44720.00001

KIRKLAND & ELLIS LLP COOLEY LLP

Cullen D. Speckhart (VSB 79096)

Admitted to practice in New York, Virginia, Missouri and 

Texas; Not admitted to practice in DC, supervised by 

members of DC bar

Olya Antle (VSB 83153)

Admitted to practice in Virginia; Not admitted to practice 

in DC, supervised by members of DC bar

1299 Pennsylvania Avenue, NW, Suite 700

Washington, DC 20004-2400

Telephone: (202) 842-7800

Facsimile: (202) 842-7899

KIRKLAND & ELLIS INTERNATIONAL LLP

Edward O. Sassower, P.C. 

Steven N. Serajeddini, P.C. (admitted pro hac vice)

601 Lexington Avenue

New York, New York 10022

Telephone: (212) 446-4800

Facsimile: (212) 446-4900

-andJohn R. Luze (admitted pro hac vice)

300 North LaSalle

Chicago, Illinois 60654

Telephone: (312) 862-2000

Facsimile: (312) 862-2200

Co-Counsel to the Debtors and Debtors in Possession

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

)

In re: ) Chapter 11

)

ASCENA RETAIL GROUP, INC., et al.,

1 ) Case No. 20-33113 (KRH)

)

Debtors. ) (Jointly Administered)

)

FINAL ORDER UNDER 11 U.S.C. §§ 105, 361, 362, 363, 364,

AND 507, AND BANKRUPTCY RULES 2002, 4001, AND 9014 

(I) AUTHORIZING DEBTORS TO USE CASH COLLATERAL, (II) AUTHORIZING 

THE DEBTORS TO OBTAIN POSTPETITION FINANCING, AND (III) GRANTING 

ADEQUATE PROTECTION TO THE PREPETITION SECURED PARTIES,

1. Upon the motion (the “Motion”)2 of the debtors and debtors in possession 

(collectively, the “Debtors”) in the above-captioned chapter 11 cases (the “Cases”), for entry of 

an interim order and a final order (this “Final Order”) under sections 105, 361, 362, 363, 364,

1 A complete list of each of the Debtors in these chapter 11 cases may be obtained on the website of the Debtors’ 

claims and noticing agent at http://cases.primeclerk.com/ascena. The location of Debtor Ascena Retail Group, 

Inc.’s principal place of business and the Debtors’ service address in these chapter 11 cases is 933 MacArthur 

Boulevard, Mahwah, New Jersey 07430

2 Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Motion.

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503, and 507 of title 11 of the United States Code (as amended, the “Bankruptcy Code”), Rules 

2002, 4001, and 9014 of the Federal Rules of Bankruptcy Procedure (as amended, the

“Bankruptcy Rules”), and the Local Rules of Bankruptcy Practice and Procedure of the United 

States Bankruptcy Court for the Eastern District of Virginia (the “Local Bankruptcy Rules”),

seeking:

(a) authorization for the Debtors to obtain postpetition financing on a 

superpriority senior secured basis, comprised of term loans (the “DIP 

Term Loan Facility,” and the term loans thereunder, the “DIP Term 

Loans”) in an aggregate principal amount of $311.8 million, consisting of 

(a) $150 million in “new money” term loans and (b) $161.8 million of 

“rolled-up” term loans resulting from the conversion of certain 

outstanding term loans under the Term Credit Agreement (as defined 

below), pursuant to the terms and conditions of that certain Senior Secured 

Super-Priority Debtor-in-Possession Term Credit Agreement (as the same 

may be amended, restated, supplemented, waived or otherwise modified 

from time to time, the “DIP Term Loan Agreement”), by and among 

Ascena Retail Group, Inc., as Parent Borrower (the “DIP Parent 

Borrower”), AnnTaylor Retail, Inc., as Subsidiary Borrower (together with 

the DIP Parent Borrower, the “DIP Borrowers”), and certain other 

Debtors, as Guarantors (as defined in the DIP Term Loan Agreement) (in 

such capacities, the “DIP Guarantors” and, together with the DIP 

Borrowers, in such capacities, the “DIP Credit Parties”), the lenders party 

thereto from time to time (the “DIP Term Lenders” and, together with the 

DIP Term Loan Agent (as defined below), the “DIP Term Loan Secured 

Parties”), and Alter Domus (US) LLC as administrative agent for the DIP 

Term Lenders (the “DIP Term Loan Agent”), and, together with any other 

agreements, instruments, pledge agreements, guarantees, security 

agreements, intellectual property security agreements, control agreements, 

escrow agreements, instruments, notes, and documents executed in 

accordance and connection therewith, including the Backstop 

Commitment Letter (as defined below) (each as amended, restated, 

supplemented, waived, or otherwise modified from time to time in 

accordance with the terms hereof and thereof, the “DIP Term Loan 

Documents”)), annexed hereto as Annex 3;

(b) authorization for the DIP Borrowers to incur the DIP Term Loans, and for 

the DIP Guarantors jointly and severally irrevocably and unconditionally 

to guaranty, the due and punctual payment in full in cash of all Loan 

Document Obligations (as defined in the DIP Term Loan Agreement, 

collectively, the “DIP Term Loan Obligations”) when the same shall 

become due, whether at stated maturity, by required prepayment, 

declaration, acceleration, demand or otherwise (including amounts that 

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would become due but for the operation of the automatic stay under 

section 362(a) of the Bankruptcy Code);

(c) authorization for the Debtors to execute, deliver, and perform under the 

DIP Term Loan Agreement and all other DIP Term Loan Documents, and 

to perform such other and further acts as may be necessary or desirable in 

connection with this Final Order, the DIP Term Loan Documents, and the 

transactions contemplated hereby and thereby;

(d) authorization for the Debtors to obtain postpetition financing on a 

superpriority senior secured basis, comprised of a revolving credit facility

(the “DIP ABL Facility,” and the revolving commitments (the “DIP ABL 

Commitments”) and loans thereunder, (such loans, together with the DIP 

ABL Commitments, as the context may require, the “DIP ABL Loans,”

and the DIP ABL Facility together with the DIP Term Loan Facility, the 

“DIP Facilities”)) in an aggregate principal amount of $400,000,000,

which shall include a $200,000,000 sublimit for the issuance of letters of 

credit, pursuant to the terms and conditions of that certain Senior Secured 

Super-Priority Debtor-in-Possession Credit Agreement (as the same may 

be amended, restated, supplemented, waived or otherwise modified from 

time to time, the “DIP ABL Agreement”), by and among the DIP Credit 

Parties, the lenders party thereto from time to time (the “DIP ABL

Lenders” and, together with the DIP ABL Agent (as defined below), the 

“DIP ABL Secured Parties,” and collectively with the DIP Term Loan 

Secured Parties, the “DIP Secured Parties”), and JPMorgan Chase Bank, 

N.A. as administrative agent for the DIP ABL Lenders (the “DIP ABL

Agent,” and together with the DIP Term Loan Agent, the “DIP Agents”),

and, together with any other agreements, instruments, pledge agreements, 

guarantees, security agreements, intellectual property security agreements, 

control agreements, escrow agreements, instruments, notes, and 

documents executed in accordance and connection therewith (each as 

amended, restated, supplemented, waived, or otherwise modified from 

time to time in accordance with the terms hereof and thereof, the “DIP 

ABL Documents,” and together with the DIP Term Loan Documents, the 

“DIP Documents”)), annexed hereto as Annex 4;

(e) authorization for the DIP Borrowers to incur the DIP ABL Loans, and for 

the DIP Guarantors jointly and severally irrevocably and unconditionally 

to guaranty, the due and punctual payment in full in cash of all Obligations 

(as defined in the DIP ABL Agreement, collectively, the “DIP ABL 

Obligations,” and together with the DIP Term Loan Obligations, the “DIP 

Obligations”) when the same shall become due, whether at stated maturity, 

by required prepayment, declaration, acceleration, demand or otherwise 

(including amounts that would become due but for the operation of the 

automatic stay under section 362(a) of the Bankruptcy Code);

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(f) authorization for the Debtors to execute, deliver, and perform under the 

DIP ABL Agreement and all other DIP ABL Documents, and to perform 

such other and further acts as may be necessary or desirable in connection 

with this Final Order, the DIP ABL Documents, and the transactions 

contemplated hereby and thereby;

(g) authorization, upon entry of this Final Order, for the Debtors to convert all 

outstanding ABL Obligations (as defined below) into DIP ABL 

Obligations;3

(h) authorization for the Debtors to grant to the DIP Agents, on behalf of the 

applicable DIP Secured Parties, the DIP Liens (as defined in herein) in all 

DIP Collateral (as defined herein), in each case subject to the terms herein;

(i) authorization for the Debtors to grant to the DIP Agents, on behalf of the 

applicable DIP Secured Parties, allowed, superpriority administrative 

expense claims against each of the Debtors, on a joint and several basis, in 

respect of all DIP Obligations in accordance with the terms herein;

(j) authorization for the Debtors, pursuant to sections 105, 361, 362, 363, 

503, and 507 of the Bankruptcy Code, to (i) use Cash Collateral (as 

defined below) and all other Prepetition Collateral (as defined below) and 

(ii) provide adequate protection to the Prepetition Secured Parties (as 

defined below) under the ABL Credit Agreement and the Term Credit 

Agreement (each as defined below and, collectively, the “Credit 

Agreements”);

(k) authorization to grant the Adequate Protection Liens, DIP Term Loan 

Liens and DIP ABL Liens (each, as defined below) on, among other 

property, the proceeds and property recovered in respect of the Debtors’ 

claims and causes of action (but not on the actual claims and causes of 

action) arising under sections 544, 545, 547, 548, 549, and 550 of the 

Bankruptcy Code or any other similar state law (collectively, 

the “Avoidance Actions”);

(l) the waiver by the Debtors of any right to surcharge the Prepetition 

Collateral or DIP Collateral (each, as defined below) pursuant to 

section 506(c) of the Bankruptcy Code or any other applicable principle of 

equity or law and the waiver of any “equities of the case” exception under 

section 552(b) of the Bankruptcy Code against the Prepetition Secured 

Parties;

3 Upon entry of this Final Order, any outstanding ABL Obligations (as defined herein) and all accrued and 

unpaid interest thereon and fees and expenses shall be fully-rolled into the DIP ABL Facility and shall constitute 

DIP ABL Obligations hereunder.

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(m) the waiver of the equitable doctrine of “marshaling” and other similar 

doctrines to the extent set forth herein; and

(n) the waiver of any applicable stay with respect to the effectiveness and 

enforceability of this Final Order (including a waiver pursuant to

Bankruptcy Rule 6004(h)).

The Court, having considered the Motion, the DIP Term Loan Documents, the DIP ABL 

Documents, the Declaration of Stuart Erickson in Support of the Debtors’ Motion for Entry of a 

Final Order (I) Authorizing the Debtors to Obtain Postpetition Financing, (II) Authorizing the 

Debtors to Use Cash Collateral, (III) Granting Liens and Providing Superpriority Administrative 

Expense Status, (IV) Granting Adequate Protection to the Prepetition Lenders, (V) Modifying the 

Automatic Stay, (VI) Granting Related Relief (the “Erickson Declaration”), the First Day 

Declaration, the evidence submitted and arguments proffered or adduced at the Interim Hearing 

held before this Court on July 23, 2020 as it relates to the Debtors’ use of Cash Collateral and the 

Final Hearing held before this Court on September 10, 2020, and upon the record of the Cases; 

and the Court having entered the Interim Order Under 11 U.S.C. §§ 105, 361, 362, 363 and 507, 

and Bankruptcy Rules 2002, 4001, and 9014 (I) Authorizing Debtors to Use Cash Collateral, (II) 

Granting Adequate Protection to the Prepetition Secured Parties, and (III) Scheduling a Final 

Hearing Pursuant to Bankruptcy Rule 4001(b) [Docket. No. 61] (the “Interim Order”); and 

adequate notice of the Final Hearing having been given in accordance with Bankruptcy Rule 

9014 and all applicable Local Bankruptcy Rules; and it appearing that no other or further notice 

need be provided; and all objections, if any, to the relief requested in the Motion having been 

withdrawn, resolved, or overruled by the Court; and it appearing to the Court that granting the 

final relief requested in the Motion is necessary to avoid immediate and irreparable harm to the 

Debtors and their estates, and otherwise is fair and reasonable and in the best interests of the 

Debtors, their estates, and their creditors, represents a sound exercise of the Debtors’ business 

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judgment, and is necessary for the continued operation of the Debtors’ businesses; and after due 

deliberation and consideration, and for good and sufficient cause appearing therefor:

IT IS FOUND, DETERMINED, ORDERED AND ADJUDGED, that:

A. The Petition Date. 

2. On July 23, 2020 (the “Petition Date”), each of the Debtors filed a voluntary 

petition for relief under chapter 11 of the Bankruptcy Code in the United States Bankruptcy 

Court for the Eastern District of Virginia (this “Court”) commencing these Cases.

B. Debtors in Possession. 

3. The Debtors continue to manage and operate their businesses and properties as 

debtors in possession pursuant to sections 1107 and 1108 of the Bankruptcy Code. No trustee or 

examiner has been appointed in any of the Cases. On August 3, 2020, the United States Trustee 

for the District of Virginia (the “U.S. Trustee”) appointed an official committee of unsecured 

creditors in the Cases (the “Creditors’ Committee”).

C. Jurisdiction. 

4. This Court has core jurisdiction over the Cases, the Motion, and the parties and 

property affected hereby pursuant to 28 U.S.C. § 1334. Venue is proper before this Court 

pursuant to 28 U.S.C. §§ 1408 and 1409.

D. Notice. 

5. Notice of the Motion, the relief requested therein, and the Final Hearing was 

served by the Debtors on the following parties or their counsel: (a) the United States Trustee for 

the Eastern District of Virginia; (b) the holders of the 50 largest unsecured claims against the 

Debtors (on a consolidated basis); (c) the agents under the Debtors’ prepetition secured facilities 

and counsel thereto; (d) the DIP Agents and their counsel; (e) Milbank LLP, as counsel to an ad 

hoc group of certain Term Loan Secured Parties (as defined below); (f) the United States 

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Attorney’s Office for the Eastern District of Virginia; (g) the Internal Revenue Service; (h) the

office of the attorneys general for the states in which the Debtors operate; (i) the Securities and 

Exchange Commission; and (j) any party that has requested notice pursuant to Bankruptcy Rule 

2002 (collectively, the “Notice Parties”). Under the circumstances, the notice given by the 

Debtors of the Motion, the relief requested therein, and the Final Hearing constitutes due and 

sufficient notice thereof and complies with Bankruptcy Rules 2002, 4001(b), (c), and (d), and the 

Local Bankruptcy Rules.

E. Debtors’ Stipulations. 

6. Without prejudice to the rights of any other party (but subject to the rights of 

parties in interest as set forth in section GG of this Final Order), the Debtors admit, stipulate, 

acknowledge and agree that:

(a) ABL Credit Facility:

(i) ABL Credit Agreement: Ascena Retail Group, Inc. and each of 

the borrowing subsidiaries party thereto (collectively, the “ABL 

Borrowers”), the other loan parties party thereto (together with the 

ABL Borrowers, the “ABL Loan Parties”), the lenders party 

thereto (the “ABL Lenders”), the issuing banks party thereto, and 

JPMorgan Chase Bank, N.A. (“JPMorgan”), as administrative 

agent and collateral agent (in such capacities, the “ABL Agent”)

and swingline lender (together with the ABL Lenders, the ABL 

Agent and the other “Lender Parties” identified therein, the “ABL 

Secured Parties”) are parties to that certain Amended and Restated 

Credit Agreement, dated as of January 3, 2011 (as amended and 

restated by the Second Restatement Agreement dated as of 

June 14, 2012, by the Third Restatement Agreement dated as of 

March 13, 2013, by the Fourth Restatement Agreement dated as of 

July 24, 2015, by the Fifth Restatement Agreement dated as of 

February 27, 2018, and as may otherwise be amended, restated, 

amended and restated, modified, or otherwise supplemented from 

time to time prior to the Petition Date, the “ABL Credit 

Agreement”). The ABL Credit Agreement provides for a senior 

secured asset-based revolving credit facility with a maximum 

availability of $500,000,000 (subject to a borrowing base 

composed primarily of credit card accounts receivable and 

inventory), including a letter of credit sublimit of $200,000,000,

with a maturity date of February 27, 2023, springing to 91 days 

prior to the final scheduled maturity of the Term Credit Facility (as 

defined below) unless the principal amount of debt outstanding 

that has a scheduled maturity prior to May 29, 2023 under the 

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Term Credit Agreement (as defined below) is not more than 

$150,000,000 and Liquidity (as defined in the ABL Credit 

Agreement) is at least equal to $150,000,000 (the “ABL Facility”).

(ii) ABL Obligations: As of the Petition Date, the ABL Loan Parties 

were jointly and severally liable and indebted to the ABL Agent 

and the other ABL Secured Parties in the aggregate principal 

amount of not less than $230,000,000 in Revolving Loans (as 

defined in the ABL Credit Agreement) and $103,000,000 in 

aggregate face amount of undrawn letters of credit, plus any other 

amounts due and payable under the “Loan Documents” as defined 

in the ABL Credit Agreement (the “ABL Loan Documents”),

including, without limitation, accrued and unpaid interest thereon, 

reimbursement obligations (contingent or otherwise), fees, costs, 

expenses and disbursements (including, without limitation, 

attorneys’, accountants’, auditors’, appraisers’, collateral 

examiners’, consultants’ and financial advisors’ fees and related 

expenses and disbursements), breakage costs, charges, indemnities, 

treasury, cash management, bank product and derivative 

obligations, indemnification obligations, guarantee obligations, 

Secured Obligations (as defined in the ABL Credit Agreement),

and any other amounts, liabilities, or obligations of whatever 

nature, whenever arising or accruing (whether before or after the 

Petition Date), that may be due, owing, or chargeable in 

connection therewith (including all Obligations (as defined in the 

ABL Credit Agreement)), in each case, as and to the extent 

provided in, and required to be paid or reimbursed under, the ABL 

Loan Documents (collectively, the “ABL Obligations”), which 

shall constitute allowed secured claims under sections 502 and 506 

of the Bankruptcy Code against the applicable Debtors’ estates. 

The Debtors acknowledge and agree that (x) the ABL Obligations 

constitute legal, valid, binding and non-avoidable obligations of 

the Debtors enforceable in accordance with the terms of the 

applicable ABL Loan Documents and (y) the ABL Obligations are 

not subject to any challenge or defense, including, without 

limitation, avoidance, disallowance, disgorgement, 

recharacterization, or subordination (equitable or otherwise) 

pursuant to the Bankruptcy Code or applicable non-bankruptcy 

law.4

(iii) Prepetition ABL Liens: To secure the ABL Obligations, each of 

the ABL Loan Parties granted to the ABL Agent, for the benefit of 

the ABL Secured Parties, properly perfected continuing first and 

second priority liens and mortgages on, and security interests in 

(collectively, the “Prepetition ABL Liens”), all Collateral (as 

4 JPMorgan and Ascena Retail Group, Inc. were parties to a certain interest rate swap (the “Swap”), which 

was terminated on the Petition Date. The parties estimate that, as of the termination, Ascena owed JPMorgan 

approximately $7.3 million (the “Swap Termination Liability”). The Swap is secured by the same collateral that 

secures other ABL Obligations. The Swap Termination Liability is accruing interest at the default rate and 

constitutes an ABL Obligation that, upon entry of this Final Order, shall be rolled-up into the DIP ABL Obligations 

and, upon entry of this Final Order, the Swap Termination Liability shall be paid in cash in full.

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defined in the ABL Credit Agreement, the “Prepetition ABL 

Collateral”).

(b) Term Loan:

(i) Term Credit Agreement: Ascena Retail Group, Inc., and 

AnnTaylor Retail Inc. (collectively, the “Term Loan Borrowers”), 

the lenders party thereto (the “Term Loan Lenders”), and Goldman 

Sachs Bank USA, as administrative agent and collateral agent (in 

such capacities, the “Term Loan Agent” and, together with the 

ABL Agent, the “Prepetition Agents,” and the Term Loan Agent 

together with the Term Loan Lenders and the other “Secured 

Parties” as defined in the Term Credit Agreement, the “Term Loan 

Secured Parties” and, together with the ABL Secured Parties and 

the Incremental Collateral Agent (as defined below), the 

“Prepetition Secured Parties”) are parties to that certain Term 

Credit Agreement, dated as of August 21, 2015 (as amended, 

restated, amended and restated, modified, or otherwise

supplemented from time to time prior to the Petition Date, the 

“Term Credit Agreement”). Under the Term Credit Agreement, 

the Term Loan Borrowers initially borrowed $1,800,000,000 in 

senior secured term loans (the “Term Loans”) with a maturity date 

of August 21, 2022 (the “Term Credit Facility” and, together with 

the ABL Facility, the “Prepetition Facilities”).

(ii) Term Loan Obligations: As of the Petition Date, the “Loan

Parties,” as defined in the Term Credit Agreement (the “Term 

Loan Credit Parties”) were jointly and severally liable and 

indebted to the Term Loan Agent and the other Term Loan 

Secured Parties in the aggregate principal amount of approximately 

$1,271,597,089, plus any other amounts due and payable under the 

Loan Documents (as defined in the Term Credit Agreement, the 

“Term Loan Documents” and, together with the ABL Loan 

Documents and the Conditional Assignment Agreement (as 

defined below), the “Prepetition Secured Credit Documents”),

including, without limitation, accrued and unpaid interest thereon, 

premiums, reimbursement obligations (contingent or otherwise), 

fees, costs, certain expenses (including any attorneys’, 

accountants’, and financial advisors’ fees and expenses), charges, 

indemnities, and any other amounts, liabilities, or obligations of 

whatever nature, whenever arising or accruing (whether before or 

after the Petition Date), that may be due, owing, or chargeable in 

connection therewith (including all Loan Document Obligations 

(as defined in the Term Credit Agreement)), in each case, as and to 

the extent provided in, and required to be paid or reimbursed 

under, the Term Loan Documents (collectively, the “Term Loan 

Obligations,” together with the ABL Obligations, the “Prepetition 

Secured Credit Obligations”). The Debtors acknowledge and 

agree that (x) the Term Loan Obligations constitute legal, valid, 

binding and non-avoidable obligations of the Debtors enforceable 

in accordance with the terms of the applicable Term Loan 

Documents and (y) the Term Loan Obligations are not subject to 

any challenge or defense, including, without limitation, avoidance, 

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disallowance, disgorgement, recharacterization, or subordination 

(equitable or otherwise) pursuant to the Bankruptcy Code or 

applicable non-bankruptcy law.

(iii) Prepetition Term Loan Liens: To secure the Term Loan

Obligations, the Term Loan Credit Parties granted to the Term 

Loan Agent, for the benefit of all Term Loan Secured Parties, 

properly perfected continuing first and second priority liens and

mortgages on, and security interests in (collectively, the 

“Prepetition Term Loan Liens” and, together with the Prepetition 

ABL Liens, the “Prepetition Liens”), all Collateral (as defined in 

the Term Credit Agreement, the “Prepetition Term Loan 

Collateral” and, together with the Prepetition ABL Collateral, the 

“Prepetition Collateral”).

(c) Relative Priority of Prepetition Liens Under, and Enforceability of,

the Prepetition Intercreditor Agreement:

(i) The ABL Agent, the Term Loan Agent, and the Debtor borrowers, 

issuers, and guarantors under the Prepetition Secured Credit 

Documents (collectively, the “Debtor Obligors”) are party to that 

certain ABL Intercreditor Agreement, dated as of August 21, 2015 

(as amended, restated, amended and restated, supplemented, or 

otherwise modified from time to time prior to the Petition Date, 

the “Prepetition Intercreditor Agreement”), which sets forth the 

relative lien priorities and other rights and remedies of the ABL 

Secured Parties and the Term Loan Secured Parties with respect to, 

among other things, the Prepetition ABL Collateral and the 

Prepetition Term Loan Collateral. The Prepetition Intercreditor 

Agreement is binding and enforceable against the Debtor Obligors 

and other parties thereto in accordance with its terms.

(ii) The Prepetition ABL Liens granted by the Debtor Obligors to the 

ABL Agent to secure the ABL Obligations for the benefit of the 

ABL Secured Parties pursuant to and in connection with the ABL 

Loan Documents, including without limitation, the Collateral

Documents (as defined in the ABL Credit Agreement), are valid, 

binding, properly perfected, enforceable, non-avoidable first (as to 

the ABL Priority Collateral) and second (as to the Term Priority 

Collateral) priority liens on, and security interests in, the 

Prepetition Collateral, which are not subject to any challenge, 

offset, recoupment, claim, counterclaim, objection, defense, 

contest, avoidance, recharacterization, reclassification, reduction,

or subordination pursuant to the Bankruptcy Code or applicable 

non-bankruptcy law by any person or entity; provided that these

liens on and security interests in the Prepetition Collateral shall be 

subject to (w) the Carve Out, (x) liens and security interests 

granted to secure the Adequate Protection Obligations (to the 

extent provided below), (y) the terms and provisions of the 

Prepetition Intercreditor Agreement, and (z) certain liens senior by 

operation of law (solely to the extent such liens were valid, nonavoidable, and senior in priority to the Prepetition ABL Liens as of 

the Petition Date and properly perfected prior to the Petition Date 

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or perfected subsequent to the Petition Date as permitted by section 

546(b) of the Bankruptcy Code) or otherwise permitted by the 

ABL Loan Documents (subparagraph (z), the “ABL Permitted 

Prior Liens”). 

(iii) The liens and security interests granted by the Debtor Obligors to 

the Term Loan Agent to secure the Term Loan Obligations for the 

benefit of the Term Loan Secured Parties pursuant to and in

connection with the Term Loan Documents, including without 

limitation, the Collateral Documents (as defined in the Term Credit 

Agreement), are valid, binding, properly perfected, enforceable, 

non-avoidable, first (as to the Term Priority Collateral) and second 

(as to the ABL Priority Collateral) priority liens on, and security 

interests in, the Prepetition Collateral, which are not subject to any 

challenge, offset, recoupment, claim, counterclaim, objection, 

defense, contest, avoidance, recharacterization, reclassification, 

reduction, or subordination pursuant to the Bankruptcy Code or 

applicable non-bankruptcy law by any person or entity; provided

that these liens on and security interests in the Prepetition 

Collateral shall be subject and subordinate to (w) the Carve Out, 

(x) liens and security interests granted to secure the Adequate 

Protection Obligations (to the extent provided below), (y) the terms 

and provisions of the Prepetition Intercreditor Agreement, and 

(z) valid, perfected, and unavoidable liens permitted under the

Term Loan Documents, to the extent such liens are permitted to be 

senior to the liens of the Term Loan Agent and exist as of the 

Petition Date (including, for the avoidance of doubt, valid and 

unavoidable liens in existence as of the Petition Date that are 

perfected after the Petition Date as permitted by section 546(b) of 

the Bankruptcy Code) (subparagraph (z), the “Term Loan

Permitted Prior Liens” and, together with the ABL Permitted Prior 

Liens, the “Permitted Prior Liens”).5

(d) Additional Stipulations.

(i) The Debtors acknowledge and stipulate that they are in default of 

their obligations under the Prepetition Secured Credit Documents 

as a result of the filing of the Cases, and that an Event of Default 

has occurred under the Prepetition Secured Credit Documents and 

is continuing. As of the Petition Date, therefore, interest will be 

accruing on the Prepetition Secured Credit Obligations at the rates 

specified in the applicable Prepetition Secured Credit Documents 

5 Nothing herein shall constitute a finding or ruling by this Court that any alleged Permitted Prior Lien (other 

than, with respect to the ABL Priority Collateral, the Prepetition ABL Liens, and with respect to the Term Priority 

Collateral, the Prepetition Term Loan Liens) is valid, senior, enforceable, prior, perfected, or non-avoidable. 

Moreover, nothing shall prejudice the rights of any party-in-interest, including, but not limited to the Debtors, the 

Prepetition Secured Parties or a Creditors’ Committee, to challenge the validity, priority, enforceability, seniority, 

avoidability, perfection, or extent of any alleged Permitted Prior Lien (other than the Prepetition ABL Liens and the 

Prepetition Term Loan Liens, as to which any such challenge must be in accordance with section I.GG herein). The 

right of a seller of goods to reclaim such goods (whether asserted under section 546(c) of the Bankruptcy Code or 

otherwise) is not a Permitted Prior Lien, rather, any such alleged claim shall continue to have the same rights and 

priority as it had on the Petition Date.

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(which, for the avoidance of doubt, with respect to the ABL 

Obligations includes the default rate under the ABL Loan 

Documents).

(ii) The Prepetition Secured Credit Obligations constitute legal, valid, 

and binding obligations of the applicable Debtor Obligors, 

enforceable in accordance with their terms (except as subject to the 

stay of enforcement arising under section 362 of the Bankruptcy 

Code);

(iii) No amounts paid at any time to the Prepetition Secured Parties in 

respect of the Prepetition Secured Credit Obligations and 

the Prepetition Secured Credit Documents are subject to contest, 

attack, objection, recoupment, defense, setoff, counterclaim, 

avoidance, recharacterization, reclassification, reduction, 

disallowance, recovery, or subordination or other challenge 

pursuant to the Bankruptcy Code or applicable nonbankruptcy law;

(iv) All of the Debtors’ cash, including any cash in deposit accounts of 

the Debtors, wherever located and whether existing as of the 

Petition Date or thereafter, constitutes “Cash Collateral” as defined 

in section 363(a) of the Bankruptcy Code (“Cash Collateral”) of 

the Prepetition Secured Parties.

(e) No Control. None of the Prepetition Secured Parties controls the Debtors 

or their properties or operations, has authority to determine the manner in 

which any of the Debtors’ operations are conducted, or is a control person 

or insider of the Debtors or any of their affiliates by virtue of any of the 

actions taken with respect to, in connection with, related to, or arising 

from this Final Order or the Prepetition Secured Credit Documents.

(f) Release. The Debtors hereby stipulate and agree that they forever and 

irrevocably release, discharge, and acquit the Prepetition Secured Parties 

(solely in their capacities as such) and each of their respective successors, 

assigns, affiliates, present, and future, and their respective heirs, 

predecessors, successors, and assigns, each solely in their capacities as 

such (all of the foregoing, collectively, the “Releasees”), of and from any 

and all claims, controversies, disputes, liabilities, obligations, demands, 

damages, expenses (including, without limitation, reasonable attorneys’ 

fees), debts, liens, actions, and causes of action of any and every nature 

whatsoever relating to, as applicable, the Prepetition Secured Credit 

Documents and/or the transactions contemplated hereunder or thereunder 

occurring prior to entry of this Final Order, including, without limitation, 

(a) any so-called “lender liability” or equitable subordination or 

recharacterization claims or defenses, (b) any and all claims and causes of 

action arising under the Bankruptcy Code, and (c) any and all claims and 

causes of actions with respect to the validity, priority, perfection, or 

avoidability of the liens or claims of the Prepetition Secured Parties. The 

Debtors further waive and release any defense, right of counterclaim, right 

of set-off, or deduction to the payment of the Prepetition Secured Credit 

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Obligations that the Debtors may now have or may claim to have against 

any of the Releasees arising out of, connected with, or relating to any and 

all acts, omissions, or events occurring prior to the Court’s entry of this 

Final Order.

F. Findings Regarding Postpetition Financing and Use of Cash Collateral.

7. Good cause has been shown for the entry of this Final Order and for authorization 

for the Debtors to obtain financing pursuant to the DIP Facilities and DIP Documents, and the 

use of Cash Collateral as set forth herein.

8. The Debtors have an immediate need (a) to continue to use Prepetition Collateral, 

including Cash Collateral; and (b) incur the DIP Obligations to, among other things, fund the 

orderly continuation of their businesses, fund the Cases, pay their operating expenses, and 

preserve their going concern value. The access by the Debtors to sufficient working capital and 

liquidity through the use of Cash Collateral and other Prepetition Collateral, incurrence of new 

indebtedness under the DIP Documents, and other financial accommodations provided under the 

DIP Documents are necessary and vital to preserve and maintain the going concern values of the

Debtors. The terms of the proposed DIP Facilities, the other DIP Documents, and this Final 

Order are fair and reasonable, reflect the Debtors’ exercise of prudent business judgment 

consistent with their fiduciary duties, and provide reasonably equivalent value and fair 

consideration.

9. The Debtors have been unable to obtain financing and other financial 

accommodations from sources other than the DIP Term Lenders and DIP ABL Lenders on terms 

more favorable than those provided under the DIP Facilities and the DIP Documents. The 

Debtors have been unable to obtain adequate unsecured credit allowable as an administrative 

expense under section 503(b)(1) of the Bankruptcy Code. The Debtors also have been unable to 

obtain adequate credit for money borrowed (a) having priority over administrative expenses of 

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the kind specified in sections 503(b), 507(a), and 507(b) of the Bankruptcy Code or (b) secured 

only by a lien on property of the Debtors and their estates that is not otherwise subject to a lien. 

Postpetition financing is not otherwise available without granting the DIP Agents, for the benefit 

of themselves and the other applicable DIP Secured Parties and subject to the Carve Out: (1) the 

DIP Liens on all DIP Collateral, as set forth herein, (2) the DIP Superpriority Claims (as defined 

below), and (3) the other protections set forth in this Final Order. After considering all 

alternatives, including the benefits to the Debtors of the Restructuring Support Agreement, the 

Debtors have properly concluded, in the exercise of their sound business judgment, that the DIP

Facilities represent the best financing available to them at this time and is in the best interests of 

all of their stakeholders.

10. Based on the Motion, the First Day Declaration, the Erickson Declaration, and the 

record presented to the Court at the Interim Hearing and the Final Hearing, (i) the extension of 

credit and other financial accommodations made under the DIP Facilities and the DIP 

Documents, (ii) the terms of the DIP Facilities, (iii) the premiums, fees and other amounts paid 

and to be paid thereunder, (iv) the terms of adequate protection granted to the Prepetition 

Secured Parties, (v) the terms on which the Debtors may continue to use Prepetition Collateral 

(including Cash Collateral), and (vi) the Cash Collateral arrangements described therein and 

herein, in each case, pursuant to this Final Order and the DIP Documents, (a) are fair, reasonable, 

and the best available to the Debtors under the circumstances; (b) reflect the Debtors’ exercise of 

prudent business judgment consistent with their fiduciary duties; (c) are supported by reasonably 

equivalent value and fair consideration; and (d) represent the best financing available. The DIP 

Facilities and the use of Prepetition Collateral (including Cash Collateral) were negotiated in 

good faith and at arm’s length among the Debtors, the DIP Secured Parties, and the Prepetition 

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Secured Parties. The use of Prepetition Collateral (including Cash Collateral) and the credit to 

be extended under the DIP Facilities shall be deemed to have been so allowed, advanced, made, 

used, and/or extended in good faith, and for valid business purposes and uses, within the 

meaning of section 364(e) of the Bankruptcy Code, and the DIP Secured Parties and the 

Prepetition Secured Parties are therefore entitled to the protection and benefits of section 364(e) 

of the Bankruptcy Code and this Final Order.

11. The DIP Facilities, the adequate protection granted to the Prepetition Secured 

Parties, and the use of Prepetition Collateral (including Cash Collateral) hereunder have been 

negotiated in good faith and at arm’s length among the Debtors, the DIP Secured Parties, and 

their respective advisors, and all of the Debtors’ obligations and indebtedness arising under, in 

respect of, or in connection with, the DIP Facilities and the DIP Documents, including, without 

limitation, all loans and other financial accommodations made to and guarantees issued by the 

Debtors pursuant to the DIP Documents and any DIP Obligations shall be deemed to have been 

extended by the DIP Secured Parties and their respective affiliates in good faith, as that term is 

used in section 364(e) of the Bankruptcy Code, and in express reliance upon the protections 

offered by section 364(e) of the Bankruptcy Code, and the claims, security interests and liens, 

and other rights, benefits, and protections granted to the DIP Secured Parties (and the successors 

and assigns thereof) pursuant to this Final Order and the DIP Documents shall each be entitled to 

the full protection of section 364(e) of the Bankruptcy Code in the event that this Final Order or 

any provision hereof is vacated, reversed, or modified, on appeal or otherwise.

12. The terms of the use of the Prepetition Collateral pursuant to this Final Order have 

been the subject of extensive negotiations conducted in good faith and at arm’s-length among the 

Debtors and the Prepetition Secured Parties, and, pursuant to sections 105, 361, and 363 of the 

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Bankruptcy Code, the Prepetition Secured Parties are hereby found to be entities that have acted 

in “good faith” in connection with the negotiation and entry of this Final Order, and each is 

entitled to the protection provided under section 363(m) of the Bankruptcy Code. 

13. In light of the Prepetition Secured Parties’ agreement that their liens shall be 

subject to the Carve Out as provided herein and that their Cash Collateral may be used for 

administrative expenses and to pay claims as agreed and in accordance with the Budget the 

Prepetition Secured Parties are each entitled to a waiver of (a) any “equities of the case” 

exception under section 552(b) of the Bankruptcy Code, and (b) the provisions of section 506(c) 

of the Bankruptcy Code.

14. The Debtors have requested entry of this Final Order pursuant to Bankruptcy Rule 

4001(b)(2). Absent granting the relief sought by this Final Order, the Debtors’ estates could be 

immediately and irreparably harmed. The use of the Prepetition Collateral in accordance with 

this Final Order is in the best interest of the Debtors’ estates.

G. Consent by the Prepetition Secured Parties. 

15. The Prepetition Secured Parties have consented or are deemed to have consented, 

as applicable, to the Debtors’ use of Prepetition Collateral (including Cash Collateral) and the 

DIP Secured Parties’ entry into the DIP Facilities and the DIP Documents, in each case, solely in 

accordance with and subject to the terms and conditions of this Final Order and the DIP 

Documents.

H. Entitlement to Adequate Protection. 

16. The Debtors have agreed, pursuant to sections 361, 362, and 363 of the 

Bankruptcy Code to provide adequate protection to the Prepetition Secured Parties, as and to the 

extent set forth in this Final Order, for any diminution in the value of their respective interests in 

the Prepetition Collateral, including Cash Collateral, for any reason provided for under the 

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Bankruptcy Code, including from the imposition of the automatic stay, the Debtors’ use, sale, or 

lease of the Prepetition Collateral, including Cash Collateral, and the priming of their respective 

interests in the Prepetition Collateral (including by the Carve Out) pursuant to the terms and 

conditions set forth herein (“Diminution in Value”). Based on the Motion, the declarations, and 

all other evidence filed in support of the Motion, and the record presented to the Court in 

connection with the Interim Hearing and Final Hearing, the terms of the adequate protection 

arrangements and of the use of Prepetition Collateral (including Cash Collateral) are fair and 

reasonable, reflect the Debtors’ prudent exercise of business judgment, and constitute reasonably 

equivalent value and fair consideration for the use of Prepetition Collateral (including 

Cash Collateral).

Based upon the foregoing findings and conclusions, the Motion and the record before the 

Court with respect to the Motion, and after due consideration and good and sufficient cause 

appearing therefor, IT IS HEREBY ORDERED THAT:

I. The Motion.

17. The Motion is granted on a final basis to the extent set forth herein. Any 

objection to, or reservation of rights regarding, the entry of this Final Order to the extent not 

withdrawn or resolved is hereby overruled on the merits.

J. Authorization of the DIP Facilities.

18. Subject to the terms and conditions of this Final Order, each of the DIP Credit 

Parties are hereby authorized to execute, enter into, guarantee (as applicable), and perform all 

obligations under the DIP Facilities and the DIP Documents. The DIP Documents, as applicable, 

and this Final Order govern the financial and credit accommodations to be provided to the DIP 

Credit Parties by the DIP Term Lenders and the DIP ABL Lenders (collectively, the “DIP 

Lenders”) in connection with the DIP Facilities. 

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19. The DIP Agreements and each of the other DIP Documents are hereby approved, 

and all premiums, fees, or expenses payable under the DIP Documents are hereby approved and 

ratified. 

20. The DIP Borrowers are authorized to incur the DIP Term Loans and the DIP ABL 

Loans, and the DIP Guarantors are authorized to unconditionally guarantee, on a joint and 

several basis, all of the DIP Term Loan Obligations and DIP ABL Obligations, and other charges 

payable in connection with the DIP Facilities, in each case, subject to the terms and conditions 

set forth in this Final Order and the applicable DIP Documents. 

21. Without limiting the foregoing, and without the need for further approval of this 

Court, each Debtor is authorized to perform all acts to make, execute, and deliver all instruments 

and documents (including, without limitation, the execution or recordation of pledge and security 

agreements, deeds of trust, and financing statements), and to pay all premiums, fees or expenses 

that may be required, necessary, or desirable for the Debtors to implement the terms of, perform 

their obligations under, or effectuate the purposes of and transactions contemplated by this Final 

Order, the DIP Facilities, and the DIP Documents in accordance herewith and therewith, 

including, without limitation: 

(a) the execution and delivery of, and performance under, the DIP 

Documents; 

(b) the execution and delivery of, and performance under, one or more 

amendments, waivers, consents, or other modifications to and under the 

DIP Documents, in each case, as the DIP Credit Parties and the requisite 

DIP Secured Parties may agree (in accordance with and subject to the 

terms of the applicable DIP Documents), it being understood that no 

further approval of the Court shall be required for non-material 

authorizations, amendments, waivers, consents, or other modifications to 

and under the DIP Documents (and for any premium, fees and other 

expenses (including certain attorneys’, accountants’, appraisers’, and 

financial advisors’ fees), amounts, charges, costs, indemnities, and other 

obligations paid in accordance and connection therewith); provided that (i)

a copy (which may be provided through electronic mail or facsimile) of 

the form of any such executed amendments, waivers, or other 

modifications to and under the DIP Documents is provided to counsel for 

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the DIP Agents, counsel for the Creditors’ Committee (as defined below), 

and the U.S. Trustee five business days prior to the effectiveness of any 

such amendment (the “Amendment Effective Date”); provided that 

executed waivers need only be provided to counsel for the DIP Agents, 

counsel for the Creditors’ Committee and the U.S. Trustee substantially 

concurrently with the effectiveness thereof, and (ii) neither the Creditors’ 

Committee or the U.S. Trustee has filed an objection to any such executed 

amendment or other modification prior to the Amendment Effective Date;

(c) the non-refundable and irrevocable payment (and the ratification of any 

premiums or fees paid prior to the date of entry of this Final Order, each of 

which is found to be reasonable and to have been paid in exchange for fair 

and reasonably equivalent value) of any and all premiums, fees, costs, and 

expenses payable pursuant to the applicable DIP Documents, including, 

without limitation, (a) any closing premium or fees, upfront premium or 

fee, exit premium or fee, prepayment premium or fee, repayment premium 

or fee, unused line premium or fee, ticking premium or fee, arrangement 

premium or fees, structuring premium or fee, duration premium or fee, 

commitment premium or fee, backstop premium or fee, servicing premium 

or fee, audit premium or fee, appraisal premium or fee, servicing premium 

or fee, liquidator premium or fee, agency premium or fee, or similar 

amounts (all of which premiums and fees shall be, and shall be deemed to 

have been, approved upon entry of this Final Order, and which premiums 

and fees shall not be subject to any challenge, contest, attack, rejection, 

recoupment, reduction, defense, counterclaim, offset, subordination, 

recharacterization, avoidance, or other claim, cause of action, or other 

challenge of any nature under the Bankruptcy Code, under applicable non 

bankruptcy law or otherwise) and any amounts due (or that may become 

due) in respect of the indemnification obligations referred to in the DIP 

Documents (and in accordance, as applicable, with Section 9.03 of the DIP

Term Loan Agreement and Section 9.03 of the DIP ABL Agreement), 

including all documented actual and reasonable costs, fees, expenses and 

disbursements of any auditors, accountants, consultants, advisors or 

appraisers, (collectively, each of the premiums, fees and expenses 

described in the foregoing clauses, the “DIP Premiums, Fees, and 

Expenses”), in each case, without the need to file retention or fee 

applications, and without the need to provide notice to any party or obtain 

further Court approval; provided that the DIP Premiums, Fees, and 

Expenses incurred after the Effective Date (as defined in the DIP 

Agreements) by professionals for the DIP Agents or DIP Lenders shall be 

subject to the review process set forth in paragraph 37 of this Final Order; 

(d) subject to the Carve Out, the granting and perfection of the DIP Liens and 

the Adequate Protection Liens, the granting of the DIP Superpriority 

Claims and the Adequate Protection Claims (as defined below), in each 

case, as set forth herein and in the DIP Documents; and 

(e) the performance of all other acts necessary, required, or desirable to 

implement the DIP Facilities and to facilitate the transactions 

contemplated by the DIP Documents and this Final Order in accordance 

therewith and herewith.

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22. No DIP Secured Parties shall have any obligation or responsibility to monitor any 

Debtor’s use of the DIP Facilities, and each of the DIP Secured Parties may rely upon the DIP 

Credit Parties’ representations that the amount of the DIP Facilities requested at any time and the 

use thereof are in accordance with the requirements of this Final Order and the DIP Documents. 

K. DIP Obligations. 

23. Upon execution and delivery of the DIP Documents and entry of this Final Order, 

the DIP Documents shall constitute valid, binding, enforceable, and non-avoidable obligations of 

each of the DIP Credit Parties, and shall be fully enforceable against each of the DIP Credit 

Parties, their estates, and any successors thereto, including, without limitation, any estate 

representative or trustee appointed in any of the Cases, or any case under chapter 7 of the 

Bankruptcy Code upon the conversion of any of the Cases, or in any other proceedings 

superseding or relating to any of the foregoing and/or upon the dismissal of any of the Cases or 

any such successor cases (collectively, the “Successor Cases”), and their creditors and other 

parties in interest, in each case, in accordance with the terms thereof and this Final Order. Upon 

execution and delivery of the DIP Documents, the DIP Obligations shall include all loans, letter 

of credit reimbursement obligations and any other indebtedness or obligations, contingent or 

absolute, now existing or hereafter arising, which may from time to time be or become owing by 

any of the DIP Credit Parties to any of the DIP Agents or DIP Lenders, in each case, under, or 

secured by, and in accordance with, the DIP Documents or this Final Order, including all 

principal, interest, costs, premiums, fees, expenses, and other amounts under the DIP Documents 

and this Final Order, and all cash management and bank product exposure and hedging exposure 

and obligations to the extent provided under the DIP Documents. All banking service 

obligations and letters of credit issued for the account of the Debtors under the ABL Credit 

Agreement shall continue in place and all obligations under or in connection with such banking 

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service obligations and letters of credit are deemed to have been issued under and subject to the 

DIP ABL Agreement and constitute DIP ABL Obligations, and the Debtors are authorized to 

reimburse in cash any outstanding letter of credit reimbursement obligations upon entry of this 

Final Order. The DIP Credit Parties shall be jointly and severally liable for the DIP Obligations. 

No obligation, payment, transfer, or grant of security under the DIP Documents or this Final 

Order to the DIP Secured Parties shall be stayed, restrained, voidable, or recoverable under the 

Bankruptcy Code or under any applicable law (including, without limitation, under sections 362, 

502(d), 544, 548, or 549 of the Bankruptcy Code, any applicable Uniform Voidable Transfer 

Act, Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act, or other similar 

state statute or common law), or subject to any defense, reduction, recoupment, 

recharacterization, subordination, disallowance, impairment, cross-claim, claim, counterclaim, 

offset, or any other challenge under the Bankruptcy Code or any applicable law. 

L. DIP Roll Up Obligations.

24. Upon entry of this Final Order (a) and in accordance with the DIP Term Loan 

Agreement, up to $161.8 million of loans outstanding under the Term Credit Agreement (the 

“DIP Term Loan Roll Up Obligations”) shall be converted into, and shall be deemed converted 

into, DIP Term Loans and DIP Term Loan Obligations and shall be entitled to all the priorities, 

privileges, rights, and other benefits afforded to the other DIP Term Loans and DIP Term Loan 

Obligations under this Final Order and the DIP Term Loan Documents, and (b) and in 

accordance with the DIP ABL Agreement, all ABL Obligations outstanding under the ABL 

Credit Agreement (the “DIP ABL Roll Up Obligations”) shall be converted into, and shall be 

deemed converted into, DIP ABL Loans and DIP ABL Obligations and shall be entitled to all the 

priorities, privileges, rights, and other benefits afforded to the other DIP ABL Loans and DIP 

ABL Obligations under this Final Order and the DIP ABL Documents. The conversion of the 

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DIP Term Loan Roll Up Obligations and the DIP ABL Roll Up Obligations is authorized as 

compensation for, in consideration for, as a necessary inducement for, and on account of the 

agreement of the DIP Term Lenders and the DIP ABL Lenders to fund, as applicable, (x) the 

“new money” portion of the DIP Term Loan Facility, and (y) the DIP ABL Facility, and not as 

payments under, adequate protection for, or otherwise on account of, any Prepetition Secured 

Credit Obligations. The DIP Lenders would not be willing to provide the DIP Facilities or 

extend credit to the Debtors thereunder without the conversion of the DIP Term Loan Roll Up 

Obligations and DIP ABL Roll Up Obligations as provided herein. 

25. The DIP Agents, as applicable, are hereby authorized and directed to take any and 

all actions as may be necessary or appropriate to effectuate the conversion of the DIP Term Loan 

Roll Up Obligations into the DIP Term Loan Obligations and the DIP ABL Roll Up Obligations 

into the DIP ABL Obligations, including but not limited to the issuance (or the facilitation of the 

issuance) of the DIP Term Loans or DIP ABL Loans, as applicable, in exchange for the 

assignment or transfer of the DIP Term Loan Roll Up Obligations and/or DIP ABL Roll Up 

Obligations and the eventual cancellation of the DIP Term Loan Roll Up Obligations and/or DIP 

ABL Roll Up Obligations converted into the DIP Obligations. The Debtors, the DIP Lenders, 

and the DIP Agents are authorized to take such further actions as are necessary to implement the 

foregoing.

M. No Obligation to Extend Credit. 

26. The DIP Secured Parties shall have no obligation to make any loan or advance 

under the DIP Documents unless all of the conditions precedent to the making of such extension 

of credit by the applicable DIP Secured Parties under the applicable DIP Documents and this 

Final Order have been satisfied in full or waived in accordance with the terms of the applicable 

DIP Documents and/or this Final Order, as applicable.

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N. DIP Liens. 

27. Subject and subordinated to the Carve Out as set forth in this Final Order, in order 

to secure the DIP Obligations, pursuant to sections 361, 362, 364(c)(2), 364(c)(3), and 364(d) of 

the Bankruptcy Code, the DIP ABL Agent, for the benefit of itself and the DIP ABL Lenders, 

and the DIP Term Loan Agent, for the benefit of itself and the DIP Term Lenders, are hereby 

granted on a final basis, continuing, valid, binding, enforceable, non-avoidable, and 

automatically and properly perfected postpetition security interests in and liens (collectively, the 

“DIP Liens”) on all real and personal property, whether now existing or hereafter arising and 

wherever located, tangible and intangible, of each of the Debtors (the “DIP Collateral”), 

including without limitation: (a) all cash, cash equivalents, deposit accounts, securities accounts, 

accounts, other receivables (including credit card receivables), chattel paper, contract rights, 

inventory (wherever located), instruments, documents, securities (whether or not marketable) 

and investment property (including, without limitation, all of the issued and outstanding capital 

stock or equivalents of each of its subsidiaries), hedge agreements, furniture, fixtures, equipment 

(including documents of title), goods, franchise rights, trade names, trademarks, servicemarks, 

copyrights, patents, license rights, intellectual property, general intangibles (including, for the 

avoidance of doubt, payment intangibles), rights to the payment of money (including, without 

limitation, tax refunds and any other extraordinary payments), supporting obligations, 

guarantees, letter of credit rights, commercial tort claims, causes of action, and all substitutions, 

indemnification rights, all present and future intercompany debt, fee interests in real property 

owned by the Debtors, books and records related to the foregoing, accessions and proceeds of the 

foregoing, wherever located, including insurance or other proceeds; (b) all proceeds of leased 

real property; (c) all proceeds of any avoidance actions brought pursuant to Chapter 5 of the 

Bankruptcy Code or applicable state law equivalents (including actions brought under section 

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549 of the Bankruptcy Code to recover any post-petition transfer of DIP Collateral) (the 

“Avoidance Actions Proceeds”); (d) the Debtors’ rights under section 506(c) (solely to the extent 

such rights result from the use of the DIP Facilities or the DIP Collateral, and are, therefore, 

enforceable against parties other than the DIP Agents, DIP Lenders, or the Prepetition Secured 

Parties) and section 550 of the Bankruptcy Code; and (e) all other DIP Collateral that was not 

otherwise subject to valid, perfected, enforceable, and unavoidable liens on the Petition Date. 

Subject to the DIP Documents, (i) Term Priority Collateral (as defined in the Prepetition 

Intercreditor Agreement), and all products and proceeds of Term Priority Collateral, shall 

constitute “DIP Term Priority Collateral,” and (ii) ABL Priority Collateral (as defined in the 

Prepetition Intercreditor Agreement) and Avoidance Actions Proceeds, and all products and 

proceeds of ABL Priority Collateral, shall constitute “DIP ABL Priority Collateral;” provided,

that DIP Term Priority Collateral shall include Avoidance Actions Proceeds that would qualify 

as Term Priority Collateral. For the avoidance of doubt, DIP Collateral does not include the 

Debtors’ real property leases, but only the proceeds, products, and offspring of such real property 

leases. 

28. The DIP Liens securing the DIP ABL Obligations (the “DIP ABL Liens”) are 

valid, automatically perfected, non-avoidable, senior in priority and superior to any security, 

mortgage, collateral interest, lien or claim to any of the DIP Collateral, except that the DIP ABL 

Liens shall be subject to the Carve Out as set forth in this Final Order and shall otherwise be 

junior only to: (i) as to the DIP ABL Priority Collateral, the Permitted Prior Liens; and (ii) as to 

the DIP Term Priority Collateral, (A) the Permitted Prior Liens; (B) the DIP Term Loan Liens 

(as defined herein); (C) the Prepetition Term Loan Liens; and (D) the Term Loan Adequate 

Protection Liens (as defined herein). The DIP Liens securing the DIP Term Loan Obligations 

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(the “DIP Term Loan Liens”) are valid, automatically perfected, non-avoidable, senior in priority 

and superior to any security, mortgage, collateral interest, lien or claim to any of the DIP 

Collateral, except that the DIP Term Loan Liens shall be subject to the Carve Out and shall 

otherwise be junior only to: (i) as to the DIP Term Priority Collateral, the Permitted Prior Liens; 

and (ii) as to the DIP ABL Priority Collateral, (A) the Permitted Prior Liens; (B) the DIP ABL 

Liens; (C) the Prepetition ABL Liens; and (D) the ABL Adequate Protection Liens (as defined 

herein). Other than as set forth herein or in the DIP Documents, the DIP Liens shall not be made 

subject to or pari passu with any lien or security interest heretofore or hereinafter granted in the 

Cases or any Successor Cases, and shall be valid and enforceable against any trustee appointed in 

the Cases or any Successor Cases, upon the conversion of any of the Cases to a case under 

Chapter 7 of the Bankruptcy Code (or in any other Successor Case), and/or upon the dismissal of 

any of the Cases or Successor Cases. The DIP Liens shall not be subject to section 510, 549 or 

550 of the Bankruptcy Code. No lien or interest avoided and preserved for the benefit of the 

estate pursuant to section 551 of the Bankruptcy Code shall be pari passu with or senior to the 

DIP Liens. Notwithstanding anything to the contrary herein, the DIP ABL Liens and the ABL 

Adequate Protection Liens (as defined below) shall not attach to the Debtors’ owned real 

property that was not subject to the Prepetition ABL Liens as of the Petition Date; provided,

however, that the DIP ABL Liens and the ABL Adequate Protection Liens shall attach to the 

proceeds of such owned real property in accordance with the Prepetition Intercreditor Agreement 

and the priorities set forth herein.

O. DIP Superpriority Claims. 

29. Subject and subordinated to the Carve Out as set forth in this Final Order, (i) the 

DIP ABL Agent, on behalf of itself and the DIP ABL Lenders, and (ii) the DIP Term Loan 

Agent, on behalf of itself and the DIP Term Lenders, are hereby granted on a final basis, 

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pursuant to section 364(c)(1) of the Bankruptcy Code, allowed superpriority administrative 

expense claims in each of the Cases and any Successor Cases (collectively, the “DIP 

Superpriority Claims”) for all DIP Obligations. The DIP Superpriority Claims granted to the 

DIP ABL Agent and the DIP Term Loan Agent shall be subject to the Prepetition Intercreditor 

Agreement and the same priorities set forth herein with respect to the DIP Liens. Except as set 

forth herein, the DIP Superpriority Claims shall have priority over any and all other obligations, 

liabilities and indebtedness of each Debtor (other than the Carve Out) of the kind specified in 

section 503(b) and 507(b) of the Bankruptcy Code, including, to the extent allowed under the 

Bankruptcy Code, any and all administrative expense claims and unsecured claims against the 

Debtors or their estates in any of the Cases and any Successor Cases, at any time existing or 

arising, of any kind or nature whatsoever, including, without limitation, administrative expenses 

of the kinds specified in or ordered pursuant to Bankruptcy Code sections 105, 328, 330, 331, 

364, 503(a), 503(b), 507(a) (other than 507(a)(1)), 507(b)), 546(c), 726 (to the extent permitted 

by law), 1113 and 1114, and any other provision of the Bankruptcy Code, to the extent provided 

under section 364(c)(1) of the Bankruptcy Code. No lien or interest avoided and preserved for 

the benefit of the estate pursuant to section 551 of the Bankruptcy Code shall be pari passu with 

or senior to the DIP Superpriority Claims.

