the Obligations shall mean the repayment in Dollars in full in cash or immediately available funds (or, in the case of contingent reimbursement obligations with respect to Letters of Credit and Bank Products (other than Swap Contracts), providing Cash Collateralization) of all of the Obligations (including the payment of any termination amount then applicable (or which would or could become applicable as a result of the repayment of the other Obligations) under Swap Contracts) other than (i) unasserted contingent indemnification Obligations, (ii) any Obligations relating to Bank Products (including Swap Contracts) that, at such time, are allowed by the applicable Bank Product provider to remain outstanding without being required to be repaid or Cash Collateralized, and (iii) any Obligations relating to Cash Management Services that, at such time, are allowed by the applicable provider of such Cash Management Services to remain outstanding without being required to be repaid.

(e)Any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).

1.03Accounting Terms

(a)

Generally.  All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied

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on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.

(b)

Changes in GAAP.  If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Lead Borrower or the Required Lenders shall so request, the Agent, the Lenders and the Lead Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Lead Borrower shall provide to the Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.  Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any change in accounting for leases pursuant to GAAP resulting from the implementation of FASB ASU No. 2016-02, Leases (Topic 842), to the extent such adoption would require treating any lease (or similar arrangement conveying the right to use) as a Capital Lease Obligation where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, 2015.

1.04Rounding.  

Any financial ratios required to be maintained by the Loan Parties 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).

1.05Times of Day.

Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

1.06Letter of Credit Amounts.

Unless otherwise specified, all references herein to the amount of a Letter of Credit at any time shall be deemed to be the Stated Amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Documents related thereto, provides for one or more automatic increases in the Stated Amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Stated Amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum Stated Amount is in effect at such time.

1.07Interest Rates

.  The Agent does not warrant, nor accept responsibility, nor shall the Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “LIBOR Rate” or with respect to any rate that is an alternative or replacement for or successor to any of such rate (including, without limitation, any LIBOR Successor Rate) or the effect of any of the foregoing, or of any LIBOR Successor Rate Conforming Changes.

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ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS

2.01[Committed ]Loans; Reserves.

(a) Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make loans (each such loan, a “Committed Loan”) to the Borrowers from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the lesser of (x) the amount of such Revolving Lender’s Revolving Commitment, or (y) such Revolving Lender’s Applicable Percentage of the Borrowing Base; subject in each case to the following limitations:

(i)after giving effect to any Committed Borrowing, the Total Revolving Outstandings shall not exceed the Revolving Loan Cap[, ];

(ii)after giving effect to any Committed Borrowing, the aggregate Outstanding Amount of the Committed Loans of any Revolving Lender, plus such Revolving Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Revolving Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Lender’s Revolving Commitment[,]; and

(iii)The Outstanding Amount of all L/C Obligations shall not at any time exceed the Letter of Credit Sublimit.

Within the limits of each Revolving Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 0, prepay under Section 0, and reborrow under this Section 0.  

(b)Each FILO Lender severally agrees, on the terms and conditions hereinafter set forth, to make its portion of the FILO Loan to the Borrowers on the [Closing]Fourth Amendment Effective Date in a principal amount equal to its FILO Commitment.  Amounts [repaid in respect of the FILO Loan]borrowed under this Section 2.01(b) and repaid or prepaid hereunder may not be reborrowed. Upon each applicable FILO Lender’s making of its portion of the FILO Loan on the [Closing]Fourth Amendment Effective Date, the FILO Commitment of such FILO Lender shall be terminated.

2.02Borrowings, Conversions and Continuations of Committed Loans.

(a)Committed Loans (other than Swing Line Loans)[ and the outstanding portion of the FILO Loan] shall be either Base Rate Loans or LIBOR Rate Loans as the Lead Borrower may request subject to and in accordance with this Section 0.  All Swing Line Loans shall be only Base Rate Loans.  Subject to the other provisions of this Section 0, Committed Borrowings of more than one Type may be incurred at the same time.

(b)Each Committed Borrowing, each Conversion of Committed Loans[ or the outstanding FILO Loan] from one Type to the other, and each continuation of LIBOR Rate Loans shall be made upon the Lead Borrower’s irrevocable notice to the Agent, which may be given by telephone.  Each such notice must be received by the Agent not later than 1:00 p.m. (i) three (3) Business Days prior to the requested date of any Borrowing of, Conversion to or continuation of LIBOR Rate Loans or of any Conversion of LIBOR Rate