P. Authorization of Use of Cash Collateral and DIP Collateral. 

30. The Debtors are hereby authorized to use (x) the Prepetition Collateral, including 

Cash Collateral, during the period from the Petition Date through and including the Cash 

Collateral Termination Date (as defined below) and (y) the DIP Collateral, including Cash 

Collateral constituting proceeds of the DIP Term Loans and the DIP ABL Loans, during the 

period from entry of this Final Order through and including the DIP Termination Date (as 

defined below), in each case to: (i) fund working capital, general corporate purposes, the cost of 

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operating the Debtors’ business during the Cases, any payments authorized by an order of this 

Court, and administrative costs and expenses of the Debtors incurred in the Cases, in each case 

subject to the terms of this Final Order and the budget annexed hereto as Annex 1 (the 

“Budget”); (ii) fund the Carve Out as set forth herein; (iii) fund the permitted administrative 

costs of the Cases; (iv) make payments on account of the Adequate Protection Obligations, and 

(v) pay the fees and expenses of the ABL Agent, the Term Loan Agent, and the DIP Agents, in

each case, in connection with the negotiation, documentation and provision of postpetition and 

exit financing (whether or not such financing is consummated), each as provided herein. All 

post-petition distributions and transfers by a Debtor to any other Debtor (each, a “Debtor 

Transferee”) shall constitute an allowed administrative expense under sections 503(b)(1) and 

507(a)(2) of the Bankruptcy Code against such Debtor Transferee in the aggregate amount of 

such distribution or transfer, which administrative expense claim against such Debtor Transferee 

shall be junior in all respects to the Adequate Protection Claims against such Debtor Transferee. 

For the avoidance of doubt, none of the Debtors will use Cash Collateral in an amount or in a 

manner or for a purpose other than those consistent with the categories set forth in the Budget 

and this Final Order. All collections and proceeds, whether from ordinary course collections, 

asset sales, debt or equity issuances, insurance recoveries, condemnations, or otherwise, will be 

deposited and applied as required by this Final Order. 

31. Budget Maintenance. The use of borrowings and letters of credit under the DIP 

Facilities and the use of Cash Collateral shall be in accordance with the Budget, depicting on a 

weekly and line item basis, (i) projected cash receipts, (ii) projected cash disbursements 

(including ordinary course operating expenses, bankruptcy-related expenses (including 

professional fees of the Debtors’ professionals and advisors), asset sales and any other fees and 

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expenses relating to the DIP Documents), (iii) net cash flows, (iv) Liquidity (as defined in the 

DIP Documents) and (v) professional fees and disbursements with respect to the Debtors’ 

professionals, in each case for the first thirteen (13) week period from the Effective Date (as 

defined in the DIP Documents), and such Budget shall be approved by, and in form and 

substance reasonably satisfactory to, the DIP Agents and the Required Lenders (as defined in the 

DIP ABL Agreement) in their sole discretion. The Budget shall be updated by the Debtors (with 

the consent and/or at the reasonable request of the DIP Agents) from time to time in accordance 

with the DIP Documents. Upon, and subject to, the approval of any such updated budget by the 

DIP Agents and the Required Lenders in their sole discretion, such supplemental budget shall 

constitute the then-approved Budget, effective as of the beginning of the week immediately 

following the week in which it was delivered; provided that unless and until the DIP Agents and 

the Required Lenders approve such supplemental budget in their sole discretion, the then-current 

Budget shall remain in effect. No such updated, modified or supplemented budget shall be 

effective until so approved and once approved shall thereafter be deemed the “Budget”. A copy 

of any Budget (including any updated Budget or proposed Budget) shall be delivered to counsel 

for the Creditors’ Committee and the U.S. Trustee substantially contemporaneously with the 

delivery of such Budget to the DIP Agents and the Debtors shall file such updated Budget with 

the Court if there are any material modifications. The Debtors shall at all times comply with the 

Budget, subject to the variances set forth in the DIP Documents. The Debtors shall provide to 

the DIP Secured Parties and the Creditors’ Committee concurrently all reports and other 

information as required in the DIP Documents. 

Q. Disposition of Collateral.

32. The Debtors shall not sell, transfer, lease, encumber, or otherwise dispose of any 

portion of the Prepetition Collateral or DIP Collateral other than in the ordinary course of 

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business, without (subject to the Prepetition Intercreditor Agreement) the prior written consent of 

the ABL Agent, the Term Loan Agent, or the DIP Agents, as the case may be (and no such 

consent shall be implied, from any action, inaction or acquiescence by the ABL Secured Parties,

the Term Loan Secured Parties, the DIP Secured Parties, or from any order of this Court), except 

as otherwise provided for in the ABL Loan Documents (subject to the Prepetition Intercreditor 

Agreement), the Term Loan Documents (subject to the Prepetition Intercreditor Agreement), the 

DIP Documents (subject to the Prepetition Intercreditor Agreement), or otherwise ordered by the 

Court.

R. Adequate Protection Obligations.

33. Adequate Protection for ABL Secured Parties. Pursuant to sections 361 and 

363(e) of the Bankruptcy Code, the Debtors granted pursuant to the Interim Order, and hereby 

grant on a final basis, the ABL Secured Parties adequate protection of their interests in all 

Prepetition ABL Collateral, including Cash Collateral, to the extent of any Diminution in Value 

of the ABL Secured Parties’ interests in the Prepetition ABL Collateral (including Cash 

Collateral) from and after the Petition Date as follows:

(a) ABL Adequate Protection Claims. Solely to the extent of any 

Diminution in Value in Prepetition ABL Collateral, the ABL Agent (on 

behalf of the ABL Secured Parties) was granted pursuant to the Interim 

Order and shall continue to have on a final basis allowed joint and several 

superpriority claims against each of the Debtors as provided in section 

507(b) of the Bankruptcy Code, with priority in payment over any and all 

unsecured claims and administrative expense claims against any of the 

Debtors, now existing or hereafter arising, of any kind or nature 

whatsoever, including, without limitation, administrative expenses of the 

kinds specified in or ordered pursuant to sections 105, 328, 330, 331, 

503(b), 506(c), 507(a) (other than 507(a)(1)), 507(b), 546(c), 726 (to the 

extent permitted by law), 1113, or 1114 of the Bankruptcy Code, and shall 

at all times be senior to the rights of the Debtors, and any successor trustee 

or any creditor, in the Cases or any subsequent proceedings under the 

Bankruptcy Code (the “ABL Adequate Protection Claims”), subject and 

subordinate only to the Carve Out and, (1) solely with respect to the DIP 

ABL Priority Collateral, the DIP ABL Liens, and (2) solely with respect to 

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the DIP Term Priority Collateral, (A) the DIP Term Loan Liens, (B) the 

Prepetition Term Loan Liens, and (C) the Term Loan Adequate Protection 

Liens and the Term Loan Adequate Protection Claims.

(b) ABL Adequate Protection Liens. Pursuant to sections 361, 363(e), and 

364(d) of the Bankruptcy Code, as adequate protection of the interests of 

the ABL Secured Parties in the Prepetition ABL Collateral against any 

Diminution in Value, the Debtors granted pursuant to the Interim Order 

and hereby grant, on a final basis, to the ABL Agent, for the benefit of the 

ABL Secured Parties, without the necessity of the execution by the 

Debtors (or recordation or other filing) of security agreements, control 

agreements, pledge agreements, financing statements, mortgages or other 

similar documents, or the possession or control by the ABL Agent of any 

DIP Collateral, continuing, valid, binding, enforceable, and perfected 

postpetition security interests in and liens on all DIP Collateral (all such 

liens and security interest, the “ABL Adequate Protection Liens”).

(c) Priority of ABL Adequate Protection Liens. The ABL Adequate 

Protection Liens shall be subject to the Carve Out as set forth in this Final 

Order and shall otherwise be junior (in order of priority) only to: (i) with 

respect to the DIP ABL Priority Collateral, (1) the Permitted Prior Liens; 

(2) the DIP ABL Liens; and (3) the Prepetition ABL Liens; and (ii) with 

respect to the DIP Term Priority Collateral, (1) the Permitted Prior Liens; 

(2) the DIP Term Loan Liens; (3) the Prepetition Term Loan Liens; (4) the 

Term Loan Adequate Protection Liens; (5) the DIP ABL Liens; and (6) the 

Prepetition ABL Liens. The ABL Adequate Protection Liens shall 

otherwise be senior to all other security interests in or liens on any of the 

Debtors’ assets. 

34. Additional Adequate Protection for ABL Secured Parties. As additional 

adequate protection of the ABL Secured Parties’ security interests in the Prepetition ABL 

Collateral, including the Cash Collateral, the Debtors are authorized to provide adequate 

protection in the form of the following (collectively, together with the ABL Adequate Protection 

Claims and ABL Adequate Protection Liens, the “ABL Adequate Protection Obligations”):

(a) Interest and Other Amounts Due Under ABL Credit Agreement.

From and after entry of the Interim Order, the ABL Agent, on behalf of 

the ABL Secured Parties, shall receive, to the extent accrued and/or 

outstanding following entry of the Final Order, cash payment in 

immediately available funds, (x) promptly upon the entry of this Final

Order, all accrued and unpaid amounts (whether accrued prior to or after 

the Petition Date) in respect of the following, and (y) thereafter, as and 

when due under existing arrangements or as provided herein (whichever is 

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earlier): all interest, fees and other amounts (other than principal),

including without limitation, any letter of credit fees provided for in the 

ABL Credit Agreement (in each case, at the default interest rate applicable 

to Revolving Loans and Letter of Credit Fees (as defined in the ABL 

Credit Agreement) pursuant to the ABL Credit Agreement or otherwise); 

provided that notwithstanding anything to the contrary in the ABL Credit 

Agreement, the Debtors shall not be required to pay any commitment fees 

required to be paid pursuant to Section 2.12(a) of the ABL Credit 

Agreement accruing with respect to any period beginning on or after the 

Petition Date. In the event the value of the Prepetition ABL Collateral is 

determined to be less than the value of the ABL Obligations, the Debtors 

and all other parties in interest reserve all rights to seek to recharacterize 

such interest payments as principal payments. Interest and fees under the 

ABL Credit Agreement shall be paid on the same dates as currently 

required by the ABL Credit Agreement.

(b) Release of Prepetition Reserve. Immediately upon the occurrence of the 

Effective Date (as defined in the DIP ABL Agreement) following entry of 

the Final Order, the ABL Agent shall release the $75 million reserve 

implemented on or about July 10, 2020 in full. 

(c) Prepetition ABL Indemnity Reserve. Immediately upon entry of the 

Interim Order, the Debtors were authorized and directed to pay to the ABL 

Agent, for the benefit of the ABL Secured Parties, $500,000 into a noninterest bearing account maintained at JPMorgan Chase Bank, N.A. (the 

“Prepetition ABL Indemnity Reserve”) to secure contingent 

indemnification, reimbursement, or similar continuing obligations arising 

under or related to the ABL Loan Documents (the “Prepetition ABL 

Indemnity Obligations”). The Prepetition ABL Indemnity Reserve shall 

secure all costs, expenses, and other amounts (including reasonable and 

documented attorneys’ fees) owed to or incurred by the ABL Agent and 

the ABL Lenders related to the ABL Loan Documents, the ABL 

Obligations, or the Prepetition ABL Liens granted to the ABL Agent, as 

applicable, whether in these Cases or independently in another forum, 

court, or venue. The Prepetition ABL Indemnity Obligations shall be 

secured, and not subject to the Carve Out, by a first lien on the Prepetition 

ABL Indemnity Reserve and the funds therein and by a lien on the 

Prepetition Collateral and the DIP Collateral (subject in all respects to the 

Prepetition Intercreditor Agreement and this Final Order). Payments of 

Prepetition ABL Indemnity Obligations shall be made as and when they

arise and paid with the Prepetition ABL Indemnity Reserve, without 

further notice to or consent from the Debtors, the Creditors’ Committee, or 

any other parties in interest and without further order of this Court. The 

ABL Agent (for itself and on behalf of the ABL Secured Parties) shall 

retain and maintain the Prepetition ABL Liens and the Prepetition ABL 

Adequate Protection Liens granted to the ABL Agent as security for the 

amount of any Prepetition ABL Indemnity Obligations not capable of 

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being satisfied from application of the funds on deposit in the Prepetition 

ABL Indemnity Reserve. The Prepetition ABL Indemnity Reserve shall 

be released at such time as the ABL Obligations are Paid in Full.6

35. Adequate Protection for Term Loan Secured Parties. Pursuant to sections 361 

and 363(e) of the Bankruptcy Code, the Debtors granted pursuant to the Interim Order, and 

hereby grant on a final basis, the Term Loan Secured Parties adequate protection of their 

interests in all Prepetition Term Loan Collateral, to the extent of any Diminution in Value of the 

Term Loan Secured Parties’ interests in the Prepetition Term Loan Collateral from and after the 

Petition Date as follows:

(a) Term Loan Adequate Protection Claims. Solely to the extent of any 

Diminution in Value in Prepetition Term Loan Collateral, the Term Loan 

Agent (on behalf of the Term Loan Secured Parties) was granted pursuant 

to the Interim Order and shall continue to have on a final basis an allowed 

joint and several superpriority claim against each of the Debtors as 

provided in section 507(b) of the Bankruptcy Code, with priority in 

payment over any and all unsecured claims and administrative expense 

claims against any of the Debtors, now existing or hereafter arising, of any 

kind or nature whatsoever, including, without limitation, administrative 

expenses of the kinds specified in or ordered pursuant to sections 105, 

326, 328, 330, 331, 503(b), 506(c), 507(a) (other than 507(a)(1)), 507(b), 

546(c), 726, 1113, or 1114 of the Bankruptcy Code, and shall at all times

6 “Paid in Full” means the indefeasible repayment in full in cash of all obligations (including principal, 

interest, fees, prepayment premiums, expenses, indemnities, other than contingent indemnification 

obligations for which no claim has been asserted) under the applicable credit facility, the cash 

collateralization of all treasury and cash management obligations, hedging obligations, and bank product 

obligations, and the cancelation, replacement, backing, or cash collateralization of letters of credit, in each 

case, in accordance with the terms of the applicable credit facility; provided that upon receipt by the Term 

Loan Lenders of the consideration set forth in the Restructuring Support Agreement, the Term Loan 

Obligations shall be deemed Paid in Full. No facility shall be deemed to have been Paid in Full until such 

time as, with respect to the applicable facility, (a) the commitments to lend thereunder have been 

terminated, (b) with respect to the Prepetition Secured Credit Obligations (i) the Challenge Period (as 

defined in this Final Order) shall have occurred without the timely and proper commencement of a 

Challenge or (ii) if a Challenge is timely and properly asserted prior to the Challenge Period, upon the 

final, non-appealable disposition of such Challenge; (c) with respect to the DIP ABL Obligations and the 

ABL Obligations, the ABL Agent and the DIP ABL Agent have received (i) a countersigned payoff letter 

in form and substance satisfactory to each Agent and (ii) releases in form and substance satisfactory to 

each Agent, each in its sole discretion; and (d) with respect to the Term Loan Obligations, the Term Loan 

Lenders have received the consideration set forth in the Restructuring Support Agreement. “Payment in 

Full” has a meaning correlative thereto.

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be senior to the rights of the Debtors, and any successor trustee or any 

creditor, in the Cases or any Successor Cases (the “Term Loan Adequate 

Protection Claims” and, together with the ABL Adequate Protection 

Claims, the “Adequate Protection Claims”), subject and subordinate only 

to the Carve Out and (1) solely with respect to the DIP Term Priority 

Collateral, the DIP Term Liens, and (2) solely with respect to the DIP 

ABL Priority Collateral, (A) the DIP ABL Liens, (B) the Prepetition ABL 

Liens, and (C) the ABL Adequate Protection Liens and ABL Adequate 

Protection Claims.

(b) Term Loan Adequate Protection Liens. As security for and solely to 

the extent of any Diminution in Value, effective as of the Petition Date 

and perfected without the necessity of the execution by the Debtors (or 

recordation or other filing) of security agreements, control agreements, 

pledge agreements, financing statements, mortgages, or other similar 

documents, or the possession or control by the Term Loan Agent of any 

DIP Collateral (as defined below), the following security interests and 

liens (all such liens and security interests, the “Term Loan Adequate 

Protection Liens” and, together with the ABL Adequate Protection Liens, 

the “Adequate Protection Liens” and the Term Loan Adequate Protection 

Liens together with the Term Loan Adequate Protection Claims, the 

“Term Loan Adequate Protection Obligations”) were granted pursuant to 

the Interim Order and are hereby granted on a final basis to the Term Loan 

Agent for the benefit of itself and the other Term Loan Secured Parties, 

subject and subordinate to the Carve Out.

(i) Liens Junior to Certain Existing Liens. Pursuant to 

sections 361(2) and 363(c)(2) of the Bankruptcy Code, a valid, 

binding, continuing, enforceable, fully-perfected non-voidable 

junior priority replacement lien on, and security interest in, ABL 

Priority Collateral (as defined in the Prepetition Intercreditor 

Agreement), that is subject to (x) the DIP ABL Liens, the 

Prepetition ABL Liens and the ABL Adequate Protection Liens, 

(y) the Prepetition Term Loan Liens, and (z) the Permitted Prior 

Liens; provided that the foregoing collateral shall not include 

assets or property (other than Prepetition Collateral, including 

Cash Collateral) upon which, and solely to the extent that, the

grant of an Adequate Protection Lien would constitute a default or 

event of default under any of the Debtors’ contracts or leases (and 

such default would not be excused or rendered ineffective by 

operation of the Bankruptcy Code or applicable nonbankruptcy 

law), but shall only include the proceeds thereof. 

(ii) Liens Senior to Certain Existing Liens. Pursuant to 

sections 361(2) and 363(c)(2) of the Bankruptcy Code, a valid, 

binding, continuing, enforceable, fully-perfected non-voidable 

priming lien on, and security interest in, the Term Priority 

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Collateral (as defined in the Prepetition Intercreditor Agreement 

and including, without limitation, all products and proceeds of 

Term Priority Collateral); provided that such liens and security

interests shall not prime (x) the Prepetition Term Loan Liens or 

(y) the Permitted Prior Liens; provided further that the foregoing 

collateral shall not include assets or property (other than 

Prepetition Collateral, including Cash Collateral) upon which, and 

solely to the extent that, the grant of an Adequate Protection Lien 

would constitute a default or event of default under any of the 

Debtors’ contracts or leases (and such default would not be 

excused or rendered ineffective by operation of the Bankruptcy 

Code or applicable nonbankruptcy law), but shall include the 

proceeds thereof.

(iii) Additional Adequate Protection Liens. Pursuant to sections 

361(2) and 363(c)(2) of the Bankruptcy Code, (i) a valid, binding, 

enforceable, fully-perfected non-voidable first-priority lien on, and 

security interest in any unencumbered tangible and intangible, 

prepetition and postpetition real and personal property of each 

Debtor that would qualify as Term Priority Collateral, (ii) a valid, 

binding, enforceable, fully-perfected non-voidable junior lien on, 

and security interest in any unencumbered tangible and intangible, 

prepetition and postpetition real and personal property of each 

Debtor that would qualify as ABL Priority Collateral, in each case, 

whether existing on the Petition Date or thereafter acquired, and 

wherever located, and the proceeds, products, rents, and profits of 

the foregoing, whether arising under section 552(b) of the 

Bankruptcy Code or otherwise, (iii) the proceeds from any sale, 

termination, or other disposition of any leasehold interests of the 

Debtors (but not to the leasehold interests themselves); and (iv) a

valid, binding, enforceable, fully-perfected non-avoidance junior

lien on, and security interest in, any proceeds of Avoidance 

Actions (provided that the Term Loan Adequate Protection Liens 

shall be senior to the ABL Adequate Protection Liens on proceeds 

of Avoidance Actions that would qualify as Term Priority 

Collateral) and the Debtors’ rights under section 506(c) and 550 of 

the Bankruptcy Code.

(iv) Status of the Term Loan Adequate Protection Liens. The Term 

Loan Adequate Protection Liens shall not be (x) subject or 

subordinate to (A) any lien or security interest that is avoided and 

preserved for the benefit of the Debtors and their estates under 

section 551 of the Bankruptcy Code or (B) any lien or security 

interest arising after the Petition Date, subject and subordinate to 

the Carve Out, or (y) except as otherwise set forth in clauses (i),

(ii) and (iii) of this paragraph 35(b), subordinated to or made pari 

passu with any other lien or security interest, now or hereafter 

existing and whether authorized under sections 363 or 364 of the 

Bankruptcy Code or otherwise.

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36. Additional Adequate Protection for Prepetition Secured Parties. As 

additional adequate protection of the Prepetition Secured Parties’ security interests in the 

Prepetition Collateral, including Cash Collateral (the following adequate protections, together 

with the Term Loan Adequate Protection Obligations and the ABL Adequate Protection 

Obligations, the “Adequate Protection Obligations”):

(a) Fees and Expenses. The Debtors are authorized and directed to pay the 

reasonable and documented invoiced out-of-pocket fees, costs and 

expenses incurred in connection with the Cases, whether incurred 

prepetition or postpetition, and in each case, subject to the review 

procedures set forth in paragraph 37 of this Final Order of: (i)(x) Morgan, 

Lewis & Bockius LLP, (y) Hunton Andrews Kurth LLP, and (z) Berkeley 

Research Group (collectively, the “ABL Advisors”), in each case incurred 

on behalf of the ABL Agent and ABL Lenders in connection with the 

Cases; (ii)(x) Milbank LLP, (y) one local counsel in the United States and 

one local counsel in Luxembourg, and (z) Greenhill & Co., LLC 

(collectively, the “Ad Hoc Term Loan Advisors” and, together with the 

ABL Advisors, the “Lender Advisors”); (iii) Latham & Watkins LLP and 

one local counsel in the Eastern District of Virginia incurred on behalf of 

the Term Loan Agent; and (iv) Holland and Knight LLP and one local 

counsel in the Eastern District of Virginia incurred on behalf of Alter 

Domus (US) LLC, in its capacity as incremental collateral agent (in such 

capacity, the “Incremental Collateral Agent” and together with the Term 

Loan Agent, the “Term Loan Agents”) under that certain Conditional 

Assignment Agreement, dated as of July 23, 2020, by and between 

AnnTaylor Loft GP Lux S.à.rl, AnnTaylor Loft Borrower Lux SCS, and 

the Incremental Collateral Agent (the “Conditional Assignment 

Agreement”) and (v) (x) King & Spalding LLP and (y) McGuireWoods 

LLP, each as counsel to certain Term Loan Lenders, in each case solely 

through and including the closing date of the DIP Term Loan Agreement.

Hereafter, the Ad Hoc Term Loan Advisors, together with the advisors in 

the foregoing clauses (iii), (iv) and (v), may be referred to collectively as 

the “Term Loan Advisors.”

(b) Reporting; Budget Approval. The Debtors shall comply with the 

reporting requirements set forth in the DIP Documents, all of which

reports shall be provided to the Lender Advisors and the Creditors’ 

Committee concurrently. In addition, the Debtors shall provide the 

following additional reporting to the ABL Agent, the Lender Advisors, 

and the Creditors’ Committee concurrently:

(i) Commencing the third week following the Petition Date, and tested 

weekly on a rolling four (4)-week basis (such four (4)-week period 

up to and through the Saturday of the week most recently ended 

prior to the applicable Variance Report Date (as defined below), 

the “Variance Testing Period”), solely to the extent that 

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(a) Availability (as defined in the ABL Credit Agreement) plus 

(b) unrestricted cash and cash equivalents of Ascena Retail Group, 

Inc. and its restricted subsidiaries that would be reflected on a 

consolidated balance sheet of Ascena Retail Group, Inc. in 

accordance with GAAP on such date (other than cash proceeds of 

any indebtedness being incurred on such date) plus (c) cash and 

cash equivalents of Ascena Retail Group, Inc. and its restricted 

subsidiaries (excluding, for the avoidance of doubt, Eligible 

Pledged Cash (as defined in the ABL Credit Agreement) to the 

extent duplicative) that are restricted in favor of the ABL Agent 

(collectively “Liquidity”), is less than $150,000,000, there shall not 

be any negative variance between the actual net cash flows of the 

Loan Parties (as defined in the Prepetition Secured Credit 

Documents) for any Variance Testing Period and the amount 

described in the line item contained in the Budget (as may be 

updated pursuant to paragraph 31 of this Final Order) across from 

the heading “Unlevered Operating Cash Flow, Including 

Restructuring” during the Variance Testing Period to be greater 

than 20%.

(ii) an updated budget immediately upon approval in accordance with 

paragraph 31, consistent with the form and level of detail set forth 

in the initial Budget, including the same line-items provided with 

the initial Budget;

(iii) no later than 5:00 p.m. New York City time on the Thursday of 

each calendar week (or such later time as agreed to in writing 

(including via e-mail) by the ABL Agent and the Consenting 

Stakeholders in their sole discretion) (a) commencing on the date 

that is the third Thursday following the Petition Date, a line-item 

by line-item report setting forth for each line item in the Budget, in 

reasonable detail, the actual receipts received and operating 

disbursements (including any professional fees) made during the 

prior week then-ended and (b) the date that is the first Thursday 

following the Petition Date a report setting forth (i) the Liquidity 

as of the Friday of the most recently ended calendar week and 

(ii) the aggregate amount of end of day cash and cash equivalents 

as of the Friday of the most recently ended calendar week of all 

non-Debtor subsidiaries on deposit in or credited to any account 

maintained by such non-Debtor subsidiaries; and

(iv) no later than 5:00 p.m. New York City time on the Thursday (or 

such later time as agreed to in writing (including via e-mail) by the 

ABL Agent and Required Consenting Stakeholders in their sole 

discretion) of each calendar week commencing on the date that is 

the third Thursday following the Petition Date, (each such 

Thursday or later time, a “Variance Report Date”), a line-item by 

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line-item variance report (each, a “Variance Report”), reasonably 

acceptable to the ABL Agent and the Required Consenting 

Stakeholders in their sole discretion, setting forth, in reasonable 

detail: (x) any variances between actual amounts for each line

item in the Budget for the Variance Testing Period versus 

projected amounts set forth in the applicable Budget for each line 

item included therein on a cumulative basis for such Variance 

Testing Period (for the avoidance of doubt, to be prepared by 

comparing the sum of the four (4) figures for each relevant week 

for such corresponding line item in the relevant Budget that was in 

effect in respect of each relevant week at the time) and (y) the 

computations necessary to determine compliance with paragraph 

31 and clause (f) of Annex 2, together with a statement from a 

financial officer of the Parent Borrower certifying the information 

contained in the report. The Variance Report shall also provide a 

reasonably detailed explanation for any negative variance in such 

Variance Report in excess of 15% in actual receipts and any 

positive variance in such Variance Report in excess of 15% in 

actual operating disbursements during the Variance Testing Period 

(unless the dollar amount corresponding to such percentage 

variance is less than $1,000,000) as compared to projections for 

such corresponding line items during the Variance Testing Period 

as set forth in the then-approved Budget. 

37. DIP, ABL and Term Loan Fees and Expenses. Payment of all reasonable and 

out-of-pocket fees and expenses provided for herein for the DIP Agents, DIP Lenders and as 

adequate protection to the Prepetition Secured Parties (including, without limitation, the fees and 

expenses of the ABL Advisors and the Term Loan Advisors) shall be subject to the following 

procedures: (i) such fees and expenses shall be invoiced and such invoices provided to counsel 

to the Debtors and the U.S. Trustee (the “Fee Notice Parties”); (ii) such invoices shall not be 

required to comply with the U.S. Trustee guidelines and the payment of fees and expenses 

pursuant to such invoices shall not be subject to the filing of fee or administrative expense

applications with the Court; (iii) such invoices may be in summary form only and shall not be 

required to contain time entries; (iv) time entries, if any, included in such invoices may be 

redacted or modified to the extent necessary to delete any information subject to the attorneyclient privilege, any information constituting attorney work product, or any other confidential,

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privileged, or otherwise protected information, and the provision of such invoices shall not 

constitute any waiver of the attorney-client privilege, any benefits of the attorney work product 

doctrine, or any other applicable protection; (v) time detail for such invoices shall be provided to 

the U.S. Trustee and the Creditors’ Committee upon reasonable request, subject to the 

immediately preceding clause (iv); (vi) if no objection to payment of the requested fees and 

expenses is made in writing by any of the Fee Notice Parties within ten (10) days after delivery 

of such invoices (the “Fee Objection Period”), then, without further order of, or application to, 

the Court or notice to any other party, such fees and expenses shall be paid by the Debtors as 

soon as is reasonably practicable; and (vii) if an objection is made by any of the Fee Notice 

Parties within the Fee Objection Period to payment of the requested fees and expenses, then only 

the undisputed portion shall be promptly paid by the Debtors and the disputed portion of such 

fees and expenses shall not be paid until the objection is resolved by the applicable parties in 

good faith or by order of the Court. Notwithstanding the foregoing, the Debtors were authorized 

and directed pursuant to the Interim Order, and are hereby authorized and directed on a final 

basis, to pay: (i) upon entry of the Interim Order, all reasonable and documented fees, costs, and 

out of pocket expenses of (a) the ABL Agent (including the ABL Advisors and any outstanding 

invoices of prior counsel to the ABL Agent incurred in connection with the ABL Credit 

Agreement) and (b) the Term Loan Advisors and the Term Loan Agent, in each case, incurred on 

or prior to entry of the Interim Order without the need for any such party to first deliver a copy of 

its invoice as provided for herein, (ii) all reasonable and documented fees, costs, and out-ofpocket expenses of the ABL Agent in connection with the negotiation, documentation and 

provision of any postposition or exit financing (whether or not consummated), and (iii) all 

reasonable and documented fees, costs, and out-of-pocket expenses of the DIP Agents, the DIP 

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Lenders and the Backstop Lenders (as defined in the DIP Term Loan Agreement) in connection 

with the negotiation, documentation and provision of the DIP Facilities, and, as applicable, all 

fees, premiums, and other amounts payable in connection therewith, including with respect to 

that certain Superpriority Senior Secured Debtor-In-Possession Term Loan Credit Facility 

Backstop Commitment Letter, dated as of July 23, 2020 (the “Backstop Commitment Letter”), 

by and among Ascena Retail Group, Inc. and the Backstop Lenders; provided that the reasonable 

and documented fees and expenses of King & Spalding LLP and McGuireWoods LLP shall be 

limited to fees and expenses incurred on and through the closing date of the DIP Term Loan 

Agreement. Notwithstanding anything herein to the contrary, payments of any amounts set forth 

in this paragraph 37 shall not be subject to recharacterization, subordination, or disgorgement, 

unless expressly provided herein.

S. Carve Out.

38. Carve Out. As used in this Final Order, the “Carve Out” means the sum of (i) all 

fees required to be paid to the Clerk of the Court and to the Office of the United States Trustee 

under section 1930(a) of title 28 of the United States Code plus interest at the statutory rate 

(without regard to the notice set forth in (iii) below); (ii) all reasonable fees and expenses up to 

$200,000 incurred by a trustee under section 726(b) of the Bankruptcy Code (without regard to 

the notice set forth in (iii) below); (iii) to the extent allowed at any time, whether by interim 

order, procedural order, or otherwise, all unpaid fees and expenses (the “Allowed Professional 

Fees”), other than any restructuring, sale, success, or other transaction fee of any investment 

bankers or financial advisors of the Debtors of the Creditors’ Committee,7 incurred by persons or 

7 Any fee due and payable upon consummation of a transaction shall be payable solely from the proceeds 

received by the Debtors resulting from such transaction, and provided that the terms and amount of any such fees 

shall have been disclosed to the Prepetition Agents and the DIP Agents in writing reasonably promptly after the 

same are agreed to by the Debtors, such fees shall be paid free and clear of the liens of the Prepetition Agents and 

the DIP Agents.

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firms retained by the Debtors pursuant to section 327, 328, or 363 of the Bankruptcy Code (the 

“Debtor Professionals”) and the Creditors’ Committee (including, without limitation, the 

reasonable out-of-pocket costs and expenses incurred by members of the Creditors’ Committee 

in their capacities as such) appointed pursuant to section 328 or 1103 of the Bankruptcy Code 

(the “Committee Professionals” and, together with the Debtor Professionals, the “Professional 

Persons”) at any time before or on the first business day following delivery by the DIP Agents or 

Prepetition Agents of a Carve Out Trigger Notice (as defined below), whether allowed by the 

Court prior to or after delivery of a Carve Out Trigger Notice; and (iv) Allowed Professional 

Fees of Professional Persons in an aggregate amount not to exceed $5,000,000 incurred after the 

first business day following delivery of the Carve Out Trigger Notice, to the extent allowed at 

any time, whether by interim order, procedural order, or otherwise (the amount set forth in this 

clause (iv) being the “Post-Carve Out Trigger Notice Cap”). For purposes of the foregoing, 

“Carve Out Trigger Notice” shall mean a written notice delivered by email (or other electronic 

means) by the Prepetition Agents or the DIP Agents, as applicable, to the Debtors, their lead 

restructuring counsel, the U.S. Trustee, and counsel to the Creditors’ Committee, which notice 

may be delivered following the occurrence and during the continuation of a Cash Collateral 

Termination Event and upon termination of the Debtors’ right to use Cash Collateral by the 

Prepetition Secured Parties or following the occurrence and during the continuation of an DIP 

Termination Event and acceleration of the DIP Obligations under the DIP Facilities, stating that 

the Post-Carve Out Trigger Notice Cap has been invoked.

39. Delivery of Weekly Fee Statements. Not later than 7:00 p.m. New York time on 

the third business day of each week starting with the first full calendar week following the 

Petition Date, each Professional Person shall deliver to the Debtors a statement setting forth a

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good-faith estimate of the amount of fees and expenses (collectively, “Estimated Fees and 

Expenses”) incurred during the preceding week by such Professional Person (through Saturday 

of such week, the “Calculation Date”), along with a good-faith estimate of the cumulative total 

amount of unreimbursed fees and expenses incurred through the applicable Calculation Date and 

a statement of the amount of such fees and expenses that have been paid to date by the Debtors 

(each such statement, a “Weekly Statement”); provided, that within one business day of the 

occurrence of the Termination Declaration Date (as defined below), each Professional Person 

shall deliver one additional statement (the “Final Statement”) setting forth a good-faith estimate 

of the amount of fees and expenses incurred during the period commencing on the calendar day 

after the most recent Calculation Date for which a Weekly Statement has been delivered and 

concluding on the Termination Declaration Date (and the Debtors shall cause such Weekly 

Statement and Final Statement to be delivered on the same day received to the Prepetition Agents 

and the DIP Agents). If any Professional Person fails to deliver a Weekly Statement within three 

calendar days after such Weekly Statement is due, such Professional Person’s entitlement (if 

any) to any funds in the Carve Out Reserves (as defined below) with respect to the aggregate 

unpaid amount of Allowed Professional Fees for the applicable period(s) for which such 

Professional Person failed to deliver a Weekly Statement covering such period shall be limited to 

the aggregate unpaid amount of Allowed Professional Fees included in the Budget for such 

period for such Professional Person; provided, that such Professional Person shall be entitled to 

be paid any unpaid amount of Allowed Professional Fees in excess of Allowed Professional Fees 

included in the Budget for such period for such Professional Person from a reserve to be funded 

by the Debtors from all cash on hand as of such date and any available cash thereafter held by 

any Debtor pursuant to paragraph 40 below. Solely as it relates to the DIP ABL Agent and the 

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DIP ABL Lenders, any deemed draw and borrowing pursuant to paragraph 40 for amounts under 

paragraph 38(iii) above shall be limited to the greater of (x) the sum of (I) the aggregate unpaid 

amount of Estimated Fees and Expenses included in the Weekly Statements timely received by 

the Debtors prior to the Termination Declaration Date, plus, without duplication, (II) the lesser of 

(1) the aggregate unpaid amount of Estimated Fees and Expenses included in the Final 

Statements timely received by the Debtors pertaining to the period through and including the 

Termination Declaration Date and (2) the Budgeted Cushion Amount (as defined below), and (y) 

the aggregate unpaid amount of Allowed Professional Fees included in the Budget for the period 

prior to the Termination Declaration Date (such amount, the “ABL Professional Fee Carve Out 

Cap”). For the avoidance of doubt, the DIP ABL Agent and DIP ABL Lenders shall be entitled 

to maintain at all times a reserve (the “ABL Carve-Out Reserve”) in an amount (the “ABL 

Carve-Out Reserve Amount”) equal to the sum of (I) the greater of (x) the aggregate unpaid 

amount of Estimated Fees and Expenses included in all Weekly Statements timely received by 

the Debtors, and (y) the aggregate amount of Allowed Professional Fees contemplated to be 

unpaid in the Budget at the applicable time, plus (II) the Post-Carve Out Trigger Notice Cap, 

plus (III) the amounts contemplated under (i) and (ii) of paragraph 38 above, plus (iv) an amount 

equal to the amount of Allowed Professional Fees set forth in the Budget for the then current 

week occurring after the most recent Calculation Date and the two weeks succeeding such 

current week (such amount set forth in (iv), regardless of whether such reserve is maintained, the 

“Budgeted Cushion Amount”). In addition, the DIP ABL Agent shall be entitled to maintain a 

reserve in the amount of a reasonable estimate of other amounts that may be included in the 

Carve Out or may be payable from any proceeds of a transaction (as described in the footnote set 

forth above), including amounts which are or may become payable to any investment bankers or 

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financial advisors of the Debtors or the Creditors’ Committee. Not later than 7:00 p.m. New 

York time on the fourth business day of each week starting with the first full calendar week 

following the Petition Date, the Debtors shall deliver to the DIP Agents and the Prepetition 

Agents a report setting forth the ABL Carve-Out Reserve Amount as of such time, and, in setting 

the ABL Carve-Out Reserve, the DIP ABL Agent shall be entitled to rely upon such reports.

Prior to the delivery of the first report setting forth the ABL Carve-Out Reserve Amount, the DIP 

ABL Agent shall calculate the ABL Carve-Out Reserve Amount by reference to the Budget for 

subsection (I) of the ABL Carve-Out Reserve Amount.

40. Carve Out Reserves. On the day on which a Carve Out Trigger Notice is given by 

the Prepetition Agents or the DIP Agents to the Debtors, with a copy to their lead restructuring 

counsel, and to counsel to the Creditors’ Committee (the “Termination Declaration Date”), the 

Carve Out Trigger Notice shall be deemed a draw request and notice of borrowing by the 

Debtors for DIP ABL Loans under the DIP ABL Agreement in an amount equal to the sum of (x) 

the amounts set forth in paragraphs 38(i) and 38(ii) above, and (y) the then unpaid amounts of 

the Professional Fees up to the ABL Professional Fee Carve Out Cap (and such amounts actually 

advanced shall constitute DIP ABL Loans), and shall also constitute a demand to the Debtors to 

utilize all cash on hand as of such date and any available cash thereafter held by any Debtor to 

fund a reserve in an amount equal to the sum of the amounts set forth in paragraphs 38(i) and 

38(ii) above, and then unpaid amounts of the Allowed Professional Fees (which cash amounts 

shall reduce, on a dollar for dollar basis, the draw requests and applicable DIP ABL Loans 

pursuant to the foregoing clauses (i) and (ii) of this sentence of paragraph 40). The Debtors shall 

deposit and hold such amounts in a segregated account in trust to pay such then unpaid Allowed 

Professional Fees (the “Pre-Carve Out Trigger Notice Reserve”) prior to any and all other 

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claims. On the Termination Declaration Date, the Carve Out Trigger Notice shall also be 

deemed a request by the Debtors for DIP ABL Loans under the DIP ABL Agreement in an 

amount equal to the Post-Carve Out Trigger Notice Cap (any such amounts actually advanced 

shall constitute DIP ABL Loans) and shall also constitute a demand to the Debtors to utilize all 

remaining cash on hand as of such date and any available cash thereafter held by any Debtor,

after funding the Pre-Carve Out Trigger Notice Reserve, to fund a reserve in an amount equal to 

the Post-Carve Out Trigger Notice Cap (which cash amounts shall reduce, on a dollar-for-dollar 

basis, the draw requests and applicable DIP ABL Loans and DIP Term Loans pursuant to the 

foregoing clauses (x) and (y) of this sentence of this paragraph 40). The Debtor shall deposit and 

hold such amounts in a segregated account at the DIP ABL Agent in trust to pay such Allowed 

Professional Fees benefitting from the Post-Carve Out Trigger Notice Cap (the “Post-Carve Out 

Trigger Notice Reserve” and, together with the Pre-Carve Out Trigger Notice Reserve, the 

“Carve Out Reserves”) prior to any and all other claims. On the first business day following the 

Termination Declaration Date and the deemed requests for the making of DIP ABL Loans as

provided in this paragraph 40, notwithstanding anything in the DIP ABL Agreement to the 

contrary, including with respect to (1) the existence of a Default (as defined in the DIP ABL 

Agreement) or Event of Default, (2) the failure of the Debtors to satisfy any or all of the 

conditions precedent for the making of any DIP ABL Loan under the DIP ABL Agreement (3) 

any termination of the DIP ABL Loan Commitments following an Event of Default, or (4) the 

occurrence of the Maturity Date, each DIP ABL Lender with an outstanding Commitment shall 

make available to the DIP ABL Agent such DIP ABL Lender’s pro rata share of such DIP ABL 

Loans. All funds in the Pre-Carve Out Trigger Notice Reserve shall be used first to pay the 

obligations set forth in clauses (i) through (iii) of the definition of Carve Out set forth in 

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paragraph 38 above (the “Pre-Carve Out Amounts”), but not, for the avoidance of doubt, the 

Post-Carve Out Trigger Notice Cap, until paid in full. If after payment in full of the Pre-Carve 

Out Amounts the Pre-Carve Out Trigger Notice Reserve has not been reduced to zero, subject to 

clause (c) below, all remaining funds shall be distributed ratably (based on the proportion of the

Pre-Carve Out Trigger Notice Reserve funded by or from the DIP ABL Priority Collateral or the 

DIP Term Priority Collateral, respectively) to: (i) the DIP ABL Agent on behalf of the DIP ABL 

Lenders unless the DIP ABL Obligations have been Paid in Full, and (ii) the DIP Term Loan 

Agent on behalf of the DIP Term Lenders, each in accordance with their rights and priorities 

under this Final Order, with any excess paid to the Debtors’ other creditors.

(a) All funds in the Post-Carve Out Trigger Notice Reserve (other than up to 

$500,000, which may be used to pay Pre-Carve Out Amounts to the extent 

they exceed the ABL Professional Fee Carve Out Cap) shall be used first 

to pay the obligations set forth in clause (iv) of the definition of Carve Out 

set forth above (the “Post-Carve Out Amounts”). If after payment in full 

of the Post-Carve Out Amounts, the Post-Carve Out Trigger Notice 

Reserve has not been reduced to zero, subject to clause (c) below, all 

remaining funds shall be distributed ratably (based on the proportion of 

the Post-Carve Out Trigger Notice Reserve funded by or from the DIP 

ABL Priority Collateral or the DIP Term Priority Collateral, respectively) 

to: (i) the DIP ABL Agent on behalf of the DIP ABL Lenders unless the 

DIP ABL Obligations have been Paid in Full, and (ii) to the DIP Term 

Loan Agent on behalf of the DIP Term Lender, each in accordance with 

their rights and priorities under this Final Order, with any excess paid to 

the Debtors’ other creditors.

(b) Notwithstanding anything to the contrary in the DIP Documents or this 

Final Order, if either of the Carve Out Reserves are not funded in full in 

the amounts set forth in this paragraph 40, then, any excess funds in one of 

the Carve Out Reserves following the payment of the Pre-Carve Out 

Amounts and Post-Carve Out Amounts, respectively, shall be used to fund 

the other Carve Out Reserve, to the extent of any shortfall in funding prior

to making any payments to the DIP ABL Agent or the DIP Term Loan 

Agent, as applicable.

(c) Notwithstanding anything to the contrary in the DIP Documents or this 

Final Order, following delivery of a Carve Out Trigger Notice, the DIP 

Agents shall not sweep or foreclose on cash (including cash received as a 

result of the sale or other disposition of any assets) of the Debtors until the 

Carve Out Reserves have been fully funded, but shall have a security 

interest in any residual interest in the Carve Out Reserves, with any excess 

paid as provided in this paragraph 40.

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(d) Notwithstanding anything to the contrary in this Final Order, (1)

disbursements by the Debtors from the Carve Out Reserve shall not 

constitute DIP Loans or increase or reduce the DIP Obligations, (ii) the 

failure of the Carve Out Reserves to satisfy in full the Allowed 

Professional Fees shall not affect the priority of the Carve Out with respect 

to any shortfall (as described below), and (2) subject to the limitations 

with respect to the DIP ABL Agent and the DIP ABL Lenders set forth in 

paragraph 39 with respect to the ABL Professional Fee Carve Out Cap 

above, in no way shall any Budget, Carve Out, Post-Carve Out Trigger 

Notice Cap or Carve Out Reserves be construed as a cap or limitation on 

the amount of the Allowed Professional Fees due and payable to the 

Debtors (which includes, for the avoidance of doubt, the Allowed 

Professional Fee of the Committee Professionals). For the avoidance of 

doubt and notwithstanding anything to the contrary in this Final Order or 

the DIP Documents, the Carve Out shall be senior to all liens and claims 

securing the DIP Facilities, Prepetition Collateral, the DIP Superpriority 

Claims, the Adequate Protection Liens, and the Adequate Protection 

Claims, and any and all other forms of adequate protection, liens, or 

claims securing the DIP Obligations or Prepetition Secured Credit 

Obligations.

41. Payment of Allowed Professional Fees Prior to the Termination Declaration 

Date. Any payment or reimbursement made prior to the occurrence of the Termination 

Declaration Date in respect of any Allowed Professional Fees shall not reduce the Carve Out.

42. No Direct Obligation To Pay Allowed Professional Fees. None of the DIP 

Secured Parties or Prepetition Secured Parties shall be responsible for the payment or 

reimbursement of any fees or disbursements of any Professional Person incurred in connection 

with the Cases or any Successor Cases. Nothing in this Final Order or otherwise shall be 

construed to obligate the DIP Secured Parties or Prepetition Secured Parties, in any way, to pay 

compensation to, or to reimburse expenses of, any Professional Person or to guarantee that the 

Debtors have sufficient funds to pay such compensation or reimbursement.

43. Payment of Carve Out On or After the Termination Declaration Date. Following 

the delivery of the Carve Out Trigger Notice, all Allowed Professional Fees shall be paid from 

the applicable Carve Out Reserve, and no Professional Person shall seek payment of any 

Allowed Professional Fees from any other source until the applicable Carve Out Reserve has 

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been exhausted. Any payment or reimbursement made on or after the occurrence of the 

Termination Declaration Date in respect of any Allowed Professional Fees shall permanently 

reduce the Carve Out on a dollar-for-dollar basis. Any funding of the Carve Out shall be added 

to, and made a part of, the DIP Obligations secured by the DIP Collateral and hall be otherwise 

entitled to the protections granted under this Final Order, the DIP Documents, the Bankruptcy 

Code and applicable law.

T. Indemnification. 

44. The Debtors shall indemnify and hold harmless the DIP Agents and the DIP 

Lenders in accordance with the terms and conditions of the DIP Agreements. Upon the earlier 

of (a) the DIP ABL Obligations being paid in cash in full or (b) conclusion of the DIP 

Remedies Notice Period, the Debtors shall pay $500,000 from proceeds of the DIP Collateral 

into an indemnity account (the “DIP ABL Indemnity Account”) subject to first priority liens 

of the DIP ABL Agent (and not subject to the Carve Out), for the benefit of the DIP ABL 

Lenders. The DIP ABL Indemnity Account shall be released and the funds applied in 

accordance with this Final Order upon the DIP ABL Obligations being Paid in Full.

U. Continuing Effect of the Prepetition Intercreditor Agreement. 

45. Pursuant to section 510 of the Bankruptcy Code, the Prepetition Intercreditor 

Agreement, and any other applicable intercreditor or subordination provisions contained in any 

of the Prepetition Secured Credit Documents, (i) shall remain in full force and effect, and 

(ii) shall continue to govern the relative priorities, rights, and remedies of the Prepetition Secured

Parties and DIP Secured Parties (including, for the avoidance of doubt, with respect to the 

Adequate Protection Liens, DIP Collateral, and DIP Liens). Notwithstanding anything to the 

contrary set forth in the Prepetition Intercreditor Agreement, the Interim Order or this Final 

Order (i) the DIP Secured Parties shall be bound by and subject to the Prepetition Intercreditor 

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Agreement to the same extent as the Prepetition Secured Parties and (ii) the DIP Obligations 

shall be deemed to be Prepetition Secured Credit Obligations (as applicable) solely for purposes 

of determining the rights and obligations of the DIP Secured Parties and the Prepetition Secured 

Parties.

V. Joint and Several Liability. 

46. Nothing in this Final Order shall be construed to constitute or authorize a 

substantive consolidation of any of the Debtors’ estates, it being understood, however, that the 

Debtors shall be jointly and severally liable for the obligations hereunder and in accordance with 

the terms of this Final Order.

W. DIP and Cash Collateral Termination.

47. Subject to the procedures set forth in this section W, including the Remedies 

Notice Period, the Debtors’ right to use the Cash Collateral pursuant to this Final Order shall 

terminate (the date of any such termination, the “Cash Collateral Termination Date”) on 

the occurrence and continuation of any of the termination events set forth in Annex 2 attached 

hereto (each, a “Cash Collateral Termination Event”), unless waived in writing by the ABL 

Agent and the Term Loan Agent.

48. The occurrence and continuance of any “Event of Default” under and as defined 

in the DIP Term Loan Agreement or the DIP ABL Agreement (including, without limitation, the 

failure of the Debtors to comply with the Required Milestones set forth in Annex 5 hereto) shall 

constitute a “DIP Termination Event” under this Final Order (each a “DIP Termination Event,” 

and the date upon which such DIP Termination Event occurs, the “DIP Termination Date”), 

unless waived in accordance with the terms of the DIP Agreements (as applicable).

49. Immediately upon the occurrence and during the continuation of a DIP 

Termination Event, notwithstanding the provisions of section 362 of the Bankruptcy Code, 

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without any application, motion, or notice to, hearing before, or order from the Court, but subject 

to the terms of this Final Order (and the Remedies Notice Period (as defined below)), each of the 

DIP Agents and the Prepetition Agents may, upon notice to counsel to the Debtors, counsel to 

the Creditors’ Committee, counsel to the DIP Agents, and counsel to the Prepetition Agents (the 

date of delivery of such notice, the “DIP Termination Declaration Date”), subject to the 

Prepetition Intercreditor Agreement: (i) declare all DIP Obligations under the applicable DIP 

Documents to be immediately due and payable; (ii) terminate, reduce, or restrict any 

commitment to extend credit to the DIP Credit Parties under the respective DIP Facility (to the 

extent any such commitment remains); (iii) terminate the respective DIP Facility and the 

respective DIP Documents as to any future liability or obligation thereunder, but without 

affecting and of the DIP Liens or the DIP Obligations; (iv) terminate and/or revoke the Debtors’ 

right, if any, under this Final Order and the DIP Documents to use any DIP Term Priority 

Collateral (if such notice is delivered by the DIP Term Loan Agent and/or the Term Loan Agent) 

or DIP ABL Priority Collateral (if such notice is delivered by the DIP ABL Agent and/or the 

ABL Agent); (v) charge interest at the default rate under the applicable DIP Facility; (vi) enforce 

any and all rights against the DIP Collateral; and (vii) take any other actions or exercise any 

other rights or remedies permitted under this Final Order, the DIP Documents, or applicable law.

50. Immediately upon the occurrence and during the continuation of a Cash Collateral

Termination Event, notwithstanding the provisions of section 362 of the Bankruptcy Code, 

without any application, motion, or notice to, hearing before, or order from the Court, but subject 

to the terms of this Final Order (and the Remedies Notice Period (as defined below)), the 

Prepetition Agents may, as applicable, declare (any such declaration shall, upon delivery by 

electronic mail (or other electronic means) to counsel to the Debtors, counsel to the Creditors’ 

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Committee, the ABL Agent or the Term Loan Agents (as applicable), the U.S. Trustee, and 

counsel to the DIP Term Loan Agent be referred to herein as a “Cash Collateral Termination 

Declaration”) (a) all ABL Obligations owing under the ABL Loan Documents to be immediately 

due and payable, (b) all Term Loan Obligations owing under the Term Loan Documents to be 

immediately due and payable, (c) that the application of the Carve Out has occurred through the 

delivery of the Carve Out Trigger Notice, and (d) a termination, reduction, or restriction on the 

ability of the Debtors to use Cash Collateral; provided, however, that subparagraph (d) shall only 

apply to the Term Priority Collateral if the Termination Declaration is delivered by the Term 

Loan Agent. 

51. The automatic stay in the Cases otherwise applicable to the DIP Secured Parties 

and/or the Prepetition Secured Parties is hereby modified so that five (5) business days after the 

DIP Termination Declaration Date or Cash Collateral Termination Date, as applicable (the 

“Remedies Notice Period”), the DIP Secured Parties and/or the Prepetition Secured Parties shall 

be entitled to exercise all of their rights and remedies in accordance with the Prepetition 

Intercreditor Agreement, the DIP Documents, the Prepetition Secured Credit Documents and this 

Final Order to satisfy the DIP Obligations and the Prepetition Secured Credit Obligations. 

During the Remedies Notice Period, the Debtors shall be entitled to seek an emergency hearing, 

object to the termination of the consensual use of Cash Collateral on any basis, to contest 

whether a DIP Termination Event has occurred, seek entry of an order authorizing use of Cash 

Collateral on a non-consensual basis, seek authority to repay the applicable DIP Obligations, and 

use Cash Collateral (i) solely to meet payroll obligations and pay expenses necessary or 

reasonably advisable to avoid immediate and irreparable harm to the Debtors’ estates in 

accordance with the Budget or with the consent of the DIP Agents and the Prepetition Agents, 

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and (ii) to fund the Carve Out Reserves (as applicable). Unless the Court orders otherwise, the 

automatic stay shall automatically be terminated as to the DIP Secured Parties and the 

Prepetition Secured Parties at the end of the DIP Remedies Notice Period without further notice 

or order.

52. Upon expiration of the DIP Remedies Notice Period, the DIP Secured Parties 

and/or the Prepetition Secured Parties, subject to the Prepetition Intercreditor Agreement, shall 

be permitted to (a) access and recover any and all Prepetition Collateral and DIP Collateral, and 

(b) enter onto any leased premises of any Debtor and exercise all of the Debtors’ rights and 

privileges as lessee under such lease in connection with an orderly liquidation of the Prepetition 

Collateral and DIP Collateral, provided, however, in the case of clause (b), the DIP Secured 

Parties and/or the Prepetition Secured Parties can only enter upon a leased premises after a DIP 

Termination Event in accordance with (i) a separate written agreement by and between the DIP 

Secured Parties and/or the Prepetition Secured Parties, as applicable, and any applicable 

landlord, (ii) pre-existing rights of the DIP Secured Parties and/or the Prepetition Secured 

Parties, as applicable, and any applicable landlord under applicable non-bankruptcy law, (iii) 

written consent of the applicable landlord, or (iv) entry of an order of this Court obtained by 

motion of the applicable DIP Secured Parties and/or the Prepetition Secured Parties on such 

notice to the landlord as shall be required by this Court; provided, however, solely with respect to 

rent due to a landlord of any such leased premises, the DIP Secured Parties and/or the Prepetition 

Secured Parties, as applicable, shall be obligated only to reimburse the Debtors for the payment 

of rent of the Debtors that first accrues after the DIP Termination Declaration Date in accordance 

with paragraph 49 herein that is payable during the period of such occupancy by the DIP Secured 

Parties and/or the Prepetition Secured Parties, as applicable, calculated on a daily per diem basis; 

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provided, further, that nothing herein shall relieve the Debtors of their obligations pursuant to 

section 365(d)(3) of the Bankruptcy Code for the payment of rent that accrues prior to the DIP 

Termination Declaration Date through and including any assumption and/or rejection of any 

lease. Nothing herein shall require the DIP Secured Parties and/or the Prepetition Secured 

Parties to assume any lease as a condition to the rights afforded in this paragraph.

53. Subject to the Prepetition Intercreditor Agreement, unless the DIP Agents and 

Prepetition Agents have each provided their respective prior written consent, or all DIP 

Obligations and Prepetition Secured Credit Obligations (excluding contingent indemnification 

obligations for which no claim has been asserted) have been Paid in Full, in any of these Cases 

or any Successor Cases, the Debtors shall neither seek entry of, nor support any motion or 

application seeking entry of, and otherwise shall object to any motion or application seeking 

entry of, any order (including any order confirming any plan of reorganization or liquidation) 

that authorizes any of the following: (i) the obtaining of credit or the incurring of indebtedness 

that is secured by a security, mortgage, or collateral interest or other lien on all or any portion of 

the DIP Collateral and/or that is entitled to administrative priority status, in each case that is 

superior to or pari passu with the DIP Liens, Prepetition Liens, the Adequate Protection Liens, 

and/or the Adequate Protection Claims except as expressly set forth in this Final Order; (ii) the 

use of Cash Collateral for any purpose other than as permitted in this Final Order; (iii) the return 

of goods pursuant to section 546(h) of the Bankruptcy Code (or other return of goods on account 

of any prepetition indebtedness) to any creditor of any Debtor or any creditor’s taking any setoff 

or recoupment against any of its prepetition indebtedness based upon any such return of goods 

pursuant to section 553 of the Bankruptcy Code or otherwise; or (iv) any modification of any of 

the DIP Secured Parties’ or the Prepetition Secured Parties’ rights under this Final Order, the 

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DIP Documents, the ABL Loan Documents, or the Term Loan Documents with respect any DIP 

Obligations, ABL Obligations or Term Loan Obligations. It shall be a DIP Termination Event 

under this Final Order if, in any of these Cases or any Successor Cases, the Debtors take or fail 

to take any of the actions contemplated with respect to provisions (i) through (iv) of the previous 

sentence or if any order is entered granting any of the relief enumerated in provisions (i) through 

(iv) of the previous sentence.

54. No Debtor shall object to any DIP Secured Parties or Prepetition Secured Parties 

credit bidding up to the full amount of the applicable outstanding DIP Obligations or Prepetition

Secured Credit Obligations and Adequate Protection Obligations, in each case including any 

accrued interest, fees, and expenses, in any sale of any Prepetition Collateral or DIP Collateral, 

as applicable, whether such sale is effectuated through sections 363 or 1129 of the Bankruptcy 

Code, by a chapter 7 trustee under section 725 of the Bankruptcy Code, or otherwise.

55. So long as there are any DIP Term Loan Obligations outstanding, with respect to

DIP Term Priority Collateral that is secured by DIP Term Loan Liens that in accordance with 

this Final Order are senior to all liens held by Prepetition Secured Parties with respect to such 

Collateral, then with respect to such DIP Term Priority Collateral, such Prepetition Secured 

Parties shall, other than as provided for in the Prepetition Intercreditor Agreement: (i) have no 

right to and shall take no action to foreclose upon, or recover in connection with, the liens 

granted thereto pursuant to the Prepetition Secured Credit Documents or this Final Order, or 

otherwise seek to exercise or enforce any rights or remedies against such DIP Term Priority

Collateral, including in connection with the Adequate Protection Liens except to the extent 

required by an order of this Court; (ii) be deemed to have consented to any transfer, disposition 

or sale of, or release of liens on, such DIP Term Priority Collateral or proceeds thereof (until 

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Payment in Full in cash of all DIP Term Loan Obligations), to the extent such transfer, 

disposition, sale, or release is authorized under the applicable DIP Term Loan Documents; and 

(iii) not file any further financing statements, trademark filings, copyright filings, mortgages, 

notices of lien, or similar instruments, or otherwise take any action to perfect their security 

interests in such DIP Term Priority Collateral unless, solely as to this clause (iii), any of the 

applicable DIP Term Loan Secured Parties have filed financing statements or other documents in 

respect of the liens granted pursuant to this Final Order or as may be required by applicable state 

law to continue the perfection of valid and unavoidable liens or securities interests as of the 

Petition Date.

X. DIP Premiums, Fees, and Expenses.

56. The DIP Credit Parties are authorized to pay, in cash and on a current basis, all 

DIP Premiums, Fees, and Expenses, as and when due under the DIP Documents and this Final 

Order, and any prior payments of any such DIP Premiums, Fees, and Expenses is expressly 

approved and ratified, whether or not the transactions contemplated hereby are consummated, 

whether incurred or paid prior to, on, or after the Petition Date, and whether or not contained in 

the Budget and without limitation with respect to the dollar estimates contained in the Budget; 

provided that overages shall not weigh against the DIP Credit Parties in any variance testing 

related to compliance with the Budget. Payment of all DIP Premiums, Fees, and Expenses shall 

not be subject to further review or allowance by the Court.

Y. No Marshaling. 

57. Neither the DIP Secured Parties nor the Prepetition Secured Parties shall be 

subject to the equitable doctrine of “marshaling” or any other similar doctrine with respect to any 

of the DIP Collateral, DIP Obligations, or the Prepetition Collateral, as the case may be, and any 

proceeds of the DIP Collateral or Prepetition Collateral shall be received and applied pursuant to 

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this Final Order, notwithstanding any other agreement or provision to the contrary; provided,

however, that notwithstanding anything herein or in the DIP Documents to the contrary, the DIP

Lenders and the Prepetition Secured Parties shall use commercially reasonable efforts to satisfy

their applicable DIP Liens, Adequate Protection Liens and Adequate Protection Claims granted 

by this Final Order, if any, from proceeds of the DIP Collateral other than assets that were 

unencumbered as of the Petition Date (including Avoidance Action Proceeds) before satisfying 

such liens and claims from such unencumbered assets.

Z. Limitation on Charging Expenses Against Collateral. 

58. Upon entry of this Final Order, no costs or expenses of administration which have 

been or may be incurred in the Cases or any Successor Cases at any time shall be charged against 

the DIP Secured Parties or the DIP Collateral, the Prepetition Secured Parties, or the Prepetition 

Collateral pursuant to sections 105 or 506(c) of the Bankruptcy Code, or otherwise, without the 

prior written consent of the requisite DIP Secured Parties or the affected Prepetition Secured 

Parties, as applicable, and no such consent shall be implied from any other action, inaction, or 

acquiescence by any such parties.

AA. Payments Free and Clear. 

59. Subject and subordinate to the Carve Out, any and all payments or proceeds 

remitted to the Prepetition Secured Parties pursuant to the provisions of this Final Order or any 

subsequent order of this Court shall be irrevocable (subject to section GG of this Final Order), 

received free and clear of any claim, charge, assessment or other liability, including without 

limitation, any such claim or charge arising out of or based on, directly or indirectly, sections 

506(c) (whether asserted or assessed by, through or on behalf of the Debtors) or 552(b) of the 

Bankruptcy Code.

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BB. Section 552(b) of the Bankruptcy Code. 

60. Upon entry of this Final Order, each of the Prepetition Secured Parties shall be 

entitled to all of the rights and benefits of section 552(b) of the Bankruptcy Code and the 

“equities of the case” exception under section 552(b) of the Bankruptcy Code shall not apply to 

the Prepetition Secured Parties. 

CC. Reservation of Rights of the Prepetition Secured Parties. 

61. Notwithstanding any other provision hereof, the grant of adequate protection to 

the Prepetition Secured Parties pursuant hereto is without prejudice to the right of the Prepetition 

Secured Parties to seek modification of the grant of adequate protection provided hereby so as to 

provide different or additional adequate protection, and without prejudice to the right of the 

Debtors or any other party in interest to contest any such modification. Nothing herein shall be 

deemed to waive, modify or otherwise impair the respective rights of the Prepetition Secured 

Parties under the Prepetition Secured Credit Documents, the Prepetition Intercreditor Agreement, 

or under equity or law, and the Prepetition Secured Parties expressly reserve all of their 

respective rights and remedies whether now existing or hereafter arising under the Prepetition 

Secured Credit Documents and/or equity or law in connection with all Events of Default 

(as defined in each applicable document, and whether arising prior to or after the Petition Date). 

DD. Debtors’ Reservation of Rights. 

62. Notwithstanding anything to the contrary in this Final Order, the entry of this 

Final Order and the grant of adequate protection to the Prepetition Secured Parties pursuant to 

the terms hereof shall be without prejudice to the rights of the Debtors to, following the 

occurrence of the Cash Collateral Termination Date, seek authority (at any time) to use Cash 

Collateral and the Prepetition Collateral without the consent of the Prepetition Secured Parties, 

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and the Prepetition Secured Parties reserve all of their respective rights with respect to contesting 

any such motion or request by the Debtors or any other person.

EE. Perfection of DIP Liens and Adequate Protection Liens.

63. The automatic stay under section 362 of the Bankruptcy Code is hereby deemed 

modified and vacated to the extent necessary to permit the granting and perfection of the DIP 

Liens and the Adequate Protection Liens. The ABL Agent, the Term Loan Agent, and the DIP 

Agents, are each hereby authorized, but not required, to file or record financing statements, 

intellectual property filings, mortgages, notices of lien or similar instruments in any jurisdiction 

in order to validate and perfect the liens and security interests granted to it hereunder. Whether 

or not the ABL Agent, the Term Loan Agent, or the DIP Agents shall, in their respective sole 

discretion, choose to file such financing statements, intellectual property filings, mortgages, 

notices of lien, or similar instruments, such liens and security interests shall be deemed valid, 

perfected, allowed, enforceable, non-avoidable, and not subject to challenge, dispute, or 

subordination as of the date of entry of this Final Order. If the ABL Agent, the Term Loan 

Agent, or the DIP Agents determine to file any financing statements, notice of liens, or similar 

instruments, the Debtors will cooperate and assist in any such filings as reasonably requested by 

the ABL Agent, the Term Loan Agent, or the DIP Agents, as applicable, and the automatic stay 

shall be modified to allow such filings. 

64. A certified copy of this Final Order may, in the discretion of the ABL Agent, the 

Term Loan Agent, or the DIP Agents, be filed with or recorded in filing or recording offices in 

addition to or in lieu of such financing statements, mortgages, notices of lien, or similar 

instruments, and all filing offices are hereby authorized and directed to accept such certified 

copy of this Final Order for filing and recording; provided that the Debtors shall reimburse the 

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ABL Agent, the Term Loan Agent, or the DIP Agents, or their respective designees for the 

payment of any stamp, intangibles, recording, or similar tax.

FF. Preservation of Rights Granted Under this Final Order. 

65. Except as expressly provided in this Final Order (including with respect to the 

Carve Out), no claim or lien having a priority senior to or pari passu with those granted by this 

Final Order to the ABL Agent, the Term Loan Agent, the Prepetition Secured Parties, the DIP 

Agents, and the DIP Secured Parties shall be granted or allowed, and the Adequate Protection 

Liens and DIP Liens shall not be subject or junior to any lien or security interest that is avoided 

and preserved for the benefit of the Debtors’ estates under section 551 of the Bankruptcy Code or 

subordinated to or made pari passu with any other lien or security interest, whether under section 

364(d) of the Bankruptcy Code or otherwise (other than the Carve Out). 

66. Notwithstanding any order dismissing any of the Cases under section 1112 of the 

Bankruptcy Code or otherwise entered at any time, (x) the Adequate Protection Claims, the DIP 

Superpriority Claims, the other administrative claims granted pursuant to this Final Order and the 

Adequate Protection Liens and DIP Liens shall continue in full force and effect and shall 

maintain their priorities as provided in this Final Order until all Adequate Protection Obligations 

and DIP Obligations shall have been Paid in Full in cash (and such Adequate Protection Claims, 

DIP Superpriority Claims, and the other administrative claims granted pursuant to this Final 

Order and the Adequate Protection Liens and DIP Liens shall, notwithstanding such dismissal, 

remain binding on all parties in interest); and (y) this Court shall retain jurisdiction, 

notwithstanding such dismissal, for the purposes of enforcing the claims, liens, and security 

interests referred to in clause (x) above. 

67. If any or all of the provisions of this Final Order are hereafter reversed, modified, 

vacated or stayed, such reversal, stay, modification, or vacatur shall not affect: (i) the validity, 

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priority, or enforceability of any Adequate Protection Obligations or DIP Obligations incurred 

prior to the actual receipt of written notice by the ABL Agent, the Term Loan Agent, or the DIP 

Agents of the effective date of such reversal, stay, modification, or vacatur; or (ii) the validity, 

priority, or enforceability of the Adequate Protection Liens or DIP Liens. Notwithstanding any 

such reversal, stay, modification, or vacatur, any use of the Prepetition Collateral or any 

Adequate Protection Obligations or DIP Obligations incurred by the Debtors hereunder prior to 

the actual receipt of written notice by the Prepetition Agents of the effective date of such 

reversal, stay, modification, or vacatur, shall be governed in all respects by the original 

provisions of this Final Order, and the Prepetition Secured Parties and DIP Secured Parties shall 

be entitled to all of the rights, remedies, privileges, and benefits granted in section 363(m) of the 

Bankruptcy Code.

68. Subject to section GG of this Final Order, the adequate protection payments made 

pursuant to this Final Order shall not be subject to counterclaim, setoff, subordination, 

recharacterization, defense, or avoidance in the Cases or any Successor Cases (other than a 

defense that the payment has actually been made).

69. Except as expressly provided in this Final Order, the Adequate Protection 

Obligations, the Adequate Protection Claims, the Adequate Protection Liens, the DIP 

Superpriority Claims, the DIP Liens and all other rights and remedies of the Prepetition Secured 

Parties and DIP Secured Parties granted by the provisions of this Final Order shall survive, and 

shall not be modified, impaired or discharged by (i) the entry of an order converting any of the 

Cases to a case under chapter 7 of the Bankruptcy Code, dismissing any of the Cases or by any 

other act or omission, or (ii) the entry of an order confirming a plan of reorganization in any of 

the Cases and, pursuant to section 1141(d)(4) of the Bankruptcy Code, the Debtors have waived 

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any discharge as to any remaining Adequate Protection Obligations and DIP Obligations. The 

terms and provisions of this Final Order shall continue in the Cases and in any Successor Cases, 

and the Adequate Protection Liens, the Adequate Protection Claims, DIP Superpriority Claims, 

DIP Liens, and the other administrative claims granted pursuant to this Final Order, and all other 

rights and remedies of the Prepetition Secured Parties and DIP Secured Parties granted by this 

Final Order shall continue in full force and effect until all Adequate Protection Obligations and 

DIP Obligations are indefeasibly Paid in Full in cash. The survival of this Final Order and all 

provisions thereof pertaining to the ABL Secured Parties and DIP ABL Secured Parties and their 

respective claims, liens, and interests shall not be impaired in any manner whatsoever whether or 

not the Global Settlement is approved and/or becomes effective.

GG. Effect of Stipulations on Third Parties. 

70. The Debtors’ acknowledgments, stipulations, admissions, waivers, and releases 

set forth in this Final Order shall be binding on the Debtors, their respective representatives, 

successor and assigns in all circumstances. The acknowledgments, stipulations, admissions, 

waivers, and releases contained in this Final Order shall also be binding upon the Debtors’ 

estates and all other parties in interest, including the Creditors’ Committee, or any chapter 7 or 

chapter 11 trustee appointed or elected for any of the Debtors (a “Trustee”) and any other person 

acting on behalf of the Debtors’ estates, unless (i) a party with requisite standing granted by 

order of this Court (or another court of competent jurisdiction), has duly filed an adversary 

proceeding, motion, objection or other pleading (a “Challenge”) challenging the validity, 

perfection, priority, extent, or enforceability of the Prepetition Liens or the Prepetition Secured 

Credit Obligations, or asserting or prosecuting any Avoidance Actions or any other claims, 

counterclaims or causes of action, objections, contests, or defenses (collectively, the “Claims and 

Defenses”) against any of the Prepetition Secured Parties in connection with any matter related 

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to the Prepetition Collateral, the Prepetition Liens, or the Prepetition Secured Credit Obligations 

by no later than (a) with respect to the Creditors’ Committee, (i) as it pertains to the Claims and 

Defenses related to the ABL Secured Parties, the earlier of (x) October 2, 2020 and (y) the entry 

of an order confirming a plan of the Debtors or a sale of substantially all of the assets of the 

Debtors, or (ii) as it pertains to the Claims and Defenses related to the Term Loan Secured 

Parties, the date that is the later of (x) the occurrence of the effective date of the Settlement Plan 

and (y) 30 days after the date the Settlement Plan is either withdrawn by the Debtors, modified in 

a manner adverse to the Global Settlement, or confirmation of the Settlement Plan is not 

approved by the Court; (b) with respect to other parties in interest, no later than the date that 

is 75 days after the Petition Date (the time period established by the foregoing clauses (a) 

and (b), as applicable, the “Challenge Period”); provided that in the event that, prior to the 

expiration of the Challenge Period, (x) the Cases are converted to cases under chapter 7 of the 

Bankruptcy Code or (y) a chapter 11 trustee is appointed in the Cases, then in each such case, the 

Challenge Period shall be extended for a period of 15 days following such conversion or 

appointment solely with respect to any Trustee, commencing on the occurrence of either of the 

events described in the foregoing clauses (x) and (y); and (ii) an order is entered by a court of 

competent jurisdiction and becomes final and non-appealable in favor of the plaintiff sustaining 

any such challenge or claim in any such duly filed Challenge. If no such Challenge is timely 

filed prior to the expiration of the Challenge Period, without further order of this Court: (w) the 

Debtors’ acknowledgments, stipulations, admissions, waivers, and releases contained this Final

Order shall binding on all parties in interest, including, without limitation, the Creditors’ 

Committee or any Trustee, (x) the Prepetition Secured Credit Obligations shall constitute 

allowed claims, not subject to any Claims and Defenses (whether characterized as a 

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counterclaim, setoff, subordination, recharacterization, defense, avoidance, contest, attack, 

objection, recoupment, reclassification, reduction, disallowance, recovery, disgorgement, 

attachment, “claim” (as defined by section 101(5) of the Bankruptcy Code), impairment, 

subordination (whether equitable, contractual or otherwise), or other challenge of any kind 

pursuant to the Bankruptcy Code or applicable non-bankruptcy law), for all purposes in the 

Cases and any Successor Cases; (y) the Prepetition Liens shall be deemed to have been, as of the 

Petition Date, legal, valid, binding, perfected and of the priority specified in section E, not 

subject to setoff, subordination, defense, avoidance, impairment, disallowance, 

recharacterization, reduction, recoupment, or recovery; and (z) the Prepetition Secured Credit 

Obligations, the Prepetition Liens on the Prepetition Collateral, and the Prepetition Secured 

Parties (in their capacities as such) shall not be subject to any other or further challenge and any 

party in interest (including any estate representative or a Trustee, whether such Trustee is 

appointed or elected prior to or following the expiration of the Challenge Period) shall be forever 

enjoined and barred from seeking to exercise the rights of the Debtors’ estates or taking any such 

action. If any such Challenge is timely filed as provided above prior to the expiration of the 

Challenge Period, (i) the acknowledgments, stipulations, admissions, waivers, and releases 

contained in this Final Order shall nonetheless remain binding and preclusive on any Creditors’ 

Committee and any other party in the Cases or any Successor Cases, including any Trustee, 

except as to any acknowledgments, stipulations, admissions, waivers, and releases that are 

specifically and expressly challenged in such Challenge and (ii) any Claims and Defenses not 

bought in such Challenge shall be forever barred; provided that, if and to the extent any 

challenges to a particular acknowledgment, stipulation, admission, waiver, or release are 

withdrawn, denied or overruled by a final non-appealable order, such acknowledgment, 

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stipulation, admission, waiver, or release also shall be binding on the Debtors’ estates and all 

parties in interest. The Challenge Period may be extended in writing from time to time in the 

sole discretion of the ABL Agent (with respect to the ABL Loan Documents) and the Term Loan 

Agent (with respect to the Term Loan Documents), or by this Court for good cause shown 

pursuant to an application filed by a party in interest; provided that any such motion or 

application for an order to extend the Challenge Period is filed with the Court prior to the 

expiration of the Challenge Period. 

71. Nothing in this Final Order vests or confers on any person (as defined in the 

Bankruptcy Code), including the Creditors’ Committee, standing or authority to pursue any 

cause of action belonging to the Debtors or their estates, including, without limitation, any 

challenge with respect to the Prepetition Secured Credit Documents or the Prepetition Secured 

Credit Obligations. Notwithstanding anything contained herein to the contrary, the Challenge 

Period in sub-paragraph 70 above will be tolled for the Creditors’ Committee if it formally 

moves for an order of this Court conferring standing or authority (the “Standing Motion”) prior 

to the expiration of the Challenge Period, from the date the Creditors’ Committee so moves until 

such time as standing is granted or denied pursuant to an order of the Court with regard to such 

Standing Motion; provided, that the Challenge Period: (a) will only be tolled if such Standing 

Motion attaches the proposed pleadings identifying the specific Challenge(s) that the Creditors’ 

Committee proposes to assert and the defendant(s) against whom such Challenge(s) are proposed 

to be asserted, and (b) will only be tolled with respect to such Challenge(s) and defendant(s) 

specifically identified therein.

72. Notwithstanding anything in this Final Order or the expiration of the Challenge 

Period, including paragraph 6 (Debtors’ Stipulations), but subject to confirmation of the 

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Settlement Plan, the Creditors’ Committee reserves and preserves its right to seek: 

(i) determination of the value of the Prepetition Collateral securing the Term Loan Obligations; 

(ii) the scope and extent of any Diminution in Value; (iii) the allocation of Cash Collateral usage 

post-petition between the Debtors, including payment of professional fees; and (ii) the Exit 

Conversion set forth in section 2.22 of the DIP Term Loan Agreement, including any issuance of 

equity or new common shares to be issued by the Debtors under a plan of reorganization.

HH. Limitation on Use of Collateral. 

73. Notwithstanding anything herein or in any other order of this Court to the 

contrary, no Prepetition Collateral, DIP Collateral or the proceeds of any of the foregoing, 

including Cash Collateral, or the Carve Out may be used to: (a) investigate, initiate, prosecute, 

join, or finance the initiation or prosecution of any claim, counterclaim, action, suit, arbitration, 

proceeding, application, motion, objection, defense, or other litigation of any type (i) against any

of the DIP Secured Parties or Prepetition Secured Parties (in their capacities as such) including, 

without limitation, for the payment for any services rendered by the Professional Persons in 

connection with the assertion of or joinder in any claim, counterclaim, action, proceeding, 

application, motion, objection, defense, or other contested matter, the purposes of which is to 

seek, or the result of which would be to obtain, any order, judgment, determination, declaration, 

or similar relief that would impair the ability of the DIP Secured Parties to recover on the DIP 

Collateral or of the Prepetition Secured Parties to recover on the Prepetition Collateral, or 

seeking affirmative relief against any of the DIP Secured Parties or Prepetition Secured Parties, 

related to the DIP Documents, the DIP Obligations, the Prepetition Secured Credit Obligations or 

the Prepetition Secured Credit Documents, (ii) seeking to invalidate, set aside, avoid, or 

subordinate, in whole or in part, the DIP Obligations, the DIP Liens on the DIP Collateral, the 

Prepetition Secured Credit Obligations, or the Prepetition Liens on the Prepetition Collateral, or 

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(iii) for monetary, injunctive, or other affirmative relief against the DIP Secured Parties or the 

Prepetition Secured Parties (in their capacities as such), or their respective liens on or security

interests in the DIP Collateral and the Prepetition Collateral that would impair the ability of the 

DIP Secured Parties and Prepetition Secured Parties to assert or enforce any lien, claim, right, or 

security interest or to recover on the DIP Obligations and Prepetition Secured Credit Obligations; 

(b) using or seeking to use Cash Collateral except as provided in this Final Order; (c) objecting

to or challenging in any way the legality, validity, extent, priority, perfection, or enforceability of

the claims, liens, or interests (including the Prepetition Liens) held by or on behalf of each of the

Prepetition Secured Parties related to the Prepetition Secured Credit Obligations or the DIP 

Secured Parties related to the DIP Obligations; (d) asserting, commencing, or prosecuting any 

claims or causes of action whatsoever, including, without limitation, any Avoidance Actions 

related to the Prepetition Secured Credit Obligations, the Prepetition Liens, the DIP Obligations 

or the DIP Liens; (e) prosecuting an objection to, contesting in any manner, or raising any

defenses to the validity, extent, amount, perfection, priority, or enforceability of any of the

Prepetition Liens or DIP Liens or any other rights or interests of any of the Prepetition Secured 

Parties or DIP Secured Parties related to the Prepetition Secured Credit Obligations, the 

Prepetition Liens, the DIP Obligations, or the DIP Liens; (f) seeking to modify any of the rights 

granted to the Prepetition Secured Parties or the DIP Secured Parties hereunder; or (g) paying

any amount on account of any claims arising prior to the Petition Date unless such payments are 

approved by an order of this Court; provided that an amount not to exceed, subject to the Final 

Order, $250,000 in the aggregate, may be used for allowed fees and expenses incurred solely by 

the Creditors’ Committee in investigating (but not prosecuting or challenging), the Claims and 

Defenses. Nothing herein shall relieve the Debtors of any obligation to pay all fees and expenses 

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of the Creditors’ Committees’ professionals as may be allowed pursuant to the Court or in 

connection with any requirements under the Bankruptcy Code for payment of all administrative 

expenses in connection with a plan of reorganization as required under section 1129(a)(9) of the 

Bankruptcy Code or preclude payment from assets or the proceeds thereof that were 

unencumbered as of the Petition Date.

II. Good Faith under Section 364(e) of the Bankruptcy Code.

74. Based on the findings set forth in this Final Order and the record made during the 

Final Hearing, and in accordance with section 364(e) of the Bankruptcy Code, the DIP Secured 

Parties and the Prepetition Secured Parties are entitled to the protections provided in 

section 364(e) of the Bankruptcy Code, this Final Order and the DIP Documents. 

JJ. Binding Effect; Successors and Assigns. 

75. The provisions of this Final Order, including all findings herein, shall be binding 

upon all parties in interest in these Cases and any Successor Cases, including without limitation, 

the Prepetition Secured Parties, the Creditors’ Committee, the DIP Secured Parties, and the 

Debtors and their respective successors and assigns (including any Trustee, an examiner 

appointed pursuant to section 1104 of the Bankruptcy Code, or any other fiduciary appointed as a 

legal representative of any of the Debtors or with respect to the property of the estate of any of 

the Debtors) and shall inure to the benefit of the each of the DIP Secured Parties, Prepetition 

Secured Parties, and the Debtors and their respective successors and assigns; provided that, 

except to the extent expressly set forth in this Final Order, the DIP Secured Parties and the 

Prepetition Secured Parties shall have no obligation to permit the use of the Prepetition Collateral 

(including Cash Collateral) or extend any financing to any Trustee or similar responsible person 

appointed for the estate of any Debtor. For all adequate protection and stay relief purposes 

throughout the Cases, the Prepetition Secured Parties shall be deemed to have requested relief 

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from the automatic stay and adequate protection as of the Petition Date. For the avoidance of 

doubt, such request will survive termination of this Final Order.

KK. Limitation of Liability. 

76. In permitting the use of the Prepetition Collateral or in exercising any rights or 

remedies as and when permitted pursuant to this Final Order the Prepetition Secured Parties shall 

not be deemed to be in control of the operations of the Debtors. Furthermore, nothing in this 

Final Order shall in any way be construed or interpreted to impose or allow the imposition upon 

the ABL Agent, the Term Loan Agent, the DIP Agents, the DIP Secured Parties or the other

Prepetition Secured Parties of any liability for any claims arising from the prepetition or postpetition activities of any of the Debtors and their respective affiliates (as defined in 

section 101(2) of the Bankruptcy Code).

LL. Effectiveness. 

77. This Final Order shall constitute findings of fact and conclusions of law and shall 

take effect immediately upon entry hereof, and there shall be no stay of execution of 

effectiveness of this Final Order. To the extent that any finding of fact shall be determined to be 

a conclusion of law, it shall be so deemed and vice versa. 

MM. Bankruptcy Rules.

78. The requirements of Bankruptcy Rules 4001, 6003, and 6004, in each case to the 

extent applicable, are satisfied by the contents of the Motion.

NN. Proofs of Claim. 

79. Notwithstanding any order entered by this Court in relation to the establishment 

of a bar date in any of the Cases or any Successor Cases to the contrary, the DIP Agents, the DIP 

Lenders, and the Prepetition Secured Parties will not be required to file proofs of claim in any of 

the Cases or Successor Cases for any claims arising under the DIP Documents or the Prepetition 

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Secured Credit Documents or that would constitute DIP Obligations or Prepetition Secured 

Credit Obligations (including, without limitation, the Swap Termination Liability). The Debtors’ 

stipulations in section E of this Final Order shall be deemed to constitute a timely filed proof of 

claim. Any order entered by this Court in relation to the establishment of a bar date for any 

claim (including without limitation, administrative claims) in any of the Cases or Successor 

Cases shall not apply to the DIP Secured Parties or the Prepetition Secured Parties with respect 

to the DIP Obligations or the Prepetition Secured Credit Obligations. Notwithstanding the 

foregoing, each of the DIP Agents, ABL Agent and the Term Loan Agent, on behalf of 

themselves and the applicable other DIP Secured Parties or Prepetition Secured Parties, is hereby 

authorized and entitled, in its sole discretion, but not required, to file (and amend and/or 

supplement, as it sees fit) a single master proof of claim in the Cases for any claims arising under 

the applicable Credit Agreements and hereunder (the “Master Proof of Claim”). Any Master 

Proof of Claim filed by the DIP Agents, ABL Agent or the Term Loan Agent shall be deemed to 

be in addition and not in lieu of any other proof of claim that may be filed by any of the DIP 

Secured Parties or Prepetition Secured Parties. The Master Proof of Claim, if filed, shall not be 

required to identify whether any DIP Secured Party or Prepetition Secured Party acquired its 

claim from another party and the identity of any such party or be amended to reflect a change in 

the holders of the claims set forth therein or a reallocation among such holders of the claims 

asserted therein resulting from the transfer of all or any portion of such claims. The Master 

Proof of Claim, if filed, shall not be required to attach any instruments, agreements or other 

documents evidencing the obligations owing by each of the Debtors to the applicable DIP 

Secured Parties or Prepetition Secured Parties or, which instruments, agreements or other 

documents will be provided upon written request to counsel to the DIP Agents, ABL Agent or 

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the Term Loan Agent. The provisions of this paragraph 79 and the Master Proof of Claim are 

intended solely for the purpose of administrative convenience. 

OO. Global Settlement with Creditors’ Committee.

80. The informal objections of the Creditors’ Committee to this Final Order are 

resolved pursuant to the terms of this Final Order and the settlement provisions on Annex 6

hereto, which terms are agreed upon by the Debtors, the DIP Lenders, the Prepetition Secured 

Parties, and the Creditors’ Committee (the “Global Settlement”) and certain of which terms are 

approved by this Final Order. For the avoidance of doubt, the provisions of the Global 

Settlement relating to the creation of the GUC Trust and the waiver of Avoidance Actions are not 

being approved by this Final Order, but rather shall be incorporated into the revisions to the Joint 

Chapter 11 Plan of Reorganization of Ascena Retail Group, Inc. and Its Debtor Affiliates

[Docket No. 154] (the “Plan”, and as amended to incorporate the Global Settlement, 

the “Settlement Plan”) to be considered at the time of confirmation of the Settlement Plan. 

PP. Chubb’s Reservation of Rights. 

81. For the avoidance of doubt, (i) to the extent ACE American Insurance Company 

and/or any of its affiliates (collectively, and together with each of their successors, “Chubb”) had 

valid and enforceable lines and/or security interests on property (including Cash Collateral) of 

the Debtors as of the Petition Date, such liens and/or security interests shall be senior to any liens 

and/or security interests granted pursuant to this Final Order, (ii) this Final Order does not grant 

the Debtors any right to use any property (or the proceeds thereof) held by Chubb as collateral to 

secure obligations under insurance policies and related agreements; and (iii) nothing, including 

the DIP Agreements and/or this Final Order, alters or modifies the terms and conditions of any 

insurance policies issued by Chubb and any agreements related thereto.

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QQ. Comenity’s Reservation of Rights.

82. Comenity Bank’s, f/k/a World Financial Network Bank (referred to herein 

as “Comenity”) rights of setoff and/or recoupment with respect: to (a) that certain Amended and 

Restated Co-Brand and Private Label Credit Card Program Agreement dated December 2, 2013 

(as amended and/or modified from time to time, the “Ann Taylor Program Agreement”) by and 

between Comenity and Ann Inc.; (b) that certain Co-Brand and Private Label Credit Card 

Program Agreement dated June 21, 2019 (as amended and/or modified from time to time, 

the “Maurices Program Agreement”) by and among Comenity, Ascena Retail Group, Inc. and 

certain affiliates thereof, and Maurices, Incorporated; (c) that certain Private Label Credit Card 

Plan Agreement for Catherines dated August 12, 2009 (as amended and/or modified from time to 

time, the “Catherines Plan Agreement”) by and between Comenity, as successor in interest to 

World Financial Network National Bank, and Catherines Stores Corporation; and (d) that certain 

Private Label Credit Card Plan Agreement for Lane Bryant dated August 12, 2009 (as amended 

and/or modified from time to time, the “Lane Bryant Plan Agreement,” and together with the 

Ann Taylor Program Agreement, the Maurices Program Agreement, and the Catherines Plan 

Agreement, the “Program Agreements”) by and among Comenity, as successor in interest to 

World Financial Network National Bank, Lane Bryant, Inc., Outlet Division Management Co., 

Inc., Petite Sophisticate, Inc., and Sierra Nevada Factoring, Inc.: (i) shall not be affected, 

modified, waived, primed, subordinated, or impaired in any way by this Final Order, (ii) shall not 

be made subject to, subordinated by, or pari passu with any (x) secured financing, security 

interests, or liens, and/or (y) super priority, administrative, or adequate protection claims.

83. Comenity’s right to use the Debtors’ trademarks, service marks, and/or other 

rights pertaining to the Debtors’ names as set forth in the Program Agreements: (a) shall not be 

affected, modified, waived, primed, subordinated, or impaired in any way by this Final Order, (b)

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shall not be made subject to, subordinated by, or pari passu with any (i) secured financing, 

security interests, or liens, and/or (ii) super priority, administrative, or adequate protection 

claims.

84. The Debtors shall maintain the confidentiality of the Program Agreements and

related information as provided therein, and neither the Program Agreements nor any 

information related to or received by the Debtors in connection with the Program Agreements 

shall be disclosed to any third party, including, but not limited to, through inclusion in any data 

room, except as permitted in accordance with the terms of the Program Agreements or by 

agreement of the parties.

85. All of Comenity’s rights, remedies, claims, defenses, and other relief arising from 

or related to the Program Agreements (including, but not limited to, those set forth in 

sections (a), (b), and (c) of paragraph 82 of this Final Order) are expressly preserved and 

reserved.

RR. Provisions Related to Leases.

86. For the avoidance of doubt and notwithstanding anything to the contrary 

contained herein, any loan documents, any other orders of the Court, or otherwise, unless 

otherwise expressly permitted by the terms of the applicable lease, any liens granted under this 

Final Order shall not include the Debtors’ real property leases, the leased premises, or the 

Debtors’ interests in any such leases or premises, but shall include the proceeds from the 

disposition of all such leases.

SS. Provisions Related to Tax Liens.

87. Notwithstanding any other provisions in this Final Order, any agreements 

approved hereby, or any other orders in the Cases, any statutory liens (collectively, the “Tax 

Liens”) of certain local government taxing authorities (collectively, the “Objecting Local Tax 

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72

Authorities”)8 shall not be primed by nor made subordinate to any liens granted to any party 

hereby to the extent such Tax Liens are valid senior, perfected, and unavoidable. To the extent 

any of the Debtors’ assets subject to the Objecting Local Tax Authorities’ Liens are sold, 

transferred, or otherwise disposed of, in each case pursuant to and in accordance with any sale 

orders authorized by the Court, the Objecting Local Tax Authorities’ Liens shall attach to the 

proceeds of such assets to the same extent and with the same priority as existed prior to such 

sale, transfer, or other disposition. All parties’ rights to object to the priority, validity, amount, 

and extent of the claims and liens asserted by the Objecting Local Tax Authorities are fully 

preserved.

88. Notwithstanding any other provisions of this Final Order, any DIP Order, or any 

agreements validated by any such orders, from the proceeds of the sale of the Debtors’ assets at 

store locations within the jurisdictions of the Objecting Local Tax Authorities, the amount 

of $1,024,000 shall be set aside by the Debtors in a segregated account (the “Tax Account”) as 

adequate protection for the asserted unpaid secured claims for the pre-petition taxes owed on any 

8 The Objecting Local Tax Authorities shall mean Allen, Allen ISD, Angelina County, Bexar County, Cameron 

County, Carrollton, Cypress-Fairbanks ISD, Dallas County, Ector CAD, El Paso, Ellis County, Fort Bend Co 

WCID # 02, Fort Bend County, Frisco, Galveston County, Grayson County, Gregg County, Harris County, 

Hidalgo County, Hood CAD, Jefferson County, Kaufman County, Lamar CAD, Lewisville ISD, McAllen, 

McLennan County, Montgomery County, Nueces County, Parker CAD, Rockwall CAD, San Marcos CISD, 

Smith County, Stephenville, Stephenville ISD, Tarrant County, and Victoria County (jointly the “Local Texas 

Tax Authorities,” for which $695,000 of the total Tax Account is attributable to their claims); Bell County Tax 

Appraisal District, Bowie Central Appraisal District, Brazos County, Denton County, Guadalupe County, Hays 

County, City of Waco, Midland Central Appraisal District, Taylor CAD, Williamson County (jointly the “Texas 

Taxing Authorities,” for which $95,000 of the Tax Account is attributable to their claims); Alief ISD, Arlington 

ISD, Brazoria County Tax Office, Carrollton-Farmers Branch ISD, Clear Creek ISD, Cinco MUD #12, City of 

Garland, City of Grapevine, City of Highland Village, City of Houston, City of Katy, City of Lake Worth, City 

of Rosenberg, City of Tomball, Crowley ISD, Dickinson ISD, Fort Bend LID #2, Fort Bend ISD, Frisco ISD, 

Galveston County MUD #54, Garland ISD, Grapevine-Colleyville ISD, Harris County MUD #257, Harris 

County MUD #358, Harris County WCID #116, Harris County WCID #155, Humble ISD, Katy Management 

District #1, Lubbock Central Appraisal District, Malcolmson Road UD, Memorial Villages Water Auth., 

Midland County, Pasadena ISD, Potter County Tax Office, Randall County Tax Office, Richardson ISD, Spring 

Branch ISD, Spring ISD, Tomball ISD, Tyler ISD, West HC MUD #6, Wichita County, Willowfork DD, 

Woodlands Metro Center MUD, Woodlands RUD #1 (jointly the “Certain Texas Taxing Entities” for which 

$211,000 of the Tax Account is attributable to their claims); and the Maricopa County Treasurer (for which 

$23,000 of the Tax Account is attributable to its claim).

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stores located in the jurisdictions the Objecting Local Tax Authorities prior to the distribution of 

any proceeds to any other creditor. The liens of the Objecting Local Tax Authorities shall attach 

to these proceeds to the same extent and with the same priority as the liens they now assert 

against the property of the Debtors. These funds shall be on the order of adequate protection and 

shall constitute neither the allowance of the asserted claims of the Objecting Local Tax 

Authorities, nor a cap on the amounts they may be entitled to receive. Furthermore, the asserted 

claims and liens of the Objecting Local Tax Authorities shall remain subject to any objections 

any party would otherwise be entitled to raise as to the priority, validity, or extent of such liens. 

These funds may be distributed only upon agreement between the Objecting Local Tax 

Authorities and the Debtors, with the prior consent of the Agent and DIP Agent, or by 

subsequent order of the Court, duly noticed to the Objecting Local Tax Authorities. All such 

funds, as applicable, shall be Cash Collateral of the DIP Agents with all rights reserved.

TT. Jurisdiction. 

89. This Court shall retain jurisdiction to enforce the terms of this Final Order and to 

adjudicate any and all matters arising from or related to the interpretation or implementation of 

this Final Order.

UU. Controlling Effect of Final Order. 

90. To the extent any provision of this Final Order conflicts or is inconsistent with 

any provision of the Interim Order or the Motion, the provisions of this Final Order shall control 

to the extent of such conflict. In the event of any conflict or inconsistency between or among the 

terms or provisions of this Final Order, any of the DIP Documents, unless such term or provision 

in this Final Order is phrased in terms of “defined in” or “as set forth in” the DIP Documents, the 

terms and provisions of this Final Order shall govern and control.

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Dated: __________

Richmond, Virginia UNITED STATES BANKRUPTCY JUDGE

Sep 10 2020 /s/ Kevin R Huennekens

Entered on Docket: Sep 10 2020

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WE ASK FOR THIS:

/s/ Cullen D. Speckhart 

KIRKLAND & ELLIS LLP COOLEY LLP

Cullen D. Speckhart (VSB 79096)

Admitted to practice in New York, Virginia, Missouri and 

Texas; Not admitted to practice in DC, supervised by 

members of DC bar

Olya Antle (VSB 83153)

Admitted to practice in Virginia; Not admitted to practice in 

DC, supervised by members of DC bar

1299 Pennsylvania Avenue, NW, Suite 700

Washington, DC 20004-2400

Telephone: (202) 842-7800

Facsimile: (202) 842-7899

KIRKLAND & ELLIS INTERNATIONAL LLP

Edward O. Sassower, P.C. 

Steven N. Serajeddini, P.C. (admitted pro hac vice)

601 Lexington Avenue

New York, New York 10022

Telephone: (212) 446-4800

Facsimile: (212) 446-4900

-andJohn R. Luze (admitted pro hac vice)

300 North LaSalle

Chicago, Illinois 60654

Telephone: (312) 862-2000

Facsimile: (312) 862-2200

Co-Counsel to the Debtors and Debtors in Possession

CERTIFICATION OF ENDORSEMENT 

UNDER LOCAL BANKRUPTCY RULE 9022-1(C)

Pursuant to Local Bankruptcy Rule 9022-1(C), I hereby certify that the foregoing proposed order has been endorsed by 

or served upon all necessary parties.

 /s/ Cullen D. Speckhart

 

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Annex 1: Budget

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1

Annex 2: Cash Collateral Termination Events

Any of the following shall constitute a Cash Collateral Termination Event:

(a) Cross-default to any material prepetition indebtedness that is not stayed by 

the automatic stay in the Cases;

(b) An order shall be entered reversing, adversely amending, supplementing, 

staying, or vacating any material provisions of this Final Order without the 

prior consent of the ABL Agent and the Term Loan Agent;

(c) The Final Order shall cease to be in full force and effect or shall have been 

reversed, modified, amended, stayed, vacated or subject to stay pending 

appeal, in the case of any modification or amendment (other than entry of 

the Final Order);

(d) The Court shall have entered an order dismissing any of the Cases absent 

consent of the Prepetition Secured Parties;

(e) The Court shall have entered an order converting any of the Cases to a 

case under chapter 7 of the Bankruptcy Code, unless the ABL Agent and 

the Term Loan Agent have consented to such order in writing;

(f) The Debtors permit the amount of end of day cash and cash equivalents of 

any of their non-Debtor subsidiaries as of the end of the day on Friday of 

each calendar week on deposit in or credited to any account maintained by 

any such non-Debtor subsidiaries to exceed $45,000,000 in the aggregate 

for all non-Debtor subsidiaries, excluding from such covenant any 

payments made (or to be made) from the Maurice business segments or 

entities;

(g) The Court shall have entered an order authorizing the appointment or 

election of a trustee or examiner with expanded powers beyond those set 

forth in section 1106(a)(3) and (4) of the Bankruptcy Code or any other 

representative (including any trustee or receiver) with expanded powers 

relating to the operation of the businesses in the Cases, unless consented to 

in writing by the ABL Agent and the Term Loan Agent; 

(h) A filing by any Debtor of any motion, pleading, application, or adversary 

proceeding challenging the validity, enforceability, perfection or priority 

of the liens securing the Credit Facilities or asserting any other cause of 

action against and/or with respect to the Credit Facilities, the Prepetition 

Collateral, the Prepetition Agents, any of the Prepetition Secured Parties 

(or if the Debtors support any such motion, pleading, application, or 

adversary proceeding commenced by any third party);

(i) The failure of the Debtors to perform, in any material respect, any of the 

terms, provisions, conditions, covenants, or obligations under this Final

Order;

(j) Except with respect to any financings or related transactions contemplated 

by the Motion, the filing of a motion by and of the Debtors: (i) to obtain 

additional financing under section 364(d) of the Bankruptcy Code not 

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2

otherwise permitted pursuant to this Final Order; (ii) to grant any lien 

other than Permitted Prior Liens upon or affecting any Prepetition 

Collateral; or (iii) except as provided in this Final Order, to use Cash 

Collateral under section 363(c) of the Bankruptcy Code;

(k) The entry of any order terminating any Debtor’s exclusive right to file a 

chapter 11 plan (unless actively contested by the Debtors) or the 

expiration of any Debtor’s exclusive right to file a chapter 11 plan;

(l) The entry of an order amending, supplementing, staying, vacating or 

otherwise modifying the Final Order or any orders relating to cash 

management, the filing by a Debtor of a motion for reconsideration with 

respect to the Final Order or any orders relating to cash management or 

the Final Order shall cease to be in full force and effect;

(m) The payment of, or application by the Debtors for authority to pay, any 

prepetition claim unless in accordance with the Budget, subject to 

variances permitted by this Final Order;

(n) The existence of any claim or charges, or the entry of any order of the 

Court authorizing any claims or charges, entitled to superpriority 

administrative expense claim status in any Case pursuant to section 

364(c)(1) of the Bankruptcy Code pari passu with or senior to the claims 

of the Prepetition Secured Parties under this Final Order, or there shall 

arise or be granted by the Court (i) any claim having priority over any or 

all administrative expenses of the kind specified in clause (b) of section 

503 or clause (b) of section 507 of the Bankruptcy Code or (ii) any lien on 

the Prepetition Collateral having a priority senior to or pari passu with the 

liens and security interests granted herein, except, in each case, as 

expressly provided in this Final Order;

(o) Any Debtor shall challenge or file a joinder to a challenge of any 

payments made with respect to the Prepetition Secured Credit Obligations 

or the Adequate Protection Obligations;

(p) The entry of any order by the Court granting, or the filing by any Debtor 

of any motion or other request with the Court seeking authority to use cash 

proceeds of any of the Postpetition Collateral or Prepetition Collateral 

other than as set forth in this Final Order or to obtain any financing under 

section 364(d) of the Bankruptcy Code (other than as contemplated by the 

Motion);

(q) Any Debtor shall make any payment (whether by way of adequate 

protection or otherwise) of principal or interest or otherwise provide any 

credit on account of any prepetition indebtedness or payables other than 

payments (i) under customary “first day orders” as approved by the 

Prepetition Agents in writing (provided that this Final Order and all orders 

relating to cash management shall be acceptable to the Prepetition Agents) 

and (ii) approved (A) by the Court or (B) by the Prepetition Agents in 

writing, in each case in accordance with the Budget, subject to variances 

permitted by this Final Order;

(r) The entry of an order applying (i) the “equities of the case” exception 

under section 552(b) of the Bankruptcy Code to any of the Prepetition 

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Secured Parties, with respect to proceeds, products, offspring or profits of 

any of the Prepetition Collateral; or (ii) requiring any of the Prepetition 

Secured Parties to be subject to the equitable doctrine of “marshaling”;

(s) The failure of the Debtors to (i) file, within ten (10) business days of the 

Petition Date, a motion seeking to extend the section 365(d)(4) deadline to 

210 days from the Petition Date, or (ii) obtain an order, within fifty (50) 

days of the Petition Date, an order extending the section 365(d)(4) 

deadline to 210 days from the Petition Date;

(t) Solely to the extent that segregated cash pledged in a restricted account 

pledged in favor of the ABL Agent does not exceed the amount of ABL 

Obligations then outstanding, the failure of the effective date to occur 

within one-hundred thirty (130) days of the Petition Date of a plan that 

provides for the ABL Obligations being Paid in Full on the effective date;

(u) The automatic stay shall be modified, reversed, revoked or vacated in a 

manner that has a material adverse impact on the rights and interests of the

Prepetition Agents or the Prepetition Secured Parties; or

(v) The Court shall have entered an order avoiding, disallowing, 

subordinating or recharacterizing any claim, lien, or interest held by any 

Prepetition Secured Party arising under the Credit Agreements, unless (i) 

the Debtors have sought a stay of such order within five (5) business days 

after the date of such issuance, and such order is stayed, reversed or 

vacated within ten (10) business days after the date of such issuance or (ii) 

the Prepetition Agents have consented to such order.

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Annex 3: Form of DIP Term Loan Agreement

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$[311,800,000]

SENIOR SECURED SUPER-PRIORITY DEBTOR-IN-POSSESSION

TERM CREDIT AGREEMENT

dated as of

September [ ], 2020,

among

ASCENA RETAIL GROUP, INC.,

as Parent Borrower

ANNTAYLOR RETAIL, INC.,

as Subsidiary Borrower

The LENDERS Party Hereto

and

ALTER DOMUS (US) LLC,

as Administrative Agent

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TABLE OF CONTENTS

Page

i

ARTICLE I

Definitions

SECTION 1.01. Defined Terms 2

SECTION 1.02. Classification of Loans and Borrowings 34

SECTION 1.03. Terms Generally 34

SECTION 1.04. Accounting Terms; GAAP 35

SECTION 1.05. Classification of Actions 35

SECTION 1.06. Divisions 35

ARTICLE II

The Credits

SECTION 2.01. Commitments 36

SECTION 2.02. Loans and Borrowings 36

SECTION 2.03. Requests for Borrowings 37

SECTION 2.04. Funding of Borrowings 37

SECTION 2.05. Interest Elections 38

SECTION 2.06. Termination of Commitments39

SECTION 2.07. Repayment of Loans; Evidence of Debt 39

SECTION 2.08. Amortization of Term Loans 40

SECTION 2.09. Prepayment of Loans 40

SECTION 2.10. Fees 42

SECTION 2.11. Interest42

SECTION 2.12. Alternate Rate of Interest 43

SECTION 2.13. Increased Costs 44

SECTION 2.14. Break Funding Payments 45

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ii

SECTION 2.15. Taxes 46

SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Setoffs 50

SECTION 2.17. Mitigation Obligations; Replacement of Lenders 52

SECTION 2.18. [Reserved] 53

SECTION 2.19. [Reserved] 53

SECTION 2.20. Joint and Several Liability of the Borrowers 53

SECTION 2.21. Super-Priority Nature of Obligations and Administrative 

Agent’s Liens; Payment of Obligations 54

SECTION 2.22. Conversion to Exit Facility Agreement 55

ARTICLE III

Representations and Warranties

SECTION 3.01. Organization; Powers 56

SECTION 3.02. Authorization; Enforceability; Benefit to Loan Parties

56

SECTION 3.03. Governmental Approvals; No Conflicts 56

SECTION 3.04. Financial Condition; No Material Adverse Change 57

SECTION 3.05. Properties 57

SECTION 3.06. Litigation and Environmental Matters 57

SECTION 3.07. Compliance with Laws and Agreements 58

SECTION 3.08. Investment Company Status 58

SECTION 3.09. Taxes 58

SECTION 3.10. ERISA; Labor Matters 59

SECTION 3.11. [Reserved] 59

SECTION 3.12. Subsidiaries and Joint Ventures 59

SECTION 3.13. Insurance 60

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SECTION 3.14. Federal Reserve Regulations 60

SECTION 3.15. [Reserved] 60

SECTION 3.16. Collateral Matters 60

SECTION 3.17. Use of Proceeds 60

SECTION 3.18. Approved Budget 61

SECTION 3.19. Chapter 11 Cases 61

ARTICLE IV

Conditions

SECTION 4.01. Conditions to Effective Date and Availability of the Term 

Loans 62

SECTION 4.02 Conditions to the New Money Loan. 63

ARTICLE V

Affirmative Covenants

SECTION 5.01. Financial Statements and Other Information 64

SECTION 5.02. Notices of Material Events 67

SECTION 5.03. Collateral Obligations; Additional Subsidiaries 68

SECTION 5.04. Information Regarding Collateral 68

SECTION 5.05. Existence; Conduct of Business 69

SECTION 5.06. Payment of Obligations 70

SECTION 5.07. Maintenance of Properties 70

SECTION 5.08. Insurance 70

SECTION 5.09. Books and Records; Inspection and Rights 70

SECTION 5.10. Compliance with Laws 71

SECTION 5.11. Bankruptcy Matters 71

SECTION 5.12. Maintenance of Ratings 72

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SECTION 5.13. Certain Post-Closing Collateral Obligations 72

SECTION 5.14. Reserved 72

SECTION 5.15. Conference Calls 72

ARTICLE VI

Negative Covenants

SECTION 6.01. Indebtedness; Certain Equity Securities 73

SECTION 6.02. Liens 74

SECTION 6.03. Fundamental Changes; Business Activities 76

SECTION 6.04. Investments, Loans, Advances, Guarantees and 

Acquisitions 76

SECTION 6.05. Asset Sales 78

SECTION 6.06. Sale/Leaseback Transactions 79

SECTION 6.07. Swap Agreements 79

SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness

79

SECTION 6.09. Transactions with Affiliates 81

SECTION 6.10. Restrictive Agreements 81

SECTION 6.11. Amendment of Organizational Documents 82

SECTION 6.12. Financial Covenants 82

SECTION 6.13. Accounting Changes 83

SECTION 6.14. Sanctions 83

SECTION 6.15. Anti-Corruption Laws83

ARTICLE VII

Events of Default

ARTICLE VIII

The Administrative Agent

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ARTICLE IX

Miscellaneous

SECTION 9.01. Notices 93

SECTION 9.02. Waivers; Amendments 95

SECTION 9.03. Expenses; Indemnity; Damage Waiver 97

SECTION 9.04. Successors and Assigns 99

SECTION 9.05. Survival 103

SECTION 9.06. Counterparts; Integration; Effectiveness; Electronic 

Execution 104

SECTION 9.07. Severability 104

SECTION 9.08. Right of Setoff104

SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process

105

SECTION 9.10. WAIVER OF JURY TRIAL 105

SECTION 9.11. Headings 106

SECTION 9.12. Confidentiality 106

SECTION 9.13. Several Obligations; Nonreliance; Violation of Law 106

SECTION 9.14. USA Patriot Act Notice 106

SECTION 9.15. Interest Rate Limitation 107

SECTION 9.16. Release of Liens and Guarantees 107

SECTION 9.17. No Fiduciary Relationship 107

SECTION 9.18. Non-Public Information 108

SECTION 9.19. Intercreditor Agreement 108

SECTION 9.20. Acknowledgement and Consent to Bail-In of EEA 

Financial Institutions 109

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SCHEDULE:

Schedule 2.01 — Commitments

Schedule 3.05 — Real Property

Schedule 3.06 — Disclosed Matters

Schedule 3.12 — Subsidiaries and Joint Ventures

Schedule 3.13 — Insurance

Schedule 5.11 — Required Milestones

Schedule 6.01 — Pre-Petition Indebtedness

Schedule 6.02 — Liens

Schedule 6.04 — Investments

Schedule 6.09 — Transactions with Affiliates

Schedule 6.10 — Restrictive Agreements

EXHIBITS:

Exhibit A — Form of Assignment and Assumption

Exhibit B — Form of Borrowing Request

Exhibit C — Form of Guarantee and Collateral Agreement

Exhibit D — Form of Compliance Certificate

Exhibit E — Form of Interest Election Request

Exhibit F — [Reserved]

Exhibit G — Form of Exit Facility Term Sheet

Exhibit H-1 — Form of U.S. Tax Certificate for Non-U.S. Lenders that are not 

Partnerships for U.S. Federal Income Tax Purposes

Exhibit H-2 — Form of U.S. Tax Certificate for Non-U.S. Lenders that are Partnerships 

for U.S. Federal Income Tax Purposes

Exhibit H-3 — Form of U.S. Tax Certificate for Non-U.S. Participants that are not 

Partnerships for U.S. Federal Income Tax Purposes

Exhibit H-4 — Form of U.S. Tax Certificate for Non-U.S. Participants that are 

Partnerships for U.S. Federal Income Tax Purposes

Exhibit I — [Reserved]

Exhibit J — Form of Variance Report

Exhibit K — Form of Note

Annex A — Approved Budget 

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SENIOR SECURED SUPER-PRIORITY DEBTOR-IN-POSSESSION TERM CREDIT 

AGREEMENT, dated as of September [ ], 2020, among ASCENA RETAIL GROUP, INC., a 

Delaware corporation, as debtor and debtor-in-possession (the “Parent Borrower”), 

ANNTAYLOR RETAIL, INC., a Florida corporation as debtor and debtor-in-possession (the 

“Subsidiary Borrower” and, together with the Parent Borrower, the “Borrowers” and each, a 

“Borrower”), the LENDERS party hereto and Alter Domus (US) LLC (“Alter Domus”), as 

Administrative Agent.

On July 23, 2020 (the “Petition Date”), the Borrowers and the other Loan Parties 

(collectively, the “Debtors”, and each individually, a “Debtor”) commenced voluntary cases 

(collectively, the “Cases” and each individually, a “Case”) in the United States Bankruptcy Court 

for the Eastern District of Virginia Richmond Division (the “Court”). The Debtors continue to 

operate their businesses and manage their properties as debtors and debtors-in-possession 

pursuant to Sections 1107 and 1108 of the Bankruptcy Code.

Prior to the Petition Date, the Lenders provided financing to the Borrowers 

pursuant to that certain Term Credit Agreement dated as of August 21, 2015, among the 

Borrowers, the other Loan Parties, the Pre-Petition Lenders and Goldman Sachs Bank USA, as 

the Pre-Petition Agent and the other parties thereto (as amended, amended and restated, 

supplemented or otherwise modified from time to time through the date hereof, the “Pre-Petition 

Credit Agreement”).

As of the Petition Date, the Pre-Petition Lenders under the Pre-Petition Credit 

Agreement were owed approximately $1,271,597,089 in Loans (as defined in the Pre-Petition 

Credit Agreement), plus interest, fees, costs and expenses and all other Pre-Petition Lender 

Obligations under the Pre-Petition Credit Agreement. 

The Loan Document Obligations under and as defined in the Pre-Petition Credit 

Agreement are secured by a security interest in substantially all of the existing and after-acquired 

assets of the Borrowers and the other Loan Parties as more fully set forth in the Pre-Petition 

Loan Documents, and such security interest is perfected and, with certain exceptions, as 

described in the Pre-Petition Loan Documents, has priority over other security interests.

The Borrowers have requested, and, upon the terms set forth in this Agreement, 

the Lenders have agreed to make or be deemed to have made available to the Borrowers, a senior 

secured super priority term credit facility of up to $[311,800,000] in the aggregate that is 

automatically convertible into a secured exit facility upon the satisfaction (or waiver) of certain 

conditions in the form of a term facility to be made available to the Borrowers at any time until 

the Maturity Date subject to the terms and conditions set forth herein (the “Term Credit 

Facility”).

The Borrowers and other Loan Parties have agreed to secure all of their Loan 

Document Obligations under the Loan Documents by granting to the Administrative Agent, for 

the benefit of the Administrative Agent and the other Secured Parties, a security interest in and 

lien upon all of their existing and after-acquired personal and real property, subject to the 

Intercreditor Agreement and the limitations and priorities contained in the Loan Documents and 

the Order.

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Accordingly, in consideration of the mutual agreements herein contained and other good 

and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the 

parties hereto agree as follows:

ARTICLE I

Definitions

SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have 

the meanings specified below:

“ABL Agent” means the Person acting as agent under the ABL Credit Agreement, in its 

individual capacity, and its successors. 