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Loans to Base Rate Loans, [and ](ii) one (1) Business Day prior to the requested date of any Borrowing of Base Rate Loans and (iii) at least three (3) Business Days prior to the Fourth Amendment Effective Date (or such shorter period as may be acceptable to the FILO Agent) in respect of the Borrowing of FILO Loans on the Fourth Amendment Effective Date.  Each telephonic notice by the Lead Borrower pursuant to this Section 0 must be confirmed promptly by delivery to the Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Lead Borrower.  Each Borrowing of, Conversion to or continuation of LIBOR Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof.  Except as provided in Sections 0 and 0, each Borrowing of or Conversion to Base Rate Loans shall be in sum minimum amounts as the Agent may require.  Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the Lead Borrower is requesting a Committed Borrowing or, on the Fourth Amendment Effective Date, the FILO Loan, as applicable, a Conversion of Committed Loans[ or the outstanding portion of the FILO Loan, as applicable,] from one Type to the other, or a continuation of LIBOR Rate Loans, (ii) the requested date of the Borrowing, Conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Committed Loans[ or the outstanding portion of the FILO Loan, as applicable,] to be borrowed, Converted or continued, (iv) the Type of Committed Loans [or the outstanding FILO Loan, as applicable, ]to be borrowed or to which existing Committed Loans[ or the outstanding FILO Loan, as applicable,] are to be Converted, and (v) if applicable, the duration of the Interest Period with respect thereto.  If the Lead Borrower fails to specify a Type of Committed Loan [or the outstanding portion of the FILO Loan, as applicable, ]in a Committed Loan Notice or if the Lead Borrower fails to give a timely notice requesting a Conversion or continuation, then the applicable Committed Loans[ or the outstanding portion of the FILO Loan, as applicable,] shall be made as, or Converted 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 effect with respect to the applicable LIBOR Rate Loans.  If the Lead Borrower requests a Borrowing of, Conversion to, or continuation of LIBOR Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.  Notwithstanding anything to the contrary herein, a Swing Line Loan may not be Converted to a LIBOR Rate Loan.

(c)Following receipt of a Committed Loan Notice, the Agent shall promptly notify each Revolving Lender of the amount of its Applicable Percentage of the applicable Committed Loans, and if no timely notice of a Conversion or continuation is provided by the Lead Borrower, the Agent shall notify each Lender of the details of any automatic Conversion to Base Rate Loans described in Section 0.  In the case of a Committed Borrowing, each Revolving Lender shall make the amount of its Committed Loan available to the Agent in immediately available funds at the Agent’s Office not later than 2:00 p.m. on the Business Day specified in the applicable Committed Loan Notice.  Upon satisfaction of the applicable conditions set forth in Section 0 (and, if such Borrowing is the initial Credit Extension, Section 0), the Agent shall make all funds so received available to the Borrowers in like funds as received by the Agent either by (i) crediting the account of the Lead Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Agent by the Lead Borrower; provided, however, that if, on the date the Committed Loan Notice with respect to such Borrowing is given by the Lead Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and second, shall be made available to the Borrowers as provided above.

(d)(x) The Agent, without the request of the Lead Borrower, may advance any interest, fee, service charge (including direct wire fees), expenses, or other payment to which any Credit Party is entitled from the Loan Parties pursuant hereto or any other Loan Document and may charge the same to the Loan Account for the Revolving Facility notwithstanding that an Overadvance may result thereby and (y) the FILO Agent, without request of the Lead Borrower, may advance any interest, fee, service charge (including direct wire fees), expenses or other payments to which the FILO Agent or any FILO Lender is entitled from the Loan Parties pursuant hereto or any other Loan Document and may

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charge the same to the Loan Account for the FILO Facility.  The Agent or the FILO Agent, as applicable, shall advise the Lead Borrower of any such advance or charge promptly after the making thereof.  Such action on the part of the Agent or the FILO Agent, as applicable, shall not constitute a waiver of the Agent’s or the FILO Agent’s rights and the Borrowers’ obligations under Section 0.  Any amount which is added to the principal balance of the Loan Account or the FILO Loan, as applicable and as provided in this Section 0, shall bear interest at the interest rate then and thereafter applicable to Base Rate Loans or the FILO Loan, as applicable.

(e)Except as otherwise provided herein, a LIBOR Rate Loan may be continued or Converted only on the last day of an Interest Period for such LIBOR Rate Loan.  During the existence of a Default or an Event of Default, no Loans may be requested as, Converted to or continued as LIBOR Rate Loans without the Consent of the Required Revolving Lenders.

(f)The Agent shall promptly notify the Lead Borrower and the Lenders of the interest rate applicable to any Interest Period for LIBOR Rate Loans upon determination of such interest rate.  At any time that Base Rate Loans are outstanding, the Agent shall notify the Lead Borrower and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.

(g)After giving effect to all Committed Borrowings, all Conversions of Committed Loans[ or the outstanding FILO Loan, as applicable,] from one Type to the other, and all continuations of Committed Loans [or the outstanding FILO Loan, as applicable, ]as the same Type, there shall not be more than [(i) ]five (5) Interest Periods in effect with respect to the Revolving Loans that are LIBOR Rate Loans[ and (ii) one (1) Interest Period in effect with respect to the FILO Loan that is a LIBOR Rate Loan].