“ABL Credit Agreement” means the Senior Secured Super-Priority Debtor-In-Possession 

Credit Agreement, dated the Funding Date, among the Parent Borrower, the borrowing 

subsidiaries party thereto, the other loan parties party thereto, the lenders party thereto and the 

ABL Agent, as administrative agent, as amended, restated, supplemented, modified, renewed, 

refunded, replaced or refinanced from time to time through the date hereof. 

“ABL Lenders” means the lenders under the ABL Credit Agreement.

“ABL Priority Collateral” has the meaning set forth in the Intercreditor Agreement.

“ABR,” when used in reference to any Loan or Borrowing, refers to whether such Loan, 

or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the 

Alternate Base Rate.

“Acceptable Plan” means a Plan of Reorganization that is consistent with the RSA and 

otherwise satisfactory to the Required Lenders and the Loan Parties in their reasonable 

discretion (as the same may be amended, supplemented, or modified from time to time after 

entry thereof in accordance with the terms thereof); it being agreed that the Plan (as defined in 

the RSA) is an “Acceptable Plan” to the Required Lenders.

“Actual Net Cash Flow Amount” means the actual net cash flows of the Loan Parties 

during the relevant period of determination which corresponds to each of the Budgeted Net Cash 

Flow Amounts described in the line item contained in the Approved Budget across from the 

heading “Unlevered Operating Cash Flow, Including Restructuring”.

“Ad Hoc Committee” means the ad hoc committee of Consenting Stakeholders (as 

defined in the RSA).

“Ad Hoc Committee Advisors” means Greenhill Partners and Milbank LLP, the advisors 

of the Ad Hoc Committee.

“Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest 

Period, an interest rate per annum (rounded to the nearest 1/16 of 1%) equal to (a) the LIBO Rate 

for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided that, 

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notwithstanding the foregoing, in the case of the Term Loans, the Adjusted LIBO Rate shall at 

no time be less than 1.00% per annum.

“Administrative Agent” means Alter Domus (US) LLC, in its capacity as administrative 

agent hereunder and under the other Loan Documents, and its successors in such capacity as

provided in Article VIII.

“Administrative Agent Fee Letter” means that certain Fee Letter dated as of even date 

herewith between the Borrowers and Alter Domus.

“Administrative Questionnaire” means an Administrative Questionnaire in a form 

supplied by the Administrative Agent.

“Affiliate” means, with respect to a specified Person, another Person that directly or 

indirectly Controls or is Controlled by or is under common Control with the Person specified.

“Agreement” means this Senior Secured Super-Priority Debtor-In-Possession Term 

Credit Agreement, as modified, supplemented, amended or restated from time to time.

“Alter Domus” has the meaning set forth in the introductory paragraph hereto.

“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of 

(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such 

day plus 1/2 of 1% per annum and (c) the Adjusted LIBO Rate on such day (or if such day is not 

a Business Day, the immediately preceding Business Day) for a deposit in dollars with a maturity 

of one month plus 1% per annum; provided that, for the avoidance of doubt, the Adjusted LIBO 

Rate for any day shall be based on the Screen Rate (or the Interpolated Screen Rate, as 

applicable) at approximately 11:00 a.m., London time, on such day for a deposit in dollars with a 

maturity of one month. Any change in the Alternate Base Rate due to a change in the Prime 

Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective from and

including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate 

or the Adjusted LIBO Rate, respectively. Notwithstanding the foregoing, in the case of the Term 

Loans, the Alternate Base Rate shall at no time be less than 2.00% per annum.

“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction 

applicable to the Parent Borrower and its Subsidiaries from time to time concerning or relating to 

bribery or corruption, including the United States Foreign Corrupt Practices Act of 1977 and the 

UK Bribery Act 2010.

“Applicable Rate” means, for any day, with respect to any Term Loan, (i) 11.75% in the 

case Eurodollar Term Loans and (ii) 10.75% in the case of ABR Term Loans.

“Approved Budget” means the budget prepared by the Parent Borrower in form and 

substance reasonably satisfactory to the Ad Hoc Committee Advisors, it being understood and 

agreed that the budget in the form of Annex A and initially furnished to the Administrative 

Agent on or prior to the Effective Date is deemed reasonably satisfactory to the Ad Hoc 

Committee Advisors, as the same may be updated, modified or supplemented from time to time 

as provided in Section 5.01. The initial Approved Budget shall depict, on a weekly and line item 

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basis, (i) projected cash receipts, (ii) projected cash disbursements (including ordinary course 

operating expenses, bankruptcy-related expenses (including professional fees of the Loan 

Parties’ professionals and advisors), asset sales and any other fees and expenses relating to the 

Loan Documents), (iii) net cash flows, (iv) Liquidity and (v) professional fees and disbursements 

with respect to the Loan Parties’ professionals, in each case for the first thirteen (13) week period 

from the Effective Date, and such initial Approved Budget shall be approved by, and in form and 

substance reasonably satisfactory to, the Administrative Agent and the Required Lenders in their 

sole discretion (it being acknowledged and agreed that the initial Approved Budget attached 

hereto as Annex A is approved by and reasonably satisfactory to the Administrative Agent and 

the Required Lenders).

“Approved Fund” means any Person (other than a natural person that is engaged in 

making, purchasing, holding or investing in commercial loans and similar extensions of credit in 

the ordinary course of its activities and that is administered or managed by (a) a Lender, (b) an 

Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a 

Lender.

“Asset Sale” has the meaning set forth in Section 6.05.

“Asset Sale Escrow Account” means a Deposit Account in the name of the Parent 

Borrower subject to a blocked Control Agreement in favor of the Administrative Agent, on 

behalf of the Secured Parties, in which the proceeds of Asset Sales shall be deposited in 

accordance with Section 2.09.

“Assignment and Assumption” means an assignment and assumption entered into by a 

Lender and an Eligible Assignee, with the consent of any Person whose consent is required by 

Section 9.04, and accepted by the Administrative Agent, in the form of Exhibit A or any other 

form approved by the Administrative Agent.

“Automatic Stay” means the automatic stay provided under Section 362 of the 

Bankruptcy Code.

“Backstop Lender” means each Lender who is party to the Commitment Letter.

“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 such EEA Financial 

Institution.

“Bail-In Legislation” means, with respect to 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. 

“Bankruptcy Code” means the Bankruptcy Reform Act of 1978, as codified at 11 U.S.C. 

§§ 101 et seq.

“Bankruptcy Rules” means the Federal Rules of Bankruptcy Procedure, as the same may 

from time to time be in effect and applicable to the Cases.

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“Board of Governors” means the Board of Governors of the Federal Reserve System of 

the United States of America.

“Borrowers” has the meaning set forth in the introductory paragraph hereto.

“Borrowing” means Loans of the same Type made, converted or continued on the same 

date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.

“Borrowing Request” means a request by the Borrowers for a Borrowing in accordance 

with Section 2.03, which shall be, in the case of any such written request, in the form of 

Exhibit B or any other form approved by the Administrative Agent.

“Budgeted Net Cash Flow Amount” means the amount described in the line item 

contained in the Approved Budget across from the heading “Unlevered Operating Cash Flow 

Including Restructuring”, during the relevant period of determination.

“Business Day” means any day that is not a Saturday, Sunday or other day on which 

commercial banks in New York City are authorized or required by law to remain closed; 

provided that, when used in connection with a Eurodollar Loan, the term “Business Day” shall 

also exclude any day on which banks are not open for dealings in dollar deposits in the London 

interbank market.

“Capital Lease Obligations” of any Person means 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 capital leases on a balance sheet of such Person under GAAP (as in effect on 

December 31, 2018, notwithstanding any modification or interpretative change thereto after such 

date and excluding the effect to any treatment of lease under Accounting Standards Codification 

842 (or any other Accounting Standards Codification or Financial Accounting Standard have a 

similar result or effect)), the amount of such obligations shall be the capitalized amount thereof 

determined in accordance with GAAP.

“Carve Out” has the meaning set forth in the Order.

“Cases” has the meaning set forth in the Recitals.

“Cash Equivalents” means:

(a) marketable direct obligations issued or unconditionally guaranteed by the 

United States Government, the Government of Canada, or the UK government, or issued 

by an agency thereof and backed by the full faith and credit of the United States 

Government, the Government of Canada, or the UK government, as the case may be, in 

each case maturing within two years after the date of acquisition thereof;

(b) marketable direct obligations issued by any state of the United States of 

America or any province of Canada, or any member of the European Union or any 

political subdivision of any such state or province or any public instrumentality thereof, 

in each case maturing within two years after the date of acquisition thereof and, at the 

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time of acquisition, having a rating of at least A by S&P or Moody’s (or, if at any time 

neither S&P nor Moody’s shall be rating such obligations, then from such other 

nationally recognized rating services acceptable to the Administrative Agent);

(c) commercial paper maturing no more than one year after the date of 

creation thereof and, at the time of acquisition, having a rating of at least A-2 or P-2 from 

either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such 

obligations, then the highest rating from such other nationally recognized rating services 

acceptable to the Administrative Agent);

(d) certificates of deposit or bankers acceptances denominated in US Dollars, 

Canadian Dollars, Sterling or Euro and maturing within one year after the date of 

acquisition thereof issued by any Lender or any other commercial bank organized under 

the laws of the United States of America or Canada or any state or province thereof or the 

District of Columbia, or the UK, in each case having combined capital and surplus of not 

less than $250,000,000 (or the foreign currency equivalent thereof);

(e) repurchase agreements of any Lender or any other commercial bank 

organized under the laws of the United States of America or Canada or any state or 

province thereof or the District of Columbia, or the UK, in each case having combined 

capital and surplus of not less than $250,000,000 (or the foreign currency equivalent 

thereof);

(f) overnight investments with any Lender or any other commercial bank 

organized under the laws of the United States of America or Canada or any state or 

province thereof or the District of Columbia, or the UK, in each case having combined 

capital and surplus of not less than $250,000,000 (or the foreign currency equivalent 

thereof);

(g) other readily marketable instruments issued or sold by any Lender or any 

other commercial bank organized under the laws of the United States of America or 

Canada or any state or province thereof or the District of Columbia, or the UK, in each 

case having combined capital and surplus of not less than $250,000,000 (or the foreign 

currency equivalent thereof);

(h) shares of mutual funds whose investment guidelines restrict 95% of such 

funds’ investments to those satisfying the provisions of clauses (a) through (g) above; 

(i) funds invested in brokerage accounts with nationally recognized brokerage 

houses or money market accounts; and

(j) in the case of investments by any Foreign Subsidiary or investments made 

in a country outside the United States, other customarily utilized high quality investments 

in the country where such Foreign Subsidiary is located or in which such investment is 

made that would customarily constitute “cash equivalents”.

“Cash Management Order” means the order of the Court entered in the Cases after the 

“first day” hearing on a final basis, together with all extensions, modifications and amendments 

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thereto, in form and substance reasonably satisfactory to the Required Lenders, which among 

other matters authorizes the Debtors to maintain their existing cash management and treasury 

arrangements (as set forth in the Pre-Petition Credit Agreement) or such other arrangements as 

shall be reasonably acceptable to the Required Lenders in all material respects

“CFC” means (a) any Person that is a “controlled foreign corporation” within the 

meaning of Section 957(a) of the Code and (b) each subsidiary of any Person described in clause 

(a).

“CFC Holdco” means a Subsidiary with no material assets other than equity interests of 

one or more Foreign Subsidiaries that are CFCs.

“Change in Control” means (a) any transaction (including a merger or consolidation) the 

result of which is that any “person” or “group” (within the meaning of Sections 13(d) and 

14(d)(2) of the Exchange Act), other than the Permitted Investor, becomes the “beneficial 

owner” (as defined in Rule 13d-3 under the Exchange Act) of more than 35% of the total voting 

power of all classes of the voting stock of the Parent Borrower and/or warrants or options to 

acquire such voting stock, calculated on a fully diluted basis, and the percentage of the aggregate 

voting power represented by such voting stock of the Parent Borrower owned by such “person” 

or “group” then or at any time thereafter exceeds the percentage of the aggregate voting power 

represented by the voting stock of the Parent Borrower owned by the Permitted Investor or (b) 

during any period of 12 consecutive months, a majority of the members of the board of directors 

or other equivalent governing body of the Parent Borrower cease to be composed of individuals 

(i) who were members of that board or equivalent governing body on the first day of such period, 

(ii) whose election or nomination to that board or equivalent governing body was approved by 

individuals referred to in clause (i) above constituting at the time of such election or nomination 

at least a majority of that board or equivalent governing body or (iii) whose election or 

nomination to that board or other equivalent governing body was approved by individuals 

referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at 

least a majority of that board or equivalent governing body.

“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 rule, regulation, treaty or other law, (b) any 

change in any rule, regulation, treaty or other law 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, 

(i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, 

guidelines or directives thereunder or issued in connection therewith and (ii) 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, promulgated or issued.

“Charges” has the meaning set forth in Section 9.15.

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“Claim” means any (a) right to payment, whether or not such right is reduced to 

judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, 

legal, equitable, secured, or unsecured; or (b) right to an equitable remedy for breach of 

performance if such breach gives rise to a right to payment, whether or not such right to an 

equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, 

undisputed, secured, or unsecured.

“Code” means the Internal Revenue Code of 1986.

“Collateral” means (a) means, collectively, all of the real, personal and mixed property 

(including Equity Interests) in which Liens are purported to be granted pursuant to the Collateral 

Documents as security for the Loan Document Obligations, and (b) the “DIP Collateral” referred 

to in the Order, it being understood that “Collateral” shall include all such “DIP Collateral” 

irrespective of whether any such property was excluded pursuant to the Pre-Petition Loan 

Documents.

“Collateral Agreement” means the Guarantee and Collateral Agreement among the 

Borrowers, the other Loan Parties and the Administrative Agent, substantially in the form of 

Exhibit C, together with all supplements thereto.

“Collateral and Guarantee Requirement” means, at any time, the requirement that:

(a) the Administrative Agent shall have received from the Borrowers and each 

Designated Subsidiary (a) either (i) a counterpart of the Collateral Agreement, duly 

executed and delivered on behalf of such Person, or (ii) in the case of any Person that 

becomes a Designated Subsidiary after the Effective Date, a supplement to the Collateral 

Agreement, in the form specified therein, duly executed and delivered on behalf of such 

Person, together with such documents with respect to such Designated Subsidiary as may 

reasonably be requested by the Administrative Agent and (b) an Intercreditor 

Acknowledgement in the form referred to in the Intercreditor Agreement, duly executed 

and delivered on behalf of such Person;

(b) all Equity Interests owned by or on behalf of any Loan Party shall have 

been pledged pursuant to, and to the extent required by, the Collateral Agreement, 

including Equity Interests in any Luxembourg IP Subsidiary and any first-tier CFC or 

CFC Holdco, and the Administrative Agent shall, to the extent required by the Collateral 

Agreement, have received certificates or other instruments representing all such 

certificated Equity Interests, together with undated stock powers or other instruments of 

transfer with respect thereto endorsed in blank;

(c) all other assets, to the extent not constituting Excluded Property, shall 

have been pledged pursuant to, and to the extent required by, the Collateral Agreement;

(d) all documents and instruments, including UCC financing statements, 

required by law or reasonably requested by the Administrative Agent to be filed, 

registered or recorded to perfect the Liens intended to be created by the Collateral 

Documents with the priority required by the Collateral Documents shall have been filed, 

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registered or recorded or delivered to the Administrative Agent for filing, registration or 

recording;

(e) each Loan Party shall have obtained all material consents and approvals 

required in connection with the execution and delivery of all Collateral Documents to 

which it is a party and the performance of its obligations thereunder; and

(f) the Loan Document Obligations shall at all times be secured by a valid, 

binding, continuing, enforceable perfected first priority Lien on the DIP Accounts and the 

proceeds thereof and, on the Effective Date (or such later date as the Required Lenders 

may agree in its sole discretion), the Borrowers must obtain Control Agreement for the 

DIP Accounts.

Notwithstanding the foregoing, any Designated Subsidiary formed or acquired after the 

Effective Date shall not be required to comply with the foregoing requirements prior to the time 

specified in Section 5.03. The foregoing definition shall not require the creation or perfection of 

pledges of or security interests in, or the obtaining of title insurance or, subject to the 

requirements of applicable law, flood insurance, legal opinions, appraisals, surveys or other 

deliverables with respect to, particular assets of the Loan Parties, or the provision of Guarantees 

by any Restricted Subsidiary, if and for so long as the Administrative Agent (acting at the 

direction of the Required Lenders), in consultation with the Borrowers, reasonably determines 

that the cost of creating or perfecting such pledges or security interests in such assets, or 

obtaining such title insurance or flood insurance, legal opinions, appraisals, surveys or other 

deliverables in respect of such assets, or providing such Guarantees, shall be excessive in view of 

the benefits to be obtained by the Lenders therefrom. The Required Lenders may in their sole 

discretion, grant extensions of time for the creation and perfection of security interests in 

(including delivery of promissory notes as required by clause (c) above) or the obtaining of title 

insurance or, subject to the requirements of applicable law, flood insurance, legal opinions, 

appraisals, surveys or other deliverables with respect to particular assets or the provision of any 

Guarantee by any Designated Subsidiary where it determines that such action cannot be 

accomplished without undue effort or expense by the time or times at which it would otherwise 

be required to be accomplished by this Agreement or the Collateral Documents. 

“Collateral Documents” means the Order, Collateral Agreement, and each other 

document granting a Lien upon any assets of any Loan Party as security for payment of the Loan 

Document Obligations.

“Commitment” means, with respect to each Lender, such Lender’s New Money 

Commitment and such Lender’s Roll-Up Loans Commitment.

“Commitment Letter” means the Commitment Letter dated July 23, 2020, among the Ad 

Hoc Committee and the Parent Borrower, as such letter agreement may be amended, 

supplemented or otherwise modified from time to time in accordance with the terms thereof.

“Committee” means an official committee of unsecured creditors appointed in any of the 

Cases by the U.S. Trustee.

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“Communications” means, collectively, any written notice, demand, communication, 

information, document or other material provided by or on behalf of any Loan Party pursuant to 

any Loan Document or the transactions contemplated therein that is distributed to the 

Administrative Agent or any Lender by means of electronic communications pursuant to 

Section 9.01, including through the Platform.

“Compliance Certificate” means a Compliance Certificate in the form of Exhibit D or any 

other form approved by the Administrative Agent.

“Confirmation Order” means an order of the Court entered in the Cases pursuant to 

section 1129 of the Bankruptcy Code, which order (x) shall confirm an Acceptable Plan, be a 

final Order and otherwise be in form and substance reasonably satisfactory to the Required 

Lenders, together with all extensions, modifications, and amendments thereto, also in form and 

substance reasonably satisfactory to the Required Lenders and (y) (i) if the Term Credit Facility 

converts to the Exit Facility, shall authorize and approve the extensions of credit under the Exit 

Facility Credit Agreement and the performance of the Borrowers’ (or the entities assuming 

and/or acquiring directly or indirectly the operations and assets of the Borrowers in the 

Acceptable Plan) and Guarantors’ obligations thereunder, authorize a pro forma capital structure 

that satisfies the conditions precedent to the occurrence of the Conversion Date and otherwise 

satisfies all other conditions to the Conversion Date or (ii) if the Term Credit Facility is to be 

repaid in cash, shall authorize and approve such repayment, any financing the proceeds of which 

will be used to fund such repayment, and the termination in full of all outstanding obligations 

under the Term Credit Facility.

“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.

“Control Agreement” means, with respect to any deposit account or securities account 

maintained by any Loan Party, a control agreement in form and substance reasonably satisfactory 

to the Administrative Agent, duly executed and delivered by such Loan Party and the depositary 

bank or the securities intermediary, as the case may be, with which such account is maintained.

“Conversion Date” means the date upon which each of the conditions precedent to 

effectiveness of the Exit Facility Agreement set forth in the Exit Facility Term Sheet shall have 

been satisfied or waived.

“Court” has the meaning set forth in the Recitals.

“Cumulative Four-Week Period” means the four-week period up to and through the 

Saturday of the week most recently ended prior to the applicable Variance Report Date, or if a 

four-week period has not then elapsed from the Petition Date, such shorter period since the 

Petition Date through the Saturday of the most recent week then ended.

“Debtor” has the meaning set forth in the Recitals.

“Debtors’ Investment Banker” means Guggenheim Securities, LLC.

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“Declined Proceeds” has the meaning set forth in Section 2.09(d).

“Default” means any event or condition that constitutes an Event of Default or that upon 

notice, lapse of time or both would, unless cured or waived, become an Event of Default.

“Default Rate” means (i) in the case of overdue principal of any Loan, 2.0% per annum 

plus the rate otherwise applicable to such Loan as provided in Section 2.11 or (ii) in the case of 

any other overdue amount, 2.0% per annum plus the rate applicable to ABR Term Loans as 

provided in Section 2.11(a).

“Deposit Account” has the meaning set forth in the Collateral Agreement.

“Designated Jurisdiction” means any country or territory to the extent that such country 

or territory itself is the subject of any Sanction.

“Designated Persons” means any person or entity listed on a Sanctions list.

“Designated Subsidiary” means each Subsidiary other than an Excluded Subsidiary.

“DIP Accounts” means the DIP Funding Account and the Asset Sale Escrow Account.

“DIP Funding Account” means a Deposit Account in the name of the Parent Borrower 

subject to a blocked Control Agreement in favor of the Administrative Agent, on behalf of the 

Secured Parties, in which the proceeds of the Loans shall be deposited and held on the Funding 

Date and used solely for the purposes set forth in Section 3.17.

“DIP Superpriority Claim” means allowed superpriority expense claims pursuant to 

Bankruptcy Code Sections 364(c)(1), 503 and 507 granted by the Order.

“Disclosed Matters” means the actions, suits and proceedings and the environmental 

matters disclosed in Schedule 3.06.

“Disqualified Stock” means any Equity Interests which, by its terms (or by the terms of 

any security into which it is convertible or for which it is exchangeable), or upon the happening 

of any event, (a) matures (excluding any maturity as the result of an optional redemption by the 

issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, 

or is redeemable at the option of the holder thereof, in whole or in part, or requires the payment 

of any cash dividend or any other scheduled payment constituting a return of capital, in each case 

at any time on or prior to the date that is 91 days after the latest Maturity Date (determined as of 

the date of issuance thereof or, in the case of any such Equity Interests outstanding on the date 

hereof, the date hereof), or (b) is convertible into or exchangeable (unless at the sole option of 

the issuer thereof) for (i) cash, (ii) debt or (iii) any Equity Interests referred to in (a) above, in 

each case at any time prior to the date that is 91 days after the latest Maturity Date (determined 

as of the date of issuance thereof or, in the case of any such Equity Interests outstanding on the 

date hereof, the date hereof). Notwithstanding the foregoing, any Equity Interests that would 

constitute Disqualified Stock solely because holders of the Equity Interests have the right to 

require the issuer of such Equity Interests to repurchase such Equity Interests upon the 

occurrence of a change in control or an asset sale will not constitute Disqualified Stock if the 

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terms of such Equity Interests provide that the issuer may not repurchase or redeem any such 

Equity Interests pursuant to such provisions unless such repurchase or redemption is permitted 

under the terms of this Agreement.

“dollars” or “$” refers to lawful money of the United States of America.

“Domestic Subsidiary” means any Subsidiary of the Parent Borrower that is organized 

under the laws of the United States, any state of the United States or the District of Columbia, 

except for a Subsidiary directly or indirectly owned by a CFC.

“EEA Financial Institution” means (a) any financial institution 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 clause (a) or (b) of this definition and 

is subject to consolidated supervision with its parent.

“EEA Member Country” means any member state 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. 

“Effective Date” means the date on which the conditions specified in Section 4.01 are 

satisfied (or waived in accordance with Section 9.02), which date is September [ ], 20209.

“Electronic Signature” means an electronic sound, symbol, or process attached to, or 

associated with, a contract or other record and adopted by a Person with the intent to sign, 

authenticate or accept such contract or record.

“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved 

Fund and (d) any other Person, other than, in each case, a natural person or the Parent Borrower, 

any Subsidiary or any other Affiliate of the Parent Borrower.

“Environment” means ambient air, indoor air, surface water, groundwater, drinking 

water, land surface and subsurface strata, and natural resources such as wetlands, flora and fauna.

“Environmental Laws” means all applicable federal, state, and local laws (including 

common law), regulations, rules, ordinances, codes, decrees, judgments, directives, orders 

(including consent orders), and binding agreements with any Governmental Authority in each 

case, relating to pollution or protection of the Environment, human health and safety (to the 

extent related to exposure to Hazardous Materials), or the presence, Release of, or exposure to, 

Hazardous Materials, or the generation, manufacture, processing, distribution, use, treatment, 

9 Expected to be two business days after the date the Order is approved.

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storage, transport, recycling or handling of, or the arrangement for such activities with respect to, 

Hazardous Materials.

“Environmental Liability” means any liability, claim, action, suit, agreement, judgment 

or order arising under or relating to any Environmental Law for any damages, injunctive relief, 

losses, fines, penalties, fees, expenses (including reasonable fees and expenses of attorneys and 

consultants) or costs, whether contingent or otherwise, including those arising from or relating 

to: (a) compliance or non-compliance with any Environmental Law or permit, license or 

approval issued thereunder, (b) the generation, use, handling, transportation, storage, treatment 

or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release 

or threat of Release of any Hazardous Materials or (e) any contract, agreement or other 

consensual arrangement pursuant to which liability is assumed or imposed with respect to any of 

the foregoing.

“Equity Interests” means shares of capital stock, partnership interests, membership 

interests in a limited liability company, beneficial interests in a trust or other equity ownership 

interests in a Person, and any warrants, options or other rights entitling the holder thereof to 

purchase or acquire any such equity interest (other than, prior to the date of such conversion, any 

Indebtedness that is convertible into any such Equity Interests).

“ERISA” means the Employee Retirement Income Security Act of 1974.

“ERISA Affiliate” means any trade or business (whether or not incorporated) that, 

together with any Loan Party, is treated as a single employer under Section 414(b) or 414(c) of 

the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated 

as a single employer under Section 414(m) or 414(o) of the Code.

“ERISA Event” means (a) any “reportable event,” as defined in Section 4043(c) of 

ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which 

the 30-day notice period is waived), (b) any failure by any Plan to satisfy the minimum funding 

requirements of Section 412 or 430 of the Code or Section 302 or 303 of ERISA with respect to 

such Plan, in each case whether or not waived, or any failure by any Loan Party or any ERISA 

Affiliate to make a required contribution to a Multiemployer Plan, (c) the filing pursuant to 

Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the 

minimum funding standard with respect to any Plan, (d) a determination that any Plan is in 

“at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code), 

(e) the incurrence by any Loan Party or any ERISA Affiliate of any liability under Title IV of 

ERISA (other than PBGC premiums due but not delinquent under Section 4007 of ERISA), 

(f) the receipt by any Loan Party or any ERISA Affiliate from the PBGC or a plan administrator 

of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to 

administer any Plan under Section 4042 of ERISA, (g) 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 Plan or Multiemployer Plan; (h) a complete withdrawal or partial withdrawal by 

any Loan Party or any ERISA Affiliate from any Plan or Multiemployer Plan, (i) the receipt by 

any Loan Party or any ERISA Affiliate of any notice concerning the imposition of Withdrawal 

Liability, or a determination that a Multiemployer Plan is insolvent, within the meaning of 

Title IV of ERISA, or in “endangered” or “critical” status, within the meaning of Section 305 of 

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ERISA or Section 432 of the Code, (j) a failure by any Loan Party or any ERISA Affiliate to pay 

when due (after expiration of any applicable grace period) any installment payment with respect 

to Withdrawal Liability, (k) the imposition of a Lien upon any Loan Party or any ERISA 

Affiliate pursuant to Section 430(k) of the Code or Section 303(k) of ERISA, (l) the occurrence 

of a non-exempt “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 

of ERISA) with respect to which any Loan Party or any ERISA Affiliate is a “disqualified 

person” (within the meaning of Section 4975 of the Code) or a “party in interest” (within the 

meaning of Section 406 of ERISA) or could otherwise reasonably be expected to be liable or (m) 

any event with respect to any Foreign Plan which could reasonably be expected to result in 

liability to any Loan Party similar to the liability that could arise with respect to an event 

described in clauses (a) through (l) above.

“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.

“Eurodollar,” when used in reference to any Loan or Borrowing, refers to whether such 

Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by 

reference to the Adjusted LIBO Rate.

“Events of Default” has the meaning set forth in Article VII.

“Exchange Act” means the United States Securities Exchange Act of 1934.

“Excluded Deposit Account” means (a) [reserved], (b) any Deposit Account that is a zero 

balance disbursement account the funds in which are used solely for the payment of salaries and 

wages, (c) any Deposit Account that is a zero balance disbursement account the funds in which 

are used solely for payment of medical or insurance reimbursement, workers’ compensation and 

similar expenses, (d) any escrow account to the extent the creation of a security interest therein 

would violate any agreement with a Person other than the Parent Borrower or a Subsidiary, and 

(e) any fiduciary or trust account.

“Excluded Property” the collective reference to:

(A) any licenses, franchises, charters and authorizations of a Governmental 

Authority to the extent a security interest therein under the Loan Documents is prohibited by or 

would require the consent, license or approval of any Governmental Authority (except to the 

extent such prohibition or restriction is ineffective under the Uniform Commercial Code, the 

Order or other applicable law notwithstanding such prohibition);

(B) any asset if the granting of a security interest under the Loan Documents 

in such asset would be prohibited by any (x) law, treaty, rule or regulation (including all 

applicable regulations and laws regarding assignments of and security interests in, government 

receivables) or a court or other Governmental Authority or would require the consent, license or 

approval of any Governmental Authority (other than proceeds thereof, to the extent the 

assignment of such proceeds is effective under the Uniform Commercial Code, the Order or 

other applicable law notwithstanding such prohibition and the assignment of such proceeds is not 

prohibited by applicable law and does not require the consent, license or approval of any 

Governmental Authority) or (y) contractual obligation (only to the extent such restriction is 

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binding on such asset (i) on the Petition Date or (ii) on the date of the acquisition thereof and not 

entered into in contemplation thereof) (except to the extent such prohibition or restriction is 

ineffective under the Uniform Commercial Code, the Order or other applicable law

notwithstanding such prohibition);

(C) any lease, license or other agreement to the extent that a grant of a security 

interest therein under the Loan Documents would violate or invalidate such lease, license or 

agreement (except any such lease, license or agreement among Parent Borrower and its whollyowned Subsidiaries and except to the extent such prohibition or restriction is ineffective under 

the Uniform Commercial Code, the Order or other applicable law notwithstanding such 

prohibition);

(D) Equity Interests in any Person that is not a Subsidiary, in partnerships, in 

joint ventures and in non-wholly owned Subsidiaries to the extent the pledge or other granting of 

a security interest under the Loan Documents in such Equity Interests would be prohibited by, or 

require a consent or approval of unaffiliated third parties or are not permitted under, 

organizational or governance documents or shareholders’ or similar agreements of or with 

respect to such Person (except to the extent such prohibition or restriction is ineffective under the 

Uniform Commercial Code, the Order, or other applicable law notwithstanding such 

prohibition);

(E) to the extent applicable law requires that a Subsidiary issue directors’ 

qualifying shares, nominee shares or similar shares which are required by applicable law to be 

held by persons other than a Loan Party, such qualifying shares, nominee shares or similar shares 

held by Persons other than a Loan Party;

(F) any United States intent-to-use application for registration of a trademark 

or service mark prior to the acceptance by the United States Patent and Trademark Office of a 

statement of use or an amendment to allege use, to the extent and for so long as the grant of a 

security interest therein would impair the validity or enforceability of, or render void or voidable 

or result in the cancellation of, a Loan Party’s right, title or interest therein or any trademark or 

service mark registration issued therefrom;

(G) “margin stock” within the meaning of Regulation U;

(H) Excluded Deposit Accounts; and

(I) proceeds in an amount not to exceed the Carve Out, if applicable, under 

the Order.

provided that (a) in the case of clauses 2(y), (3) and (5), such exclusion shall not apply (i) to the 

extent the prohibition or restriction is ineffective under Section 9-406, 9-407, 9-408 or 9-409 of 

the Uniform Commercial Code, the Bankruptcy Code or other applicable law or (ii) to proceeds 

of the assets referred to in such clause, the assignment of which is expressly deemed effective 

under Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code, the Bankruptcy 

Code or other applicable law and (b) assets described above shall no longer be “Excluded 

Property” upon termination of the applicable prohibition or restriction described above that 

caused such assets to be treated as “Excluded Property”.

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“Excluded Subsidiary” means (a) [reserved], (b) any Foreign Subsidiary of the Parent 

Borrower, (c) any Subsidiary that is a direct or indirect Subsidiary of a Foreign Subsidiary of the 

Parent Borrower that is a CFC, (d) any CFC Holdco, (e) any Subsidiary that is prohibited or 

restricted by applicable law, rule or regulation or contractual obligation in existence on the 

Petition Date from providing a Guarantee of the Loan Document Obligations (solely for so long 

as such prohibition or restriction remains in existence) or if such Guarantee would require 

governmental (including regulatory) consent, approval, license or authorization unless such 

consent, approval, license or authorization has been received (but without obligation to seek the 

same), (f) [reserved], (g) [reserved], (h) [reserved], and (i) any other Restricted Subsidiary with 

respect to which, in the reasonable judgment of the Required Lenders (confirmed in writing by 

notice to the Parent Borrower), the cost or other consequences of becoming a Guarantor shall be 

excessive in view of the benefits to be obtained by the Lenders therefrom. In no event shall (i) 

the Subsidiary Borrower be an Excluded Subsidiary or (ii) any Subsidiary of the Parent Borrower 

that is a “Subsidiary Loan Party” (under and as defined in the ABL Credit Agreement to the 

extent applicable) or that is otherwise a guarantor of, or has otherwise provided security for, the 

obligations under the ABL Credit Agreement(to the extent applicable) be an Excluded 

Subsidiary.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a 

Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes 

imposed on or measured by such Recipient’s net income (however denominated), franchise 

Taxes, and branch profits Taxes, in each case, (i) imposed by a jurisdiction 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 applicable lending office located in, such jurisdiction (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 applicable Loan or Commitment (other 

than an assignee pursuant to an assignment request by the Borrowers under Section 2.17(b)) or 

(ii) such Lender changes its lending office, except in each case to the extent that, pursuant to 

Section 2.15, amounts with respect to such Taxes were payable either to such Lender’s assignor 

immediately before such Lender acquired the applicable interest in such Loan or Commitment or 

to such Lender immediately before it changed its lending office, (c) any Taxes attributable to a 

Lender’s failure to comply with Section 2.15(e) and (d) any U.S. federal withholding Taxes 

imposed under FATCA.

“Exit Conversion” has the meaning set forth in Section 2.22.

“Exit Facility Agreement” means the credit agreement that is approved by the 

Confirmation Order and entered into on the Conversion Date consistent in all material respects 

with the terms set forth in the Exit Facility Term Sheet and any related schedules and exhibits 

attached thereto; provided, that such credit agreement shall have been made available to the 

Administrative Agent and all Lenders; provided, further, that upon the satisfaction of waiver of 

the conditions contemplated by Section 2.22, each Lender hereunder that is a Lender on the 

Conversion Date hereby authorizes the Administrative Agent to use its executed signature page 

to this Agreement as an executed signature page to the Exit Facility Agreement without any 

further action on the part of any such Lender or any other Person.

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“Exit Facility Term Sheet” means the term sheet attached as Exhibit G hereto, as amended, 

supplemented or otherwise modified from time to time in accordance with the terms of this 

Agreement

“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 Treasury regulations or other 

official administrative interpretations thereof, any agreements entered into pursuant to current 

Section 1471(b) of the Code (or any amended or successor version described above), and any 

fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental 

agreement between a non-U.S. jurisdiction and the United States of America.

“Federal Funds Effective Rate” means, for any day, the weighted average (rounded 

upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds 

transactions with members of the Federal Reserve System, as published on the next succeeding 

Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for 

any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 

1%) of the quotations for such day for such transactions received by the Administrative Agent 

from three Federal funds brokers of recognized standing selected by it.

“Financial Officer” means, with respect to any Person, the chief financial officer, 

principal accounting officer, treasurer, assistant treasurer, chief restructuring officer or controller 

of such Person.

“Foreign Lender” means a Lender that is not a U.S. Person.

“Foreign Plan” means any defined benefit pension plan, benefit plan, fund (including any 

superannuation fund) or other similar program that, under the requirements of law of any 

jurisdiction other than the United States, is required to be funded through a trust or other funding 

vehicle (other than a trust or funding vehicle or any of the foregoing sponsored or maintained 

exclusively by a Governmental Authority) and is directly sponsored and maintained by a Loan 

Party primarily for the benefit of its employees who are employed and residing outside the 

United States.

“Foreign Subsidiary” means any Subsidiary of the Parent Borrower, other than a 

Domestic Subsidiary.

“Funding Date” means the date on which the conditions specified in Section 4.02 are 

satisfied (or waived in accordance with Section 9.02).

“GAAP” means generally accepted accounting principles in the United States of 

America, applied in accordance with the consistency requirements thereof.

“Governmental Authority” means the government of the United States of America, any 

other nation or any political subdivision thereof, whether state, local, county, provincial or 

otherwise, and any agency, authority, instrumentality, regulatory body, court, central bank or 

other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers 

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or functions of or pertaining to government (including any supra-national body exercising such 

powers or functions, such as the European Union or the European Central Bank).

“GS Bank” means Goldman Sachs Bank USA, in its individual capacity, and its 

successors.

“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or 

otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any 

Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, 

whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, 

(a) to purchase or pay (or advance or supply funds for the purchase or payment of) such 

Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase 

of) any security for the payment thereof, (b) to purchase or lease property, securities or services 

for the purpose of assuring the owner of such Indebtedness or other obligation of the payment 

thereof, (c) to maintain working capital, equity capital or any other financial statement condition 

or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness 

or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty 

issued to support such Indebtedness or other obligation; provided that the term “Guarantee” shall 

not include endorsements for collection or deposit in the ordinary course of business. The 

amount, as of any date of determination, of any Guarantee shall be the principal amount 

outstanding on such date of Indebtedness or other obligation guaranteed thereby (or, in the case 

of (i) any Guarantee the terms of which limit the monetary exposure of the guarantor or (ii) any 

Guarantee of an obligation that does not have a principal amount, the maximum monetary 

exposure as of such date of the guarantor under such Guarantee (as determined, in the case of 

clause (i), pursuant to such terms or, in the case of clause (ii), reasonably and in good faith by a 

Financial Officer of the Parent Borrower)).

“Guarantors” means each Subsidiary of the Parent Borrower (other than any Excluded 

Subsidiary), in each case, until any such Subsidiary (other than the Subsidiary Borrower) is 

released as a Guarantor in accordance with the Loan Documents.

“Hazardous Materials” means any chemical, material, substance or waste that is 

prohibited, limited or regulated by or pursuant to any applicable Environmental Law, including, 

without limitation, any petroleum products or byproducts and all other hydrocarbons, coal ash, 

radon gas, asbestos-containing materials, urea formaldehyde foam insulation, polychlorinated 

biphenyls, chlorofluorocarbons and all other ozone-depleting substances or mold.

“Indebtedness” of any Person means, without duplication, (a) all obligations of such 

Person for borrowed money or with respect to deposits or advances of any kind, (b) all 

obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all 

obligations of such Person under conditional sale or other title retention agreements relating to 

property acquired by such Person (excluding trade accounts payable incurred in the ordinary 

course of business), (d) all obligations of such Person in respect of the deferred purchase price of 

property or services (excluding (i) current accounts payable incurred in the ordinary course of 

business, (ii) deferred compensation payable to directors, officers or employees of the Parent 

Borrower or any Restricted Subsidiary and (iii) any purchase price adjustment or earnout 

incurred in connection with an acquisition, except to the extent that the amount payable pursuant 

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to such purchase price adjustment or earnout is, or becomes, a liability on the balance sheet of 

the Parent Borrower in accordance with GAAP), (e) all Capital Lease Obligations and Synthetic 

Lease Obligations of such Person, (f) all obligations, contingent or otherwise, of such Person as 

an account party in respect of letters of credit and letters of guaranty, (g) all obligations, 

contingent or otherwise, of such Person in respect of bankers’ acceptances, (h) all Indebtedness 

of others secured by (or for which the holder of such Indebtedness has an existing right, 

contingent or otherwise, to be secured by) any Lien on property owned or acquired by such 

Person, whether or not the Indebtedness secured thereby has been assumed by such Person (but 

only to the extent of the lesser of (x) the amount of such Indebtedness and (y) the fair market 

value of such property, if such Indebtedness has not been assumed by such Person), (i) net 

payments that would have to be made in the event of an early termination in respect of any 

outstanding Swap Agreement, (j) all obligations of such Persons with respect to the redemption, 

repayment or repurchase of Disqualified Stock (excluding accrued dividends) and (k) all 

Guarantees by such Person of Indebtedness of others. The Indebtedness of any Person shall 

include the Indebtedness of any other Person (including any partnership in which such Person is 

a general partner) to the extent such Person is liable therefor by contract, as a matter of law or 

otherwise as a result of such Person’s ownership interest in or other relationship with such other 

Person, except to the extent the terms of such Indebtedness provide that such Person is not liable 

therefor. It is acknowledged and agreed that private label and corporate letters of credit issued 

by the Parent Borrower or any Subsidiary for the making of payment for the purchase of 

inventory in the ordinary course of business (and in respect of which no financial institution is an 

issuer thereof or has any disbursement obligations thereunder) do not constitute Indebtedness of 

the Parent Borrower or such Subsidiary.

“Indemnified Taxes” means (a) all 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), all Other Taxes.

“Indemnitee” has the meaning set forth in Section 9.03(b).

“Information” has the meaning set forth in Section 9.12.

“Intercreditor Acknowledgment” means that certain Acknowledgment and Agreement, 

dated as of the Funding Date, by and among the Administrative Agent, the Pre-Petition Agent, 

the ABL Agent and the Pre-Petition ABL Agent, and acknowledged by the Loan Parties.

“Intercreditor Agreement” means the Intercreditor Agreement, dated as of August 21, 

2015, among the Pre-Petition Agent, as term collateral agent, the Pre-Petition ABL Agent, as 

ABL collateral agent, and acknowledged by the Loan Parties, as may be supplemented and 

modified by the Intercreditor Acknowledgment, and as may be further amended, amended and 

restated, supplemented or otherwise modified and in effect from time to time.

“Interest Election Request” means a request by the Borrowers to convert or continue a 

Borrowing in accordance with Section 2.05, which shall be, in the case of any such written 

request, in the form of Exhibit E or any other form approved by the Administrative Agent.

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“Interest Payment Date” means (a) with respect to any ABR Loan, the first Business Day 

of each calendar quarter and the Maturity Date applicable to such ABR Loan and (b) with respect 

to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which 

such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more 

than three months’ duration, such day or days prior to the last day of such Interest Period as shall 

occur at intervals of three months’ duration after the first day of such Interest Period and the 

Maturity Date applicable to such Eurodollar Loan.

“Interest Period” means, with respect to any Eurodollar Borrowing, the period 

commencing on the date of such Borrowing and ending on the numerically corresponding day in 

the calendar month that is one, two, three or six months (or, with the consent of each Lender 

participating therein, twelve months) thereafter, as the Borrowers may elect; provided that (a) if 

any Interest Period would end on a day other than a Business Day, such Interest Period shall be 

extended to the next succeeding Business Day unless such next succeeding Business Day would 

fall in the next calendar month, in which case such Interest Period shall end on the next 

preceding Business Day, and (b) any Interest Period that commences on the last Business Day of 

a calendar month (or on a day for which there is no numerically corresponding day in the last 

calendar month of such Interest Period) shall end on the last Business Day of the last calendar 

month of such Interest Period. 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. For the avoidance of doubt, no Interest 

Period shall extend beyond the Maturity Date.

“Interpolated Screen Rate” means, with respect to any Eurodollar Borrowing for any 

Interest Period, a rate per annum which results from interpolating on a linear basis between 

(a) the Screen Rate for the longest maturity for which a Screen Rate is available that is shorter 

than such Interest Period and (b) the Screen Rate for the shortest maturity for which a Screen 

Rate is available that is longer than such Interest Period, in each case at 11:00 a.m., London time, 

two Business Days prior to the commencement of such Interest Period.

“Investment” means, with respect to a specified Person, any direct or indirect acquisition 

or investment by such Person in any other Person, in the form of (a) the purchase or other 

acquisition (including without limitation by merger or otherwise) of Equity Interests or debt or 

other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or 

assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity 

participation or interest in, another Person, including any partnership or joint venture interest in 

such other Person or (c) the purchase or other acquisition (in one transaction or a series of 

transactions, including without limitation by merger or otherwise) of all or substantially all of the 

property and assets or business of another Person or assets constituting a business unit, division, 

product or line of business of such Person. For purposes of covenant compliance, the amount of 

any Investment at any time shall be the amount actually invested (measured at the time made), 

without adjustment for subsequent changes in the value of such Investment, net of any cash 

return representing a return of capital with respect to such Investment.

“IRS” means the United States Internal Revenue Service.

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“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall

have become a party hereto pursuant to an Assignment and Assumption, other than any such 

Person that shall have ceased to be a party hereto pursuant to an Assignment and Assumption.

“LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period, a 

rate per annum equal to the London interbank offered rate as administered by the ICE 

Benchmark Administration (or any other Person that takes over the administration of such rate) 

for deposits in dollars (for delivery on the first day of such Interest Period) with a term 

equivalent to such Interest Period as displayed on the applicable Bloomberg screen page that 

displays such rate (or, in the event such rate does not appear the applicable Bloomberg screen 

page, on the appropriate page of such other information service that publishes such rate as shall 

be selected by the Administrative Agent from time to time in its reasonable discretion) at 

11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period 

(the “Screen Rate”). If no Screen Rate shall be available for a particular Interest Period but 

Screen Rates shall be available for maturities both longer and shorter than such Interest Period, 

then the LIBO Rate for such Interest Period shall be the Interpolated Screen Rate. 

Notwithstanding the foregoing, if the LIBO Rate, determined as provided above in this 

definition, would be less than zero, the LIBO Rate shall for all purposes of this Agreement be 

zero.

“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, 

hypothecation, charge, security interest or other encumbrance in, on or of such asset and (b) the 

interest of a vendor or a lessor under any conditional sale agreement, capital lease or title 

retention agreement (or any financing lease having substantially the same economic effect as any 

of the foregoing) relating to such asset.

“Liquidity” means, at any time, the sum of, without duplication, (a) Availability (as 

defined in the Pre-Petition ABL Credit Agreement as in effect on the date hereof or, to the extent 

applicable, the ABL Credit Agreement as in effect on the Funding Date), (b) unrestricted cash 

and cash equivalents of the Parent Borrower and its Restricted Subsidiaries that would be 

reflected on a consolidated balance sheet of the Parent Borrower in accordance with GAAP on 

such date (other than the cash proceeds of any Indebtedness being incurred on such date) and (c) 

cash and cash equivalents of the Parent Borrower and its Restricted Subsidiaries (excluding, for 

the avoidance of doubt, Eligible Pledged Cash (as defined in the Pre-Petition ABL Credit 

Agreement as in effect on the date hereof or, to the extent applicable, the ABL Credit 

Agreement, as in effect on the Funding Date) to the extent duplicative) that are restricted in favor 

of the Administrative Agent or any Lender (or, the Pre-Petition ABL Agent or, to the extent 

applicable, the ABL Agent, for the benefit of the Administrative Agent pursuant to the 

Intercreditor Agreement) (which cash and cash equivalents may also secure other Indebtedness 

together with the Loan Document Obligations).

“Loan Document Obligations” means all unpaid principal of and accrued and unpaid 

interest on the Loans, all accrued and unpaid fees, premiums (including the Redemption 

Premium, if any) and all expenses, reimbursements, indemnities and other obligations of the 

Loan Parties to any Lender, the Administrative Agent, or any Indemnitee arising under the Loan 

Documents, 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,

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premiums (including the Redemption Premium, if any), costs, expenses and indemnities that 

accrue after the commencement by or against any Loan Party or any Affiliate thereof of any 

proceeding under any bankruptcy or insolvency laws naming such Person as the debtor in such 

proceeding, regardless of whether such interest, fees, premiums (including the Redemption 

Premium, if any), costs, expenses and indemnities are allowed claims in such proceeding.

“Loan Documents” means this Agreement, the Commitment Letter, the Collateral 

Agreement, the Control Agreement with respect to the DIP Accounts, the other Collateral 

Documents, the Intercreditor Agreement, the Intercreditor Acknowledgment, the Administrative 

Agent Fee Letter, the Order and, except for purposes of Section 9.02, any promissory notes 

delivered pursuant to Section 2.07(e).

“Loan Parties” means the Borrowers and the Guarantors.

“Loans” means the loans made by the Lenders to the Borrowers pursuant to this 

Agreement.

“Luxembourg IP Subsidiary” means each of (i) AnnTaylor Loft GP Lux S.à.rl. and (ii) 

AnnTaylor Loft Borrower Lux SCS.

“Material Adverse Effect” means a material adverse effect on (a) the results of 

operations, assets, business or financial condition of the Parent Borrower and the Restricted 

Subsidiaries, taken as a whole, excluding in any event (i) the effect of filing the Cases, the events 

and conditions leading up to and customarily resulting from the commencement and continuation 

of the Cases, the effects thereof and any action required to be taken under the Loan Documents 

or the Order and the Cases themselves, (ii) any matters publicly disclosed prior to the filing of 

the Cases and (iii) any matters or transactions disclosed, contemplated or required to be taken in 

any “first day” or “second day” orders, motions related thereto or in any supporting declarations 

thereof, (b) the ability of the Loan Parties to perform any of their monetary obligations under the 

Loan Documents to which it is a party or (c) the rights of or benefits available to the 

Administrative Agent or the Lenders under the Loan Documents; provided that in determining 

whether a “material adverse effect” has occurred or exists under clause (a) hereof, the impacts of 

COVID-19 on the results of operations, assets, business or financial condition of the Parent 

Borrower and the Restricted Subsidiaries will be disregarded (provided that this exception shall 

not apply to the extent that it is materially disproportionately adverse to the Parent Borrower and 

its Restricted Subsidiaries, taken as a whole, as compared to other companies in the same 

industry in which the Parent Borrower and its Restricted Subsidiaries operate).

“Material Indebtedness” means Indebtedness (other than the Loans and Guarantees under 

the Loan Documents), or obligations in respect of one or more Swap Agreements, of any one or 

more of the Parent Borrower and the Subsidiaries in an aggregate principal amount exceeding 

$10,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the 

obligations of the Parent Borrower or any Restricted Subsidiary in respect of any Swap 

Agreement at any time shall be the maximum aggregate amount (giving effect to any netting 

agreements) that the Parent Borrower or such Restricted Subsidiary would be required to pay if 

such Swap Agreement were terminated at such time.

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“Maturity Date” means the date that is the earliest of (i) six months after the Effective 

Date, (ii) the date of the substantial consummation (as defined in Section 1101(2) of the 

Bankruptcy Code) of an Acceptable Plan, (iii) the date the Court converts any of the Cases to a 

Chapter 7 case, (iv) the date the Court dismisses any of the Cases, (v) the date on which the Loan 

Parties consummate a sale of all or substantially all of the assets of the Loan Parties pursuant to 

section 363 of the Bankruptcy Code or otherwise, and (vi) such earlier date on which the Loans 

shall become due and payable by acceleration or otherwise in accordance with the terms of this 

Agreement and the other Loan Documents.

“Maximum Rate” has the meaning set forth in Section 9.15.

“MNPI” means material information concerning the Parent Borrower, any Subsidiary or 

any Affiliate of any of the foregoing or their securities that has not been disseminated in a 

manner making it available to investors generally, within the meaning of Regulation FD under 

the Securities Act and the Exchange Act. For purposes of this definition, “material information” 

means information concerning the Parent Borrower or its Subsidiaries, or any of their respective 

securities, that would reasonably be expected to be material for purposes of the United States 

federal and state securities laws.

“Moody’s” means Moody’s Investors Service, Inc., and any successor to its rating agency 

business.

“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of 

ERISA that is or was, during the past six years, maintained or sponsored by any Loan Party or 

ERISA Affiliate or to which any Loan Party or any ERISA Affiliate makes or is obligated to 

make contributions, or during the past six years has made or been obligated to make 

contributions, in each case, if a liability to a Loan Party remains outstanding.

“Net Proceeds” means, with respect to any event, (a) the cash (which term, for purposes 

of this definition, shall include Cash Equivalents) proceeds (including, in the case of any 

casualty, condemnation or similar proceeding, insurance, condemnation or similar proceeds) 

received in respect of such event, including any cash received in respect of any noncash 

proceeds, but only as and when received, net of (b) the sum, without duplication, of (i) all actual 

fees and out-of-pocket expenses paid in connection with such event by the Parent Borrower and 

the Restricted Subsidiaries to Persons that are not Affiliates of the Parent Borrower or any 

Restricted Subsidiary, (ii) in the case of a sale, transfer or other disposition (including pursuant 

to a Sale/Leaseback Transaction or a casualty or a condemnation or similar proceeding) of an 

asset, the amount of all payments required to be made by the Parent Borrower and the Restricted 

Subsidiaries as a result of such event to repay Indebtedness (other than Loans and Indebtedness 

under the ABL Credit Agreement) secured by such asset on a basis prior to the Liens, if any, on 

such assets securing the Loan Document Obligations and (iii) the amount of all taxes paid (or 

reasonably estimated to be payable) by the Parent Borrower and the Restricted Subsidiaries, and 

the amount of any reserves established by the Parent Borrower and the Restricted Subsidiaries in 

accordance with GAAP to fund purchase price adjustment, indemnification and similar 

contingent liabilities (other than any earnout obligations) reasonably estimated to be payable, in 

each case during the year that such event occurred or the next succeeding year and that are 

directly attributable to the occurrence of such event (as determined reasonably and in good faith 

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by the chief financial officer of the Parent Borrower). For purposes of this definition, in the 

event any contingent liability reserve established with respect to any event as described in 

clause (b)(iii) above shall be reduced, the amount of such reduction shall, except to the extent 

such reduction is made as a result of a payment having been made in respect of the contingent 

liabilities with respect to which such reserve has been established, be deemed to be receipt, on 

the date of such reduction, of cash proceeds in respect of such event.

“New Money Commitment” means as to each Lender, its obligation to make a New 

Money Loan to Borrowers hereunder, expressed as an amount representing the maximum 

principal amount of New Money Loans to be made by such Lender under this Agreement, as 

such commitment may be reduced or increased from time to time pursuant to assignments by or 

to such Lender pursuant to an Assignment and Assumption substantially in the form of Exhibit A

hereto. The amount of each Lender’s New Money Commitment is set forth on Schedule 2.01 

under the caption “New Money Loans” or, otherwise, in the Assignment and Assumption

pursuant to which such Lender shall have assumed its New Money Commitment, as the case may 

be. The aggregate amount of the New Money Commitments on the date hereof is $150 million.

“New Money Loans” means the loans made pursuant to Section 2.01(a).

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

“Order” means the order of the Court entered in the Cases after a final hearing under 

Bankruptcy Rule 4001(c)(2) or such other procedures as approved by the Court, which order 

shall be satisfactory in form and substance to the Required Lenders, and from which no appeal or 

motion to reconsider has been timely filed, or if timely filed, such appeal or motion to reconsider 

has been dismissed or denied with no further appeal and the time for filing such appeal has 

passed (unless Administrative Agent waives such requirement), together with all extensions, 

modifications, and amendments thereto, in form and substance satisfactory to the Required 

Lenders, which, among other matters but not by way of limitation, authorizes the Loan Parties to 

obtain credit, incur (or guaranty) Indebtedness, and grant Liens under this Agreement and the 

other Loan Documents, as the case may be, and provides for the super-priority of the 

Administrative Agent’s and the Lenders’ claims.

“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 Document).

“Other Taxes” means all present or future stamp, court or documentary, intangible, 

recording, filing or similar Taxes that arise from any payment made under any Loan Document 

or 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, 

excluding any such Taxes that are Other Connection Taxes imposed with respect to an 

assignment (other than an assignment made pursuant to Section 2.17).

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“Parent Borrower” has the meaning set forth in the introductory paragraph hereto.

“Participant Register” has the meaning set forth in Section 9.04(c)(ii).

“Participants” has the meaning set forth in Section 9.04(c)(i).

“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate 

Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub.L. No. 107-56

(signed into law October 26, 2001)).

“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in 

ERISA.

“Permitted Encumbrances” means:

(a) Liens imposed by law for Taxes that are not yet delinquent or are being 

contested in compliance with Section 5.06;

(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and 

other like Liens imposed by law (other than any Lien imposed pursuant to Section 430(k) 

of the Code or Section 303(k) of ERISA or a violation of Section 436 of the Code), 

arising in the ordinary course of business and securing obligations that are not overdue by 

more than 30 days or are being contested in compliance with Section 5.06;

(c) pledges and deposits made (i) in the ordinary course of business in 

compliance with workers’ compensation, unemployment insurance and other social 

security laws or regulations and (ii) in respect of letters of credit, bank guarantees or 

similar instruments issued for the account of the Parent Borrower or any Restricted 

Subsidiary in the ordinary course of business supporting obligations of the type set forth 

in clause (i) above or reimbursement or indemnification obligations to insurance carriers 

providing property, casualty or liability insurance to the Parent Borrower and its 

Restricted Subsidiaries;

(d) pledges and deposits made to secure the performance of bids, trade 

contracts (other than Indebtedness for borrowed money), leases (other than Capital Lease 

Obligations), statutory obligations, surety and appeal bonds, performance bonds and 

other obligations of a like nature, in each case in the ordinary course of business;

(e) judgment liens in respect of judgments that do not constitute an Event of 

Default under clause (k) of Article VII;

(f) easements, zoning restrictions, rights-of-way, site plan agreements, 

development agreements, operating agreements, cross-easement agreements, reciprocal 

easement agreements and other encumbrances and exceptions to title on real property 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 the 

Parent Borrower or any Restricted Subsidiary or the ordinary operation of such real 

property;

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(g) customary rights of setoff upon deposits of cash in favor of banks and 

other depository institutions and Liens of a collecting bank arising under the UCC in 

respect of payment items in the course of collection;

(h) Liens arising from precautionary UCC financing statement filings (or 

similar filings under applicable law) regarding operating leases or consignments, in each 

case arising in the ordinary course of business;

(i) Liens representing any interest or title of a licensor, lessor or sublicensor 

or sublessor, or a licensee, lessee or sublicensee or sublessee, in the property subject to 

any lease (other than Capital Lease Obligations), license or sublicense or concession 

agreement permitted by this Agreement; 

(j) Liens arising in the ordinary course of business in favor of custom and 

forwarding agents and similar Persons in respect of imported goods and merchandise in 

the custody of such Persons;

(k) Liens in favor of customs and revenue authorities arising as a matter of 

law to secure payment of customs duties in connection with the importation of goods;

(l) Liens or rights of setoff against credit balances of the Parent Borrower or 

any Restricted Subsidiary with credit card issuers or credit card processors to secure 

obligations of the Parent Borrower or such Restricted Subsidiary, as the case may be, to 

any such credit card issuer or credit card processor incurred in the ordinary course of 

business as a result of fees and chargebacks;

(m) Liens on Equity Interests of any joint venture (i) securing obligations of 

such joint venture or (ii) pursuant to the relevant joint venture agreement, in each case in 

existence on or prior to the Petition Date; and

(n) other Liens that are contractual rights of set-off;

provided that the term “Permitted Encumbrances” shall not include any Lien securing 

Indebtedness, other than Liens referred to in clause (c) above securing letters of credit, bank 

guarantees or similar instruments.

“Permitted Investor” means David Jaffe (or any member of his family that is actively involved in 

the management of the Parent Borrower).

“Permitted Variance” means, any variance that does not violate Section 6.12(b).

“Person” or “person” means any natural person, corporation, limited liability company, 

trust, joint venture, association, company, partnership, Governmental Authority or other entity.

“Petition Date” has the meaning set forth in the Recitals.

“Plan” means any “employee pension benefit plan,” as defined in Section 3(2) of ERISA 

(other than a Multiemployer Plan or Foreign Plan), (a) that is subject to the provisions of Title IV 

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of ERISA or Section 412 of the Code or Section 302 of ERISA, and (b) (i) in respect of which 

any Loan Party or any ERISA Affiliate is (or, if such plan were terminated, would under 

Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA 

and/or (ii) that is or was, within the past six years, maintained or sponsored by any Loan Party or 

ERISA Affiliate or to which any Loan Party or ERISA Affiliate makes or is obligated to make 

contributions, or during the past six years, has made or been obligated to make contributions, in 

each case of (ii) if a liability to a Loan Party remains outstanding.

“Plan of Reorganization” means a plan of reorganization with respect to the Loan Parties 

and their Subsidiaries pursuant to the Cases.

“Platform” has the meaning set forth in Section 9.01(d).

“Pre-Petition ABL Agent” means JPMorgan Chase Bank, N.A., as administrative agent 

under the Pre-Petition ABL Credit Agreement.

“Pre-Petition ABL Credit Agreement” means the Amended and Restated ABL Credit 

Agreement, dated as of August 21, 2015, among the Parent Borrower, the borrowing subsidiaries 

party thereto, the other loan parties party thereto, the lenders party thereto and the Pre-Petition 

ABL Agent, as amended, restated, supplemented, modified, renewed, refunded, replaced 

(whether at maturity or thereafter) or refinanced from time to time in one or more agreements (in 

each case with the same or new agents, lenders or institutional investors), including any 

agreement adding or changing the borrower or any guarantor or extending the maturity thereof or 

otherwise restructuring all or any portion of the Indebtedness thereunder or increasing the 

amount loaned or issued thereunder or altering the maturity thereof, in each case, through the 

Petition Date.

“Pre-Petition Agent” means GS Bank, in its capacity as administrative agent under any 

of the Pre-Petition Loan Documents.

“Pre-Petition Credit Agreement” has the meaning assigned to such term in the Recitals.

“Pre-Petition Indebtedness” means the Indebtedness of the Loan Parties existing prior to 

the Petition Date and set forth on Schedule 6.01.

“Pre-Petition Lenders” means the lenders under the Pre-Petition Credit Agreement.

“Pre-Petition Lender Obligations” means all “Loan Document Obligations” as defined in 

the Pre-Petition Credit Agreement.

“Pre-Petition Loan Documents” means the “Loan Documents” as defined in the PrePetition Credit Agreement.

“Pre-Petition Loans” means Pre-Petition Lender Obligations in respect of principal of 

“Loans” under, and as defined in, the Pre-Petition Credit Agreement and interest, expenses, fees, 

premium and other sums payable in respect thereof under the Pre-Petition Loan Documents.

“Prepayment Event” means:

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(a) any Asset Sale of the type described in clauses (j) and (k) of Section 6.05 

unless such disposition results in aggregate Net Proceeds not exceeding $500,000 for any 

individual transactions or series of related transactions;

(b) any casualty or other insured damage to, or any taking under power of 

eminent domain or by condemnation or similar proceeding of, any asset of the Parent 

Borrower or any Restricted Subsidiary resulting in aggregate Net Proceeds exceeding 

$500,000; or

(c) the incurrence by the Parent Borrower or any Restricted Subsidiary of any 

Indebtedness, other than any Indebtedness permitted to be incurred by Section 6.01.

“Prime Rate” means the rate of interest per annum published by The Wall Street Journal, 

Money Rates Section as the “Prime Rate”, as in effect from time to time. Each change in the 

Prime Rate shall be effective from and including the date such change is published. If the Wall 

Street Journal ceases publication of such rate, in such other nationally recognized financial 

publication of general circulation as the Administrative Agent may designate based on the 

Administrative Agent’s reasonable determination that the rate so published is comparable to the 

“Prime” rate published in the Wall Street Journal.

“Private Side Lender Representatives” means, with respect to any Lender, representatives 

of such Lender that are not Public Side Lender Representatives.

“Public Side Lender Representatives” means, with respect to any Lender, representatives 

of such Lender that do not wish to receive MNPI.

“Recipient” means the Administrative Agent, any Lender or any other recipient of any 

payment to be made by or on account of any obligation of any Loan Party hereunder or under 

any other Loan Document.

“Redemption Premium” has the meaning set forth in Section 2.09(e).

“Register” has the meaning set forth in Section 9.04(b)(v).

“Related Lender” means with respect to any Person, an Affiliate or any fund, account or 

investment vehicle that is controlled, managed, advised or sub-advised by such Person, an 

Affiliate or the same investment manager, advisor or sub-advisor as such Person or an Affiliate 

of such investment manager, advisor or sub-advisor.

“Related Parties” means, with respect to any specified Person, such Person’s Affiliates 

and the directors, officers, partners, members, trustees, employees, agents, administrators, 

managers, representatives and advisors of such Person and of such Person’s Affiliates.

“Release” means any release, spill, emission, leaking, dumping, injection, pouring, 

deposit, disposal, discharge, dispersal, leaching or migration into or through the Environment or 

within or upon any building, structure, facility or fixture.

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“Required Lenders” means, at any time, Lenders having aggregate Loans (or, prior to the 

borrowing hereunder on the date hereof, Commitments) representing more than 50.01% of the 

aggregate principal amount of the Loans (or, prior to the borrowing hereunder on the date hereof, 

the aggregate Commitments) at such time.

“Required Milestones” means the covenants set forth on Schedule 5.11.

“Restricted Payment” means any dividend or other distribution (whether in cash, 

securities or other property) with respect to any Equity Interests in the Parent Borrower or any 

Restricted Subsidiary, or any payment or distribution (whether in cash, securities or other 

property), including any sinking fund or similar deposit, on account of the purchase, redemption, 

retirement, acquisition, exchange, conversion, cancellation or termination of any Equity Interests 

in the Parent Borrower or any Restricted Subsidiary.

“Restricted Subsidiary” means any Subsidiary of the Parent Borrower. 

“Restructuring Support Agreement” or “RSA” means that certain Restructuring Support 

Agreement, dated as of July 23, 2020, executed and delivered by the Loan Parties and the other 

parties thereto, as such agreement may be amended, supplemented or otherwise modified from 

time to time in accordance with the terms thereof.

“Roll-up Loans” are the loans made pursuant to Section 2.01(b).

“Roll-up Loans Commitment” means, as to each Lender, its obligation to make a Loan to 

the Borrower pursuant to Section 2.01(b) in an aggregate principal amount not to exceed the 

amount set forth opposite such Lender’s name on Schedule 2.01 (as updated from time to time 

within 2 days of the Effective Date) under the caption “Roll-up Loans Commitment”, as 

applicable. The aggregate amount of the Roll-up Loans Commitment on the date hereof is 

[$161.8 million], which amount shall (i) comprise a roll-up and refinancing of the Pre-Petition 

Loans (including accrued but unpaid interest) approved pursuant to the Order and (ii) be deemed 

funded by the Lenders pursuant to Section 2.01.

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill 

Companies, Inc., and any successor to its rating agency business.

“Sale/Leaseback Transaction” means an arrangement relating to property owned by the 

Parent Borrower or any Restricted Subsidiary whereby the Parent Borrower or such Restricted 

Subsidiary sells or transfers such property to any Person and the Parent Borrower or any 

Restricted Subsidiary leases such property, or other property that it intends to use for 

substantially the same purpose or purposes as the property sold or transferred, from such Person 

or its Affiliates.

“Sanctioned Country” means, at any time, a country, region or territory which is itself the 

subject or target of any Sanctions.

“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related 

list of Designated Persons maintained by OFAC, the U.S. Department of State, or by the United 

Nations Security Council, the European Union or any EU member state, (b) any Person 

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operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled 

by any Person or Persons described in the preceding clauses (a) and (b).

“Sanctions” means economic or financial sanctions or trade embargoes imposed, 

administered or enforced from time to time by (a) the U.S. government, including those 

administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or 

the U.S. Department of State, or (b) the United Nations Security Council, the European Union or 

Her Majesty’s Treasury of the United Kingdom.

“Screen Rate” has the meaning assigned to it in the definition of “LIBO Rate.”

“SEC” means the United States Securities and Exchange Commission.

“Secured Parties” means (a) the Administrative Agent, (b) [reserved], (c) the Lenders, (d)

the beneficiaries of each indemnification obligation undertaken by any Loan Party under any 

Loan Document and (e) the permitted successors and assigns of the foregoing.

“Securities Act” means the United States Securities Act of 1933.

“Specified Dispositions” means (i) the closure, sale, transfer or disposition of the Loan 

Parties’ or their Subsidiaries’ stores, leases, warehouses, distribution centers and other real 

property (and all fixtures and equipment in each case in connection therewith), (ii) bulk sales or 

other dispositions of inventory or equipment of the Loan Parties’ or their Subsidiaries’ and (iii) 

termination of leases, licenses, subleases or sublicenses, in each case, in connection therewith;

provided that such Specified Dispositions are identified in writing by the Parent Borrower to the 

Required Lenders and agreed to by the Required Lenders, in their reasonable discretion on or 

prior to the Effective Date and as may be updated, supplemented or modified from time to time, 

as agreed to by the Required Lenders in their reasonable discretion.

“Specified Indebtedness” means any Subordinated Indebtedness and any unsecured 

Indebtedness or any secured Indebtedness that is not secured on a pari passu basis with the Loan 

Document Obligations; provided that, Indebtedness under the ABL Credit Agreement, to the 

extent applicable, shall constitute Specified Indebtedness solely for purposes of Section 6.08(c).

“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of 

which is the number one and the denominator of which is the number one minus the aggregate of 

the maximum reserve percentages (including any marginal, special, emergency or supplemental 

reserves), expressed as a decimal, established by the Board of Governors to which the 

Administrative Agent is subject for eurocurrency funding (currently referred to as “Eurocurrency 

Liabilities” in Regulation D of the Board of Governors). Such reserve percentages shall include 

those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute 

eurocurrency funding and to be subject to such reserve requirements without benefit of or credit 

for proration, exemptions or offsets that may be available from time to time to any Lender under 

such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted 

automatically on and as of the effective date of any change in any reserve percentage.

“Subordinated Indebtedness” of a Person means any Indebtedness of such Person which 

is subordinated in right of payment to the Loan Document Obligations.

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“subsidiary” means, with respect to any Person (the “parent”) at any date, (a) any Person

the accounts of which would be consolidated with those of the parent in the parent’s consolidated 

financial statements if such financial statements were prepared in accordance with GAAP as of 

such date and (b) any other Person (i) of which Equity Interests representing more than 50% of 

the equity value or more than 50% of the ordinary voting power or, in the case of a partnership, 

more than 50% of the general partnership interests are, as of such date, owned, controlled or 

held, or (ii) that is, as of such date, otherwise Controlled, by the parent or one or more 

subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

“Subsidiary” means any direct or indirect subsidiary of the Parent Borrower (including, 

for the avoidance of doubt, the Subsidiary Borrower).

“Subsidiary Borrower” has the meaning set forth in the introductory paragraph hereto.

“Swap Agreement” means any agreement with respect to any swap, forward, future or 

derivative transaction or option or similar agreement involving, or settled by reference to, one or 

more rates, currencies, commodities, equity or debt instruments or securities, or economic, 

financial or pricing indices or measures of economic, financial or pricing risk or value or any 

similar transaction or any combination of these transactions; provided that no phantom stock or 

similar plan providing for payments only on account of services provided by current or former 

directors, officers, employees or consultants of the Parent Borrower or any Subsidiary shall be a 

Swap Agreement.

“Synthetic Lease” means, as to any Person, any lease (including leases that may be 

terminated by the lessee at any time) of any property (whether real, personal or mixed) (a) that is 

accounted for as an operating lease under GAAP and (b) in respect of which the lessee retains or 

obtains ownership of the property so leased for US federal income tax purposes, other than any 

such lease under which such Person is the lessor.

“Synthetic Lease Obligations” means, as to any Person, an amount equal to the sum, 

without duplication, of (a) the obligations of such Person to pay rent or other amounts under any 

Synthetic Lease which are attributable to principal and (b) the amount of any purchase price 

payment under any Synthetic Lease assuming the lessee exercises the option to purchase the 

leased property at the end of the lease term. For purposes of Section 6.02, a Synthetic Lease 

Obligation shall be deemed to be secured by a Lien on the property being leased and such 

property shall be deemed to be owned by the lessee.

“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.

“Term Credit Facility” has the meaning set forth in the Recitals.

“Term Lender” means a Lender with a Commitment or an outstanding Term Loan.

“Term Loan” means a Loan made pursuant to Section 2.01.

“Term Priority Collateral” has the meaning set forth in the Intercreditor Agreement.

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“Transactions” means (a) the execution, delivery and performance by the Loan Parties of 

this Agreement, the borrowing of the Term Loans and the use of the proceeds thereof, (b) to the 

extent applicable, the execution, delivery and performance by the Loan Parties of the ABL Credit 

Agreement, (c) the creation and perfection of the security interests provided for in the Collateral 

Documents, and (d) the payment of all fees, commissions, costs and expenses in connection with 

the foregoing.

“Type” when used in reference to any Loan or Borrowing, refers to whether the rate of 

interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to 

the Adjusted LIBO Rate or the Alternate Base Rate.

“UCC” means the Uniform Commercial Code as in effect from time to time in the State 

of New York or any other state the laws of which are required to be applied in connection with 

the perfection of security interests created by the Collateral Documents.

“U.S. Person” means a “United States person” within the meaning of 

Section 7701(a)(30) of the Code. 

“U.S. Tax Compliance Certificate” has the meaning set forth in Section 2.15(e)(ii)(B)(3).

“U.S. Trustee” means the United States Trustee applicable in the Cases.

“Variance Report” shall have the meaning assigned to such term in Section 5.01(g). 

“Variance Report Date” shall have the meaning assigned to such term in Section 5.01(g). 

“Variance Testing Period” shall mean the four-week calendar period up to and through 

the Saturday of the week most recently ended prior to the applicable Variance Report Date

(provided that, the first Variance Testing Period shall include the entire period from the Petition 

Date through the Saturday of the week most recently ended prior to the applicable Variance 

Testing Period).

“wholly-owned” when used in reference to a subsidiary of any Person, means that all the 

Equity Interests in such subsidiary (other than directors’ qualifying shares and other nominal 

amounts of Equity Interests that are required to be held by other Persons under applicable law) 

are owned, beneficially and of record, by such Person, another wholly-owned subsidiary of such 

Person or any combination thereof.

“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete 

or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of 

Subtitle E of Title IV of ERISA.

“Write-Down and Conversion Powers” means, with respect to any EEA Resolution 

Authority, the write-down and conversion powers of such EEA Resolution Authority from time 

to time under the Bail-In Legislation for the applicable EEA Member Country, which writedown and conversion powers are described in the EU Bail-In Legislation Schedule.

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SECTION 1.02. Classification of Loans and Borrowings. For purposes of this 

Agreement, Loans and Borrowings may be classified and referred to by Type.

SECTION 1.03. Terms Generally. 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.” The words “asset” and “property” shall be construed to have the same meaning and 

effect and to refer to any and all real and personal, tangible and intangible assets and properties, 

including cash, securities, accounts and contract rights. The word “law” shall be construed as 

referring to all statutes, rules, regulations, codes and other laws (including official rulings and 

interpretations thereunder having the force of law or with which affected Persons customarily 

comply), and all judgments, orders, writs and decrees, of all Governmental Authorities. Except 

as otherwise provided herein and unless the context requires otherwise, (a) any definition of or 

reference to any agreement, instrument or other document (including this Agreement and the 

other Loan Documents) 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 herein), (b) any 

definition of or reference to any statute, rule or regulation shall be construed as referring thereto 

as from time to time amended, supplemented or otherwise modified (including by succession of 

comparable successor laws), and all references to any statute shall be construed as referring to all 

rules, regulations, rulings and official interpretations promulgated or issued thereunder, (c) any 

reference herein to any Person shall be construed to include such Person’s successors and 

permitted assigns (subject to any restrictions on assignment set forth herein) and, in the case of 

any Governmental Authority, any other Governmental Authority that shall have succeeded to 

any or all functions thereof, (d) the words “herein,” “hereof” and “hereunder,” and words of 

similar import, shall be construed to refer to this Agreement in its entirety and not to any 

particular provision hereof and (e) all references herein to Articles, Sections, Exhibits and 

Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, 

this Agreement.

SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided 

herein, all terms of an accounting or financial nature used herein shall be construed in 

accordance with GAAP as in effect from time to time; provided that (a) if the Parent Borrower 

notifies the Administrative Agent in writing (including via e-mail) that the Borrowers request an 

amendment to any provision hereof to eliminate the effect of any change occurring after the 

Effective Date in GAAP or in the application thereof on the operation of such provision (or if the 

Administrative Agent notifies the Borrowers that the Required Lenders request an amendment to 

any provision hereof for such purpose), regardless of whether any such notice is given before or 

after such change in GAAP or in the application thereof, then such provision shall be interpreted 

on the basis of GAAP as in effect and applied immediately before such change shall have 

become effective until such notice shall have been withdrawn or such provision amended in 

accordance herewith; provided that the Borrowers, on the one hand, and the Lenders, on the 

other hand, agree to negotiate in good faith with respect to any proposed amendment to eliminate 

or adjust for the effect of any such change in GAAP; and (b) notwithstanding any other provision 

contained herein, all terms of an accounting or financial nature used herein shall be construed, 

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and all computations of amounts and ratios referred to herein shall be made, without giving 

effect to (i) any election under Statement of Financial Accounting Standards 159, The Fair Value 

Option for Financial Assets and Financial Liabilities, or any successor thereto (including 

pursuant to the Accounting Standards Codification), to value any Indebtedness of the Parent 

Borrower or any Restricted Subsidiary at “fair value,” as defined therein, and (ii) any change in 

GAAP occurring after July 24, 2015 as a result of the adoption of any proposals set forth in the 

Proposed Accounting Standards Update, Leases (Topic 840), issued by the Financial Accounting 

Standards Board on August 17, 2010, or any other proposals issued by the Financial Accounting 

Standards Board in connection therewith, in each case if such change would require treating any 

lease (or similar arrangement conveying the right to use) as a capital lease where such lease (or 

similar arrangement) was not required to be so treated under GAAP as in effect on July 24, 2015.

SECTION 1.05. Classification of Actions. For purposes of determining compliance at 

any time with the covenants set forth in Section 6.01 and Section 6.02 (or, in each case, any 

defined terms used therein), in the event that the subject transaction meets the criteria of more 

than one of the categories of transactions permitted pursuant to the Sections (or related defined 

terms) in Section 6.01 and Section 6.02, the Borrowers may, in their sole discretion, classify the 

applicable transaction (or any portion thereof) under such Section (or defined term); it being 

understood that (i) the Borrowers may divide and include such transaction under one or more of 

the clauses of such Section (or any relevant portion thereof or of the applicable related defined 

term) that permit such transaction, but will not be permitted to later reclassify such transaction 

and (ii) notwithstanding anything in this Section 1.05 to the contrary for purposes of this 

Agreement, (x) Indebtedness incurred under the Pre-Petition ABL Credit Agreement and, to the 

extent applicable, the ABL Credit Agreement shall only be permitted to be incurred or be 

outstanding under Section 6.01(j) and (y) Indebtedness uncured under the Loan Documents or 

the Pre-Petition Loan Documents shall only be permitted to be incurred or be outstanding under 

Section 6.01(a).

SECTION 1.06. Divisions. For all purposes under the Loan Documents, in connection 

with any division or plan of division under Delaware law (or any comparable event under a 

different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes 

the asset, right, obligation or liability of a different Person, then it shall be deemed to have been 

transferred from the original Person to the subsequent Person, and (b) if any new Person comes 

into existence, such new Person shall be deemed to have been organized on the first date of its 

existence by the holders of its equity interests at such time.

ARTICLE II

The Credits

SECTION 2.01. Commitments.

(a) Subject to the terms and conditions set forth herein and in the Order, each Lender 

severally and not jointly agrees to make, on the Funding Date, Loans to the Borrowers in an 

aggregate amount not to exceed such Lender’s New Money Commitment. The New Money 

Commitments in respect of the New Money Loans shall terminate automatically immediately 

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after the making of the New Money Loans on the Funding Date. Proceeds of the New Money 

Loans shall be deposited in the DIP Funding Account and used solely as permitted herein.

(b) Subject to the terms and conditions set forth herein and in the Order, each Lender 

severally and not jointly agrees to roll-up and refinance a portion of the Pre-Petition Loans held 

by such Lender immediately prior to the Effective Date for Roll-up Loans in an aggregate

principal amount equal to its Roll-up Loans Commitment, which shall be effected by means of a 

“cashless roll” by each such Lender. For the avoidance of doubt, upon the consummation of the 

“cashless roll”, (i) the Roll-up Loans shall be deemed funded on the Effective Date, (ii) the 

Administrative Agent shall record the Roll-up Loans in the Register and (iii) the Administrative 

Agent, the Lenders and the Loan Parties each acknowledges and agrees that the Roll-up Loans 

Commitment shall expire upon such cashless roll-up of the Roll-up Loans on the Effective Date.

SECTION 2.02. Loans and Borrowings.

(a) Each Loan shall be made as part of a Borrowing consisting of Loans of the same 

Type made by the Lenders ratably in accordance with their respective Commitments.

(b) Subject to Section 2.12, each Borrowing shall be comprised entirely of ABR 

Loans or Eurodollar Loans as the Borrowers may request in accordance herewith. Each Lender 

at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such 

Lender to make such Loan; provided that any exercise of such option shall not affect the 

obligation of the Borrowers to repay such Loan in accordance with the terms of this Agreement.

(c) At the commencement of each Interest Period for any Eurodollar Borrowing, such 

Borrowing shall be in an aggregate principal amount that is an integral multiple of $1,000,000 

and not less than $5,000,000; provided that a Eurodollar Borrowing that results from a 

continuation of an outstanding Eurodollar Borrowing may be in an aggregate amount that is 

equal to such outstanding Borrowing. At the time that each ABR Borrowing is made, such 

Borrowing shall be in an aggregate principal amount that is an integral multiple of $500,000 and 

not less than $1,000,000. Borrowings of more than one Type may be outstanding at the same 

time; provided that there shall not at any time be more than a total of six (or such greater number 

as may be agreed to by the Administrative Agent) Eurodollar Borrowings outstanding.

(d) Notwithstanding any other provision of this Agreement, the Borrowers shall not 

be entitled to request, or to elect to convert to or continue, any Eurodollar Borrowing if the 

Interest Period requested with respect thereto would end after the Maturity Date applicable 

thereto.

SECTION 2.03. Requests for Borrowings. To request a Borrowing, the Borrowers 

deliver to the Administrative Agent a Borrowing Request (delivered by e-mail, hand or 

facsimile) (a) in the case of a Eurodollar Borrowing, not later than 12:00 p.m., New York City 

time, three Business Days before the date of the proposed Borrowing (or, such shorter period of 

time as may be agreed to by the Administrative Agent) or (b) in the case of an ABR Borrowing, 

not later than 12:00 p.m., New York City time, one Business Day before the date of the proposed 

Borrowing. Each written Borrowing Request shall specify the following information in 

compliance with Section 2.02:

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(i) the aggregate amount of such Borrowing;

(ii) the date of such Borrowing, which shall be a Business Day;

(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar 

Borrowing;

(iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be 

applicable thereto, which shall be a period contemplated by the definition of the term 

“Interest Period”; and

(v) the location, number of the account and any other wiring information 

required by the Administrative Agent of the Borrowers to which funds are to be 

disbursed.

If no election as to the Type of Borrowing is specified, then the requested Borrowing 

shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested 

Eurodollar Borrowing, then the Borrowers shall be deemed to have selected an Interest Period of 

one month’s duration. Promptly following receipt of a Borrowing Request in accordance with 

this Section, the Administrative Agent shall advise each Lender of the details thereof and of the 

amount of such Lender’s Loan to be made as part of the requested Borrowing.

SECTION 2.04. Funding of Borrowings.

(a) Each Lender shall make each Loan to be made by it hereunder on the proposed 

date thereof by wire transfer of immediately available funds by 2:00 p.m., New York City time, 

to the account of the Administrative Agent most recently designated by it for such purpose by 

notice to the Lenders. Upon receipt of all requested funds, the Administrative Agent will make 

such Loans available to the Borrowers by promptly remitting the amounts so received, in like 

funds, by wire transfer to the DIP Funding Account.

(b) Unless the Administrative Agent shall have received notice from a Lender prior to 

the proposed date of any Borrowing that such Lender will not make available to the 

Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may 

assume that such Lender has made such share available on such date in accordance with 

paragraph (a) of this Section and may, but shall have no obligation to, in reliance on such 

assumption, make available to the Borrowers a corresponding amount. In such event, if a Lender 

has not in fact made its share of the applicable Borrowing available to the Administrative Agent, 

then the applicable Lender and the Borrowers severally agree to pay to the Administrative Agent 

forthwith on demand such corresponding amount with interest thereon, for each day from and 

including the date such amount is made available to the Borrowers to but excluding the date of 

payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, 

the greater of the Federal Funds Effective Rate and a rate determined by the Administrative 

Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of 

a payment to be made by the Borrowers, the interest rate applicable to ABR Loans. If the 

Borrowers and such Lender shall pay such interest to the Administrative Agent for the same or 

an overlapping period, the Administrative Agent shall promptly remit to the Borrowers the 

amount of such interest paid by the Borrowers for such period. If such Lender pays such amount 

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to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in 

such Borrowing. Any payment by the Borrowers shall be without prejudice to any claim any 

Borrower may have against a Lender that shall have failed to make such payment to the 

Administrative Agent.

SECTION 2.05. Interest Elections.

(a) Each Borrowing initially shall be of the Type and, in the case of a Eurodollar 

Borrowing, shall have an initial Interest Period as specified in the applicable Borrowing Request 

or as otherwise provided in Section 2.03. Thereafter, the Borrowers may elect to convert such 

Borrowing to a Borrowing of a different Type or to continue such Borrowing and, in the case of 

a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section. The 

Borrowers may elect different options with respect to different portions of the affected 

Borrowing, in which case each such portion shall be allocated ratably among the Lenders 

holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall 

be considered a separate Borrowing.

(b) To make an election pursuant to this Section, the Borrowers shall notify the 

Administrative Agent of such election in writing by delivering (by e-mail, hand delivery or 

facsimile) an Interest Election Request to the Administrative Agent by the time that a Borrowing 

Request would be required under Section 2.03 if the Borrowers were requesting a Borrowing of 

the Type resulting from such election to be made on the effective date of such election. Each 

such Interest Election Request shall be irrevocable. Each written Interest Election Request shall 

specify the following information in compliance with Section 2.02:

(i) the Borrowing to which such Interest Election Request applies and, if 

different options are being elected with respect to different portions thereof, the portions 

thereof to be allocated to each resulting Borrowing (in which case the information to be 

specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting 

Borrowing);

(ii) the effective date of the election made pursuant to such Interest Election 

Request, which shall be a Business Day;

(iii) whether the resulting Borrowing is to be an ABR Borrowing or a 

Eurodollar Borrowing; and

(iv) if the resulting Borrowing is to be a Eurodollar Borrowing, the Interest 

Period to be applicable thereto after giving effect to such election, which shall be a period 

contemplated by the definition of the term “Interest Period.”

If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an 

Interest Period, then the Borrowers shall be deemed to have selected an Interest Period of one 

month’s duration.

(c) Promptly following receipt of an Interest Election Request in accordance with this 

Section, the Administrative Agent shall advise each Lender of the details thereof and of such 

Lender’s portion of each resulting Borrowing.

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(d) If the Borrowers fail to deliver a timely Interest Election Request with respect to a 

Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such 

Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall 

be continued as a Eurodollar Borrowing for an additional Interest Period of one month. 

Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is 

continuing with respect to any Borrower, or if any other Event of Default has occurred and is 

continuing and the Administrative Agent, at the request of the Required Lenders, has notified the 

Borrowers of the election to give effect to this sentence on account of such Event of Default, 

then, so long as such Event of Default is continuing, (i) no outstanding Borrowing may be 

converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar 

Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable 

thereto.

SECTION 2.06. Termination of Commitments.

(a) Unless previously terminated, the Commitments of each Lender shall 

automatically terminate and permanently reduce to $0 upon the making of such Lender’s Loans 

pursuant to Section 2.01(a) and (b), as applicable. 

SECTION 2.07. Repayment of Loans; Evidence of Debt.

(a) The Borrowers hereby unconditionally, jointly and severally, promise to pay to 

the Administrative Agent for the account of each Lender the then unpaid principal amount of 

each Loan of such Lender as provided in Section 2.08.

(b) Each Lender shall maintain in accordance with its usual practice an account or 

accounts evidencing the indebtedness of the Borrowers to such Lender resulting from each Loan 

made by such Lender, including the amounts of principal and interest payable and paid to such 

Lender from time to time hereunder.

(c) The Administrative Agent shall maintain accounts in which it shall record (i) the 

amount of each Loan made hereunder, the Type thereof and the Interest Period applicable 

thereto, (ii) the amount of any principal or interest due and payable or to become due and 

payable from the Borrowers to each Lender hereunder and (iii) the amount of any sum received 

by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share 

thereof.

(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of 

this Section shall be prima facie evidence of the existence and amounts of the obligations 

recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain 

such accounts or any error therein shall not in any manner affect the obligation of the Borrowers 

to pay any amounts due hereunder in accordance with the terms of this Agreement. In the event 

of any conflict between the accounts maintained pursuant to paragraph (b) or (c) of this Section, 

the accounts maintained by the Administrative Agent shall, absent manifest error, control.

(e) Any Lender may request that Loans made by it be evidenced by a promissory 

note. In such event, the Borrowers shall prepare, execute and deliver to such Lender a 

promissory note payable to such Lender (or, if requested by such Lender, to such Lender and its 

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registered assigns) substantially in the form of Exhibit K attached hereto. Thereafter, the Loans 

evidenced by such promissory note and interest thereon shall at all times (including after 

assignment pursuant to Section 9.04) be represented by one or more promissory notes in such 

form payable to the payee named therein (or, if such promissory note is a registered note, to such 

payee and its registered assigns).

SECTION 2.08. Amortization of Term Loans.

(a) [Reserved]

(b) To the extent not previously paid, all Term Loans shall be due and payable on the 

Maturity Date.

(c) [Reserved]

(d) Prior to any repayment of any Borrowings under this Section, the Borrowers shall 

notify the Administrative Agent in writing of such selection not later than 12:00 p.m., New York 

City time, three Business Days before the scheduled date of such repayment. Administrative 

Agent shall promptly notify each Lender of such repayment notification. Each repayment of a 

Borrowing shall be applied ratably to the Loans included in the repaid Borrowing. Repayments 

of Borrowings shall be accompanied by accrued interest (and premium, if any) on the amounts 

repaid.

SECTION 2.09. Prepayment of Loans.

(a) Subject to the Order and the Intercreditor Agreement, in the event that any Net 

Proceeds are received by or on behalf of the Parent Borrower or any Restricted Subsidiary in 

respect of an Asset Sale of all or substantially all of the assets of the Company and its Restricted 

Subsidiaries, the Borrowers shall, within three Business Days after such Net Proceeds are 

received, prepay Borrowings in an amount equal to 100% of such Net Proceeds subject to the 

requirements of Section 2.09(e), with application to the Loan Document Obligations set forth in 

Section 2.09(d) below; provided that any Net Proceeds in respect of ABL Priority Collateral 

received by the Borrowers or any Restricted Subsidiary as a result of such Asset Sale shall be 

applied in accordance with the Order and the Intercreditor Agreement, as applicable.

(b) Subject to the Order and the Intercreditor Agreement, in the event and on each 

occasion that any Net Proceeds are received by or on behalf of the Parent Borrower or any 

Restricted Subsidiary in respect of any Prepayment Event (other than an Asset Sale of all or 

substantially all of the assets of the Company and its Restricted Subsidiaries), the Borrowers 

shall, on the day such Net Proceeds are received (or, in the case of a Prepayment Event described 

in clause (a) or (b) of the definition of “Prepayment Event,” within three Business Days after 

such Net Proceeds are received), be deposited into the Asset Sale Escrow Account and held in 

the Asset Sale Escrow Account in accordance with clause (c) below; provided that in the case of 

a Prepayment Event described in clauses (a) or (b) of the definition thereof, any Net Proceeds in 

respect of ABL Priority Collateral received by the Borrowers or any Restricted Subsidiary as a 

result of such Prepayment Event shall be applied in accordance with the Order and the 

Intercreditor Agreement, as applicable.

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(c) Net Proceeds received in connection with any Prepayment Event described in 

clause (a) or (b) of the definition of “Prepayment Event” (other than an Asset Sale of all or 

substantially all of the assets of the Company and its Restricted Subsidiaries), and solely to the 

extent that such Net Proceeds in respect of the applicable Asset Sale constitute Term Priority 

Collateral, shall be deposited into the Asset Sale Escrow Account. Notwithstanding anything to 

the contrary herein, Net Proceeds of any Asset Sale held in the Asset Sale Escrow Account may 

be used solely, (i) prior to the occurrence of the Conversion Date, to prepay the Loan Document 

Obligations (including, for the avoidance of doubt, the Redemption Premium) in full in cash 

(including, for the avoidance of doubt, on the Maturity Date) and (ii) upon the occurrence of the 

Conversion Date, as directed by the Borrowers.

(d) Any optional or mandatory prepayment of Borrowings under this Section, shall be 

applied to reduce the principal amount of the Term Loans to be repaid on the Maturity Date. 

Notwithstanding the foregoing, any Lender may elect, by written notice to the Administrative 

Agent by not later than 3:00 p.m. New York City time, two Business Days (or such shorter 

period as may be established by the Administrative Agent) prior to the required prepayment date, 

to decline all or any portion of any prepayment of its Loans pursuant to this Section (other than 

an optional prepayment pursuant to paragraph (a) of this Section or a prepayment pursuant to 

clause (c) of the definition of “Prepayment Event,” which may not be declined), in which case 

the aggregate amount of the payment that would have been applied to prepay Loans but was so 

declined shall first, be offered to Lenders who did not decline its pro rata share of the 

prepayment who may elect by written notice to the Administrative Agent by not later than 3:00 

p.m. New York City time, one Business Day prior to the required prepayment date, to decline all 

or any portion of such offered prepayment amount and second, if declined by such Lenders, may 

be retained by the Borrowers and shall constitute “Declined Proceeds.” For the avoidance of 

doubt, a Lender shall be deemed to have accepted any prepayment amount offered under this 

paragraph (d) if such Lender does not deliver a written notice to the Administrative Agent 

rejecting such prepayment amount in accordance with this paragraph (d).

(e) In the event that all or any portion of the Loans are repaid or prepaid as a result of 

(i) [reserved], (ii) a mandatory prepayment pursuant to Section 2.09(a), solely as a result of an 

Asset Sale of all or substantially all of the assets of the Parent Borrower and its Restricted 

Subsidiaries (which, for the avoidance of doubt, includes the “Premium” and “Lane Bryant” 

business lines) or (iii) the repayment of the Loans on the Maturity Date, in each case prior to or 

without the occurrence of the Conversion Date, such repayments or prepayments will include a 

premium in an aggregate amount equal to 11.23% of the amount of the loans so prepaid or repaid 

(the foregoing premium, the “Redemption Premium”). 

(f) The Borrowers shall notify the Administrative Agent in writing of any optional 

prepayment and, to the extent practicable, any mandatory prepayment hereunder by Borrowing, 

not later than 12:00 p.m., New York City time, three Business Days before the date of such 

prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the 

principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a 

mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; 

provided that a notice of prepayment of Borrowings pursuant to paragraph (a) of this Section 

may state that such notice is conditioned upon the occurrence of one or more events specified 

therein, in which case such notice may be revoked by the Parent Borrower (by notice to the 

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Administrative Agent on or prior to the specified date of prepayment) if such condition is not 

satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise 

the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an 

amount that would be permitted in the case of an advance of a Borrowing of the same Type as 

provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory 

prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in 

the prepaid Borrowing. Prepayments shall be accompanied by accrued interest as required by 

Section 2.11.

(g) Notwithstanding any provisions of this Section 2.09 to the contrary, if any 

prepayment would otherwise be required to be made pursuant to clause (b) of this Section 2.09, 

solely as it relates to the portion of such Net Proceeds generated outside of the United States, so 

long as (x) the applicable local law will not permit repatriation of such Net Proceeds to the 

United States or (y) material adverse tax consequences to the Parent Borrower or any of its 

Subsidiaries would result from such repatriation, such Net Proceeds so affected shall not be 

required to be included in the mandatory prepayments referred to in such clause (b).

SECTION 2.10. Closing Payments, Premiums and Fees.

(a) The Borrowers agree, jointly and severally, to pay (or cause to be paid) on the 

Funding Date to each Lender, a closing payment in an amount equal to 2.50% of the aggregate 

principal amount of such Lender’s New Money Loan, which such payment may be treated as 

original issue discount. The premium referenced in this clause (a) shall be fully earned on the 

Effective Date and due and payable in full on the date set forth above.

(b) The Borrowers agree, jointly and severally, to pay (i) to the Administrative Agent, 

for its own account, fees and expenses in the amounts and payable at the times and in the manner 

set forth in the Administrative Agent Fee Letter, (ii) to the Backstop Lenders, for their own 

account, premiums in amounts and payable at the times separately agreed upon in the 

Commitment Letter and (iii) to the Lenders, for their own account, premiums in amounts and 

payable at the times separately agreed upon in the RSA.

(c) All amounts payable hereunder shall be paid on the dates due, in immediately 

available funds, to the Administrative Agent for distribution, in the case of closing payments, to 

the Term Lenders entitled thereto. Amounts paid shall not be refundable under any 

circumstances (absent manifest error in the amount paid).

SECTION 2.11. Interest.

(a) The Loans comprising each ABR Borrowing shall bear interest at the Alternate 

Base Rate plus the Applicable Rate.

(b) The Loans comprising each Eurodollar Borrowing shall bear interest at the 

Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable 

Rate.

(c) During the continuance of an Event of Default (i) under clauses (a) or (b) of 

Article VII, the Borrowers shall pay interest on such past due amounts (after giving effect to any 

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applicable grace period) owing by the Borrowers hereunder at a fluctuating interest rate per 

annum at all times equal to the Default Rate to the fullest extent permitted by applicable laws

and (ii) under any other clause of Article VII, the Borrowers shall pay interest on all outstanding 

Loan Document Obligations owing by the Borrowers hereunder at a fluctuating interest rate per 

annum at all times equal to the Default Rate to the fullest extent permitted by applicable laws.

Accrued and unpaid interest on such amounts (including interest on past due interest) shall be 

due and payable upon written demand.

(d) Accrued interest on each Loan (for ABR Loans, accrued through the last day of 

the prior calendar quarter) shall be payable in arrears on each Interest Payment Date for such 

Loan; provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable 

on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued interest on the 

principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment 

and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current 

Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of 

such conversion.

(e) All interest hereunder shall be computed on the basis of a year of 360 days, except 

that interest computed by reference to the Alternate Base Rate at times when the Alternate Base 

Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 

366 days in a leap year), and in each case shall be payable for the actual number of days elapsed 

(including the first day but excluding the last day). The applicable Alternate Base Rate or 

Adjusted LIBO Rate shall be determined by the Administrative Agent, and such determination 

shall be conclusive absent manifest error.

SECTION 2.12. Alternate Rate of Interest. (i) If prior to the commencement of any 

Interest Period for a Eurodollar Borrowing:

(a) the Administrative Agent determines in good faith (which determination shall be 

conclusive absent manifest error) that adequate and reasonable means do not exist for 

ascertaining the Adjusted LIBO Rate for such Interest Period; or

(b) the Administrative Agent is advised in writing by the Required Lenders that the 

Adjusted LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to 

such Lenders of making or maintaining their Loans included in such Eurodollar Borrowing for 

such Interest Period;

then the Administrative Agent shall give notice thereof to the Borrowers and the Lenders as 

promptly as practicable and, until the Administrative Agent notifies the Borrowers and the 

Lenders that the circumstances giving rise to such notice no longer exist (which notification shall 

be made promptly after the Administrative Agent obtains knowledge of the cessation of such 

circumstances), (i) any Interest Election Request that requests the conversion of any Borrowing 

to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective, and such 

Borrowing shall be continued as an ABR Borrowing, and (ii) any Borrowing Request for a 

Eurodollar Borrowing shall be treated as a request for an ABR Borrowing.

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(ii) If at any time the Administrative Agent determines (which determination shall be conclusive 

absent manifest error) that (i) the circumstances set forth in paragraph (i)(a) of this Section have 

arisen (including because the Screen Rate is not available or published on a current basis) and 

such circumstances are unlikely to be temporary or (ii) the circumstances set forth in paragraph 

(i)(a) of this Section have not arisen but the supervisor for the administrator of the Screen Rate or 

a Governmental Authority having jurisdiction over the Administrative Agent has made a public 

statement identifying a specific date after which the Screen Rate shall no longer be used for 

determining interest rates for loans, then the Administrative Agent and the Company shall 

endeavor to establish an alternate rate of interest to the Adjusted LIBO Rate that gives due 

consideration to the then prevailing market convention for determining a rate of interest for 

syndicated loans denominated in dollars in the United States at such time, and the Administrative 

Agent and the Company shall enter into an amendment to this Agreement to reflect such 

alternate rate of interest and such other related changes to this Agreement as may be applicable; 

provided that if such alternate rate of interest shall be less than 1.00%, such rate shall be deemed 

to be 1.00% for all purposes of this Agreement. Such amendment shall become effective with 

the prior consent of the Required Lenders and without any further action or consent of any other 

party to this Agreement. Until an alternate rate of interest shall be determined in accordance 

with this paragraph (but, in the case of the circumstances described in clause (ii) above, only to 

the extent the Screen Rate for such Interest Period is not available or published at such time on a 

current basis), (x) any Interest Election Request that requests the conversion of any Borrowing 

to, or continuation of any Borrowing as, a Eurodollar Term Loan Borrowing shall be ineffective, 

and such Borrowing shall be continued as an ABR Term Loan Borrowing, and (y) any 

Borrowing Request for a Eurodollar Term Loan Borrowing shall be treated as a request for an 

ABR Term Loan Borrowing.

SECTION 2.13. Increased Costs.

(a) If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit, 

compulsory loan, insurance charge or similar requirement against assets of, deposits with 

or for the account of, or credit extended or participated in by, any Lender (except any 

such reserve requirement reflected in the Adjusted LIBO Rate);

(ii) impose on any Lender or the London interbank market any other 

condition, cost or expense (other than Taxes) affecting this Agreement or Eurodollar 

Loans made by such Lender; or

(iii) subject any Recipient to any Taxes (other than any (A) Indemnified Taxes 

or (B) Excluded Taxes) on or with respect to its loans, loan principal, letters of credit, 

commitments or other obligations, or its deposits, reserves, other liabilities or capital 

attributable thereto;

and the result of any of the foregoing shall be to increase the cost to such Lender or other 

Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its 

obligation to make any such Loan, or to reduce the amount of any sum received or receivable by 

such Lender or other Recipient hereunder (whether of principal, interest or any other amount) 

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then, from time to time upon request of such Lender or other Recipient, the Borrowers will pay 

to such Lender or other Recipient, as the case may be, such additional amount or amounts as will 

compensate such Lender or other Recipient, as the case may be, for such additional costs or 

expenses incurred or reduction suffered. Notwithstanding the foregoing, if the Parent Borrower 

reasonably believes that any such Taxes were not correctly or legally asserted, the applicable 

Recipient will use commercially reasonable efforts to cooperate with the Parent Borrower to 

obtain a refund of such Taxes so long as such efforts would not, in the sole determination of such 

Recipient exercised in good faith result in any non-reimbursable additional costs, expenses or 

risks or be otherwise disadvantageous to it.

(b) If any Lender determines that any Change in Law regarding capital or liquidity 

requirements has had or would have the effect of reducing the rate of return on such Lender’s 

capital or on the capital of such Lender’s holding company, if any, as a consequence of this 

Agreement, the Commitments of such Lender or the Loans made by such Lender to a level 

below that which such Lender or such Lender’s holding company could have achieved but for 

such Change in Law (taking into consideration such Lender’s policies and the policies of such

Lender’s holding company with respect to capital adequacy or liquidity), then, from time to time 

upon request of such Lender, the Borrowers will pay to such Lender such additional amount or 

amounts as will compensate such Lender or such Lender’s holding company for any such 

reduction suffered.

(c) A certificate of a Lender setting forth the amount or amounts necessary to 

compensate such Lender or its holding company as well as a reasonably detailed description of 

the occurrence giving rise to such event, as the case may be, as specified in paragraph (a) or (b) 

of this Section delivered to the Borrowers shall be conclusive absent manifest error. The 

Borrowers shall pay such Lender the amount shown as due on any such certificate within 

10 Business Days after receipt thereof.

(d) Failure or delay on the part of any Lender to demand compensation pursuant to 

this Section shall not constitute a waiver of such Lender’s right to demand such compensation; 

provided that the Borrowers shall not be required to compensate a Lender pursuant to this 

Section for any increased costs or expenses incurred or reductions suffered more than 180 days 

prior to the date that such Lender notifies the Borrowers of the Change in Law giving rise to such 

increased costs or expenses or reductions and of such Lender’s or intention to claim 

compensation therefor; provided further that, if the Change in Law giving rise to such increased 

costs or expenses or reductions is retroactive, then the 180-day period referred to above shall be 

extended to include the period of retroactive effect thereof.

(e) Notwithstanding the above, a Lender will not demand compensation for any 

increased cost or reduction set forth in this Section 2.13 at any time if it is not the general 

practice and policy of such Lender to demand such compensation from similarly situated 

borrowers in similar circumstances under agreements containing provisions permitting such 

compensation to be claimed at such time.

SECTION 2.14. Break Funding Payments. In the event of (a) the payment of any 

principal of any Eurodollar Loan other than on the last day of an Interest Period applicable 

thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan 

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other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, 

convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered 

pursuant hereto (regardless of whether such notice may be revoked under Section 2.09(f) and is 

revoked in accordance therewith) or (d) the assignment of any Eurodollar Loan other than on the 

last day of the Interest Period applicable thereto as a result of a request by the Borrowers 

pursuant to Section 2.17, then, in any such event, the Borrowers shall compensate each Lender 

for the loss, cost and expense (excluding any loss of margin) attributable to such event. Such 

loss, cost or expense to any Lender shall be deemed to include an amount determined by such 

Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the 

principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that 

would have been applicable to such Loan (but not including the Applicable Rate applicable 

thereto), for the period from the date of such event to the last day of the then current Interest 

Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that 

would have been the Interest Period for such Loan), over (ii) the amount of interest that would 

accrue on such principal amount for such period at the interest rate such Lender would bid if it 

were to bid, at the commencement of such period, for dollar deposits of a comparable amount 

and period from other banks in the London interbank market. A certificate of any Lender 

delivered to the Borrowers and setting forth and explaining in reasonable detail any amount or 

amounts that such Lender is entitled to receive pursuant to this Section shall be conclusive absent 

manifest error. The Borrowers shall pay such Lender the amount shown as due on any such 

certificate within 30 days after receipt thereof.

SECTION 2.15. Taxes.

(a) Payments Free of Taxes. Any and all payments by or on account of any 

obligation of any Loan Party under any Loan Document shall be made without deduction or 

withholding for any Taxes, except as required by applicable law. If any applicable law (as 

determined in the good faith discretion of an applicable withholding agent) requires the 

deduction or withholding of any Tax from any such payment by any applicable withholding 

agent, then the applicable withholding agent shall be entitled to make such deduction or 

withholding and shall timely pay the full amount deducted or withheld to the relevant 

Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified 

Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that 

after such deduction or withholding has been made (including such deductions and withholdings 

applicable to additional sums payable under this Section 2.15) the applicable Recipient receives 

an amount equal to the sum it would have received had no such deduction or withholding been 

made.

(b) Payment of Other Taxes by the Loan Parties. The Loan Parties shall timely pay to 

the relevant Governmental Authority in accordance with applicable law, or at the, option of the 

Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(c) Evidence of Payment. As soon as practicable after any payment of Taxes by any 

Loan Party to a Governmental Authority pursuant to this Section 2.15, such Loan Party shall 

deliver to the Administrative Agent the original or a certified copy of a receipt issued by such 

Governmental Authority evidencing such payment, a copy of the return reporting such payment 

or other evidence of such payment reasonably satisfactory to the Administrative Agent.

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(d) Indemnification by the Loan Parties. The Loan Parties shall jointly and severally 

indemnify each Recipient, within 10 days after written demand therefor, for the full amount of 

any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to 

amounts payable under this Section 2.15) payable or paid by such Recipient or required to be 

withheld or deducted from a payment to such Recipient and any reasonable expenses arising 

therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or 

legally imposed or asserted by the relevant Governmental Authority. A certificate as to the 

amount of such payment or liability delivered to the Borrowers by a Lender (with a copy to the 

Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a 

Lender, shall be conclusive absent manifest error.

(e) Status of Lenders. (i) Any Lender that is entitled to an exemption from or 

reduction of withholding Tax with respect to payments made under any Loan Document shall 

deliver to the Borrowers and the Administrative Agent, at the time or times reasonably requested 

by the Borrowers or the Administrative Agent, such properly completed and executed

documentation reasonably requested by the Borrowers or the Administrative Agent as will 

permit such payments to be made without withholding or at a reduced rate of withholding. In 

addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, 

shall deliver such other documentation prescribed by applicable law or reasonably requested by 

the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative 

Agent to determine whether or not such Lender is subject to backup withholding or information 

reporting requirements. Notwithstanding anything to the contrary in the preceding two 

sentences, the completion, execution and submission of such documentation (other than such 

documentation set forth in Section 2.15(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required 

if in the Lender’s reasonable judgment such completion, execution or submission would subject 

such Lender to any material unreimbursed cost or expense or would materially prejudice the 

legal or commercial position of such Lender.

(i) Without limiting the generality of the foregoing:

(A) any Lender that is a U.S. Person shall deliver to the Borrowers and 

the Administrative Agent on or prior to the date on which such Lender becomes a 

Lender under this Agreement (and from time to time thereafter upon the 

reasonable request of the Borrowers or the Administrative Agent), executed 

copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal 

backup withholding tax;

(B) any Foreign Lender shall, to the extent it is legally entitled to do 

so, deliver to the Borrowers and the Administrative Agent on or prior to the date 

on which such Foreign Lender becomes a Lender under this Agreement (and from 

time to time thereafter upon the reasonable request of the Borrowers or the 

Administrative Agent), whichever of the following is applicable (in such number 

of copies as shall be requested by the recipient):

(1) in the case of a Foreign Lender claiming the benefits of 

an income tax treaty to which the United States is a party(x) with 

respect to payments of interest under any Loan Document, executed 

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copies of IRS Form W-8BEN or IRS Form W-8BEN-E (or any 

successor forms) establishing an exemption from, or reduction of, U.S. 

federal withholding tax pursuant to the “interest” article of such tax 

treaty and (y) with respect to any other applicable payments under any 

Loan Document, executed copies of IRS Form W-8BEN or IRS Form 

W-8BEN-E establishing an exemption from, or reduction of, U.S. 

federal withholding tax pursuant to the “business profits” or “other 

income” article of such tax treaty;

(2) executed copies of IRS Form W-8ECI (or any successor 

forms);

(3) in the case of a Foreign Lender claiming the benefits of 

the exemption for portfolio interest under Section 881(c) of the Code, 

(x) a certificate substantially in the form of Exhibit H-1 to the effect 

that such Foreign Lender is not a “bank” within the meaning of 

Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the 

Parent Borrower within the meaning of Section 881(c)(3)(B) of the 

Code, or a “controlled foreign corporation” described in 

Section 881(c)(3)(C) of the Code and that no payments in connection 

with any Loan Document are effectively connected with the Foreign 

Lender’s conduct of a U.S. trade or business (a “U.S. Tax Compliance 

Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS 

Form W-8BEN-E (or any successor forms); or

(4) to the extent a Foreign Lender is not the beneficial 

owner (for example, where the Foreign Lender is a partnership or a 

participating Lender), executed copies of IRS Form W-8IMY (or any 

successor forms), accompanied by IRS Form W-8ECI, IRS 

Form W-8BEN or IRS Form W-8BEN-E, a U.S. Tax Compliance 

Certificate substantially in the form of Exhibit H-3 or H-4, IRS 

Form W-9, and/or other certification documents from each beneficial 

owner, as applicable; provided that if the Foreign Lender is a 

partnership (and not a participating Lender) and one or more direct or 

indirect partners of such Foreign Lender are claiming the portfolio 

interest exemption, such Foreign Lender may provide a U.S. Tax 

Compliance Certificate substantially in the form of Exhibit H-2 on 

behalf of each such direct and indirect partner;

(C) any Foreign Lender shall, to the extent it is legally entitled to do 

so, deliver to the Borrowers and the Administrative Agent (in such number of 

copies as shall be requested by the recipient) on or prior to the date on which such 

Foreign Lender becomes a Lender under this Agreement (and from time to time 

thereafter upon the reasonable request of the Borrowers or the Administrative 

Agent), executed originals of any other form prescribed by applicable law as a 

basis for claiming exemption from or a reduction in U.S. federal withholding Tax, 

duly completed, together with such supplementary documentation as may be 

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prescribed by applicable law to permit the Borrowers or the Administrative Agent 

to determine the withholding or deduction required to be made; and

(D) if a payment made to a Lender under any Loan Document would 

be subject to U.S. federal withholding Tax imposed by FATCA if such Lender 

were to fail to comply with the applicable reporting requirements of FATCA 

(including those contained in Section 1471(b) or 1472(b) of the Code, as 

applicable), such Lender shall deliver to the Borrowers and the Administrative 

Agent at the time or times prescribed by law and at such time or times reasonably 

requested by the Borrowers or the Administrative Agent such documentation 

prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) 

of the Code) and such additional documentation reasonably requested by the 

Borrowers or the Administrative Agent as may be necessary for the Borrowers 

and the Administrative Agent to comply with their obligations under FATCA, to 

determine whether such Lender has complied with such Lender’s obligations 

under FATCA and to determine the amount, if any, to deduct and withhold from 

such payment. Solely for purposes of this clause (D), “FATCA” shall include any 

amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered (including any 

specific documentation required in this Section 2.15(e)) expires or becomes obsolete or 

inaccurate in any respect, it shall deliver promptly to the Borrowers or Administrative Agent 

updated or other appropriate documentation (including any new documentation reasonably 

requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and 

the Administrative Agent in writing of its legal ineligibility to do so.

(f) Indemnification by the Lenders. Each Lender shall severally indemnify the 

Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes 

attributable to such Lender (but only to the extent that any Loan Party has not already 

indemnified the Administrative Agent for such Indemnified Taxes and without limiting the 

obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to 

comply with the provisions of Section 9.04(c)(ii) relating to the maintenance of a Participant 

Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable 

or paid by the Administrative Agent in connection with any Loan Document, and any reasonable 

expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or 

legally imposed or asserted by the relevant Governmental Authority. A certificate as to the 

amount of such payment or liability delivered to any Lender by the Administrative Agent shall 

be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to 

set off and apply any and all amounts at any time owing to such Lender under any Loan 

Document or otherwise payable by the Administrative Agent to the Lender from any other 

source against any amount due to the Administrative Agent under this paragraph (f).