(h)The Agent, the Lenders, the Swing Line Lender and the L/C Issuer shall have no obligation to make any Loan or to provide any Letter of Credit if an Overadvance would result.  The Agent may, in its discretion, make Permitted Overadvances without the consent of the Borrowers, the Lenders, the Swing Line Lender and the L/C Issuer and the Borrowers and each Lender and L/C Issuer shall be bound thereby.  Any Permitted Overadvance may, but shall not be required to, constitute a Swing Line Loan. A Permitted Overadvance is for the account of the Borrowers and shall constitute a Base Rate Loan and an Obligation and shall be repaid by the Borrowers in accordance with the provisions Section 0.  The making of any such Permitted Overadvance on any one occasion shall not obligate the Agent or any Lender to make or permit any Permitted Overadvance on any other occasion or to permit such Permitted Overadvances to remain outstanding. The making by the Agent of a Permitted Overadvance shall not modify or abrogate any of the provisions of Section 0 regarding the Revolving Lenders’ obligations to purchase participations with respect to Letter of Credits or of Section 0 regarding the Revolving Lenders’ obligations to purchase participations with respect to Swing Line Loans.  The Agent shall have no liability for, and no Loan Party or Credit Party shall have the right to, or shall, bring any claim of any kind whatsoever against the Agent with respect to Unintentional Overadvances regardless of the amount of any such Overadvance(s).

2.03Letters of Credit.

(a)

The Letter of Credit Commitment.

(i)Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section 0, (1) 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 for the account of the Borrowers and the other Loan Parties, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 0 below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Lenders severally agree to participate in Letters

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of Credit issued for the account of the Borrowers and the other Loan Parties and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Outstandings shall not exceed the Revolving Loan Cap, (y) the aggregate Outstanding Amount of the Committed Loans of any Revolving Lender, plus such Revolving Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Revolving Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit.  Each request by the Lead Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the L/C 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 Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers 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.  All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.

(ii)The L/C Issuer shall not issue any Letter of Credit, if:

(A)subject to Section 0, the expiry date of such requested Standby Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or

(B)the expiry date of such requested Commercial Letter of Credit would occur more than 120 days after the date of issuance, unless the Required Revolving Lenders have approved such expiry date; or

(C)the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless either such Letter of Credit is Cash Collateralized on or prior to the date of issuance of such Letter of Credit (or such later date as to which the Agent may agree) or all the Revolving Lenders have approved such expiry date; or.

(D)any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;

(E)the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;

(F)except as otherwise agreed by the Agent, such Letter of Credit is to be denominated in a currency other than Dollars; provided that if the L/C Issuer, with the consent of the Agent, issues a Letter of Credit denominated in a currency other than Dollars, all

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reimbursements by the Borrowers of the honoring of any drawing under such Letter of Credit shall be paid in the currency in which such Letter of Credit was denominated;

(G)such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or

(H)any Revolving Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrowers or such Revolving Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 0) with respect to the Defaulting Lender arising from either (x) the Letter of Credit then proposed to be issued or (y) that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.

(iii)The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof or if the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.

(iv)The L/C Issuer shall act on behalf of the Revolving Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Agent in Article 0 with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article 0 included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.

(b)

Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.

(i)Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Lead Borrower delivered to the L/C Issuer (with a copy to the Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Lead 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 L/C Issuer, by personal delivery or by any other means acceptable to the L/C Issuer.  Such Letter of Credit Application must be received by the L/C Issuer and the Agent not later than 11:00 a.m. at least two (2) Business Days (or such other date and time as the Agent and the L/C Issuer may agree in a particular instance in their 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 L/C Issuer: (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 beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer may require.  In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (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 L/C Issuer may require.  Additionally, the Lead Borrower shall furnish to the L/C Issuer and the Agent

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such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Agent may require.

(ii)Subject to the provisions of Section 0(iv) hereof, promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Agent (by telephone or in writing) that the Agent has received a copy of such Letter of Credit Application from the Lead Borrower and, if not, the L/C Issuer will provide the Agent with a copy thereof.  Unless the L/C Issuer has received written notice from any Revolving Lender, the Agent or any Loan Party, at least one (1) Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article 0 shall not then be satisfied or unless the L/C Issuer would not be permitted, or would have no obligation, at such time to issue such Letter of Credit under the terms hereof (by reason of the provisions of Section 0 or otherwise), then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the applicable Borrower or the applicable Loan Party or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer's usual and customary business practices.  Immediately upon the issuance or amendment of each Letter of Credit, each Revolving Lender shall be deemed to (without any further action), and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer, without recourse or warranty, a risk participation in such Letter of Credit in an amount equal to the product of such Revolving Lender’s Applicable Percentage times the Stated Amount of such Letter of Credit.  Upon any change in the Aggregate Revolving Commitments under this Agreement, it is hereby agreed that with respect to all L/C Obligations, there shall be an automatic adjustment to the participations hereby created to reflect the new Applicable Percentages of the assigning and assignee Revolving Lenders.

(iii)If the Lead Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Standby Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Standby Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Standby Letter of Credit is issued.  Unless otherwise directed by the L/C Issuer, the Lead Borrower shall not be required to make a specific request to the L/C Issuer for any such extension.  Once an Auto-Extension Letter of Credit has been issued, the Revolving Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Standby Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Standby Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 0 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Agent that the Require