(g) Treatment of Certain Refunds. If any Recipient determines, in its sole discretion 

exercised in good faith, that it has received a refund of any Indemnified Taxes as to which it has 

been indemnified pursuant to this Section 2.15 (including by the payment of additional amounts 

pursuant to this Section 2.15), it shall pay to the indemnifying party an amount equal to such 

refund (but only to the extent of indemnity payments made under this Section 2.15 with respect 

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to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of 

such indemnified party and without interest (other than any interest paid by the relevant 

Governmental Authority with respect to such refund). Such indemnifying party, upon the 

request of such indemnified party, shall repay to such indemnified party the amount paid over 

pursuant to this Section 2.15(g) (plus any penalties, interest or other charges imposed by the 

relevant Governmental Authority) in the event that such indemnified party is required to repay 

such refund to such Governmental Authority. Notwithstanding anything to the contrary in this 

Section 2.15(g), in no event will the indemnified party be required to pay any amount to an 

indemnifying party pursuant to this paragraph the payment of which would place the indemnified 

party in a less favorable net after-Tax position than the indemnified party would have been in if 

the Tax subject to indemnification and giving rise to such refund had not been deducted, 

withheld or otherwise imposed and the indemnification payments or additional amounts with 

respect to such Tax had never been paid. This Section 2.15(g) shall not be construed to require 

any indemnified party to make available its Tax returns (or any other information relating to its 

Taxes that it deems confidential) to any Loan Party or any other Person.

(h) Defined Terms. For the avoidance of doubt, for purposes of this Section 2.15, the 

term “applicable law” includes FATCA.

(i) Issue Price. The Borrowers and Administrative Agent shall cooperate in good 

faith to determine the “issue price” (within the meaning of Section 1273 of the Code) of (i) the 

Loans and (ii) if the Exit Conversion occurs, the loans under the Exit Facility Agreement and, in 

either case, shall not take any Tax reporting position inconsistent with such determination, 

except as otherwise required by a Change in Law or pursuant to the good faith resolution of a 

Tax contest

(j) Survival. Each party’s obligations under this Section 2.15 shall survive the 

resignation or replacement of the Administrative Agent or any assignment of rights by, or the 

replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or 

discharge of all obligations under any Loan Document.

SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.

(a) The Borrowers shall make each payment required to be made by the Borrowers 

hereunder or under any other Loan Document on or prior to the time expressly required 

hereunder or under such other Loan Document for such payment (or, if no such time is expressly 

required, on or prior to 2:00 p.m., New York City time), on the date when due, in immediately 

available funds, without any defense, setoff, recoupment or counterclaim. Any amounts received 

after such time on any date may, in the discretion of the Administrative Agent, be deemed to 

have been received on the next succeeding Business Day for purposes of calculating interest 

thereon. All such payments shall be made to such account as may be specified by the 

Administrative Agent; provided that payments pursuant to Sections 2.13, 2.14, 2.15 and 9.03 

shall be made directly to the Persons entitled thereto and payments pursuant to other Loan 

Documents shall be made to the Persons specified therein. The Administrative Agent shall 

distribute any such payment received by it for the account of any other Person to the appropriate 

recipient promptly following receipt thereof. If any payment hereunder or under any other Loan 

Document shall be due on a day that is not a Business Day, the date for payment shall be 

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extended to the next succeeding Business Day and, in the case of any payment accruing interest, 

interest thereon shall be payable for the period of such extension. All payments under each Loan 

Document shall be made in dollars.

(b) Any reduction of the New Money Commitment shall be allocated ratably among 

the Lenders. If at any time insufficient funds are received by and available to the Administrative 

Agent to pay fully all amounts of principal, interest, premiums and fees then due hereunder, such 

funds shall be applied towards payment of the amounts then due hereunder ratably among the 

parties entitled thereto, in accordance with the amounts then due to such parties.

(c) If any Lender shall, by exercising any right of set-off or counterclaim or 

otherwise, obtain payment in respect of any principal of or interest on any of its Loans resulting 

in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans 

and accrued interest thereon than the proportion received by any other Lender, then the Lender 

receiving such greater proportion shall notify the Administrative Agent of such fact and shall 

purchase (for cash at face value) participations in the Loans of other Lenders to the extent 

necessary so that the amount of all such payments shall be shared by the Lenders ratably in 

accordance with the aggregate amounts of principal of and accrued interest on their Loans; 

provided that (i) if any such participations are purchased and all or any portion of the payment 

giving rise thereto is recovered, such participations shall be rescinded and the purchase price 

restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph 

shall not be construed to apply to any payment made by the Borrowers pursuant to and in 

accordance with the express terms of this Agreement (for the avoidance of doubt, as in effect 

from time to time) or any payment obtained by a Lender as consideration for the assignment of 

or sale of a participation in any of its Loans to any Person in accordance with the terms of 

Section 9.04. The Borrowers consent to the foregoing and agree, to the extent the Borrowers 

may effectively do so under applicable law, that any Lender acquiring a participation pursuant to 

the foregoing arrangements may exercise against any Borrower rights of set-off and counterclaim 

with respect to such participation as fully as if such Lender were a direct creditor of the 

Borrowers in the amount of such participation. For purposes of subclause (b)(i) of the definition 

of Excluded Taxes, a Lender that acquires a participation pursuant to this Section 2.16(c) shall be 

treated as having acquired such participation on the earlier date(s) on which such Lender 

acquired the applicable interest(s) in the Commitment(s) and/or Loan(s) to which such 

participation relates.

(d) Unless the Administrative Agent shall have received written notice from the 

Borrowers prior to the date on which any payment is due to the Administrative Agent for the 

account of the Lenders hereunder that the Borrowers will not make such payment, the 

Administrative Agent may assume that the Borrowers have made such payment on such date in 

accordance herewith and may, but shall not be obligated to, in reliance upon such assumption, 

distribute to the Lenders the amount due. In such event, if the Borrowers have not in fact made 

such payment, then each of the Lenders severally agrees to repay to the Administrative Agent 

forthwith on demand the amount so distributed to such Lender with interest thereon, for each day 

from and including the date such amount is distributed to it to but excluding the date of payment 

to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate 

determined by the Administrative Agent in accordance with banking industry rules on interbank 

compensation.

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(e) If any Lender shall fail to make any payment required to be made by it hereunder 

to or for the account of the Administrative Agent, then the Administrative Agent may, in its 

discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter 

received by the Administrative Agent for the account of such Lender to satisfy such Lender’s 

obligations in respect of such payment until all such unsatisfied obligations have been discharged 

and/or (ii) hold any such amounts in a segregated account as cash collateral for, and apply any 

such amounts to, any future payment obligations of such Lender hereunder to or for the account 

of the Administrative Agent.

SECTION 2.17. Mitigation Obligations; Replacement of Lenders.

(a) If any Lender requests compensation under Section 2.13, or if the Borrowers are 

required to pay any Indemnified Taxes or additional amounts to any Lender or to any 

Governmental Authority for the account of any Lender pursuant to Section 2.15, then such 

Lender shall use reasonable efforts to designate a different lending office for funding or booking 

its Loans hereunder or to assign and delegate its rights and obligations hereunder to another of its 

offices, branches or Affiliates if, in the judgment of such Lender, such designation or assignment 

and delegation (i) would eliminate or reduce amounts payable pursuant to Section 2.13 or 2.15, 

as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost 

or expense and would not otherwise be disadvantageous to such Lender. The Borrowers hereby, 

jointly and severally, agree to pay all reasonable costs and expenses incurred by any Lender in 

connection with any such designation or assignment and delegation.

(b) If (i) any Lender requests compensation under Section 2.13, (ii) the Borrowers are 

required to pay any Indemnified Taxes or additional amounts to any Lender or any 

Governmental Authority for the account of any Lender pursuant to Section 2.15, or (iii) any 

Lender has failed to consent to a proposed amendment, waiver, discharge or termination that 

under Section 9.02 requires the consent of all the Lenders (or all the affected Lenders) and with 

respect to which the Required Lenders shall have granted their consent, then the Borrowers may, 

at the Borrowers’ sole expense and effort, upon notice to such Lender and the Administrative 

Agent by the Borrowers, require such Lender to assign and delegate, without recourse (in 

accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights 

(other than its existing rights to payments pursuant to Section 2.13 or 2.15) and obligations under 

this Agreement and the other Loan Documents (or, in the case of any such assignment and 

delegation resulting from a failure to provide a consent, all its interests, rights and obligations 

under this Agreement and the other Loan Documents as a Lender) to an Eligible Assignee that 

shall assume such obligations (which may be another Lender, if a Lender accepts such 

assignment and delegation); provided that (A) the Borrowers shall have received the prior 

written consent of the Administrative Agent to the extent such consent would be required under 

Section 9.04(b)(i), which consent shall not unreasonably be withheld, (B) such Lender shall have 

received payment of an amount equal to the outstanding principal of its Loans, accrued interest 

thereon, accrued fees and all other amounts payable to it hereunder from the assignee (in the case 

of such principal and accrued interest and fees) or the Borrowers (in the case of all other 

amounts), (C) in the case of any such assignment and delegation resulting from a claim for 

compensation under Section 2.13 or payments required to be made pursuant to Section 2.15,

such assignment will result in a reduction in such compensation or payments and (D) in the case 

of any such assignment and delegation resulting from the failure to provide a consent, the 

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assignee shall have given such consent and, as a result of such assignment and delegation and 

any contemporaneous assignments and delegations and consents, the applicable amendment, 

waiver, discharge or termination can be effected. A Lender shall not be required to make any 

such assignment and delegation if, prior thereto, as a result of a waiver or consent by such 

Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and 

delegation have ceased to apply. Each party hereto agrees that an assignment and delegation 

required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption 

executed by the Borrowers, the Administrative Agent and the assignee and that the Lender 

required to make such assignment and delegation need not be a party thereto.

SECTION 2.18. [Reserved].

SECTION 2.19. [Reserved].

SECTION 2.20. Joint and Several Liability of the Borrowers. The Loan Document

Obligations of the Borrowers shall be joint and several in nature. Each Borrower hereby 

irrevocably and unconditionally agrees that it is jointly and severally liable for all Loan 

Document Obligations of the Borrowers hereunder and the other Loan Documents, whether now 

or hereafter existing or due or to become due. The Loan Document Obligations of the Borrowers 

under the Loan Documents may be enforced by the Administrative Agent and the Lenders 

against any Borrower or all Borrowers in any manner or order selected by the Administrative 

Agent or the Required Lenders in their sole discretion. Without limiting the foregoing 

provisions of this Section 2.20, each Borrower acknowledges and agrees that:

(a) its obligations under this Agreement shall remain enforceable against it even 

though such obligations may be unenforceable or not allowable against any Borrower during the 

existence of an insolvency proceeding against any Borrower or otherwise; 

(b) its obligations under this Agreement are independent of the obligations of any 

other Borrower, and a separate action or actions may be brought and prosecuted against it in 

respect of such obligations irrespective of whether any action is brought against any other 

Borrower or any other Borrower is joined in any such action or actions; 

(c) it hereby irrevocably waives any defenses it may now have or hereafter acquire in 

any way relating to, any of all of the following: (i) any lack of validity or enforceability of this 

Agreement or any agreement or instrument relating thereto in respect of any other Borrower; (ii) 

any change in the time, manner or place of payment of, or in any other term of, all or any of the 

obligations of any other Borrower under or in respect of this Agreement, or any other 

amendment or waiver of or any consent to departure from this Agreement, in respect of any other 

Borrower; (iii) any change, restructuring or termination of the structure or existence of any other 

Borrower; (iv) the failure of any other person to execute or deliver any other agreement or the 

release or reduction of liability of any other person with respect to any obligations of the 

Borrowers under this Agreement; or (v) any other circumstance (including any statute of 

limitations but other than the Loan Document Obligations having been paid in full) or any 

existence or reliance on any representation by any other person that might otherwise constitute a 

defense available to, or a discharge or, any other Borrower; 

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(d) its obligations under this Agreement shall continue to be effective or be 

reinstated, as the case may be, if at any time any payment of any such obligations is rescinded or 

must otherwise be returned by any person upon the insolvency, bankruptcy or reorganization of 

any other Borrower, all as though such payment had not been made; 

(e) it hereby unconditionally and irrevocably waives any right to revoke its joint and 

several liability under the Loan Documents and acknowledges that such liability is continuing 

and applies to all obligations of the Borrowers under the Loan Documents, whether existing now 

or in the future;

(f) in any action or proceeding involving any state corporate limited partnership or 

limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, 

reorganization or other law affecting the rights of creditors generally, if the obligations of the 

Subsidiary Borrower under this Agreement would otherwise be held or determined to be void, 

voidable, invalid or unenforceable, or subordinated to the claims of the any other creditors, on 

account of the amount of its liability under this Agreement, then, notwithstanding any other 

provision to the contrary, the amount of such liability shall, without any further action by such 

Borrower, any Loan Document or any other person be automatically limited and reduced to the 

highest amount (after giving effect to the right of contribution established in Section 2.20(g) and 

any rights of subrogation, indemnity or reimbursement) that is valid and enforceable and not 

subordinated to the claims of other creditors as determined in such action or proceedings; and

(g) it hereby agrees that to the extent that any Borrower shall have paid more than its 

proportionate share of any payment made hereunder, such Borrower shall be entitled to seek and 

receive contribution from and against any other Borrower hereunder which has not paid its 

proportionate share of such payment; provided that the provisions of this Section 2.20(g) shall in 

no respect limit the obligations and liabilities of any Borrower to the Administrative Agent and 

the Lenders, and each Borrower shall remain liable to the Administrative Agent and the Lenders 

for the full amount hereunder; provided, however each Borrower agrees that the foregoing rights 

of contribution as well as any right of subrogation, indemnity or reimbursement that it may 

acquire or that may arise against any other Borrower due to any payment or performance made 

under this Agreement shall in all respects be subordinated and junior in right of payment to, and 

shall not be exercised by such Borrower until, all Loan Document Obligations have been paid in 

full.

SECTION 2.21. Super-Priority Nature of Obligations and Administrative Agent’s 

Liens; Payment of Obligations.

(a) The priority of Administrative Agent’s Liens on the Collateral, claims and 

other interests shall be as set forth in the Order.

(b) Upon the maturity (whether by acceleration or otherwise) of any of the 

Loan Document Obligations, the Administrative Agent and Lenders shall be entitled to 

immediate payment of such Loan Document Obligations without further application to or order 

of the Court.

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SECTION 2.22. Conversion to Exit Facility Agreement. The Loans shall be repaid in 

cash in accordance with the terms hereunder; provided that, notwithstanding the foregoing, upon 

the satisfaction or waiver by the Required Lenders of each of the conditions set forth in the 

“Conditions to Borrowings” section of the Exit Facility Term Sheet, automatically and without 

any further consent or action required by the Administrative Agent, any Lender, or any other 

Secured Party, the Loans shall be refinanced with loans under the Exit Facility Agreement in 

accordance with the Exit Facility Term Sheet (the “Exit Conversion”). Upon the Exit 

Conversion, (i) the Borrowers (or the entities assuming and/or acquiring directly or indirectly the 

operations and assets of the Borrowers in the Acceptable Plan, and each Guarantor and each 

entity assuming the operations and assets of each Guarantor that is a Debtor in the Acceptable 

Plan, to the extent such Person is required under the Exit Facility Term Sheet to continue to be a 

guarantor thereunder), shall assume all obligations in respect of the Loans hereunder and all

other monetary obligations in respect hereof, (ii) each Loan hereunder shall be continued as and 

converted to a Loan under the Exit Facility Agreement, (iii) each Lender hereunder shall be a 

Lender under the Exit Facility Agreement and (iv) this Agreement shall terminate and be 

superseded and replaced in its entirety by, and deemed amended and restated in its entirety in the 

form of, the Exit Facility Agreement (with such changes and insertions thereto, as are reasonably 

satisfactory to the Administrative Agent and the Borrower, incorporated as necessary to make 

any technical changes necessary to effectuate the intent of this Section 2.22 and to make any 

changes as required in the Exit Facility Term Sheet, including to increase the facility amount and 

give effect to any “last out” term loans). Notwithstanding the foregoing, all obligations of the 

Borrowers and the Guarantors to the Administrative Agent and the Lenders under this 

Agreement and any other Loan Document which are expressly stated in this Agreement or such 

other Loan Document as surviving such agreement’s termination shall, as so specified, survive 

without prejudice and remain in full force and effect. Each of the Loan Parties, the 

Administrative Agent and the Lenders shall take such actions and execute and deliver such 

agreements, instruments or other documents as the Administrative Agent may reasonably request 

to give effect to the provisions of this Section 2.22 and as are required to complete the schedules 

to the Exit Facility Agreement or other agreements contemplated thereby; provided, however,

that any such action by the Administrative Agent or any of the Lenders shall not be a condition 

precedent to the effectiveness of the Exit Facility Agreement if and to the extent so provided in 

the Confirmation Order. Each Lender hereto hereby agrees that, on the Conversion Date, (i) the 

Administrative Agent (in its capacity as Administrative Agent under the Exit Facility 

Agreement) may execute and deliver the Exit Facility Agreement (and any guaranty

contemplated thereby) on its own behalf and on behalf of each such Lender and (ii) the 

Administrative Agent may execute and deliver the security documents contemplated by the Exit 

Facility Term Sheet. On the Conversion Date, the Administrative Agent shall transfer any 

amounts remaining in the DIP Accounts to an account designated by the Borrowers. 

ARTICLE III

Representations and Warranties

Each Borrower represents and warrants to the Administrative Agent and the Lenders as 

follows:

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SECTION 3.01. Organization; Powers. The Parent Borrower and each Restricted 

Subsidiary is duly organized, validly existing and (to the extent the concept is applicable in such 

jurisdiction and, in the case of any Restricted Subsidiary, except where the failure to be so, 

individually or in the aggregate, would not reasonably be expected to result in a Material 

Adverse Effect) in good standing under the laws of the jurisdiction of its organization, has all 

requisite power and authority to, subject to the entry of the Order, carry on its business as now

conducted and, except where the failure to do so, individually or in the aggregate, would not 

reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and 

is in good standing in, every jurisdiction where such qualification is required.

SECTION 3.02. Authorization; Enforceability; Benefit to Loan Parties.

(a) Subject to entry of the Order, the Transactions, insofar as they are to be carried 

out by each Loan Party, are within such Loan Party’s corporate or other organizational powers 

and have been duly authorized by all necessary corporate or other organizational and, if required, 

shareholder or other equityholder action. Subject to entry of the Order, this Agreement has been 

duly executed and delivered by each Borrower and constitutes, and each other Loan Document to 

which any Loan Party is to be a party, when executed and delivered by such Loan Party, will 

constitute, a legal, valid and binding obligation of such Borrower or such Loan Party, as the case 

may be, enforceable against it in accordance with its terms, subject to applicable bankruptcy, 

insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and to 

general principles of equity, regardless of whether considered in a proceeding in equity or at law.

(b) Each Loan Party expects to derive benefit (and its board of directors or other 

governing body has determined that it may reasonably be expected to derive benefit), directly 

and indirectly, from (i) successful operations of each of the other Loan Parties and (ii) the credit 

extended by the Lenders to the Borrowers hereunder. Each Loan Party has determined that, 

subject to entry of the Order, the execution, delivery, and performance of this Agreement and 

any other Loan Documents to be executed by such Loan Party is within its purpose, will be of 

direct and indirect benefit to such Loan Party, and is in its best interest.

SECTION 3.03. Governmental Approvals; No Conflicts. Except for the entry of, and 

pursuant to the terms of, the Order, the Transactions (a) do not require any consent or approval 

of, registration or filing with, or any other action by, any Governmental Authority, except such 

as have been obtained or made and are (or will so be) in full force and effect, (b) will not violate 

any applicable law, including any order of any Governmental Authority, (c) will not violate the 

charter, by-laws or other organizational documents of the Parent Borrower or any Restricted 

Subsidiary, (d) will not violate or result in a default under any indenture or agreement (including 

the Pre-Petition ABL Credit Agreement, the ABL Credit Agreement to the extent applicable, the 

Pre-Petition Credit Agreement or other material instrument binding upon the Parent Borrower or 

any Restricted Subsidiary or any of their assets) (other than defaults arising solely as a result of 

the commencement of the Cases), or give rise to a right thereunder to require any payment to be 

made by the Parent Borrower or any Restricted Subsidiary, and (e) will not result in the creation 

or imposition of any Lien on any asset of the Parent Borrower or any Restricted Subsidiary, 

except Liens created pursuant to the Loan Documents or Liens created in connection with the 

Pre-Petition ABL Credit Agreement, the ABL Credit Agreement to the extent applicable, or the 

Pre-Petition Credit Agreement, in the case of clauses (a) (as to the Transactions other than entry 

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into the Loan Documents), (b) and (d) above, except for a failure to obtain or make, violation or 

creation, as applicable, which individually or in the aggregate would not reasonably be expected 

to result in a Material Adverse Effect.

SECTION 3.04. Financial Condition; No Material Adverse Change.

(a) The Borrowers have heretofore furnished to the Lenders (i) the audited 

consolidated balance sheets and related consolidated statements of operations, comprehensive 

income, equity and cash flows of the Parent Borrower and its consolidated Subsidiaries as of and 

for the fiscal year ended August 3, 2019, and (B) the unaudited consolidated balance sheets and 

related consolidated statements of operations, comprehensive income and cash flows of the 

Parent Borrower and its consolidated Subsidiaries as of and for each of the fiscal quarters and the 

portions of the fiscal year ended November 2, 2019 and February 1, 2020. Such financial 

statements present fairly, in all material respects, the financial position and results of operations 

and cash flows of the Parent Borrower and its consolidated Subsidiaries as of such dates and for 

such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of 

footnotes in the case of the statements referred to in clause (ii) above.

(b) Since the Petition Date, other than those customarily resulting from the 

commencement of the Cases and changes set forth in the Parent Borrower’s business plan 

delivered to the Ad Hoc Committee prior to the Petition Date, there has been no event, 

development or circumstance that has had, or would reasonably be expected to have, a Material 

Adverse Effect.

SECTION 3.05. Properties.

(a) The Parent Borrower and each Restricted Subsidiary has good title to, or valid 

leasehold interests in, all its tangible property material to its business, except for defects in title 

that, individually or in the aggregate, would not reasonably be expected to result in a Material 

Adverse Effect and Liens expressly permitted by Section 6.02.

(b) (i) The Parent Borrower and each Restricted Subsidiary owns, is licensed to use, 

or otherwise has the right to use all trademarks, service marks, tradenames, trade dress, 

copyrights, patents, designs and other intellectual property material to its business, and (ii) the 

conduct of their respective businesses, including the use thereof by the Parent Borrower and the 

Restricted Subsidiaries in their respective businesses, does not infringe upon the rights of any

other Person, except for any such infringements or any such failure to own, license or have the 

right to use that, individually or in the aggregate, would not reasonably be expected to result in a 

Material Adverse Effect.

(c) Schedule 3.05 sets forth the address of each real property that is owned in fee by 

the Loan Parties as of the Effective Date.

SECTION 3.06. Litigation and Environmental Matters.

(a) Except for the Disclosed Matters and the Cases, there are no actions, suits or 

proceedings by or before any arbitrator or Governmental Authority pending against or, to the 

knowledge of the Borrowers, threatened against the Parent Borrower or any Restricted 

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Subsidiary (i) as to which there is a reasonable likelihood of an adverse determination and that, if 

adversely determined, would reasonably be expected, individually or in the aggregate, to result in 

a Material Adverse Effect or (ii) that involve any of the Loan Documents or the Transactions.

(b) Except for the Disclosed Matters or matters that, individually or in the aggregate,

would not reasonably be expected to result in a Material Adverse Effect, neither the Parent 

Borrower nor any Restricted Subsidiary (i) has failed to comply with any Environmental Law or 

to obtain, maintain or comply with any permit, license or other approval required under any 

Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received 

written notice of any claim with respect to any Environmental Liability or (iv) knows of any 

basis for any Environmental Liability.

SECTION 3.07. Compliance with Laws and Agreements.

(a) The Parent Borrower and each Restricted Subsidiary is in compliance with all 

laws, including all orders of Governmental Authorities, applicable to it or its property and all 

indentures, agreements and other instruments binding upon it or its property, except any noncompliance arising solely as a result of the commencement of the Cases or where the failure to 

do so, individually or in the aggregate, would not reasonably be expected to result in a Material 

Adverse Effect (it being agreed that this Section does not apply to any law which is specifically 

addressed in Section 3.06(b), 3.07(b), 3.08, 3.09, 3.10 or 3.14). Except for any defaults or events 

of defaults arising solely as a result of the commencement of the Cases, any defaults or events of 

defaults arising under the Pre-Petition ABL Credit Agreement or the Pre-Petition Credit 

Agreement, no Event of Default has occurred and is continuing.

(b) The Borrowers have implemented and maintain in effect policies and procedures 

designed to ensure compliance in all material respects by the Parent Borrower, its Subsidiaries 

and their respective directors, officers, employees and agents with Anti-Corruption Laws and 

applicable Sanctions, and the Parent Borrower, its Subsidiaries and their respective officers and 

employees and to the knowledge of the Borrowers, their respective directors and agents, are in 

compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None 

of (a) the Parent Borrower, any Subsidiary or, to the knowledge of the Borrowers, any of their 

respective directors, officers or employees, or (b) to the knowledge of the Borrowers any agent 

of the Parent Borrower or any Subsidiary that will act in any capacity in connection with or 

benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing, use of 

proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws 

or applicable Sanctions.

SECTION 3.08. Investment Company Status. No Loan Party is an “investment 

company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

SECTION 3.09. Taxes. The Parent Borrower and each Subsidiary has (a) timely filed 

or caused to be filed all Tax returns and reports required to have been filed, except to the extent 

that the failure to do so would not, individually or in the aggregate, reasonably be expected to 

result in a Material Adverse Effect, and (b) paid or caused to be paid all Taxes required to have 

been paid by it (including in its capacity as withholding agent), except (i) any Taxes that are 

being contested in good faith by appropriate proceedings diligently conducted and for which the 

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Parent Borrower or such Subsidiary has set aside on its books reserves with respect thereto to the 

extent required by GAAP or (ii) to the extent that the failure to do so would not, individually or 

in the aggregate, reasonably be expected to result in a Material Adverse Effect. There is no 

current or proposed tax assessment, deficiency or other claim against the Parent Borrower or any 

of the Subsidiaries that would, individually or in the aggregate, reasonably be expected to result 

in a Material Adverse Effect.

SECTION 3.10. ERISA; Labor Matters.

(a) Except as could not reasonably be expected, individually or in the aggregate, to 

result in a Material Adverse Effect, (i) no ERISA Event has occurred or is reasonably expected 

to occur, (ii) neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that 

could be subject to Section 4069 or 4212(c) of ERISA, and (iii) each Plan is in compliance with 

the applicable provisions of ERISA, the Code and other applicable laws. On the Effective Date, 

the excess of the present value of all accumulated benefit obligations under each Plan (based on 

the assumptions used for purposes of preparing the audited financial statements set forth in the 

Borrower’s most recent Annual Report on Form 10-K), as of the date of the most recent financial 

statements reflecting such amounts, over the fair market value of the assets of such Plan, if any, 

could not be reasonably expected, individually or in the aggregate, to result in a Material 

Adverse Effect.

(b) Except as would not reasonably be expected, individually or in the aggregate, to 

result in a Material Adverse Effect, (i) there are no strikes, lockouts, slowdowns or any other 

labor disputes against the Parent Borrower or any Restricted Subsidiary pending or, to the 

knowledge of the Borrowers, threatened, (ii) the hours worked by and payments made to 

employees of the Parent Borrower and the Restricted Subsidiaries have not been in violation of 

the Fair Labor Standards Act of 1938 or any other applicable federal, state, local or foreign law 

dealing with such matters, (iii) all payments due from the Parent Borrower or any Restricted 

Subsidiary, or for which any claim may be made against the Parent Borrower or any Restricted 

Subsidiary, on account of wages and employee health and welfare insurance and other benefits, 

have been paid or accrued as a liability on the books of the Parent Borrower or such Restricted 

Subsidiary to the extent required by GAAP and (iv) the consummation of the Transactions will 

not give rise to any right of termination or right of renegotiation on the part of any union under 

any collective bargaining agreement to which the Parent Borrower or any Restricted Subsidiary 

is bound.

(c) None of the Borrowers or any of their Subsidiaries is an entity deemed to hold 

“plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of 

ERISA).

SECTION 3.11. Disclosure. No reports, financial statements, certificates or other 

written information (other than forward-looking information, management projections or 

information of a general economic or industry nature) furnished by or on behalf of the Parent 

Borrower or any Restricted Subsidiary to the Administrative Agent or any Lender in connection 

with the negotiation of this Agreement or any other Loan Document or delivered hereunder or 

thereunder (as modified or supplemented by other information so furnished), when delivered and 

taken as a whole, contains any material misstatement of fact or omits to state any material fact 

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necessary to make the statements therein, in the light of the circumstances under which they were 

made, not materially misleading; provided that, with respect to forecasts and projected financial 

information, the Loan Parties represent only that such information was prepared in good faith 

based upon assumptions believed by them to be reasonable at the time made and at the time so 

furnished and, if furnished prior to the Effective Date, as of the Effective Date (it being 

understood that such forecasts and projections may vary from actual results and that such 

variances may be material).

SECTION 3.12. Subsidiaries and Joint Ventures. Schedule 3.12 sets forth, as of the 

Effective Date, the name, type of organization and jurisdiction of organization of, and the 

percentage of each class of Equity Interests owned by the Parent Borrower or any Subsidiary in, 

(a) each Subsidiary and (b) each joint venture in which the Parent Borrower or any Subsidiary 

owns any Equity Interests, and identifies each Designated Subsidiary. All the issued and 

outstanding Equity Interests in each Subsidiary owned by any Loan Party have been (to the 

extent such concepts are relevant with respect to such Equity Interests) duly authorized and 

validly issued and are fully paid and non-assessable (except as such rights may arise under 

mandatory provisions of applicable statutory law that may not be waived and not as a result of 

any rights contained in organizational documents). Except as set forth in Schedule 3.12, as of 

the Effective Date, there is no existing option, warrant, call, right, commitment or other 

agreement to which the Parent Borrower or any Subsidiary is a party requiring, and there are no 

Equity Interests in any Subsidiary outstanding that upon exercise, conversion or exchange would 

require, the issuance by any Subsidiary of any additional Equity Interests or other securities 

exercisable for, convertible into, exchangeable for or evidencing the right to subscribe for or 

purchase any Equity Interests in any Subsidiary.

SECTION 3.13. Insurance. Schedule 3.13 sets forth a description of all insurance 

maintained by or on behalf of the Parent Borrower and the Restricted Subsidiaries as of the 

Effective Date. As of the Effective Date, all premiums due and payable in respect of such 

insurance have been paid. The Borrowers believe that the insurance maintained by or on behalf 

of the Parent Borrower and the Restricted Subsidiaries is adequate.

SECTION 3.14. Federal Reserve Regulations. Neither the Parent Borrower nor any 

Restricted Subsidiary is principally, or as one of its important activities, in the business of 

extending credit for the purpose of purchasing or carrying margin stock (within the meaning of 

Regulation U of the Board of Governors), or extending credit for the purpose of purchasing or 

carrying margin stock. No part of the proceeds of the Loans will be used, whether directly or 

indirectly, and whether immediately, incidentally or ultimately, in any manner or for any purpose 

that would entail a violation of Regulations T, U or X of the Board of Governors.

SECTION 3.15. [Reserved].

SECTION 3.16. Collateral Matters.

(a) Subject to the entry of the Order, the Collateral Agreement and the Order are 

effective to create in favor of the Administrative Agent (for the benefit of the Secured Parties) 

legal, valid, enforceable and perfected Liens on the Collateral described therein (with such 

priority as provided for therein).

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(b) Except for the entry of the Order, no filing or other action will be necessary to 

perfect such Liens.

(c) The Order is (or will be, as applicable) effective to create in favor of the 

Administrative Agent, for the benefit of the Secured Parties, a legal, valid, binding and 

enforceable perfected security interest in the Collateral (with such priority as provided for in the 

Order (including, without limitation, with respect to the Carve Out)) without the necessity of the 

execution of mortgages, security agreements, pledge agreements, financing statements or other 

agreements or documents except to the extent set forth in such orders.

SECTION 3.17. Use of Proceeds. Unless otherwise agreed by the Administrative 

Agent (acting at the direction of the Required Lenders), the proceeds of the New Money Loans 

will be deposited into the DIP Funding Account and used in accordance with the terms of the 

Approved Budget (subject to Permitted Variances) and the terms of the Order or any other order 

entered into by the Court that is consistent with the RSA, the Order and this Agreement, 

including, without limitation (i) to pay amounts due to Lenders and the Administrative Agent 

hereunder and the reasonable and documented professional fees and expenses (including legal, 

financial advisor, appraisal and valuation-related fees and expenses) incurred by Lenders and the 

Administrative Agent, including those incurred in connection with the preparation, negotiation, 

documentation and court approval of the transactions contemplated hereby (including pursuant to 

such court approval), (ii) to make adequate protection payments, (iii) to fund the Carve Out, and 

(iv) to pay administration costs of the Cases and Claims or amounts approved by the Court in the 

“first day” and “second day” orders or as required under the Bankruptcy Code. Notwithstanding 

anything to the contrary herein, the proceeds of the New Money Loans may be used to prepay or 

repay the ABL Credit Agreement (to the extent applicable) solely to extent provided for in the 

Approved Budget then in effect at the date of such prepayment or repayment, and in any event in 

an aggregate amount during the term of this Agreement not to exceed $50,000,000.

SECTION 3.18. Approved Budget. The Borrowers have heretofore furnished to the 

Administrative Agent the initial Approved Budget. Each Approved Budget was prepared in 

good faith based upon assumptions the Borrowers believed to be reasonable assumptions on the 

date of delivery of such Approved Budget. 

SECTION 3.19. Chapter 11 Cases.

(a) The Cases were commenced on the Petition Date in accordance with applicable 

laws and proper notice thereof was given for (i) the motion seeking approval of the Loan 

Documents and the Order and (ii) the hearing for the entry of the Order. Debtors shall give, on a 

timely basis as specified in the Order, all notices required to be given to all parties specified in 

the Order.

(b) After the entry of the Order, and pursuant to and to the extent permitted in the 

Order, the Loan Document Obligations will constitute allowed administrative expense claims in 

the Cases having priority over all administrative expense claims and unsecured claims against 

the Debtors now existing or hereafter arising, of any kind whatsoever, including all 

administrative expense claims of the kind specified in Sections 105, 326, 330, 331, 503(b), 

506(c), 507(a), 507(b), 546(c), 726, 1114 or any other provision of the Bankruptcy Code or 

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otherwise, as provided under Section 364(c)(l) of the Bankruptcy Code, subject to (i) the Carve 

Out and (ii) the priorities set forth in the Order.

(c) After the entry of the Order and pursuant to and to the extent provided in the 

Order, the Loan Document Obligations will be secured by a valid and perfected first priority 

Lien on all of the Collateral subject, as to priority, only to (i) the Carve Out, (ii) the Liens 

pursuant to Section 6.02(i) with respect to Indebtedness under the ABL Credit Agreement (to the 

extent applicable), subject to the terms of such Section 6.02(i) and (iii) to the extent set forth in 

the Order.

(d) The Order is in full force and effect and has not been reversed, stayed (whether by 

statutory stay or otherwise), vacated, or, without the Required Lenders’ consent, modified or 

amended. The Loan Parties are in compliance in all material respects with the Order.

(e) Notwithstanding the provisions of Section 362 of the Bankruptcy Code, and 

subject to the applicable provisions of the Order, upon the Maturity Date (whether by 

acceleration or otherwise) of any of the Loan Document Obligations, to the extent the 

Conversion Date has not occurred, the Administrative Agent and Lenders shall be entitled to 

immediate payment of such Loan Document Obligations and to enforce the remedies provided 

for hereunder or under applicable laws, without further notice, motion or application to, hearing 

before, or order from, the Court.

ARTICLE IV

Conditions

SECTION 4.01. Conditions to Effective Date. The effectiveness of this Agreement and 

the obligations of the Lenders to make the Roll-up Loans hereunder shall not become effective 

until the date on which each of the following conditions shall be satisfied (or waived in 

accordance with Section 9.02):

(a) The Administrative Agent shall have received from each party hereto either (i) a

counterpart of this Agreement signed on behalf of such party or (ii) evidence satisfactory to the 

Administrative Agent (which may include a facsimile transmission) that such party has signed a 

counterpart of this Agreement.

(b) The Administrative Agent shall have received a favorable written opinion 

(addressed to the Administrative Agent and the Lenders and dated the Effective Date) of 

Kirkland & Ellis LLP, counsel for the Loan Parties, addressing corporate authority matters and 

other matters as the Administrative Agent shall reasonably request, each such opinion to be in 

form, scope and substance reasonably satisfactory to the Administrative Agent and the Lenders.

(c) The Administrative Agent shall have received as to each Loan Party such 

customary documents and certificates as it shall reasonably have requested relating to the 

organization, existence and good standing of such Loan Party and the authorization of the Loan 

Documents or the Transactions, all in form and substance reasonably satisfactory to the 

Administrative Agent.

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(d) (a) The representations and warranties of the Loan Parties set forth in the Loan 

Documents shall be true and correct (i) in the case of the representations and warranties qualified 

as to materiality, in all respects and (ii) otherwise, in all material respects, in each case on and as 

of the Effective Date, except in the case of any such representation and warranty that expressly 

relates to a prior date, in which case such representation and warranty shall be so true and correct 

on and as of such prior date and (b) at the time of and immediately after giving effect to the 

Transactions to occur on the Effective Date, no Event of Default shall have occurred and be 

continuing.

(e) The Administrative Agent shall have received a certificate, dated the Effective 

Date and signed by the chief financial officer of the Parent Borrower, confirming compliance 

with the conditions set forth in paragraph (d) of this Section.

(f) The Lenders and the Administrative Agent shall have received the Approved

Budget.

(g) The Administrative Agent, for its benefit and the benefit of each other Secured 

Party, shall have been granted a perfected lien on the Collateral by the Order on the terms and 

conditions set forth herein and in the other Loan Documents.

(h) The Administrative Agent shall have received the results of a search of the UCC 

(or equivalent) filings made with respect to the Loan Parties in the jurisdictions reasonably 

requested by the Administrative Agent.

(i) The Lenders shall have received all documentation and other information required 

by bank regulatory authorities under applicable “know your customer” rules and regulations, 

including the USA Patriot Act, to include a duly executed IRS Form W-9 or such other 

applicable IRS Form for each Borrower, at least three Business Days prior to the Effective Date 

to the extent such information was requested at least 10 Business Days prior to the Effective 

Date.

(j) The Collateral Agreement each shall have been duly executed and delivered by 

each party thereto, and shall be in full force and effect. 

(k) The Administrative Agent shall have received (i) unaudited interim consolidated 

financial statements of the Parent Borrower for each fiscal month ended after the fiscal quarter 

ending February 1, 2020 through the end of June 30, 2020 and (ii) unaudited financial statements 

for the fiscal quarter ended May 2, 2020.

(l) Since the Petition Date, other than those events or circumstances arising from the 

commencement of the Cases, there has been no event or circumstance, either individually or in

the aggregate, that has or could reasonably be expected to have a Material Adverse Effect.

(m) (i) the Administrative Agent shall have received drafts of the “first day” pleadings 

for the Cases, in each case, in form and substance reasonably satisfactory to the Administrative

Agent; and (ii) all motions, orders (including the “first day” orders and the Cash Management 

Order) and other documents to be filed with and submitted to the Court on the Petition Date shall 

be in form and substance reasonably satisfactory to the Administrative Agent, and the Court shall 

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have approved and entered all “first day” orders, including, without limitation, the Cash 

Management Order.

(n) No trustee, receiver or examiner with expanded powers shall have been appointed 

in any of the Chapter 11 Cases.

(o) The Pre-Petition Agent and the Pre-Petition Lenders shall have each received 

adequate protection in respect of the Liens securing their respective Pre-Petition Lender 

Obligations pursuant to the Order.

The Administrative Agent shall notify the Borrowers and the Lenders of the Effective 

Date, and such notice shall be conclusive and binding.

SECTION 4.02. Conditions to the New Money Loan. The obligations of the Lenders to 

make the New Money Loans hereunder shall not become effective until the date on or after the 

Effective Date on which each of the following conditions shall be satisfied (or waived in 

accordance with Section 9.02):

(a) The Administrative Agent shall have received a written Borrowing Request to 

include a flow of funds memorandum in form and substance satisfactory to the Administrative 

Agent and the Lenders.

(b) The ABL Credit Agreement shall have been duly executed and delivered by each 

of the parties thereto, and shall be in full force and effect.

(c) The Intercreditor Acknowledgment shall have been duly executed and delivered 

by each party thereto, and shall be in full force and effect.

(d) The Administrative Agent, the Ad Hoc Committee and the Ad Hoc Committee 

Advisors shall have received all fees and other amounts due and payable on or prior to the 

Funding Date, including, to the extent invoiced at least two Business Days prior to the Funding 

Date, payment or reimbursement of all fees and expenses (including fees, charges and 

disbursements of counsel) required to be paid or reimbursed by any Loan Party under the 

Commitment Letter or any Loan Document, in each case, payable from the proceeds of the initial 

funding of the Term Loans.

The Administrative Agent shall notify the Borrowers and the Lenders of the Funding 

Date, and such notice shall be conclusive and binding.

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ARTICLE V

Affirmative Covenants

Until the Commitments shall have expired or been terminated, the principal of and 

interest on each Loan and all premiums and fees payable hereunder shall have been paid in full, 

each Borrower covenants and agrees with the Lenders that:

SECTION 5.01. Financial Statements and Other Information. The Borrowers will 

furnish to the Administrative Agent, on behalf of each Lender and, in the case of clauses (e), (f) 

and (g), to the Ad Hoc Committee Advisors:

(a) within 90 days after the end of each fiscal year of the Parent Borrower, its 

consolidated balance sheet and related consolidated statements of operations, comprehensive 

income, equity and cash flows as of the end of and for such fiscal year, setting forth in each case 

in comparative form the figures for the previous fiscal year, all certified by a Financial Officer 

of the Parent Borrower to the effect that such consolidated financial statements present fairly, in 

all material respects, the financial position, results of operations and cash flows of the Parent 

Borrower and its consolidated Subsidiaries as of the end of and for such fiscal year on a 

consolidated basis in accordance with GAAP;

(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal 

year of the Parent Borrower, its consolidated balance sheet as of the end of such fiscal quarter, 

the related consolidated statements of operations and comprehensive income for such fiscal 

quarter and the then elapsed portion of the fiscal year and the related consolidated statement of 

cash flows for the then elapsed portion of the fiscal year, setting forth in each case in 

comparative form the figures for the corresponding period or periods of (or, in the case of the 

balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer of the 

Parent Borrower as presenting fairly, in all material respects, the financial position, results of 

operations and cash flows of the Parent Borrower and its consolidated Subsidiaries as of the end 

of and for such fiscal quarter and such portion of the fiscal year on a consolidated basis in 

accordance with GAAP, subject to normal year-end audit adjustments and the absence of 

footnotes;

(c) within 30 days after the end of each of the first two fiscal months of each fiscal 

quarter of the Company, the consolidated balance sheet and related statements of operations and 

comprehensive income of the Company as of the end of and for such fiscal month and the then 

elapsed portion of the fiscal year and the related consolidated statement of cash flows of the 

Company for the then elapsed portion of the fiscal year, setting forth in each case in comparative 

form the figures for the corresponding period or periods of (or, in the case of the balance sheet, 

as of the end of) the previous fiscal year, all certified by a Financial Officer of the Company as 

presenting fairly in all material respects the financial position, results of operations and cash 

flows of the Company and its consolidated Subsidiaries as of the end of and for such fiscal 

month and such portion of the fiscal year on a consolidated basis in accordance with GAAP, 

subject to normal year-end audit adjustments and the absence of footnotes (it being understood 

and agreed that any adjustments reflected in such monthly financial statements may differ (in 

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part or entirely) from any adjustments reflected in the financial statements delivered in the 

foregoing clauses (a) or (b);

(d) concurrently with each delivery of financial statements under clause (a), (b) or (c) 

above, a completed Compliance Certificate signed by a Financial Officer of the Parent Borrower, 

(i) certifying, in the case of the financial statements delivered under clause (a), (b) or (c) above, 

that such financial statements present fairly in all material respects the financial position, results 

of operations and cash flows of the Parent Borrower and its consolidated Subsidiaries on a 

consolidated basis in accordance with GAAP, subject to normal year end audit adjustments and 

the absence of footnotes, (ii) certifying as to whether a Default has occurred and, if a Default has 

occurred, specifying the details thereof and any action taken or proposed to be taken with respect 

thereto, (iii) to the extent applicable, setting forth reasonably detailed calculations demonstrating 

compliance with Section 6.12, (iv) if any change in GAAP or in the application thereof has 

occurred since the date of the audited financial statements referred to in Section 3.04, specifying 

the effect of such change on the financial statements accompanying such certificate, and (v) 

certifying that all notices required to be provided under Section 5.03 and 5.04 have been 

provided;

(e) no later than 5:00 p.m. New York City time on the four week anniversary of the 

Effective Date(or such later time as agreed to in writing (including via e-mail) by the Required 

Lenders in their sole discretion), and each fourth (4th) calendar week thereafter, an updated 

budget consistent with the form and level of detail set forth in the initial Approved Budget, 

including the same line-items provided with the initial Approved Budget, and otherwise in form 

and substance reasonably acceptable to Ad Hoc Committee Advisors in their reasonable 

discretion. Upon, and subject to, the approval of any such updated budget by the Ad Hoc 

Committee Advisors in their reasonable discretion, such supplemented budget shall constitute the 

then-approved Approved Budget, effective as of the beginning of the week immediately 

following the week in which it was delivered; provided that unless and until the Ad Hoc 

Committee Advisors approve such supplemental budget in their reasonable discretion, the thencurrent Approved Budget shall remain in effect;

(f) no later than 5:00 p.m. New York City time on the Thursday of each calendar 

week (or such later time as agreed to in writing (including via e-mail) by the Required Lenders in 

their sole discretion) commencing on (a) the date that is the third Thursday following the 

Effective Date, a line-item by line-item report setting forth for each line item in the Approved 

Budget, in reasonable detail, the actual receipts received and operating disbursements (including 

any professional fees) made during the prior week then-ended and (b) the date that is the first 

Thursday following the Effective Date a report setting forth (i) the Liquidity as of the Friday of 

the most recently ended calendar week and (ii) the aggregate amount of end of day cash and 

Cash Equivalents as of the Friday of the most recently ended calendar week of all non-Loan 

Party Subsidiaries on deposit in or credited to any account maintained by such non-Loan Party 

Subsidiaries;

(g) no later than 5:00 p.m. New York City time on the Thursday (or such later time as 

agreed to in writing (including via e-mail) by the Required Lenders in their sole discretion) of 

each calendar week commencing on the date that is the second Thursday following the Effective 

Date, (each such Thursday or later time, a “Variance Report Date”), a line-item by line-item 

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variance report (each, a “Variance Report”),substantially in the form attached hereto as Exhibit J

or otherwise as reasonably acceptable to the Required Lenders in their sole discretion, setting 

forth, in reasonable detail: (x) any variances between actual amounts for each line item in the 

Approved Budget for the Variance Testing Period versus projected amounts set forth in the 

applicable Approved Budget for each line item included therein on a cumulative basis for such 

Variance Testing Period (for the avoidance of doubt, to be prepared by comparing the sum of the 

four (4) figures for each relevant week for such corresponding line item in the relevant Approved 

Budget that was in effect in respect of each relevant week at the time), and (y) the computations 

necessary to determine compliance with Section 6.12, together with a statement from a Financial 

Officer certifying the information contained in the report. The Variance Report shall also 

provide a reasonably detailed explanation for any negative variance in such Variance Report in 

excess of 15% in actual receipts and any positive variance in such Variance Report in excess of 

15% in actual operating disbursements during the Variance Testing Period (in each case unless 

the dollar amount corresponding to such percentage variance is less than $1,000,000) as 

compared to projections for such corresponding line items during the Variance Testing Period as 

set forth in the Approved Budget;

(h) (i) to the extent applicable, within 1 Business Day of delivery of a Borrowing 

Base Certificate (as defined in the Pre-Petition ABL Credit Agreement or the ABL Credit 

Agreement, as applicable) to the ABL Agent, copy of such certificate and (ii) a copy of each 

report or forecast delivered under the ABL Credit Agreement, within 1 Business Day of delivery 

thereof;

(i) promptly after the same become publicly available, copies of all periodic and 

other reports, proxy statements and other materials filed by the Parent Borrower or any 

Subsidiary with the SEC or with any national securities exchange, or distributed by the Parent 

Borrower to its shareholders generally, as the case may be;

(j) [reserved];

(k) promptly after any written request therefor, evidence of insurance renewals as 

required under Section 5.08 hereunder in form and substance reasonably acceptable to the 

Administrative Agent; and

(l) promptly after any written request therefor, such other information regarding the 

operations, business affairs and financial condition of the Parent Borrower or any Subsidiary, or 

compliance with the terms of any Loan Document, as the Administrative Agent or any Lender 

may reasonably request.

Information required to be delivered pursuant to clause (a), (b) or (i) of this Section shall be 

deemed to have been delivered if such information, or one or more annual or quarterly reports 

containing such information, shall have been posted by the Administrative Agent on an 

IntraLinks or similar site to which the Lenders have been granted access or shall be available on 

the website of the SEC at http://www.sec.gov. Information required to be delivered pursuant to 

this Section may also be delivered by electronic communications pursuant to procedures 

approved by the Administrative Agent.

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SECTION 5.02. Notices of Material Events. The Borrowers will furnish to the to the 

Ad Hoc Committee Advisors and the Administrative Agent (for distribution to the Lenders) 

written notice promptly upon any Financial Officer, or other officer or employee responsible for 

compliance with the Loan Documents, of the Borrowers becoming aware of any of the 

following:

(a) the occurrence of any Default;

(b) the filing or commencement of any action, suit or proceeding by or before any 

arbitrator or Governmental Authority against (other than in connection with the Cases) or 

affecting the Parent Borrower or any Restricted Subsidiary, or any adverse development in any 

such pending action, suit or proceeding not previously disclosed in writing by the Borrowers to 

the Administrative Agent and the Lenders, that in each case would reasonably be expected to 

result in a Material Adverse Effect or that in any manner questions the validity of any Loan 

Document;

(c) the occurrence of an ERISA Event that has resulted, or would reasonably be 

expected to result, in a Material Adverse Effect; 

(d) (i) as soon as practicable in advance of filing (and to the extent practicable not 

later than three (3) days prior to the filing thereof) with the Court or delivering (and to the extent 

practicable not later than three (3) days prior to the delivery thereof) to the Committee appointed 

in a Case, if any, or to the U.S. Trustee, as the case may be, the Order, all other material 

proposed orders and pleadings related to (x) the Cases (all of which must be in form and 

substance reasonably satisfactory to the Required Lenders), (y) the Pre-Petition Credit 

Agreement and this Agreement and the credit facilities contemplated thereby and/or any sale 

contemplated in accordance with the Required Milestones and any Plan of Reorganization and/or 

any disclosure statement related thereto (all of which must be in form and substance reasonably 

satisfactory to the Administrative Agent), and (ii) substantially simultaneously with the filing 

with the Court or delivering to the Committee appointed in any Case, if any, or to the U.S. 

Trustee, as the case may be, monthly operating reports and all other notices, filings, motions, 

pleadings or other information concerning the financial condition of the Loan Parties or their 

Subsidiaries or the Cases that may be filed with the Court or delivered to the Committee 

appointed in any Case, if any, or to the U.S. Trustee; or

(e) any other development that has resulted, or would reasonably be expected to 

result, in a Material Adverse Effect.

Each notice delivered under this Section shall be accompanied by a statement of a Financial 

Officer or other executive officer of the Parent Borrower setting forth the details of the event or 

development requiring such notice and any action taken or proposed to be taken with respect 

thereto.

SECTION 5.03. Collateral Obligations; Additional Subsidiaries.

(a) Each Borrower will, and will cause the other applicable Loan Parties to comply with 

the “Collateral and Guarantee Requirement”. If any additional Designated Subsidiary is formed 

or acquired after the Effective Date (or any Excluded Subsidiary becomes a Designated 

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Subsidiary), the Borrowers will promptly notify the Administrative Agent thereof and will, as 

promptly as practicable, and in any event within 15 days (or such longer period as the 

Administrative Agent may agree) after such Designated Subsidiary is formed or acquired (or any 

Excluded Subsidiary becomes a Designated Subsidiary) cause the Collateral and Guarantee 

Requirement to be satisfied with respect to such Designated Subsidiary and with respect to any 

Equity Interests in or Indebtedness of such Designated Subsidiary owned by or on behalf of any 

Loan Party.

(b) Each of the Loan Parties hereby covenants and agrees that upon the entry of, and 

subject to, the Order and subject to the Carve Out in all respects, the Loan Document 

Obligations, pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute 

allowed DIP Superpriority Claims in the Cases. 

(c) The relative priorities of the Liens described in this Section 5.03 with respect to the 

Collateral shall be as set forth in the Order. In accordance with the Order, all of the Liens 

described in this Section 5.03 shall be effective and perfected upon entry of the Order, without 

the necessity of the execution, recordation of filings by the Debtors of security agreements, 

control agreements, pledge agreements, financing statements or other similar documents, or the 

possession or control by the Administrative Agent, of, or over, any Collateral, as set forth in the 

Order.

(d) Each Loan Party that is a Debtor hereby confirms and acknowledges that, pursuant to 

the Order , the Liens in favor of the Administrative Agent on behalf of and for the benefit of the 

Secured Parties in all of the Collateral, now existing or hereafter acquired, shall be created and 

perfected without the recordation or filing in any land records or filing offices of any mortgage, 

assignment or similar instrument.

SECTION 5.04. Information Regarding Collateral.

(a) The Borrowers will furnish to the Administrative Agent promptly (and in any 

event within 15 days thereof (or such longer period as the Administrative Agent may agree))

written notice of any change in (i) the legal name of any Loan Party, as set forth in its 

organizational documents, (ii) the jurisdiction of organization or the form of organization of any 

Loan Party (including as a result of any merger or consolidation), (iii) the location of the chief 

executive office of any Loan Party or (iv) the organizational identification number, if any, and 

the Federal Taxpayer Identification Number of such Loan Party, in each case, only with respect 

to any Loan Party organized under the laws of a jurisdiction that requires such information to be 

set forth on the face of a UCC financing statement, of such Loan Party. The Borrowers also 

agree promptly to notify the Administrative Agent if any material portion of the Collateral is 

damaged or destroyed.

(b) If any material assets are acquired by any Loan Party after the Effective Date 

(other than assets constituting Collateral under the Collateral Documents that become subject to 

the Lien of the Collateral Documents upon the acquisition thereof), the Borrowers will promptly 

notify the Administrative Agent thereof and will cause such assets to be subjected to a Lien 

securing the Loan Document Obligations and will take such actions as shall be necessary or 

reasonably requested by the Administrative Agent to satisfy the Collateral and Guarantee 

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Requirement, including to grant and perfect such Lien, all at the expense of the Borrowers. It is 

understood and agreed that, notwithstanding anything to the contrary set forth in this Agreement 

or in any Collateral Document, the Loan Parties shall not be required to (A) grant leasehold 

mortgages, (B) obtain landlord lien waivers, estoppels, collateral access agreements or bailee 

agreements, except to the extent delivered pursuant to the ABL Credit Agreement or related loan 

documents, (C) enter into Control Agreements in respect of any Excluded Deposit Account, (D) 

perfect security interests in any assets represented by a certificate of title or (E) enter into any 

Collateral Documents governed by the law of a jurisdiction other than the United States.

(c) If, despite the restrictions set forth in Section 6.02, the Company or any 

Subsidiary shall grant a Lien on any of its assets to secure Indebtedness under the ABL Credit 

Agreement, the Pre-Petition ABL Credit Agreement and the Secured Obligations are not secured 

by a Lien on such assets, the Company will (i) promptly notify the Administrative Agent and 

cause such assets to be subjected to a Lien securing the Secured Obligations and (ii) take, or 

cause such Subsidiary to take, as the case may be, such actions as shall be necessary or 

reasonably requested by the Administrative Agent to satisfy the Collateral and Guarantee 

Requirement, including to grant and perfect such Lien, and to cause such Liens securing 

Indebtedness under the ABL Credit Agreement thereof and such Liens securing the Secured 

Obligations to become subject to the Intercreditor Agreement, all at the expense of the Loan 

Parties.

SECTION 5.05. Existence; Conduct of Business. Subject to any required approval by 

the Court, each Borrower will, and will cause each Restricted Subsidiary to, do or cause to be 

done all things reasonably necessary to preserve, renew and keep in full force and effect (i) its 

legal existence and (ii) the rights, licenses, permits, privileges, franchises, patents, copyrights, 

trademarks and trade names material to the conduct of its business, except in the case of 

clause (ii) where failure to do so, individually or in the aggregate, would not reasonably be 

expected to result in a Material Adverse Effect; provided that the foregoing shall not prohibit any 

merger, consolidation, liquidation, dissolution, disposition or other transaction permitted under 

Section 6.03 or 6.05.

SECTION 5.06. Payment of Obligations. To the extent permitted by the Order and the

terms thereof, each Borrower will, and will cause each Restricted Subsidiary to, pay or discharge 

all its material obligations, including material Tax liabilities (whether or not shown on a Tax 

return), before the same shall become delinquent or in default, subject to the Approved Budget 

(and the Permitted Variances provided for therein)except where (a) (i) the validity or amount 

thereof is being contested in good faith by appropriate proceedings, (ii) the Parent Borrower or 

such Restricted Subsidiary has set aside on its books reserves with respect thereto to the extent 

required by GAAP and (iii) such contest effectively suspends collection of the contested 

obligation and the enforcement of any Lien securing such obligation or (b) the failure to make 

payment would not, individually or in the aggregate, reasonably be expected to result in a 

Material Adverse Effect.

SECTION 5.07. Maintenance of Properties. Each Borrower will, and will cause each 

Restricted Subsidiary to, keep and maintain all property material to the conduct of its business in 

good working order and condition, ordinary wear and tear excepted, except where the failure to 

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do so, individually or in the aggregate, would not reasonably be expected to result in a Material 

Adverse Effect.

SECTION 5.08. Insurance. Each Borrower will, and will cause each Restricted 

Subsidiary to, maintain, with financially sound and reputable insurance companies, insurance in 

such amounts (with no greater risk retention) and against such risks as are customarily 

maintained by companies of established repute engaged in the same or similar businesses 

operating in the same or similar locations. Each such policy of liability or casualty insurance 

maintained by or on behalf of Loan Parties shall (a) in the case of each liability insurance policy 

(other than workers’ compensation, director and officer liability or other policies in which such 

endorsements are not customary), name the Administrative Agent, on behalf of the Secured 

Parties, as an additional insured thereunder and (b) in the case of each casualty insurance policy, 

contain a loss payable clause or endorsement that names the Administrative Agent, on behalf of 

the Secured Parties, as a loss payee thereunder, and the Borrowers will use commercially 

reasonable efforts to have each such policy provide for at least 30 days’ (or such shorter number 

of days as may be agreed to by the Administrative Agent) prior written notice to the 

Administrative Agent of any cancellation of such policy. 

SECTION 5.09. Books and Records; Inspection and Rights. Each Borrower will, and 

will cause each Restricted Subsidiary to, (a) keep proper books of record and account in which 

full, true and correct (in all material respects) entries in accordance with GAAP and applicable 

law are made of all dealings and transactions in relation to its business and activities and 

(b) permit any representatives designated by the Administrative Agent or any Lender (to the 

extent accompanying the Administrative Agent or any designated representative thereof) 

(including employees of the Administrative Agent, any Lender or any consultants, accountants, 

lawyers and appraisers retained by the Administrative Agent), upon reasonable prior notice (but 

in no event more than once each fiscal year of the Parent Borrower unless an Event of Default 

has occurred and is continuing), to visit and inspect its properties, to examine and make extracts 

from its books and records and to discuss its affairs, finances and condition with its officers and, 

accompanied by one or more such officers or their designees if requested by the Borrowers, 

independent accountants, all at such reasonable times during normal business hours and as often 

as reasonably requested. The Borrowers shall have the right to have a representative present at 

any and all inspections.

SECTION 5.10. Compliance with Laws. Each Borrower will, and will cause each 

Restricted Subsidiary to, comply with all laws (including Environmental Laws and orders of any 

Governmental Authority) applicable to it or its property, except (i) where the failure to do so, 

individually or in the aggregate, would not reasonably be expected to result in a Material 

Adverse Effect or (ii) to the extent subject to the Automatic Stay.

SECTION 5.11. Bankruptcy Matters.

(a) cause all proposed (i) “first day” and “second day” (if applicable) 

orders on a final basis, (ii) orders (other than the Order) related to or affecting the Loans 

and other Obligations and the Loan Documents, any other financing or use of cash 

collateral, any sale or other disposition of Collateral outside the ordinary course, cash 

management, adequate protection, any Plan of Reorganization and/or any disclosure 

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statement related thereto, (iii) orders concerning the financial condition of the Borrowers

or any of their respective Restricted Subsidiaries or other Indebtedness of the Loan 

Parties or seeking relief under section 363, 365, 1113 or 1114 of the Bankruptcy Code or 

section 9019 of the Federal Rules of Bankruptcy Procedure, and (iv) orders establishing 

procedures for administration of the Cases or approving significant transactions 

submitted to the Court, in each case, proposed by the Loan Parties to be in accordance 

with and permitted by the terms of this Agreement and reasonably acceptable to the 

Required Lenders in their reasonable discretion in all respects, it being understood and 

agreed that the forms of orders approved by the Required Lenders (and with respect to 

any provision that affects the rights, obligations, liabilities or duties of the 

Administrative Agent) prior to the Petition Date are in accordance with and permitted by 

the terms of this Agreement and are reasonably acceptable in all respects;

(b) comply in a timely manner with their obligations and 

responsibilities as debtors in possession under the Order; and

(c) except as otherwise permitted by an Acceptable Plan or this 

Agreement, provide prior written notice as soon as reasonably practicable to the 

Required Lenders prior to any assumption or rejection of any Loan Party’s or any 

Subsidiary’s material contracts or material non-residential real property leases pursuant 

to Section 365 of the Bankruptcy Code.

(d) deliver to the Administrative Agent all documents required to be 

delivered to creditors under the RSA, any applicable restructuring support agreement or 

any case stipulation; provided that the Borrower shall not be required to deliver any such 

documents provided by any party in interest to the extent that any such document is filed 

under seal; provided, further, that such documents that are filed under seal, to the extent 

permitted by applicable law, shall be provided to the advisors to the Administrative 

Agent on a professional eyes’ only basis.

(e) comply with each of the Required Milestones contained on 

Schedule 5.11 upon the terms and at the times provided for therein.

SECTION 5.12. Maintenance of Ratings. The Borrowers will use commercially

reasonable efforts to obtain a rating of the credit facilities created hereunder by each of S&P and 

Moody’s within 15 days of the Effective Date, it being understood that there is no obligation to 

maintain any particular rating at any time.

SECTION 5.13. [Reserved].

SECTION 5.14. [Reserved].

SECTION 5.15. Conference Calls. The Borrowers will hold and participate in:

(a) a monthly conference call for Lenders to discuss financial information delivered 

pursuant to Section 5.01. The Borrowers will hold such conference call following the delivery of 

the required financial information for such month pursuant to Section 5.01(c) and not later than 

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two Business Days from the time the Borrowers are required to deliver the financial information 

as set forth in Section 5.01(c). 

(b) weekly conference calls for the Ad Hoc Committee Advisors to discuss financial 

information delivered pursuant to Section 5.01(f). 

Such monthly and weekly calls will occur as a standing appointment at a time to be mutually 

agreed upon by the Borrowers and the Lenders or the Ad Hoc Committee Advisors, as 

applicable.

ARTICLE VI

Negative Covenants

Until the Commitments shall have expired or been terminated, the principal of and 

interest on each Loan and all premiums and fees payable hereunder shall have been paid in full, 

each Borrower covenants and agrees with the Lenders that:

SECTION 6.01. Indebtedness; Certain Equity Securities.

Neither Borrower will, nor will it permit any Restricted Subsidiary to, create, incur, 

assume or permit to exist any Indebtedness, except:

(a) Indebtedness created under the Loan Documents (including, for the avoidance of 

doubt, the Carve Out) and the Pre-Petition Loan Documents;

(b) Indebtedness existing on the date hereof and set forth on Schedule 6.01;

(c) unsecured Indebtedness of the Parent Borrower to any Restricted Subsidiary and 

of any Restricted Subsidiary to the Parent Borrower or any other Restricted Subsidiary; provided

that (i) such Indebtedness shall not have been transferred to any Person other than the Parent 

Borrower or any Restricted Subsidiary, (ii) any such Indebtedness owing by any Loan Party to a 

Restricted Subsidiary that is not a Loan Party shall be unsecured and subordinated in right of 

payment to the Loan Document Obligations and the Pre-Petition Lender Obligations and (iii) any 

such Indebtedness shall be incurred in compliance with Section 6.04;

(d) Guarantees incurred in compliance with Section 6.04;

(e) Indebtedness of the Parent Borrower or any Restricted Subsidiary (i) incurred to 

finance the acquisition, construction or improvement of any fixed or capital assets, including 

Capital Lease Obligations and Synthetic Lease Obligations, provided that such Indebtedness is 

incurred prior to or within 270 days after such acquisition or the completion of such construction 

or improvement and the principal amount of such Indebtedness does not exceed the cost of 

acquiring, constructing or improving such fixed or capital assets or (ii) assumed in connection 

with the acquisition of any fixed or capital assets; provided that the aggregate principal amount 

of Indebtedness permitted by this clause (e) at the time of incurrence thereof shall not exceed 

$1,000,000;

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(f) Indebtedness in respect of netting services, overdraft protections and deposit and 

checking accounts, in each case, in the ordinary course of business;

(g) Indebtedness in respect of letters of credit, bank guarantees and similar 

instruments issued for the account of the Parent Borrower or any Restricted Subsidiary in the 

ordinary course of business supporting obligations under workers’ compensation, health, 

disability, unemployment insurance and other social security laws;

(h) Indebtedness expressly permitted by the Approved Budget (including with respect 

to any Permitted Variances);

(i) [reserved];

(j) Indebtedness under (i) the Pre-Petition ABL Credit Agreement and (ii) if 

applicable, the ABL Credit Agreement in an aggregate principal amount not to exceed 

$400,000,000 at any time outstanding;

(k) Indebtedness of Loan Parties in respect of surety bonds (whether bid, 

performance, appeal or otherwise) and performance and completion guarantees and other 

obligations of a like nature, in each case incurred in the ordinary course of business;

(l) [reserved];

(m) [reserved];

(n) [reserved];

(o) [reserved];

(p) other unsecured Indebtedness in an aggregate principal amount not to exceed at 

the time of incurrence thereof $4,000,000;

(q) Indebtedness consisting of (i) the financing of insurance premiums and (ii) takeor-pay obligations contained in supply arrangements, in each case, in the ordinary course of 

business;

(r) obligations under any agreement governing the provision of treasury or cash 

management services, including deposit accounts, overnight draft, credit cards, debit cards, 

p-cards (including purchasing cards and commercial cards), funds transfer, automated 

clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, 

lockbox, account reconciliation and reporting and trade finance services and other cash 

management services; and

(s) Indebtedness in the form of Swap Agreements permitted under Section 6.07.

The accrual of interest, the accretion of accreted value and the payment of interest or 

dividends in the form of additional Indebtedness or Disqualified Stock, as applicable, the 

accretion of original issue discount, the accretion of liquidation preference and increases in the 

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amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of 

currencies shall not be deemed to be an incurrence of Indebtedness or Disqualified Stock for 

purposes of this Section 6.01. 

SECTION 6.02. Liens. Neither Borrower will, nor will it permit any Restricted 

Subsidiary to, create, incur, assume or permit to exist any Lien on any asset now owned or 

hereafter acquired, except:

(a) (i) Liens granted by the Order (including the Carve Out), (ii) Liens created under 

the Loan Documents or the Pre-Petition Loan Documents;

(b) Permitted Encumbrances;

(c) any Lien on any asset of the Parent Borrower or any Restricted Subsidiary 

existing on the date hereof and set forth on Schedule 6.02; provided that (i) such Lien shall not 

apply to any other asset of the Parent Borrower or any Restricted Subsidiary and (ii) such Lien 

shall secure only those obligations that it secures on the date hereof and any extensions, renewals 

and refinancing thereof that do not increase the outstanding principal amount thereof;

(d) [reserved];

(e) Liens on fixed or capital assets acquired, constructed or improved by the Parent 

Borrower or any Restricted Subsidiary; provided that (i) such Liens secure only Indebtedness 

permitted by Section 6.01(e) and obligations relating thereto not constituting Indebtedness and 

(ii) such Liens shall not apply to any other asset of the Parent Borrower or any Restricted 

Subsidiary (other than the proceeds and products thereof); provided further that in the event 

purchase money obligations are owed to any Person with respect to financing of more than one 

purchase of any fixed or capital assets, such Liens may secure all such purchase money 

obligations and may apply to all such fixed or capital assets financed by such Person;

(f) in connection with the sale or transfer of any Equity Interests or other assets in a 

transaction permitted under Section 6.05, customary rights and restrictions contained in 

agreements relating to such sale or transfer pending the completion thereof, solely to the extent 

such sale or transfer would have been permitted on the date of the creation of such Lien;

(g) in the case of (i) any Restricted Subsidiary that is not a wholly-owned Restricted 

Subsidiary or (ii) the Equity Interests in any Person that is not a Restricted Subsidiary, any 

encumbrance or restriction, including any put and call arrangements, related to Equity Interests 

in such Restricted Subsidiary or such other Person set forth in the organizational documents of 

such Restricted Subsidiary or such other Person or any related joint venture, shareholders’ or 

similar agreement, in each case, so long as such encumbrance or restriction is in existence on the 

Petition Date;

(h) Liens solely on any cash deposits, escrow arrangements or similar arrangements 

made by the Parent Borrower or any Restricted Subsidiary in connection with any letter of intent 

or purchase agreement for a transaction permitted hereunder;

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(i) Liens on the Collateral securing Indebtedness permitted by Section 6.01(j) and 

obligations relating thereto not constituting Indebtedness; provided that any such Liens are 

subject to (x) the Order and (y), if such Liens are on assets of the Loan Parties, the Intercreditor 

Agreement;

(j) any Lien on assets of any Foreign Subsidiary (other than any Luxembourg IP 

Subsidiary); provided that such Lien shall secure only Indebtedness of such Foreign Subsidiary 

permitted by Section 6.01 and obligations relating thereto not constituting Indebtedness;

(k) other Liens securing Indebtedness or other obligations in an aggregate principal 

amount at the time of incurrence of such Indebtedness or other obligations not to exceed

$1,000,000;

(l) non-exclusive licenses of intellectual property granted in the ordinary course of 

business; and

(m) Liens in favor of the Pre-Petition Lenders as adequate protection granted pursuant 

to the Orders.

SECTION 6.03. Fundamental Changes; Business Activities.

(a) Neither Borrower will, nor will it permit any Restricted Subsidiary to, merge into 

or consolidate with any other Person, or permit any other Person to merge or consolidate with it, 

or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect 

thereto no Default shall have occurred and be continuing, (i) any Restricted Subsidiary may (x) 

merge into the Parent Borrower in a transaction in which the Parent Borrower is the surviving 

entity and (y) merge into the Subsidiary Borrower in a transaction in which the Subsidiary 

Borrower is the surviving entity, (ii) any Person (other the Parent Borrower or the Subsidiary 

Borrower) may merge into or consolidate with any Restricted Subsidiary in a transaction in 

which the surviving entity is a Restricted Subsidiary and, if any party to such merger or 

consolidation is a Loan Party, a Loan Party, (iii) [reserved] and (iv) any Restricted Subsidiary 

(other than the Subsidiary Borrower) may liquidate or dissolve if the Borrowers determine in 

good faith that such liquidation or dissolution is in the best interests of the Borrowers and is not 

materially disadvantageous to the Lenders; provided that any such merger or consolidation 

involving a Person that is not a wholly-owned Restricted Subsidiary immediately prior to such 

merger or consolidation shall not be permitted unless it is also permitted by Section 6.04. 

(b) Neither Borrower will, nor will it permit any of its Restricted Subsidiaries to, 

engage to any material extent in any business other than businesses of the type conducted by the 

Parent Borrower and the Restricted Subsidiaries on the date hereof and businesses reasonably 

related or complementary thereto.

SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions. Neither 

Borrower will, nor will it permit any Restricted Subsidiary to, purchase, hold, acquire (including 

pursuant to any merger or consolidation), make or otherwise permit to exist any Investment in 

any other Person, except:

(a) Investments in cash and Cash Equivalents;

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(b) Investments existing on the date hereof or contractually committed to as of the 

date hereof and set forth on Schedule 6.04 and any extensions thereof (but not any additions 

thereto (including any capital contributions) made after the date hereof) ;

(c) Investments by the Parent Borrower and the Restricted Subsidiaries in Equity 

Interests in their respective subsidiaries; provided that (i) such subsidiaries are Subsidiaries prior 

to such Investments, and (ii) in the case of any such Investments by the Loan Parties in, and 

loans and advances by the Loan Parties to, Restricted Subsidiaries that are not Loan Parties 

(excluding all such Investments, loans, advances and Guarantees existing on the date hereof and 

permitted by clause (b) above), (A) the aggregate amount of all such Investments (including 

loans and advances) permitted pursuant to this clause (c) and pursuant to clauses (d) and (e) 

below, taken together, shall not exceed $10,000,000 and (B) in each case, all such Investments

(including loans and advances) shall be (x) made in the ordinary course of business, (y), solely in 

connection with the operational and compliance needs of the Parent Borrower and its Restricted 

Subsidiaries and (z) permitted by the Approved Budget (subject to Permitted Variance);

(d) loans or advances made by the Parent Borrower to any Restricted Subsidiary or 

made by any Restricted Subsidiary to the Parent Borrower or any other Restricted Subsidiary; 

provided that (i) the Indebtedness resulting therefrom is permitted by Section 6.01(c) and (ii) the 

amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are 

not Loan Parties shall be subject to the limitation set forth in clause (c) above and shall be 

permitted by the Approved Budget (subject to Permitted Variance);

(e) Guarantees by the Parent Borrower or any Restricted Subsidiary of Indebtedness 

or other obligations of the Parent Borrower or any Restricted Subsidiary, solely to the extent (i) 

arising as a result of any such Person being a joint and several co-applicant with respect to any 

letter of credit or letter of guaranty or (ii) of any leases of retail store locations and related 

obligations arising thereunder, in each case, in the ordinary course of business; provided that the 

aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not 

Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in 

clause (c) above and shall be permitted by the Approved Budget (subject to Permitted 

Variances);

(f) [reserved];

(g) 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;

(h) [reserved];

(i) deposits, prepayments and other credits to suppliers, lessors and landlords made 

in the ordinary course of business;

(j) advances by the Parent Borrower or any Restricted Subsidiary to employees in the 

ordinary course of business consistent with past practices for travel and entertainment expenses, 

relocation costs and similar purposes;

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(k) [reserved];

(l) Investments in the form of Swap Agreements permitted under Section 6.07;

(m) investments constituting deposits described in clauses (c) and (d) of the definition 

of “Permitted Encumbrances” and endorsements of instruments for collection or deposit in the 

ordinary course of business;

(n) other Investments to the extent permitted by and expressly set forth in the Order;

(o) other Investments in an aggregate amount not to exceed $1,000,000; and

(p) Investments in respect of actions permitted by Section 6.05(g). 

For the purposes of this Section, any unreimbursed payment by the Parent Borrower or 

any Restricted Subsidiary for goods or services delivered to any Subsidiary shall be deemed to 

be an Investment in such Subsidiary.

SECTION 6.05. Asset Sales. Neither Borrower will, nor will it permit any Restricted 

Subsidiary to, sell, transfer or otherwise dispose of any asset, including any Equity Interest 

owned by it, nor will the Parent Borrower permit any Restricted Subsidiary to issue any 

additional Equity Interests in such Restricted Subsidiary (other than to the Parent Borrower or 

any other Restricted Subsidiary in compliance with Section 6.04, and other than directors’ 

qualifying shares and other nominal amounts of Equity Interests that are required to be held by 

other Persons under applicable law) (each of the foregoing, an “Asset Sale”), except:

(a) (i) sales of inventory, (ii) sales, transfers and other dispositions of used, surplus, 

obsolete or outmoded machinery or equipment and (iii) contributions of merchandise to 

charitable organizations, to the extent in the ordinary course of business and consistent with past 

practices, (iv) dispositions of Cash Equivalents and (v) use of cash in accordance with the 

Approved Budget and pursuant to transactions permitted under this agreement, in each case 

(other than in the case of clause (iii)) in the ordinary course of business;

(b) sales, transfers, leases and other dispositions to the Parent Borrower or any 

Restricted Subsidiary in the ordinary course of business; provided that any such sales, transfers, 

leases or other dispositions involving a Restricted Subsidiary that is not a Loan Party shall be 

made in compliance with Sections 6.04 and 6.09;

(c) the sale or discount of accounts receivable arising in the ordinary course of 

business, but only in connection with the compromise or collection thereof and not in connection 

with any financing transaction;

(d) dispositions of assets subject to any casualty or condemnation proceeding 

(including in lieu thereof);

(e) leases or subleases of real property granted by the Parent Borrower or any 

Restricted Subsidiary to third Persons not interfering in any material respect with the business of 

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the Parent Borrower or any Restricted Subsidiary, including, without limitation, retail store lease 

assignments and surrenders;

(f) [reserved];

(g) in connection with the consolidation of foreign operations of the Parent Borrower 

and its Subsidiaries, the direct or indirect transfers or other dispositions by any Restricted 

Subsidiary of any foreign assets or the Equity Interests of a Foreign Subsidiary that is a 

Restricted Subsidiary to (i) with respect to any Luxembourg IP Subsidiary or any non-Loan Party 

Restricted Subsidiary with the prior consent of the Required Lenders and (ii) any other 

Restricted Subsidiary; 

(h) to the extent prior consent of the Required Lenders is received, the elimination or 

forgiving of intercompany balances in connection with intercompany restructurings (including 

dissolutions, liquidations and mergers) between or among the Parent Borrower and its Restricted 

Subsidiaries; 

(i) other sales, transfers or dispositions pursuant to an order of the Court which sale, 

transfer or disposition are consistent with the Restructuring Support Agreement and the 

Approved Budget; and

(j) Specified Dispositions or dispositions expressly identified and provided for in the 

Approved Budget; and 

(k) sales, transfers and other dispositions of assets that are not permitted by any other 

clause of this Section in an aggregate amount equal to a fair market value, as determined by a 

Responsible Officer of the Parent Borrower reasonably and acting in good faith, of not more than 

$1,000,000;

provided that all sales, transfers, leases and other dispositions permitted hereby (other than those 

permitted by clause (a)(ii), (a)(iii), (b), (c), (d), (g) or (h)) shall be made for fair value.

SECTION 6.06. Sale/Leaseback Transactions. Neither Borrower will, nor will it 

permit any Restricted Subsidiary to, enter into any Sale/Leaseback Transaction, except to the 

extent such Sale/Leaseback Transaction is entered into in connection with a Specified 

Disposition.

SECTION 6.07. Swap Agreements. Neither Borrower will, nor will it permit any 

Restricted Subsidiary to, enter into any Swap Agreement, other than Swap Agreements entered 

into in the ordinary course of business to hedge or mitigate risks to which the Parent Borrower or 

a Restricted Subsidiary is exposed in the conduct of its business or the management of its 

liabilities and not for speculative purposes.

SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.

(a) Neither Borrower will, nor will it permit any Restricted Subsidiary to, declare or 

make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any 

obligation (contingent or otherwise) to do so, except that: 

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(i) the Parent Borrower may declare and pay dividends with respect to its 

Equity Interests payable solely in additional Equity Interests (other than Disqualified 

Stock) of the Parent Borrower; 

(ii) any Restricted Subsidiary may declare and pay dividends or make other 

distributions with respect to its Equity Interests, or make other Restricted Payments in 

respect of its Equity Interests, in each case ratably to the holders of such Equity Interests 

(or, if not ratably, on a basis more favorable to the Parent Borrower and the Restricted 

Subsidiaries);

(iii) the Parent Borrower may make Restricted Payments pursuant to and in 

accordance with customary stock option plans or other equity or benefit plans for 

management or employees of the Parent Borrower and the Restricted Subsidiaries in 

effect from time to time;

(iv) Restricted Payments made by any Restricted Subsidiary to another nonRestricted Subsidiary to consummate transactions that would otherwise be permitted by 

Section 6.04(c);

(v) the Parent Borrower may make cash payments in lieu of the issuance of 

fractional shares representing insignificant interests in the Parent Borrower in connection 

with the exercise of warrants, options or other securities convertible into or exchangeable 

for shares of common stock in the Parent Borrower;

(vi) Restricted Payments to Parent Borrower on or around and upon the 

execution and effectiveness of the RSA to pay fees and expenses in accordance 

therewith;

(vii) [reserved]; and

(viii) Restricted Payments made to consummate the transactions permitted by 

Section 6.05(g).

(b) Neither Borrower will, nor will it permit any Restricted Subsidiary to, make or 

agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, 

securities or other property), including any sinking fund or similar deposit, on account of the 

purchase, redemption, retirement, acquisition, cancellation or termination of any Specified 

Indebtedness, except:

(i) [reserved];

(ii) [reserved];

(iii) [reserved];

(iv) [reserved];

(v) [reserved]; 

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(vi) payments to the extent provided for in the Approved Budget (including 

Permitted Variances thereto) and permitted by the Order, as applicable; and 

(vii) [reserved].

(c) Neither Borrower will, nor will it permit any of the Restricted Subsidiaries to 

amend, modify or change in any manner adverse to the interests of the Lenders any term or 

condition of any documentation governing Specified Indebtedness; provided that immaterial 

amendments of an administrative, ministerial or technical nature may be made so long as 

contemporaneous written notice thereof is provided to the Administrative Agent.

SECTION 6.09. Transactions with Affiliates. Neither Borrower will, nor will it permit 

any Restricted Subsidiary to, sell, lease, license or otherwise transfer any assets to, or purchase, 

lease, license or otherwise acquire any assets from, or otherwise engage in any other transactions 

with, any of its Affiliates, except (a) transactions on terms and conditions not less favorable to 

the Parent Borrower or such Restricted Subsidiary than those that would prevail in an arm’slength transaction with unrelated third parties, (b) transactions between or among the Parent 

Borrower and the Restricted Subsidiaries, (c) any Restricted Payment permitted by Section 6.08 

or Investments permitted pursuant to Section 6.04(j), (d) the payment of reasonable fees and 

compensation to, and the providing of reasonable indemnities on behalf of, directors and officers 

of the Parent Borrower or any Restricted Subsidiary, as determined by the board of directors of 

the Parent Borrower in good faith, (e) employment contracts or subscription, put/call 

arrangements with employees, officers or directors, (f) transactions necessary to make adequate 

protection payments on account of secured Pre-Petition Indebtedness pursuant to the Order and 

(g) the transactions described on Schedule 6.09.

SECTION 6.10. Restrictive Agreements.

(a) Neither Borrower will, nor will it permit any Restricted Subsidiary to, directly or 

indirectly, enter into, incur or permit to exist any agreement or other arrangement that restricts or 

imposes any condition upon (1) the ability of the Parent Borrower or any Restricted Subsidiary 

to create, incur or permit to exist any Lien upon any of its assets to secure the Loan Document 

Obligations or (2) the ability of any Restricted Subsidiary to pay dividends or other distributions 

with respect to its Equity Interests or to make or repay loans or advances to the Parent Borrower 

or to Guarantee the Loan Agreement; provided that (i) the foregoing shall not apply to 

(A) restrictions and conditions imposed by law or by any Loan Document, (B) restrictions and 

conditions existing on the Effective Date identified on Schedule 6.10 (but shall apply to any 

amendment or modification expanding the scope of any such restriction or condition), 

(C) customary restrictions and conditions contained in agreements relating to the sale of a 

Subsidiary pending such sale, provided that such restrictions and conditions apply only to the 

Subsidiary that is to be sold and such sale is permitted hereunder, (D) in the case of any 

Restricted Subsidiary that is not a wholly-owned Restricted Subsidiary, restrictions and 

conditions imposed by its organizational documents or any related joint venture or similar 

agreement, provided that such restrictions and conditions apply only to such Restricted 

Subsidiary and to any Equity Interests in such Restricted Subsidiary, (E) restrictions and 

conditions set forth in the Pre-Petition Credit Agreement, Pre-Petition ABL Credit Agreement 

and, to the extent applicable, the ABL Credit Agreement, (F) restrictions and conditions imposed 

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by agreements relating to Indebtedness of Restricted Subsidiaries that are not Loan Parties 

permitted under Section 6.01 and (G) restrictions and conditions imposed on cash to secure 

letters of credit and other segregated deposits that are permitted pursuant to Section 6.02(h), 

provided that such restrictions and conditions apply only to such Restricted Subsidiaries that are 

not Loan Parties, (ii) clause (a) of the foregoing shall not apply to (A) restrictions or conditions 

imposed by any agreement relating to secured Indebtedness permitted by Section 6.01(e) if such 

restrictions or conditions apply only to the assets securing such Indebtedness and (B) customary 

provisions in leases and other agreements restricting the assignment thereof and (iii) clause (b) of 

the foregoing shall not apply to restrictions and conditions imposed by agreements relating to 

Indebtedness of any Restricted Subsidiary in existence at the time such Restricted Subsidiary 

became a Restricted Subsidiary and otherwise permitted under Section 6.01 (but shall apply to 

any amendment or modification expanding the scope of, any such restriction or condition), 

provided that such restrictions and conditions apply only to such Restricted Subsidiary.

(b) Except as permitted pursuant to the terms of this Agreement and the Order or 

otherwise consented to by the Required Lenders:

(i) Make or permit to be made any change, amendment or modification, or any 

application or motion for any change, amendment or modification, to the Order that is 

adverse to the Lenders.

(ii) Incur, create, assume or suffer to exist or permit any other superpriority claim 

which is pari passu with or senior to the DIP Superpriority Claims of the Administrative 

Agent, and the Lenders hereunder, except for the Carve Out and, subject to the 

Intercreditor Agreement, the ABL Credit Agreement to the extent applicable.

SECTION 6.11. Amendment of Organizational Documents. Neither Borrower will, nor 

will it permit any Restricted Subsidiary to, amend, modify or waive any of its rights under its 

certificate of incorporation, by-laws or other organizational documents, in either case, to the 

extent such amendment, modification or waiver would be adverse to the rights or interests of the 

Lenders hereunder or under any other Loan Document; provided that immaterial amendments of 

an administrative, ministerial or technical nature may be made so long as contemporaneous 

written notice thereof is provided to the Administrative Agent.

SECTION 6.12. Financial Covenants

(a) The Parent Borrower will not permit Liquidity at any time to be less than 

$100,000,000.

(b) Commencing after the end of the 3rd week following the Effective Date, and solely to 

the extent that Liquidity is less than $150,000,000, the Parent Borrower will not permit any 

negative variance between the Actual Net Cash Flow Amount for any Cumulative Four-Week 

Period and the Budgeted Net Cash Flow Amount for such Cumulative Four-Week Period to be 

greater than 20%.

(c) The Parent Borrower will not permit the amount of cash and Cash Equivalents of nonLoan Party Subsidiaries as of the end of the day on Friday of each calendar week on deposit in or 

credited to any account maintained by non-Loan Party Subsidiaries to exceed $45,000,000 in the 

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aggregate for all non-Loan Party Subsidiaries, excluding from such covenant any payments made 

(or to be made) from the Maurice business segments or entities.

SECTION 6.13. Accounting Changes. The Parent Borrower will not make any change 

in the Parent Borrower’s fiscal quarter or fiscal year other than as required pursuant to GAAP.

SECTION 6.14. Sanctions. The Parent Borrower and its Subsidiaries will not, directly 

or indirectly, use the proceeds of any Borrowing, or lend, contribute or otherwise make available 

such proceeds to any Subsidiary, joint venture partner or other individual or entity, to fund any 

activities of or business with any individual or entity, or in any Designated Jurisdiction, that, at 

the time of such funding, is the subject of Sanctions, or in any other manner that will result in a 

violation by an individual or entity (including any individual or entity participating in the 

transaction, whether as Lender, Administrative Agent, or otherwise) of Sanctions.

SECTION 6.15. Anti-Corruption Laws. The Parent Borrower and its Subsidiaries will 

not, directly or indirectly, use the proceeds of any Borrowing for any purpose which would 

breach any Anti-Corruption Laws.

ARTICLE VII

Events of Default

If any of the following events (“Events of Default”) shall occur:

(a) the Borrowers shall fail to pay any principal of any Loan when and as the same 

shall become due and payable, whether at the due date thereof or at a date fixed for prepayment 

thereof or otherwise;

(b) the Borrowers shall fail to pay any interest on any Loan or any fee, premium 

(including the Redemption Premium, if any) or any other amount (other than an amount referred 

to in clause (a) of this Article) payable under this Agreement, when and as the same shall 

become due and payable, and such failure shall continue unremedied for a period of three 

Business Days;

(c) any representation, warranty or certification made or deemed made by the Parent 

Borrower or any Restricted Subsidiary in this Agreement or any other Loan Document or any 

amendment or modification thereof or waiver thereunder, or in any report, certificate, financial 

statement or other document furnished pursuant to or in connection with this Agreement or any 

other Loan Document or any amendment or modification thereof or waiver thereunder, shall 

prove to have been materially incorrect when made or deemed made (or, in the case of any 

representation or warranty qualified by materiality, incorrect);

(d) the Borrowers shall fail to observe or perform any covenant, condition or 

agreement contained in Section 5.01, 5.02(a), 5.03 or 5.05 (with respect to the existence of any 

Borrower), 5.11 (including the Required Milestones) or in Article VI;

(e) any Loan Party shall fail to observe or perform any covenant, condition or 

agreement contained in this Agreement or any other Loan Document (other than those specified 

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in clause (a), (b) or (d) of this Article), and such failure shall continue unremedied for a period of 

7 Business Days after receipt of written notice thereof from the Administrative Agent;

(f) except as a result of commencement of the Cases or entry into this Agreement, 

and, to the extent applicable, the ABL Credit Agreement, unless the payment, acceleration and/or 

the exercise of remedies with respect to any such Indebtedness is stayed by the Court or unless 

any of the following results from obligations with respect to which the Court prohibits or does 

not permit any Loan Party from applicable compliance, the Parent Borrower or any Restricted 

Subsidiary shall fail to make any payment (whether of principal, interest, termination payment or 

other payment obligation and regardless of amount) in respect of any Material Indebtedness 

(other than the Loan Document Obligations) when and as the same shall become due and 

payable (after giving effect to any applicable grace period);

(g) except as a result of commencement of the Cases or entry into this Agreement

and, to the extent applicable, the ABL Credit Agreement, unless the payment, acceleration and/or 

the exercise of remedies with respect to any such Indebtedness is stayed by the Court or unless 

any of the following results from obligations with respect to which the Court prohibits or does 

not permit any Loan Party from applicable compliance, (i) any event or condition shall occur that 

results in any Material Indebtedness becoming due, or being terminated or required to be 

prepaid, repurchased, redeemed or defeased, prior to its scheduled maturity, or that enables or 

permits (with the giving of notice, if required) the holder or holders of any Material Indebtedness 

or any trustee or agent on its or their behalf, or, in the case of any Swap Agreement, the 

applicable counterparty, to cause any Material Indebtedness to become due, or to terminate or to 

require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled 

maturity; provided that this clause (g) shall not apply to (i) any secured Indebtedness that 

becomes due as a result of the voluntary sale or transfer of the assets securing such Indebtedness 

or (ii) any Indebtedness that becomes due as a result of a voluntary refinancing thereof permitted 

under Section 6.01; provided, further, that no such event under the Pre-Petition ABL Credit 

Agreement or the ABL Credit Agreement, as applicable, shall constitute an Event of Default 

under this clause (g) until the earliest to occur of (x) 5 days after the date of such Event of

Default (during which period such Event of Default is not waived or cured), (y) the acceleration 

of the Indebtedness under the Pre-Petition ABL Credit Agreement or the ABL Credit Agreement, 

as applicable, and (z) the exercise of remedies by the ABL Agent in respect of a material portion 

of the ABL Priority Collateral, to the extent applicable;

(h) [reserved];

(i) [reserved];

(j) [reserved];

(k) except for any order fixing the amount of any Claim in the Cases, one or more 

judgments for the payment of money in an aggregate amount in excess of $10,000,000 (to the 

extent not covered by independent third-party insurance as to which the insurer has been notified 

of such judgment and has not denied coverage) shall be rendered against the Parent Borrower or 

any Restricted Subsidiary, or any combination thereof, and the same shall remain undischarged 

for a period of 15 consecutive days during which execution shall not be effectively stayed, or any 

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action shall be legally taken by a judgment creditor to attach or levy upon any assets of the 

Parent Borrower or any Restricted Subsidiary to enforce any such judgment;

(l) one or more ERISA Events shall have occurred that would, individually or in the 

aggregate, reasonably be expected to result in a Material Adverse Effect;

(m) a Change in Control shall occur; 

(n) any Loan Document, at any time after its execution and delivery and for any 

reason other than as expressly permitted hereunder, satisfaction in full of all the Loan Document 

Obligations (other than contingent indemnification claims) or any act or omission by the 

Administrative Agent or any Lender, ceases to be in full force and effect; or any Loan Party 

contests in any manner the validity or enforceability of any Loan Document; or any Loan Party 

denies that it has any or further liability or obligation under any Loan Document, or purports to 

revoke, terminate or rescind any Loan Document; and

(o) any Lien purported to be created under any Collateral Document and the Order 

shall cease to be, or shall be asserted by any Loan Party not to be, a valid and perfected Lien on 

any material Collateral, with the priority required by the applicable Collateral Document, except 

(i) as a result of the sale or other disposition of the applicable Collateral in a transaction 

permitted under the Loan Documents to a Person that is not a Loan Party, (ii) the release thereof 

as provided in the applicable Collateral Document or Section 9.16 or consented to under Section 

9.02, (iii) as a result of the failure of the Administrative Agent to (A) maintain possession of any 

stock certificates, promissory notes or other instruments delivered to it under the Collateral 

Agreement or (B) continue in accordance with applicable law the effectiveness of any UCC 

financing statement or (iv) as to Collateral constituting real property, to the extent such losses are 

covered by Lender’s title insurance policy and such insurer has not denied coverage; 

(p) the RSA is terminated for any reason, or is modified, amended or waived in any 

manner materially adverse to the Secured Parties without the prior consent of the Required 

Lenders (or the Administrative Agent at the direction of the Required Lenders);

(q) any Loan Party shall file a motion in the Cases without the express written 

consent of the Required Lenders (or the Administrative Agent at the direction of the Required 

Lenders), (i) to obtain additional financing under Section 364(d) of the Bankruptcy Code not 

otherwise permitted under this Agreement or (ii) except as provided in the Order, as the case 

may be, to use cash collateral of a Lender under Section 363(c) of the Bankruptcy Code that does 

not either have the prior written consent of the Required Lenders (or the Administrative Agent 

acting at the direction of the Required Lenders) or provide for the payment of the Loan 

Document Obligations in full and in cash upon the incurrence of such additional financing;

(r) an order with respect to any of the Cases shall be entered by the Court (i) 

appointing a trustee under Section 1104, (ii) appointing an examiner with enlarged powers 

relating to the operation of the business (powers beyond those set forth in section 1106(a)(3) and 

(4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code, or (iii) converting 

the Cases to cases under Chapter 7 of the Bankruptcy Code; 

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(s) an order shall be entered by the Court dismissing any of the Cases which does not 

contain a provision for termination of all Commitments, and payment in full in cash of all Loan 

Document Obligations upon entry thereof; 

(t) an order with respect to any of the Cases shall be entered by the Court without the 

express prior written consent of the Required Lenders (and with respect to any provisions that 

affect the rights or duties of the Administrative Agent, the Administrative Agent), with such 

consent not to be unreasonably withheld, conditioned or delayed, (i) to revoke, reverse, stay, 

modify, supplement or amend the Order in a manner adverse to the Lenders and/or the 

Administrative Agent or (ii) to permit, unless otherwise contemplated by the Order, any 

administrative expense or any Claim (now existing or hereafter arising, of any kind or nature 

whatsoever) to have administrative priority equal or superior to the administrative priority of the 

Loan Parties’ Claims in respect of the Loan Document Obligations (other than the Carve Out);

(u) (i) an application for any of the orders described in clause (r) above shall be made 

by a Loan Party or any such application shall be made by a Person other than the Loan Parties 

and such application is not contested by the Loan Parties in good faith or the relief requested is 

not withdrawn, dismissed or denied within forty-five (45) days after the filing or (ii) any Person 

obtains an order under Section 506(c) of the Bankruptcy Code against the Administrative Agent; 

(v) the entry of an order by the Court terminating or modifying the exclusive right of 

any Loan Party to file a Plan of Reorganization pursuant to Section 1121 of the Bankruptcy 

Code, without the prior written consent of the Required Lenders;

(w) any Loan Party shall fail to comply with the Order;

(x) any order by the Court is entered granting any superpriority claim that is pari 

passu with or senior to those of the Secured Parties or any Lien that is senior to the Liens 

securing the Loan Document Obligations, other than in accordance with the Order;

(y) the Court enters an order that is adverse in any material respect, when taken as a 

whole, to the interests of the Administrative Agent and the Lenders or their respective rights and 

remedies in their capacities as such under this Agreement or in any of the Cases; 

(z) the Loan Parties or any of their Subsidiaries, or any person claiming by or through 

the Loan Parties or any of their Subsidiaries, obtain court authorization to commence, or 

commence, join in, assist or otherwise participate as an adverse party in any suit or other 

proceeding against any of the Administrative Agent or the Lenders in each case relating to this 

Agreement, in each case other than as permitted by the Order;

(aa) the Court denies confirmation of the Plan, provided, that if the Loan Parties 

subsequently obtain an order of the Court approving a plan of reorganization that either (i) 

proposes to repay in full in cash of all Loan Document Obligations under the Term Credit 

Facility, immediately upon the effectiveness thereof, (ii) is, taken as a whole, in form and 

substance substantially similar to the Plan of Reorganization or (iii) otherwise is approved by the 

Required Lenders, an Event of Default shall not occur;

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(bb) The Loan Parties attempts to consummate a sale of substantially all of its assets 

via a plan of reorganization or a 363 sale without consent of the Required Lenders; or

(cc) the filing by any of the Loan Parties of a Plan of Reorganization other than an 

Acceptable Plan;

then, notwithstanding anything in Section 362 of the Bankruptcy Code, but subject to the Order, 

and in every such event, and at any time thereafter during the continuance of such event, the 

Administrative Agent may, and at the request of the Required Lenders shall, by notice to the 

Borrowers, take either or both of the following actions, at the same or different times: 

(i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, 

(ii) declare the Loans then outstanding to be due and payable in whole, in which case any 

principal not so declared to be due and payable may thereafter be declared to be due and 

payable), and thereupon the principal of the Loans so declared to be due and payable, together 

with accrued interest thereon and all fees, premiums and other obligations of the Borrowers 

accrued hereunder, shall become due and payable immediately, in each case without 

presentment, demand, protest or other notice of any kind, all of which are hereby waived by the 

Borrowers and (iii) exercise on behalf of itself and the Lenders all rights and remedies available 

to it and the Lenders under the Loan Documents or applicable Law.

ARTICLE VIII

The Administrative Agent

Each of the Lenders hereby irrevocably appoints the entity named as Administrative 

Agent in the heading of this Agreement and its successors to serve as administrative agent and 

collateral agent under the Loan Documents, and authorizes the Administrative Agent to take such 

actions on its behalf, including execution of the other Loan Documents, and to exercise such 

powers as are delegated to the Administrative Agent by the terms of the Loan Documents, 

together with such actions and powers as are reasonably incidental thereto. Without limiting the 

generality of the foregoing, each Lender hereby authorizes the Administrative Agent to consent, 

on behalf of each Lender, to the Order, each to be negotiated between the Loan Parties, the 

Administrative Agent, certain other parties and the statutory committees appointed pursuant to 

Sections 327 and 1103 of the Bankruptcy Code.

The Person serving as the Administrative Agent hereunder shall have the same rights and 

powers in its capacity as a Lender as any other Lender and may exercise the same as though it 

were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, 

lend money to, own securities of, act as the financial advisor or in any other advisory capacity 

for and generally engage in any kind of business with the Parent Borrower or any Subsidiary or 

other Affiliate thereof as if such Person were not the Administrative Agent hereunder and 

without any duty to account therefor to the Lenders.

The Administrative Agent shall not have any duties or obligations except those expressly 

set forth in the Loan Documents, and its duties hereunder shall be administrative in nature. 

Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be 

subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and 

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is continuing (and it is understood and agreed that the use of the term “agent” herein or in any 

other Loan Documents (or any other similar term) with reference to the Administrative Agent is 

not intended to connote any fiduciary or other implied (or express) obligations arising under 

agency doctrine of any applicable law, and that such term is used as a matter of market custom 

and is intended to create or reflect only an administrative relationship between contracting 

parties), (b) the Administrative Agent shall not have any duty to take any discretionary action or 

to exercise any discretionary power, except discretionary rights and powers expressly 

contemplated by the Loan Documents that the Administrative Agent is required to exercise as 

directed in writing by the Required Lenders (or such other number or percentage of the Lenders 

as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, 

under the circumstances as provided in the Loan Documents), provided that the Administrative 

Agent shall not be required to take any action that, in its opinion, could expose the 

Administrative Agent to liability or be contrary to any Loan Document or applicable law, 

including for the avoidance of doubt any action that may be in violation of the automatic stay 

under any debtor relief law, and (c) except as expressly set forth in the Loan Documents, the 

Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to 

disclose, any information relating to the Parent Borrower or any Subsidiary or any other Affiliate 

thereof that is communicated to or obtained by the Person serving as Administrative Agent or 

any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action 

taken or not taken by it with the consent or at the request of the Required Lenders (or such other 

number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall 

believe in good faith to be necessary, under the circumstances as provided in the Loan 

Documents) or in the absence of its own gross negligence or willful misconduct (such absence to 

be presumed unless otherwise determined by a court of competent jurisdiction by a final and 

nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of 

any Default unless and until written notice thereof (stating that it is a “notice of default”) is given 

to the Administrative Agent by the Borrowers or a Lender, and the Administrative Agent shall 

not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or 

representation made in or in connection with any Loan Document, (ii) the contents of any 

certificate, report or other document delivered hereunder or in connection with any Loan 

Document, (iii) the performance or observance of any of the covenants, agreements or other 

terms or conditions set forth in any Loan Document or the occurrence of any Default, (iv) the 

sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any 

other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the 

Collateral or the existence of the Collateral or (vi) the satisfaction of any condition set forth in 

Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly 

required to be delivered to the Administrative Agent or satisfaction of any condition that 

expressly refers to the matters described therein being acceptable or satisfactory to the 

Administrative Agent. 

The Administrative Agent shall be entitled to rely, and shall not incur any liability for 

relying, upon any notice, request, certificate, consent, statement, instrument, document or other 

writing (including any electronic message, internet or intranet website posting or other 

distribution) believed by it to be genuine and to have been signed, sent or otherwise 

authenticated by the proper Person (whether or not such Person in fact meets the requirements 

set forth in the Loan Documents for being the signatory, sender or authenticator thereof). The 

Administrative Agent also shall be entitled to rely, and shall not incur any liability for relying, 

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upon any statement made to it orally or by telephone and believed by it to be made by the proper 

Person (whether or not such Person in fact meets the requirements set forth in the Loan 

Documents for being the signatory, sender or authenticator thereof), and may act upon any such 

statement prior to receipt of written confirmation thereof. In determining compliance with any 

condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction 

of a Lender, the Administrative Agent may presume that such condition is satisfactory to such 

Lender, unless the Administrative Agent shall have received notice to the contrary from such 

Lender prior to the making of such Loan. The Administrative Agent may consult with legal 

counsel (who may be counsel for the Borrowers), independent accountants and other experts 

selected by it, and shall not be liable for any action taken or not taken by it in accordance with 

the advice of any such counsel, accountants or experts.

The Administrative Agent may perform any and all of its duties and exercise its rights 

and powers hereunder or under any other Loan Document by or through any one or more subagents appointed by the Administrative Agent. The Administrative Agent and any such subagent may perform any and all their duties and exercise their rights and powers through their 

respective Related Parties. The exculpatory provisions of this Article shall apply to any such 

sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and 

shall apply to their respective activities in connection with the syndication of the credit facilities 

provided for herein as well as activities as Administrative Agent. The Administrative Agent 

shall not be responsible for the negligence or misconduct of any sub-agents except to the extent 

that a court of competent jurisdiction determines in a final and nonappealable judgment that the 

Administrative Agent acted with gross negligence or willful misconduct in the selection of such 

sub-agents.

Subject to the terms of this paragraph, the Administrative Agent may resign at any time, 

upon thirty days prior notice, from its capacity as such. In connection with such resignation, the 

Administrative Agent shall give notice of its intent to resign to the Lenders and the Borrowers. 

Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with 

the consent of the Borrower so long as no Event of Default under clauses (a) or (b) of Article VII 

is continuing, to appoint a successor. If no successor shall have been so appointed by the 

Required Lenders and shall have accepted such appointment within 30 days after the retiring 

Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent 

may, on behalf of the Lenders, appoint a successor Administrative Agent, which shall be a bank 

with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance 

of its appointment as Administrative Agent hereunder by a successor, such successor shall 

succeed to and become vested with all the rights, powers, privileges and duties of the retiring 

Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties 

and obligations hereunder and under the other Loan Documents. The fees payable by the 

Borrowers to a successor Administrative Agent shall be the same as those payable to its 

predecessor unless otherwise agreed by the Borrowers and such successor. Notwithstanding the 

foregoing, in the event no successor Administrative Agent shall have been so appointed and shall 

have accepted such appointment within 30 days after the retiring Administrative Agent gives 

notice of its intent to resign, the retiring Administrative Agent may give notice of the 

effectiveness of its resignation to the Lenders and the Borrowers, whereupon, on the date of 

effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall 

be discharged from its duties and obligations hereunder and under the other Loan Documents, 

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provided that, solely for purposes of maintaining any security interest granted to the 

Administrative Agent under any Collateral Document for the benefit of the Secured Parties, the 

retiring Administrative Agent shall continue to be vested with such security interest as collateral 

agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of 

the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a 

successor Administrative Agent is appointed and accepts such appointment in accordance with 

this paragraph (it being understood and agreed that the retiring Administrative Agent shall have 

no duty or obligation to take any further action under any Collateral Document, including any 

action required to maintain the perfection of any such security interest), and (b) the Required 

Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of 

the retiring Administrative Agent, provided that (i) all payments required to be made hereunder 

or under any other Loan Document to the Administrative Agent for the account of any Person 

other than the Administrative Agent shall be made directly to such Person and (ii) all notices and 

other communications required or contemplated to be given or made to the Administrative Agent 

shall also directly be given or made to each Lender. Following the effectiveness of the 

Administrative Agent’s resignation from its capacity as such, the provisions of this Article and 

Section 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth 

in any other Loan Document, shall continue in effect for the benefit of such retiring 

Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions 

taken or omitted to be taken by any of them while it was acting as Administrative Agent and in 

respect of the matters referred to in the proviso under clause (a) above.

Each Lender acknowledges that it has, independently and without reliance upon the 

Administrative Agent, any other Lender or the Debtors’ Investment Banker, or any of the 

Related Parties of any of the foregoing, and based on such documents and information as it has 

deemed appropriate, made its own credit analysis and decision to enter into this Agreement. 

Each Lender also acknowledges that it will, independently and without reliance upon the 

Administrative Agent, or any other Lender, or any of the Related Parties of any of the foregoing, 

and based on such documents and information as it shall from time to time deem appropriate, 

continue to make its own decisions in taking or not taking action under or based upon this 

Agreement, any other Loan Document or any related agreement or any document furnished 

hereunder or thereunder.

Each Lender, by delivering its signature page to this Agreement and funding its Loans on 

the Effective Date, or delivering its signature page to an Assignment and Assumption or any 

other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to 

have acknowledged receipt of, and consented to and approved, each Loan Document and each 

other document required to be delivered to, or be approved by or satisfactory to, the 

Administrative Agent or the Lenders on the Effective Date.

Except with respect to the exercise of setoff rights of any Lender in accordance with the 

Loan Documents or with respect to a Lender’s right to file a proof of claim in an insolvency 

proceeding, no Secured Party shall have any right individually to realize upon any of the 

Collateral or to enforce any Guarantee of the Loan Document Obligations, it being understood 

and agreed that all powers, rights and remedies under the Loan Documents may be exercised 

solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms 

thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral 

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pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender 

may be the purchaser or licensor of any or all of such Collateral at any such sale or other 

disposition, and the Administrative Agent, as agent for and representative of the Secured Parties 

(but not any Lender or Lenders in its or their respective individual capacities unless the Required 

Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making 

settlement or payment of the purchase price for all or any portion of the Collateral sold at any 

such public sale, to use and apply any of the Loan Document Obligations as a credit on account 

of the purchase price for any collateral payable by the Administrative Agent on behalf of the 

Secured Parties at such sale or other disposition.

The Secured Parties irrevocably authorize the Administrative Agent, at its option and in 

its discretion, to subordinate or release any Lien on any property granted to or held by the 

Administrative Agent under any Loan Document to the holder of any Lien on such property that 

is a Permitted Encumbrance or that is permitted by Section 6.02(d), (e), (g) and (h). The 

Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any 

representation or warranty regarding the existence, value or collectability of the Collateral, the 

existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate 

prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be 

responsible or liable to the Lenders for any failure to monitor or maintain any portion of the 

Collateral.

In case of the pendency of any proceeding with respect to any Loan Party under any 

Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in 

effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be 

due and payable as herein expressed or by declaration or otherwise and irrespective of whether 

the Administrative Agent shall have made any demand on the Borrowers) shall be entitled and 

empowered (but not obligated) by intervention in such proceeding or otherwise:

(a) to file and prove a claim for the whole amount of the principal and interest owing 

and unpaid in respect of the Loans, and all other Loan Document Obligations that are owing and 

unpaid and to file such other documents as may be necessary or advisable in order to have the 

claims of the Lenders and the Administrative Agent (including any claim under Sections 2.10, 

2.11, 2.13, 2.14, 2.15 and 9.03) allowed in such judicial proceeding;

(b) to collect and receive any monies or other property payable or deliverable on any 

such claims and to distribute the same; and

(c) any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar 

official in any such proceeding is hereby authorized by each Lender and each Secured Party to 

make such payments to the Administrative Agent and, in the event that the Administrative Agent 

shall consent to the making of such payments directly to the Lenders or the other Secured 

Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the 

Administrative Agent, under the Loan Documents (including under Section 9.03).

To the extent required by any applicable laws (as determined in good faith by the 

Administrative Agent), the Administrative Agent may withhold from any payment to any Lender 

under any Loan Document an amount equivalent to any applicable withholding Tax. Without 

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limiting or expanding the provisions of Section 2.15, each Lender shall indemnify and hold 

harmless the Administrative Agent against, and shall make payable in respect thereof within 

10 days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities 

and expenses (including fees, charges and disbursements of any counsel for the Administrative 

Agent) incurred by or asserted against the Administrative Agent by the IRS or any other 

Governmental Authority as a result of the failure of the Administrative Agent to properly 

withhold Tax from amounts paid to or for the account of such Lender for any reason (including 

because the appropriate form was not delivered or not properly executed, or because such Lender 

failed to notify the Administrative Agent of a change in circumstance that rendered the 

exemption from, or reduction of withholding Tax ineffective). A certificate as to the amount of 

such payment or liability delivered to any Lender by the Administrative Agent shall be 

conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set 

off and apply any and all amounts at any time owing to such Lender under this Agreement or any 

other Loan Document against any amount due the Administrative Agent under this paragraph. 

The agreements in this paragraph shall survive the resignation and/or replacement of the 

Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the 

termination of the Commitments and the repayment, satisfaction or discharge of all other Loan 

Document Obligations.

Notwithstanding anything herein to the contrary, neither the Debtors’ Investment Banker 

nor any Person (if any) named on the cover page of this Agreement for recognition purposes only

shall have any duties or obligations under this Agreement or any other Loan Document (except 

in any such Person’s capacity, as and to the extent applicable, as a Lender), but all such Persons 

shall have the benefit of the indemnities to the extent referenced and provided for hereunder.

Unless otherwise expressly stated or referred to in this Article, the provisions of this 

Article are solely for the benefit of the Administrative Agent and the Lenders, and, except solely 

to the extent of the Borrowers’ rights to consent pursuant to and subject to the conditions set 

forth in this Article, none of the Borrowers or any other Loan Party shall have any rights as a 

third party beneficiary of any such provisions. Each Secured Party, whether or not a party 

hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees 

of the Loan Document Obligations provided under the Loan Documents, to have agreed to the 

provisions of this Article.

ARTICLE IX

Miscellaneous

SECTION 9.01. Notices.

(a) Except in the case of notices and other communications expressly permitted to be 

given by telephone (and subject to paragraph (b) of this Section), all notices and other 

communications provided for herein shall be in writing and shall be delivered by e-mail, hand or 

overnight courier service, or mailed by certified or registered mail, as follows:

(i) if to the Borrowers:

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Ascena Retail Group, Inc.

933 MacArthur Boulevard

Mahwah, New Jersey 07430

Attention: Dan Lamadrid, Executive Vice President and Chief Financial Officer

E-mail: dan.lamadrid@ascenaretail.com

with a copy to:

933 MacArthur Boulevard

Mahwah, New Jersey 07430

Attention: Gary Holland, General Counsel and VP

E-mail: gary.holland@ascenaretail.com

With a copy to:

Kirkland & Ellis LLP

2049 Century Park East, Suite 3700 

Los Angeles, CA 90067

Attention: David M. Nemecek, P.C.

Email: david.nemecek@kirkland.com

(ii) if to the Administrative Agent:

Alter Domus (US) LLC

225 W. Washington St., 9th Floor

Chicago, IL 60606

Attention: Legal Department and Hendrik van der Zandt

Email: legal@alterdomus.com and hendrik.vanderzandt@alterdomus.com

with a copy to: 

Holland & Knight LLP

150 N. Riverside Plaza, Suite 2700

Chicago, IL 60606

Attention: Joshua Spencer

Email: joshua.spencer@hklaw.com

and 

Milbank LLP

55 Hudson Yards

New York, New York 10001

Attention: Evan Fleck

Email: EFleck@milbank.com

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(iii) if to any other Lender, to it at its address or e-mail address set forth in its 

Administrative Questionnaire.

All such notices and other communications (i) sent by hand or overnight courier service, 

or mailed by certified or registered mail, shall be deemed to have been given when received and 

(ii) delivered through electronic communications to the extent provided in paragraph (b) of this 

Section shall be effective as provided in such paragraph.

(b) Notices and other communications to the Lenders hereunder may be delivered or 

furnished by electronic communications (including e-mail and internet or intranet websites) 

pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall 

not apply to notices under Article II to any Lender if such Lender has notified the Administrative 

Agent that it is incapable of receiving notices under such Article by electronic communication. 

The Administrative Agent or the Parent Borrower (on behalf of the Loan Parties) may, in its 

discretion, agree to accept notices and other communications to it hereunder by electronic 

communications pursuant to procedures approved by it, provided that approval of such 

procedures may be limited to particular notices or communications. All such notices and other 

communications (i) sent to an e-mail address shall be deemed received upon the sender’s receipt 

of an acknowledgement from the intended recipient (such as by return e-mail or other written 

acknowledgement); provided that if not given during the normal business hours of the recipient, 

such notice or communication shall be deemed to have been given at the opening of business on 

the next Business Day for the recipient, and (ii) posted to an internet or intranet website shall be 

deemed received upon the deemed receipt by the intended recipient at its e-mail address as 

described in the foregoing clause (b)(i) of notification that such notice or communication is 

available and identifying the website address therefor.

(c) Any party hereto may change its address for notices and other communications 

hereunder by notice to the other parties hereto.

(d) The Borrowers agree that the Administrative Agent may, but shall not be 

obligated to, make any Communication by posting such Communication on Debt Domain, 

Intralinks, Syndtrak or a similar electronic transmission system (the “Platform”). The Platform 

is provided “as is” and “as available.” Neither the Administrative Agent nor any of its Related 

Parties warrants, or shall be deemed to warrant, the adequacy of the Platform and each expressly 

disclaims liability for errors or omissions in the Communications. No warranty of any kind, 

express, implied or statutory, including any warranty of merchantability, fitness for a particular 

purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is 

made, or shall be deemed to be made, by the Administrative Agent or any of its Related Parties 

in connection with the Communications or the Platform.

SECTION 9.02. Waivers; Amendments.

(a) No failure or delay by the Administrative Agent or any Lender in exercising any 

right or power hereunder or under any other Loan Document shall operate as a waiver thereof, 

nor shall any single or partial exercise of any such right or power, or any abandonment or 

discontinuance of steps to enforce such a right or power, preclude any other or further exercise 

thereof or the exercise of any other right or power. The rights and remedies of the 

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Administrative Agent and the Lenders hereunder and under any other Loan Document are 

cumulative and are not exclusive of any rights or remedies that they would otherwise have. No 

waiver of any provision of any Loan Document or consent to any departure by any Loan Party 

therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of 

this Section, and then such waiver or consent shall be effective only in the specific instance and 

for the specific purpose for which given. Without limiting the generality of the foregoing, the 

execution and delivery of this Agreement or the making of a Loan shall not be construed as a 

waiver of any Default, regardless of whether the Administrative Agent or any Lender may have 

had notice or knowledge of such Default at the time.

(b) Except as provided in Sections 9.02(c) and 9.19 and except with respect to the 

Administrative Agent Fee Letter, none of this Agreement, any other Loan Document or any 

provision hereof or thereof may be waived, amended or modified except, in the case of this 

Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers, the 

Administrative Agent and the Required Lenders and, in the case of any other Loan Document, 

pursuant to an agreement or agreements in writing entered into by the Administrative Agent and 

the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the 

Required Lenders, provided that (i) any provision of this Agreement or any other Loan 

Document may be amended by an agreement in writing entered into by the Borrowers and the 

Administrative Agent to cure any technical error, ambiguity, omission, defect or inconsistency so 

long as, in each case, the Lenders shall have received at least five Business Days’ prior written 

notice thereof and the Administrative Agent shall not have received, within five Business Days 

of the date of such notice to the Lenders, a written notice from the Required Lenders stating that 

the Required Lenders object to such amendment and (ii) no such agreement shall (A) increase 

the Commitment of any Lender without the written consent of such Lender, (B) reduce or forgive 

the principal amount of any Loan or reduce the rate of interest thereon or reduce or forgive any 

interest or fees or premiums (including any prepayment premiums but excluding for the

avoidance of doubt, any mandatory prepayment) payable hereunder without the written consent 

of each Lender directly affected thereby, (C) postpone the scheduled maturity date of any Loan, 

or the date of any scheduled payment of the principal amount of any Term Loan under 

Section 2.08, or any date for the payment of any interest or fees or premium payable hereunder, 

or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of 

expiration of any Commitment, without the written consent of each Lender directly affected 

thereby, (D) change Section 2.16(b) or 2.16(c) in a manner that would alter the pro rata sharing 

of payments required thereby without the written consent of each Lender, (E) change any of the 

provisions of this Section or the percentage set forth in the definition of the term “Required 

Lenders” or any other provision of any Loan Document specifying the number or percentage of 

Lenders required to waive, amend or modify any rights thereunder or make any determination or

grant any consent thereunder, without the written consent of each Lender; provided that, with the 

consent of the Required Lenders, the provisions of this Section and the definition of the term 

“Required Lenders” may be amended to include references to any new class of loans created 

under this Agreement (or to lenders extending such loans) on substantially the same basis as the 

corresponding references relating to the existing Loans or Lenders, (F) release substantially all of 

the value of the Guarantees provided by the Guarantors (including, in each case, by limiting 

liability in respect thereof) created under the Collateral Agreement without the written consent of 

each Lender (except as expressly provided in Section 9.16 or the Collateral Agreement including 

any such release by the Administrative Agent in connection with any sale or other disposition of 

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any Subsidiary upon the exercise of remedies under the Collateral Documents), it being 

understood that an amendment or other modification of the type of obligations guaranteed under 

the Collateral Agreement shall not be deemed to be a release or limitation of any Guarantee, and 

(G) release all or substantially all the Collateral from the Liens of the Collateral Documents, 

without the written consent of each Lender (except as expressly provided in Section 9.16 or the 

applicable Collateral Document (including any such release by the Administrative Agent in 

connection with any sale or other disposition of the Collateral upon the exercise of remedies 

under the Collateral Documents), it being understood that an amendment or other modification of 

the type of obligations secured by the Collateral Documents shall not be deemed to be a release 

of the Collateral from the Liens of the Collateral Documents); provided further that no such 

agreement shall amend, modify, extend or otherwise affect the rights or obligations of the 

Administrative Agent without the prior written consent of the Administrative Agent. 

Notwithstanding the foregoing, no consent with respect to any amendment, waiver or other 

modification of this Agreement or any other Loan Document shall be required of, in the case of 

any amendment, waiver or other modification referred to in clause (ii) of the first proviso of this 

paragraph, any Lender that receives payment in full of the principal of and interest accrued on 

each Loan made by, and all other amounts owing to, such Lender or accrued for the account of 

such Lender under this Agreement and the other Loan Documents at the time such amendment, 

waiver or other modification becomes effective and whose Commitments terminate by the terms 

and upon the effectiveness of such amendment, waiver or other modification.

(c) Notwithstanding anything herein to the contrary, the Administrative Agent may, 

without the consent of any Secured Party, consent to a departure by any Loan Party from any 

covenant of such Loan Party set forth in this Agreement, the Collateral Agreement or in any 

other Collateral Document to the extent such departure is consistent with the authority of the

Administrative Agent set forth in the definition of the term “Collateral and Guarantee 

Requirement”.

(d) The Administrative Agent may, but shall have no obligation to, with the 

concurrence of any Lender, execute amendments, waivers or other modifications on behalf of 

such Lender. Any amendment, waiver or other modification effected in accordance with this 

Section 9.02 shall be binding upon each Person that is at the time thereof a Lender and each 

Person that subsequently becomes a Lender.

(e) Notwithstanding the foregoing, Exhibit G to this Agreement, the definitions of 

“Exit Facility Agreement” and “Exit Facility Term Sheet” and Section 2.22 (or any other 

provision which would result in an amendment, restatement, waiver or modification of any of the 

foregoing) may be amended, restated, waived or otherwise modified with the prior written 

consent of the Required Lenders, the Administrative Agent and the Parent Borrower; provided 

that to the extent such amendment, restatement, waiver or other modification would require the 

consent of any affected “Lender”, all “Lenders” or any other Person (or requisite class of 

Persons) under the terms of Exhibit G as in effect on the Effective Date, the prior written consent 

of the corresponding affected Lender, all Lenders or such corresponding Person (or requisite 

class of Persons) under this Agreement shall be required; provided, further, that the Lenders 

hereby authorize the Administrative Agent to enter into any amendments to this Agreement and 

the other Loan Documents as may be necessary, in the reasonable opinion of the Administrative 

Agent and the Borrower, to give effect to the transaction contemplated by Section 2.22 and such 

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other technical or immaterial amendments as may be necessary or appropriate in the reasonable 

opinion of the Administrative Agent and the Parent Borrower in connection therewith.

SECTION 9.03. Expenses; Indemnity; Damage Waiver.

(a) The Borrowers shall, jointly and severally, pay (i) all reasonable and documented 

out-of-pocket expenses incurred by the Administrative Agent, the Ad Hoc Committee, the 

Lenders and their respective Affiliates, including the reasonable and documented out-of-pocket 

fees, charges and disbursements of one primary counsel for the Administrative Agent, one 

primary counsel for the Ad Hoc Committee, and if deemed necessary by the Administrative 

Agent or the Ad Hoc Committee, one local counsel for the Administrative Agent and Ad Hoc 

Committee, as applicable in each applicable jurisdiction, in connection with the structuring, 

arrangement and syndication of the credit facilities provided for herein and any credit or similar 

facility refinancing or replacing, in whole or in part, any of the credit facilities provided for 

herein, including the preparation, execution, delivery and administration of this Agreement, the 

other Loan Documents or any amendments, modifications or waivers of the provisions hereof or 

thereof, the Order and any transaction contemplated thereby (whether or not the transactions 

contemplated hereby or thereby shall be consummated) and any refinancing of the obligations 

hereunder or any “exit financing” requested by the Loan Parties in connection with the Chapter 

11 Cases (whether or not the transactions contemplated hereby or thereby shall be 

consummated), (ii) all reasonable and documented out-of-pocket expenses in connection with the 

administration of actions related to the Collateral, including any actions taken to perfect or 

maintain priority of the Administrative Agent’s Liens on the Collateral, to maintain any 

insurance required hereunder, to verify the Collateral, or any audit, inspection, or appraisal 

related to any Loan Party or the Collateral and (iii) all out-of-pocket expenses incurred by the 

Administrative Agent, the Ad Hoc Committee or any Lender, including the fees, charges and 

disbursements of any counsel for any of the foregoing, in connection with the enforcement or 

protection of its rights in connection with the Loan Documents, including its rights under this 

Section, or in connection with the Loans made hereunder, including all such out-of-pocket 

expenses incurred during any workout, restructuring or negotiations in respect of such Loans.

(b) The Borrowers shall, jointly and severally, indemnify the Administrative Agent 

(and any subagent thereof), and each Lender, and each Related Party of any of the foregoing 

Persons (each such Person being called an “Indemnitee”), against, and hold each Indemnitee 

harmless from, any and all losses, claims, damages, penalties, liabilities and related expenses, 

including the reasonable fees, charges and disbursements of any counsel for any Indemnitee, 

incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of 

(i) the structuring, arrangement and the syndication of the credit facilities provided for herein, the 

preparation, execution, enforcement, delivery and administration of this Agreement, the other 

Loan Documents or any other agreement or instrument contemplated hereby or thereby, the 

performance by the parties to this Agreement or the other Loan Documents of their obligations 

thereunder or the consummation of the Transactions or any other transactions contemplated 

thereby, (ii) any Loan or the use of the proceeds therefrom, (iii) any actual or alleged presence or 

Release of Hazardous Materials on, at, under to or from any property currently or formerly 

owned or operated by the Parent Borrower or any of its Subsidiaries, or any Environmental 

Liability related in any way to the Parent Borrower or any Subsidiary or (iv) any actual or 

prospective claim, litigation, investigation or proceeding relating to any of the foregoing, 

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whether based on contract, tort or any other theory and regardless of whether such proceeding is 

initiated against or by any party to this Agreement, or any Affiliate thereof, by an Indemnitee or 

any third party or whether any Indemnitee is a party thereto; provided that such indemnity shall 

not, as to any Indemnitee, be available to the extent that such losses, claims, damages, penalties, 

liabilities or related expenses (i) are determined by a court of competent jurisdiction by a final 

and non-appealable judgment to have resulted from the bad faith, gross negligence or willful 

misconduct of such Indemnitee, (ii) are determined by a court of competent jurisdiction by a 

final and non-appealable judgment to have resulted from a material breach by such Indemnitee of 

the Loan Documents or (iii) involve a dispute solely among Indemnitees (other than an action 

involving (i) alleged conduct by any Borrower or any of its Affiliates or (ii) against the 

Administrative Agent in its capacity as such). This Section shall not apply to any Taxes (other 

than Other Taxes or any Taxes that represent losses, claims, damages or related expenses arising 

from any non-Tax claim).

(c) Each Lender severally agrees to indemnify and hold harmless the Administrative 

Agent (or any sub-agent thereof), to the extent that the Administrative Agent (or any sub-agent) 

shall not have been timely reimbursed by the Borrowers, based on and to the extent of such 

Lender’s pro rata share, for and against any and all liabilities, obligations, losses, damages, 

penalties, actions, judgments, suits, costs, expenses (including counsel fees and disbursements) 

or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or 

asserted against the Administrative Agent (or any sub-agent thereof) in exercising its powers, 

rights and remedies or performing its duties hereunder or under the other Loan Documents or 

otherwise in its capacity as the Administrative Agent (or any sub-agent thereof) in any way 

relating to or arising out of this Agreement or the other Loan Documents; provided, that no 

Lender shall be liable to the Administrative Agent (or any sub-agent) for any portion of such 

liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or 

disbursements resulting from the Administrative Agent’s (or any sub-agent’s) gross negligence 

or willful misconduct, as determined by a final, non-appealable judgment of a court of competent 

jurisdiction (it being understood and agreed that no action taken in accordance with the 

directions of the Required Lenders (or such other Lenders as may be required to give such 

instructions under Article VIII) shall constitute gross negligence or willful misconduct). If any 

indemnity furnished to the Administrative Agent (or any sub-agent thereof) for any purpose 

shall, in the opinion of the Administrative Agent (or any sub-agent thereof), be insufficient or 

become impaired, the Administrative Agent (or any sub-agent ) may call for additional 

indemnity and cease, or not commence, to do the acts indemnified against until such additional 

indemnity is furnished; provided, that in no event shall this sentence require any Lender to 

indemnify the Administrative Agent (or any sub-agent thereof) against any liability, obligation, 

loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such 

Lender’s pro rata share. For purposes hereof, a Lender’s “pro rata share” shall be determined 

based upon its share of the sum of the total outstanding Loans and unused Commitments at such 

time (or if such indemnity payment is sought after the date on which the Loans have been paid in 

full in accordance with such Lender’s pro rata share immediately prior to the date on which the 

Loans are paid in full).

(d) To the extent permitted by applicable law, (i) the Borrowers shall not assert, or 

permit any of their respective Affiliates or Related Parties to assert, and hereby waives, any 

claim against any Indemnitee for any damages arising from the use by others of information or 

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other materials obtained through telecommunications, electronic or other information 

transmission systems (including the internet)and (ii) none of the Borrowers or any Secured Party 

shall assert, or permit any of their respective Affiliates or Related Parties to assert any claims on 

any theory of liability, for special, indirect, consequential or punitive damages (as opposed to 

direct or actual damages) arising out of, in connection with, or as a result of this Agreement, any 

other Loan Document or any agreement or instrument contemplated hereby or thereby, the 

Transactions, any Loan or the use of the proceeds thereof.

(e) All amounts due under this Section shall be payable not later than 10 days after 

written demand therefor.

SECTION 9.04. Successors and Assigns.

(a) The provisions of this Agreement shall be binding upon and inure to the benefit of 

the parties hereto and their respective successors and assigns permitted hereby, except that (i)

neither Borrower may assign or otherwise transfer any of its rights or obligations hereunder 

without the prior written consent of the Administrative Agent and each Lender (and any 

attempted assignment or transfer by any Borrower without such consent shall be null and void)

and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in 

accordance with this Section. Nothing in this Agreement, expressed or implied, shall be 

construed to confer upon any Person (other than the parties hereto, their respective successors 

and assigns permitted hereby, Participants (to the extent provided in paragraph (c) of this 

Section), the Debtors’ Investment Banker (to the extent provided in Article VIII)and, to the 

extent expressly contemplated hereby, the sub-agents of the Administrative Agent and the 

Related Parties of any of the Administrative Agent and any Lender) any legal or equitable right, 

remedy or claim under or by reason of this Agreement.

(b) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may 

assign to one or more Eligible Assignees all or a portion of its rights and obligations under this 

Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) 

with the prior written consent (such consent not to be unreasonably withheld, conditioned or 

delayed) of:

(i) the Borrowers; provided that no consent of Borrowers shall be required 

(1) for an assignment to a Lender, a Related Lender, an Affiliate of a Lender or an 

Approved Fund, (2) if in connection with the Initial Allocation (as defined in the 

Commitment Letter) or to Persons who have delivered a joinder and an election 

agreement to the Ad Hoc Committee Advisors by August 13, 2020 and (3) if an Event of 

Default has occurred and is continuing, for any other assignment; provided further that, 

the Borrowers shall be deemed to have consented to any such assignment unless it shall 

object thereto by written notice to the Administrative Agent within 10 Business Days 

after having received notice thereof.

(ii) the Administrative Agent; provided that no consent of the Administrative 

Agent shall be required for an assignment of any Loan to a Lender, a Related Lender, an 

Affiliate of a Lender or an Approved Fund.

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(iii) Assignments shall be subject to the following additional conditions:

(A) except in the case of an assignment to a Lender, a Related Lender, 

an Affiliate of a Lender or an Approved Fund or an assignment of the entire 

remaining amount of the assigning Lender’s Commitment or Loans, the amount 

of the Commitment or Loans of the assigning Lender subject to each such 

assignment (determined as of the date the Assignment and Assumption with 

respect to such assignment is delivered to the Administrative Agent and recorded 

in the Register) shall not be less than $1,000,000 unless each of the Borrowers 

and the Administrative Agent otherwise consent; provided that no such consent of 

the Borrowers shall be required (i) if an Event of Default has occurred and is 

continuing or (ii) in connection with the Initial Allocation (as defined in the 

Commitment Letter) or to Persons who have delivered a joinder and an election 

agreement to the Ad Hoc Committee Advisors by August 13, 2020;

(B) each partial assignment shall be made as an assignment of a 

proportionate part of all the assigning Lender’s rights and obligations under this 

Agreement;

(C) the parties to each assignment shall execute and deliver to the 

Administrative Agent an Assignment and Assumption, together with a processing 

and recordation fee of $3,500, provided that only one such processing and 

recordation fee shall be payable in the event of simultaneous assignments from 

any Lender or its Approved Funds to one or more other Approved Funds of such 

Lender; 

(D) the assignee, if it shall not be a Lender, shall deliver to the 

Administrative Agent all requested “know your customer” documentation, a duly 

executed IRS Form W-9 or such other applicable IRS Form, and an 

Administrative Questionnaire in which the assignee designates one or more credit 

contacts to whom all syndicate-level information (which may contain MNPI) will 

be made available and who may receive such information in accordance with the 

assignee’s compliance procedures and applicable law, including Federal, State 

and foreign securities laws;

(E) the assignee, if it shall not be a Lender, shall deliver to the 

Administrative Agent, the Ad Hoc Committee Advisors and the Company a 

signed joinder to the Restructuring Support Agreement; and

(F) each Lender acknowledges and agrees that the Loans, on the one 

hand, and the unfunded Commitments on the other hand, shall be held by such 

Lender in equal percentages and such Loans, on the one hand, and such unfunded 

Commitments, on the other hand, are “stapled” to each other, and shall be 

assigned in equal percentages. 

(iv) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) 

of this Section, from and after the effective date specified in each Assignment and 

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Assumption the assignee thereunder shall be a party hereto and, to the extent of the 

interest assigned by such Assignment and Assumption, have the rights and obligations of 

a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent 

of the interest assigned by such Assignment and Assumption, be released from its 

obligations under this Agreement (and, in the case of an Assignment and Assumption 

covering all of the assigning Lender’s rights and obligations under this Agreement, such 

Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of 

Sections 2.13, 2.14, 2.15 and 9.03). Any assignment or transfer by a Lender of rights or 

obligations under this Agreement that does not comply with this Section shall be treated 

for purposes of this Agreement as a sale by such Lender of a participation in such rights 

and obligations in accordance with Section 9.04(c).

(v) The Administrative Agent, acting solely for this purpose as a nonfiduciary 

agent of the Borrowers, shall maintain at one of its offices a copy of each Assignment 

and Assumption delivered to it and records of the names and addresses of the Lenders, 

and the Commitment of, and principal amount (and stated interest) of the Loans owing to, 

each Lender pursuant to the terms hereof from time to time (the “Register”). The entries 

in the Register shall be conclusive absent manifest error, and the Borrowers, the 

Administrative Agent and the Lenders shall treat each Person whose name is recorded in 

the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this 

Agreement, notwithstanding notice to the contrary. The Register shall be available for 

inspection by the Borrowers and, as to entries pertaining to it, any Lender, at any 

reasonable time and from time to time upon reasonable prior written notice.

(vi) Upon receipt by the Administrative Agent of an Assignment and 

Assumption executed by an assigning Lender and an assignee, the assignee’s completed 

Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), 

all other information required under (iii)(D) above and the processing and recordation fee 

referred to in this Section, the Administrative Agent shall accept such Assignment and 

Assumption and record the information contained therein in the Register; provided that 

the Administrative Agent shall not be required to accept such Assignment and 

Assumption or so record the information contained therein if the Administrative Agent 

reasonably believes that such Assignment and Assumption lacks any written consent 

required by this Section or is otherwise not in proper form, it being acknowledged that 

the Administrative Agent shall have no duty or obligation (and shall incur no liability) 

with respect to obtaining (or confirming the receipt) of any such written consent or with 

respect to the form of (or any defect in) such Assignment and Assumption, any such duty 

and obligation being solely with the assigning Lender and the assignee. No assignment 

shall be effective for purposes of this Agreement unless it has been recorded in the 

Register as provided in this paragraph, and following such recording, unless otherwise 

determined by the Administrative Agent (such determination to be made in the sole 

discretion of the Administrative Agent, which determination may be conditioned on the 

consent of the assigning Lender and the assignee), shall be effective notwithstanding any 

defect in the Assignment and Assumption relating thereto. Each assigning Lender and 

the assignee, by its execution and delivery of an Assignment and Assumption, shall be 

deemed to have represented to the Administrative Agent that all written consents required 

by this Section with respect thereto (other than the consent of the Administrative Agent) 

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have been obtained and that such Assignment and Assumption is otherwise duly 

completed and in proper form, and each assignee, by its execution and delivery of an 

Assignment and Assumption, shall be deemed to have represented to the assigning 

Lender and the Administrative Agent that such assignee is an Eligible Assignee.

(vii) No such assignment shall be made to the Parent Borrower or any of its 

Subsidiaries, except as set forth in Section 9.04(e).

(c) (i) Any Lender may, without the consent of the Borrowers or the Administrative 

Agent, sell participations to one or more Eligible Assignees (“Participants”) in all or a portion of 

such Lender’s rights and obligations under this Agreement; provided that (A) such Lender’s 

obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely 

responsible to the other parties hereto for the performance of such obligations and (C) the 

Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and 

directly with such Lender in connection with such Lender’s rights and obligations under the 

Loan Documents. Any agreement or instrument pursuant to which a Lender sells such a 

participation shall provide that such Lender shall retain the sole right to enforce the Loan 

Documents and to approve any amendment, modification or waiver of any provision of the Loan 

Documents; provided that such agreement or instrument may provide that such Lender will not, 

without the consent of the Participant, agree to any amendment, modification or waiver 

described in the first proviso to Section 9.02(b) that affects such Participant or requires the 

approval of all the Lenders. The Borrowers agree that each Participant shall be entitled to the 

benefits of Sections 2.13, 2.14 and 2.15 (subject to the requirements and limitations therein, 

including the requirements under Section 2.15(e) (it being understood that the documentation 

required under Section 2.15(e) shall be delivered solely to the participating Lender)) to the same 

extent as if it were a Lender and had acquired its interest by assignment pursuant to 

paragraph (b) of this Section; provided that such Participant (x) agrees to be subject to the

provisions of Sections 2.16 and 2.17 as if it were an assignee under paragraph (b) of this Section 

and (y) shall not be entitled to receive any greater payment under Section 2.13 or 2.15, with 

respect to any participation, than its participating Lender would have been entitled to receive,

except to the extent such entitlement to receive a greater payment results from a Change in Law 

that occurs after the Participant acquired the applicable participation. Each Lender that sells a 

participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to 

cooperate with the Borrowers to effectuate the provisions of Section 2.17(b) with respect to any 

Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits 

of Section 9.08 as though it were a Lender; provided that such Participant agrees to be subject to 

Section 2.16(c) as though it were a Lender.

(i) Each Lender that sells a participation shall, acting solely for this purpose 

as a non-fiduciary agent of the Borrowers, maintain records of the name and address of 

each Participant and the principal amounts (and stated interest) of each Participant’s 

interest in the Loans or other obligations under this Agreement or any other Loan 

Document (the “Participant Register”); provided that no Lender shall have any obligation 

to disclose all or any portion of the Participant Register (including the identity of any 

Participant or any information relating to a Participant’s interest in any Commitments or 

Loans or its other obligations under this Agreement or any other Loan Document) to any 

Person except to the extent that such disclosure is necessary to establish that such 

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Commitment or Loan or other obligation is in registered form under Section 5f.103-1(c) 

of the United States Treasury Regulations. The entries in the Participant Register shall be 

conclusive absent manifest error, and such Lender shall treat each Person whose name is 

recorded in the Participant Register as the owner of such participation for all purposes of 

this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, 

the Administrative Agent (in its capacity as Administrative Agent) shall have no 

responsibility for maintaining a Participant Register.

(d) Any Lender may at any time pledge or assign a security interest in all or any 

portion of its rights under this Agreement to secure obligations of such Lender, including any 

pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not 

apply to any such pledge or assignment of a security interest; provided that no such pledge or 

assignment of a security interest shall release a Lender from any of its obligations hereunder or 

substitute any such pledgee or assignee for such Lender as a party hereto.

(e) Notwithstanding anything to the contrary contained in this Section 9.04 or any 

other provision of this Agreement, no Lender shall have the right at any time to sell, assign or 

transfer all or a portion of the Loans owing to it to the Parent Borrower or any of its Subsidiaries.

SECTION 9.05. Survival. All covenants, agreements, representations and warranties 

made by the Loan Parties in the Loan Documents and in the certificates or other instruments 

delivered in connection with or pursuant to this Agreement or any other Loan Document shall be 

considered to have been relied upon by the other parties hereto and shall survive the execution 

and delivery of the Loan Documents and the making of any Loans, regardless of any 

investigation made by any such other party or on its behalf and notwithstanding that the 

Administrative Agent, any Lender or any Affiliate of any of the foregoing may have had notice 

or knowledge of any Default or incorrect representation or warranty at the time any Loan 

Document is executed and delivered or any credit is extended hereunder, and shall continue in 

full force and effect as long as the principal of or any accrued interest on any Loan or any fee or 

any other amount payable under this Agreement is outstanding and unpaid and so long as the 

Commitments have not expired or terminated. The provisions of Sections 2.13, 2.14, 2.15, 

2.16(e) and 9.03 and Article VIII shall survive and remain in full force and effect regardless of 

the consummation of the transactions contemplated hereby, the repayment of the Loans, the 

expiration or termination of the Commitments or the termination of this Agreement or any 

provision hereof.

SECTION 9.06. Counterparts; Integration; Effectiveness; Electronic Execution. This 

Agreement may be executed in counterparts (and by different parties hereto on different 

counterparts), each of which shall constitute an original, but all of which when taken together 

shall constitute a single contract. This Agreement and the other Loan Documents constitute the 

entire contract among the parties relating to the subject matter hereof and supersede any and all 

previous agreements and understandings, oral or written, relating to the subject matter hereof. 

Except as provided in Section 4.01, this Agreement shall become effective when it shall have 

been executed by the Administrative Agent and the Administrative Agent shall have received 

counterparts hereof that, when taken together, bear the signatures of each of the other parties 

hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their 

respective permitted successors and assigns. Delivery of an executed counterpart of a signature 

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page of this Agreement by facsimile or other electronic imaging shall be effective as delivery of 

a manually executed counterpart of this Agreement. The words “execution,” “signed,” 

“signature,” “delivery,” and words of like import in or relating to any document to be signed in 

connection with this Agreement and the transactions contemplated hereby or thereby shall be 

deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, 

each of which shall be of the same legal effect, validity or enforceability as a manually executed 

signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case 

may be, to the extent and as provided for in any applicable law, including the Federal Electronic 

Signatures in Global and National Commerce Act, the New York State Electronic Signatures and 

Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

SECTION 9.07. Severability. Any provision of any Loan Document held to be invalid, 

illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the 

extent of such invalidity, illegality or unenforceability without affecting the validity, legality and 

enforceability of the remaining provisions thereof; and the invalidity of a particular provision in 

a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be 

continuing, each Lender is hereby authorized (notwithstanding the provisions of Section 362 of 

the Bankruptcy Code, without any application, motion or notice to, hearing before, or order 

from, the Court) at any time and from time to time, to the fullest extent permitted by law, to set 

off and apply any and all deposits (general or special, time or demand, provisional or final) at 

any time held and other obligations at any time owing by such Lender to or for the credit or the 

account of any Loan Party against any of and all the Loan Document Obligations held by such 

Lender, irrespective of whether or not such Lender shall have made any demand under the Loan 

Documents and although such obligations may be unmatured. The applicable Lender shall notify 

the Borrowers and the Administrative Agent of such set-off or application; provided that any 

failure to give or any delay in giving such notice shall not affect the validity of any such set-off 

or application under this Section. The rights of each Lender under this Section are in addition to 

other rights and remedies (including other rights of setoff) which such Lender may have.

SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.

(a) Except to the extent superseded by the Bankruptcy Code, this Agreement shall be 

construed in accordance with and governed by the law of the State of New York.

(b) Each party hereto hereby irrevocably and unconditionally submits, for itself and 

its property, to the non-exclusive jurisdiction of the Court or the Supreme Court of the State of 

New York sitting in New York County and of the United States District Court of the Southern 

District of New York, and any appellate court from any thereof, in any action or proceeding 

arising out of or relating to this Agreement or any other Loan Document, or for recognition or 

enforcement of any judgment, and the Borrowers hereby irrevocably and unconditionally agree 

that all claims arising out of or relating to this Agreement or any other Loan Document brought 

by the Borrowers or any of their respective Affiliates shall be brought, and shall be heard and 

determined in the Court, in such New York State or, to the extent permitted by law, in such 

Federal court. Each party hereto agrees that a final judgment in any such action or proceeding 

shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any 

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other manner provided by law. Nothing in this Agreement shall affect any right that the 

Administrative Agent or any Lender may otherwise have to bring any action or proceeding 

relating to this Agreement or any other Loan Document against any Loan Party or any of its 

properties in the courts of any jurisdiction.

(c) The Borrowers hereby irrevocably and unconditionally waive, to the fullest extent 

they may legally and effectively do so, any objection that it may now or hereafter have to the 

laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or 

any other Loan Document in any court referred to in paragraph (b) of this Section. Each of the 

parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an 

inconvenient forum to the maintenance of such action or proceeding in any such court.

(d) Each party to this Agreement irrevocably consents to service of process in the 

manner provided for notices in Section 9.01. Nothing in this Agreement or any other Loan 

Document will affect the right of any party to this Agreement to serve process in any other 

manner permitted by law.

SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY 

IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE 

LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL 

PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS 

AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS 

CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY 

OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO 

REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS 

REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD 

NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER 

AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE 

BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, 

THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

SECTION 9.11. Headings. Article and Section headings and the Table of Contents 

used herein are for convenience of reference only, are not part of this Agreement and shall not 

affect the construction of, or be taken into consideration in interpreting, this Agreement.

SECTION 9.12. Confidentiality. Each of the Administrative Agent and the Lenders 

agrees to maintain the confidentiality of the Information (as defined below) with the same degree 

of care that it uses to protect its own confidential information, but in no event less than a 

commercially reasonable degree of care, except that Information may be disclosed (a) to its 

Related Parties, including accountants, legal counsel and other agents and advisors, it being 

understood that the Persons to whom such disclosure is made will be informed of the 

confidential nature of such Information and instructed to keep such Information confidential, 

(b) to the extent required or requested by any regulatory authority purporting to have jurisdiction 

over such Person or its Related Parties (including any self-regulatory authority, such as the 

National Association of Insurance Commissioners), (c) to the extent required by applicable law 

or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in 

connection with the exercise of any remedies under this Agreement or any other Loan Document 

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or any suit, action or proceeding relating to this Agreement or any other Loan Document or the 

enforcement of rights hereunder or thereunder, (f) subject to an agreement containing 

confidentiality undertakings substantially similar to those of this Section, to (i) any assignee of or 

Participant in, or any prospective assignee of or Participant in, any of its rights or obligations 

under this Agreement or (ii) any actual or prospective counterparty (or its Related Parties) to any 

swap or derivative transaction relating to the Parent Borrower or any Subsidiary or its 

obligations, (g) on a confidential basis to the CUSIP Service Bureau or any similar agency in 

connection with the issuance and monitoring of CUSIP numbers with respect to the credit 

facilities provided for herein, (h) with the consent of the Borrowers or (i) to the extent such 

Information (i) becomes publicly available other than as a result of a breach of this Section or 

(ii) becomes available to the Administrative Agent or any Lender or any Affiliate of any of the 

foregoing on a non-confidential basis from a source other than the Borrowers; provided that, in 

the case of clause (c) above, the party disclosing such information shall provide to the Borrowers 

prior written notice of such disclosure to the extent permitted by applicable law (and to the extent 

commercially feasible under the circumstances) and shall cooperate with the Borrowers in 

obtaining a protective order for, or other confidential treatment of, such disclosure. For the 

purposes of this Section, “Information” means all information received from the Borrowers 

relating to the Parent Borrower or any Subsidiary or their businesses or the Collateral.

SECTION 9.13. Several Obligations; Nonreliance; Violation of Law. The respective 

obligations of the Lenders hereunder are several and not joint and the failure of any Lender to 

make any Loan or perform any of its obligations hereunder shall not relieve any other Lender 

from any of its obligations hereunder. Anything contained in this Agreement to the contrary 

notwithstanding, no Lender shall be obligated to extend credit to the Borrowers in violation of 

applicable law.

SECTION 9.14. USA Patriot Act Notice. Each Lender and the Administrative Agent 

(for itself and not on behalf of any Lender) hereby notifies each Loan Party that pursuant to the 

requirements of the Patriot Act it is required to obtain, verify and record information that 

identifies such Loan Party, which information includes the name and address of such Loan Party 

and other information that will allow such Lender or the Administrative Agent, as applicable, to 

identify such Loan Party in accordance with such Act.

SECTION 9.15. Interest Rate Limitation. Notwithstanding anything herein to the 

contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges 

and other amounts that are treated as interest on such Loan under applicable law (collectively the 

“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) that may be 

contracted for, charged, taken, received or reserved by the Lender holding such Loan in 

accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, 

together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, 

to the extent lawful, the interest and Charges that would have been payable in respect of such 

Loan but were not payable as a result of the operation of this Section shall be cumulated and the 

interest and Charges payable to such Lender in respect of other Loans or periods shall be 

increased (but not above the Maximum Rate therefor) until such cumulated amount, together 

with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have 

been received by such Lender.

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SECTION 9.16. Release of Liens and Guarantees. A Guarantor (for the avoidance of 

doubt, other than the Borrowers) shall be released from its obligations under the Loan 

Documents, and all security interests created by the Collateral Documents in Collateral owned by 

such Guarantor shall be released, upon the consummation of any transaction permitted by this 

Agreement as a result of which such Guarantor ceases to be a Restricted Subsidiary (including 

any voluntary liquidation or dissolution of such Guarantor in accordance with Section 6.03); 

provided that, if so required by this Agreement, the Required Lenders shall have consented to 

such transaction and the terms of such consent shall not have provided otherwise. Upon any sale 

or other transfer by any Loan Party (other than to a Borrower or any other Loan Party or to any 

other Subsidiary of the Parent Borrower) of any Collateral in a transaction permitted under this 

Agreement, or upon the effectiveness of any written consent to the release of the security interest 

created under any Collateral Document in any Collateral pursuant to Section 9.02, the security 

interests in such Collateral created by the Collateral Documents shall be automatically released. 

In connection with any termination or release pursuant to this Section, the Administrative Agent 

shall execute and deliver to any Loan Party, at such Loan Party’s expense, all documents that 

such Loan Party shall reasonably request to evidence such termination or release. Any execution 

and delivery of documents pursuant to this Section shall be without recourse to or warranty by 

the Administrative Agent.

SECTION 9.17. No Fiduciary Relationship. Each Borrower, on behalf of itself and the 

Subsidiaries, agrees that in connection with all aspects of the transactions contemplated hereby 

and any communications in connection therewith, the Parent Borrower, the Subsidiaries and its 

other Affiliates, on the one hand, and the Administrative Agent, the Lenders and their Affiliates, 

on the other hand, will have a business relationship that does not create, by implication or 

otherwise, any fiduciary duty on the part of the Administrative Agent, the Lenders or their 

Affiliates, and no such duty will be deemed to have arisen in connection with any such 

transactions or communications. The Administrative Agent, the Lenders and their Affiliates may 

be engaged, for their own accounts or the accounts of customers, in a broad range of transactions 

that involve interests that differ from those of the Parent Borrower, the Subsidiaries and its other 

Affiliates, and none of the Administrative Agent, the Lenders or their Affiliates has any 

obligation to disclose any of such interests to the Parent Borrower, the Subsidiaries or its other

Affiliates. To the fullest extent permitted by law, each Borrower hereby waives and releases any 

claims that it or any of its Affiliates may have against the Administrative Agent, the Lenders and 

their Affiliates with respect to any breach or alleged breach of agency or fiduciary duty in 

connection with any aspect of any transaction contemplated hereby.

SECTION 9.18. Non-Public Information.

(a) Each Lender acknowledges that all information, including requests for waivers 

and amendments, furnished by a Borrower or the Administrative Agent pursuant to or in 

connection with, or in the course of administering, this Agreement will be syndicate-level 

information, which may contain MNPI. Each Lender represents to the Borrowers and the 

Administrative Agent that (i) it has developed compliance procedures regarding the use of MNPI 

and that it will handle MNPI in accordance with such procedures and applicable law, including 

Federal, state and foreign securities laws, and (ii) it has identified in its Administrative 

Questionnaire a credit contact who may receive information that may contain MNPI in 

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accordance with its compliance procedures and applicable law, including Federal, state and 

foreign securities laws.

(b) The Borrowers and each Lender acknowledge that, if information furnished by the 

Loan Parties pursuant to or in connection with this Agreement is being distributed by the 

Administrative Agent through the Platform, (i) the Administrative Agent may post any 

information that the Borrowers have indicated as containing MNPI solely on that portion of the 

Platform designated for Private Side Lender Representatives and (ii) if the Borrowers have not 

indicated whether any information furnished by it pursuant to or in connection with this 

Agreement contains MNPI, the Administrative Agent reserves the right to post such information 

solely on that portion of the Platform designated for Private Side Lender Representatives. The 

Borrowers agree to clearly designate all information provided to the Administrative Agent by or 

on behalf of the Borrowers that is suitable to be made available to Public Side Lender 

Representatives, and the Administrative Agent shall be entitled to rely on any such designation 

by the Borrowers without liability or responsibility for the independent verification thereof.

SECTION 9.19. Intercreditor Agreement. (a) Each of the Lenders and the other 

Secured Parties acknowledges that obligations of the Loan Parties under the ABL Credit 

Agreement are secured by Liens on assets of the Loan Parties that constitute Collateral and that 

the relative Lien priorities and other creditor rights of the Secured Parties and the secured parties 

under the ABL Credit Agreement will be set forth in the Intercreditor Agreement. Each of the 

Lenders and the other Secured Parties hereby acknowledges that it has received a copy of the 

Intercreditor Agreement. Each of the Lenders and the other Secured Parties hereby irrevocably 

authorizes and directs the Administrative Agent to execute and deliver, in each case on behalf of 

such Secured Party and without any further consent, authorization or other action by such 

Secured Party, the Intercreditor Agreement and any documents relating thereto.

(a) Each of the Lenders and the other Secured Parties hereby irrevocably (i) consents 

to the treatment of Liens provided for under the Intercreditor Agreement, including to the 

subordination of the Liens on the ABL Priority Collateral securing the Loan Document 

Obligations on the terms set forth in the Intercreditor Agreement, (ii) agrees that, upon the 

execution and delivery thereof, such Secured Party will be bound by the provisions of the 

Intercreditor Agreement as if it were a signatory thereto and will take no actions contrary to the 

provisions of the Intercreditor Agreement, (iii) agrees that no Secured Party shall have any right 

of action whatsoever against the Administrative Agent as a result of any action taken by the 

Administrative Agent pursuant to this Section 9.19 or in accordance with the terms of the 

Intercreditor Agreement, (iv) authorizes and directs the Administrative Agent to carry out the 

provisions and intent of each such document and (v) authorizes and directs the Administrative 

Agent to take such actions as shall be required to release Liens on the Collateral in accordance 

with the terms of the Intercreditor Agreement.

(b) Each of the Lenders and the other Secured Parties hereby irrevocably further 

authorizes and directs the Administrative Agent to execute and deliver, in each case on behalf of 

such Secured Party and without any further consent, authorization or other action by such 

Secured Party, any amendments, supplements or other modifications of the Intercreditor 

Agreement that the Borrowers may from time to time request and that are reasonably acceptable 

to the Administrative Agent (i) to give effect to any establishment, incurrence, amendment, 

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108

extension, renewal, refinancing or replacement of any Loan Document Obligations or the 

Indebtedness under the ABL Credit Agreement to the extent applicable, (ii) to confirm for any 

party that the Intercreditor Agreement is effective and binding upon the Administrative Agent on 

behalf of the Secured Parties or (iii) to effect any other amendment, supplement or modification 

permitted by the terms of the Intercreditor Agreement.

(c) Each of the Lenders and the other Secured Parties hereby irrevocably further 

authorizes and directs the Administrative Agent to execute and deliver, in each case on behalf of 

such Secured Party and without any further consent, authorization or other action by such 

Secured Party, any amendments, supplements or other modifications of any Collateral Document 

to add or remove any legend that may be required pursuant to the Intercreditor Agreement. 

(d) The Administrative Agent shall have the benefit of the provisions of Article VIII 

with respect to all actions taken by it pursuant to this Section or in accordance with the terms of 

the Intercreditor Agreement to the full extent thereof.

SECTION 9.20. Acknowledgement and Consent to Bail-In of EEA Financial 

Institutions. Notwithstanding anything to the contrary in any Loan Document or in any related 

agreement, arrangement or understanding among the parties hereto, each party hereto 

acknowledges that any liability of any EEA Financial Institution arising under any Loan 

Document, to the extent such liability is unsecured, may be subject to the Write-Down and 

Conversion Powers of an EEA Resolution Authority and agrees and consents to, and 

acknowledges and agrees to be bound by:

(a) the application of any Write-Down and Conversion Powers by an 

EEA Resolution Authority to any such liabilities arising hereunder that may be payable 

to it by any party hereto that is an EEA Financial Institution; and

(b) the effects of any Bail-In Action on any such liability, including, if 

applicable:

(i) a reduction in full or in part or cancellation of any such liability;

(ii) a conversion of all, or a portion of, such liability into shares or other 

instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge 

institution that may be issued to it or otherwise conferred on it, and that such shares or 

other instruments of ownership will be accepted by it in lieu of any rights with respect to 

any such liability under this Agreement or any other Loan Document; or

(iii)the variation of the terms of such liability in connection with the exercise 

of the Write-Down and Conversion Powers of any EEA Resolution Authority.

[Signature pages follow]

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[Signature Page to the Term Credit Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly 

executed by their respective authorized officers as of the day and year first above written.

PARENT BORROWER:

ASCENA RETAIL GROUP, INC.

By:

Name: ______________________________

Title: _______________________________

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[Signature Page to the Term Credit Agreement]

SUBSIDIARY BORROWER:

ANNTAYLOR RETAIL, INC.

By:

Name: ______________________________

Title: _______________________________

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[Signature Page to the Term Credit Agreement]

ALTER DOMUS (US) LLC,

as Administrative Agent,

By:

Name: ______________________________

Title: _______________________________

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Schedule 2.01

Commitments

Lender Commitment

[ ] $ [ ],000,000

Total $ [ ],000,000

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Schedule 5.11

Required Milestones

The Loan Parties shall use their reasonable best efforts to pursue and implement the 

Restructuring Transactions as defined in, and in accordance with, the RSA and shall, subject to 

the availability of the Court and as such time periods may be extended by the Required Lenders,

achieve the following milestones:

(i) the Petition Date shall have occurred by 11:59 p.m. (Eastern Time) on July 

23, 2020;

(ii) the Debtors shall have filed the Rent Deferral Motion (as defined in the 

RSA) with the Court within three (3) calendar days of the Petition Date;

(iii) the Court shall have entered the Cash Collateral Order (as defined in the 

RSA) on an interim basis by the date that is five (5) Business Days after the Petition 

Date;

(iv) the Court shall have entered the DIP Financing Order (as defined in the 

RSA) on a final basis by the date that is fifty (50) calendar days after the Petition Date;

(v) the Court shall have entered the Disclosure Statement Order (as defined in 

the RSA) by the date that is sixty (60) calendar days after the Petition Date;

(vi) solicitation of the Plan (as defined in the RSA) shall have commenced by 

the date that is seventy (70) calendar days after the Petition Date;

(vii) the Court shall have entered the Confirmation Order (as defined in the 

RSA) by the date that is one hundred ten (110) calendar days after the Petition Date; and

(viii) the Plan Effective Date (as defined in the RSA) shall have occurred by the 

date that is one hundred thirty (130) calendar days after the Petition Date.

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Annex 4: Form of DIP ABL Agreement

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$400,000,000

SENIOR SECURED SUPER-PRIORITY DEBTOR-IN-POSSESSION CREDIT 

AGREEMENT

dated as of

6HSWHPEHU>Ɣ@

among

ASCENA RETAIL GROUP, INC.,

The BORROWING SUBSIDIARIES party hereto,

The other LOAN PARTIES party hereto,

The LENDERS party hereto

and

JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

__________________________

JPMORGAN CHASE BANK, N.A. and

BANK OF AMERICA, N.A.,

as Joint Bookrunners and Joint Lead Arrangers

BANK OF AMERICA, N.A. and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Syndication Agents

FIFTH THIRD BANK, NATIONAL ASSOCIATION,

GOLDMAN SACHS BANK USA,

CAPITAL ONE, NATIONAL ASSOCIATION and

U.S. BANK NATIONAL ASSOCIATION,

as Documentation Agents

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i

TABLE OF CONTENTS

Page

ARTICLE I

Definitions

SECTION 1.01. Defined Terms 2

SECTION 1.02. Classification of Loans and Borrowings 48

SECTION 1.03. Terms Generally 48

SECTION 1.04. Accounting Terms; GAAP 49

SECTION 1.05. Classification of Actions 49

SECTION 1.06. Divisions 50

ARTICLE II

The Credits

SECTION 2.01. Commitments; Full-Roll of Pre-Petition Obligations

50

SECTION 2.02. Loans and Borrowings 50

SECTION 2.03. Requests for Revolving Borrowings 51

SECTION 2.04. Protective Advances52

SECTION 2.05. Overadvances 53

SECTION 2.06. Letters of Credit 54

SECTION 2.07. Funding of Borrowings 61

SECTION 2.08. Interest Elections 62

SECTION 2.09. Termination and Reduction of Revolving Commitments

63

SECTION 2.10. Repayment of Loans; Evidence of Debt 64

SECTION 2.11. Prepayment of Loans 65

SECTION 2.12. Fees 66

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ii

SECTION 2.13. Interest 67

SECTION 2.14. Alternate Rate of Interest 68

SECTION 2.15. Increased Costs 69

SECTION 2.16. Break Funding Payments 70

SECTION 2.17. Taxes 71

SECTION 2.18. Payments Generally; Allocation of Proceeds; Sharing of 

Set-offs 75

SECTION 2.19. Mitigation Obligations; Replacement of Lenders 78

SECTION 2.20. Defaulting Lenders 79

SECTION 2.21. Returned Payments 81

SECTION 2.22. Borrowing Subsidiaries 81

SECTION 2.23. Eligible Pledged Cash Account 82

SECTION 2.24. Super-Priority Nature of Obligations and Administrative 

Agent’s Liens; Payment of Obligations. 82

SECTION 2.25. Conversion to Exit Facility Agreement 82

ARTICLE III

Representations and Warranties

SECTION 3.01. Organization; Powers 83

SECTION 3.02. Authorization; Enforceability; Benefit to Loan Parties

84

SECTION 3.03. Governmental Approvals; No Conflicts 84

SECTION 3.04. Financial Condition; No Material Adverse Effect 84

SECTION 3.05. Properties 85

SECTION 3.06. Litigation and Environmental Matters 85

SECTION 3.07. Compliance with Laws and Agreements 85

SECTION 3.08. Investment Company Status86

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iii

SECTION 3.09. Taxes 86

SECTION 3.10. ERISA; Labor Matters 86

SECTION 3.11. Disclosure 87

SECTION 3.12. Subsidiaries and Joint Ventures 87

SECTION 3.13. Insurance 88

SECTION 3.14. Federal Reserve Regulations 88

SECTION 3.15. [Reserved]. 88

SECTION 3.16. Collateral Matters 88

SECTION 3.17. Use of Proceeds 88

SECTION 3.18. Credit Card Agreements 88

SECTION 3.19. Approved Budget 89

SECTION 3.20. Chapter 11 Cases 89

ARTICLE IV

Conditions

SECTION 4.01. Conditions to Effectiveness of Credit Agreement 90

SECTION 4.02. Each Credit Event 92

ARTICLE V

Affirmative Covenants

SECTION 5.01. Financial Statements; Borrowing Base and Other 

Information 93

SECTION 5.02. Notices of Material Events 97

SECTION 5.03. [Reserved] 98

SECTION 5.04. Information Regarding Collateral 98

SECTION 5.05. Existence; Conduct of Business 99

SECTION 5.06. Payment of Obligations 99

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iv

SECTION 5.07. Maintenance of Properties 99

SECTION 5.08. Insurance 99

SECTION 5.09. Books and Records; Inspection Rights 100

SECTION 5.10. Compliance with Laws 100

SECTION 5.11. Use of Proceeds 100

SECTION 5.12. Appraisals 101

SECTION 5.13. Field Examinations 101

SECTION 5.14. Depository Banks 101

SECTION 5.15. Further Assurances 101

SECTION 5.16. Credit Card Agreements and Notifications 102

SECTION 5.17. Loan Parties’ Advisors 102

SECTION 5.18. Lender Advisors 103

SECTION 5.19. Bankruptcy Matters 103

ARTICLE VI

Negative Covenants

SECTION 6.01. Indebtedness; Certain Equity Securities 104

SECTION 6.02. Liens106

SECTION 6.03. Fundamental Changes; Business Activities 108

SECTION 6.04. Investments, Loans, Advances, Guarantees and 

Acquisitions 108

SECTION 6.05. Asset Sales 110

SECTION 6.06. Sale/Leaseback Transactions 111

SECTION 6.07. Swap Agreements 111

SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness

111

SECTION 6.09. Transactions with Affiliates113

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v

SECTION 6.10. Restrictive Agreements 113

SECTION 6.11. Amendment of Organizational Documents 114

SECTION 6.12. Financial Covenants114

SECTION 6.13. Accounting Changes 114

SECTION 6.14. Sanctions 114

SECTION 6.15. Anti-Corruption Laws 115

SECTION 6.16. Subrogation 115

ARTICLE VII

Events of Default

ARTICLE VIII

The Administrative Agent

ARTICLE IX

Miscellaneous

SECTION 9.01. Notices 128

SECTION 9.02. Waivers; Amendments 130

SECTION 9.03. Expenses; Indemnity; Damage Waiver 134

SECTION 9.04. Successors and Assigns 136

SECTION 9.05. Survival 140

SECTION 9.06. Counterparts; Integration; Effectiveness; Electronic 

Execution 140

SECTION 9.07. Severability 141

SECTION 9.08. Right of Setoff 141

SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of 

Process 141

SECTION 9.10. WAIVER OF JURY TRIAL 142

SECTION 9.11. Headings 142

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vi

SECTION 9.12. Confidentiality 142

SECTION 9.13. Several Obligations; Nonreliance; Violation of Law

144

SECTION 9.14. USA Patriot Act 144

SECTION 9.15. Appointment for Perfection 144

SECTION 9.16. Interest Rate Limitation 144

SECTION 9.17. No Fiduciary Relationship 145

SECTION 9.18. [Reserved] 145

SECTION 9.19. Intercreditor Agreement 145

SECTION 9.20. Acknowledgement and Consent to Bail-In 146

ARTICLE X

Loan Guarantee

SECTION 10.01. Guarantee 147

SECTION 10.02. Guarantee of Payment 147

SECTION 10.03. No Discharge or Diminishment of Loan Guarantee

147

SECTION 10.04. Defenses Waived 148

SECTION 10.05. Rights of Subrogation 149

SECTION 10.06. Reinstatement; Stay of Acceleration 149

SECTION 10.07. Information149

SECTION 10.08. Taxes 149

SECTION 10.09. Maximum Liability 149

SECTION 10.10. Contribution 150

SECTION 10.11. Liability Cumulative 150

ARTICLE XI

The Borrower Representative

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vii

SECTION 11.01. Appointment; Nature of Relationship 151

SECTION 11.02. Powers 151

SECTION 11.03. Employment of Agents 151

SECTION 11.04. Notices 151

SECTION 11.05. Successor Borrower Representative 151

SECTION 11.06. Execution of Loan Documents; Borrowing Base 

Certificate 151

SECTION 11.07. Reporting 152

SECTION 11.08. Acknowledgement Regarding Any Supported QFCs

152

SCHEDULES:

Schedule 2.01 — Commitments

Schedule 2.06 — Existing Letters of Credit

Schedule 3.05 — Leases and Real Property

Schedule 3.06 — Disclosed Matters

Schedule 3.12 — Subsidiaries and Joint Ventures

Schedule 3.13 — Insurance

Schedule 3.18 — Credit Card Agreements

Schedule 5.19 — Required Milestones

Schedule 6.01 — Pre-Petition Indebtedness

Schedule 6.02 — Liens

Schedule 6.04 — Investments

Schedule 6.09 — Transactions with Affiliates

Schedule 6.10 — Restrictive Agreements

EXHIBITS:

Exhibit A — Form of Assignment and Assumption

Exhibit B — Form of Borrowing Base Certificate

Exhibit C — Form of Borrowing Request

Exhibit D — Form of Compliance Certificate

Exhibit E — Form of Issuing Bank Agreement

Exhibit F — Form of Interest Election Request

Exhibit G — Form of Exit Facility Term Sheet

Exhibit H — [Reserved]

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viii

Exhibit I-1 — Form of U.S. Tax Certificate for Non-U.S. Lenders that are not 

Partnerships for U.S. Federal Income Tax Purposes

Exhibit I-2 — Form of U.S. Tax Certificate for Non-U.S. Participants that are 

not Partnerships for U.S. Federal Income Tax Purposes

Exhibit I-3 — Form of U.S. Tax Certificate for Non-U.S. Participants that are 

Partnerships for U.S. Federal Income Tax Purposes

Exhibit I-4 — Form of U.S. Tax Certificate for Non-U.S. Lenders that are 

Partnerships for U.S. Federal Income Tax Purposes

Exhibit J — Form of Variance Report

Annex A — Approved Budget

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1

SENIOR SECURED SUPER-PRIORITY DEBTOR-IN-POSSESSION CREDIT 

$*5((0(17GDWHGDVRI6HSWHPEHU >Ɣ@DPRQJ$6&(1$5(7$,/*5283 ,1& a

Delaware corporation, as debtor and debtor-in-possession, the BORROWING SUBSIDIARIES 

party hereto, the other LOAN PARTIES party hereto, the LENDERS party hereto, the ISSUING 

BANKS party hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent.

On July 23, 2020 (the “Petition Date”), the Borrowers (collectively, the 

“Debtors”, and each individually, a “Debtor”) commenced voluntary cases (collectively, the 

“Cases” and each individually, a “Case”) in the United States Bankruptcy Court for the Eastern 

District of Virginia Richmond Division (the “Court”). The Debtors continue to operate their 

businesses and manage their properties as debtors and debtors-in-possession pursuant to Sections 

1107 and 1108 of the Bankruptcy Code.

Prior to the Petition Date, the Lenders provided financing to the Borrowers 

pursuant to that certain Amended and Restated Credit Agreement dated as of January 3, 2011, as 

amended and restated on June 4, 2012, March 13, 2013, July 24, 2015 and February 27, 2018, 

among the Borrowers, the other Loan Parties, the Pre-Petition Lenders, and JPMORGAN 

CHASE BANK, N.A., as the Pre-Petition Agent, and the other parties thereto (as amended, 

amended and restated, supplemented or otherwise modified from time to time through the date 

hereof, the “Pre-Petition Credit Agreement”).

As of the Petition Date, the Pre-Petition Lenders under the Pre-Petition Credit 

Agreement were owed approximately $230,000,000 in Revolving Loans and $103,000,000 in 

maximum aggregate amounts available to be drawn under outstanding Letters of Credit (as 

defined in the Pre-Petition Credit Agreement), plus interest, fees, costs and expenses and all 

other Pre-Petition Lender Obligations under the Pre-Petition Credit Agreement.

The Obligations under and as defined in the Pre-Petition Credit Agreement are 

secured by a Lien in substantially all of the existing and after-acquired assets of the Borrowers 

and the other Loan Parties as more fully set forth in the Pre-Petition Loan Documents, and such 

Lien is perfected and, with certain exceptions, as described in the Pre-Petition Loan Documents, 

has priority over other Liens.

The Borrowers have requested, and, upon the terms set forth in this Agreement, 

the Lenders have agreed to make available to the Borrowers, a senior secured super priority 

revolving credit facility of up to $400,000,000 in the aggregate with a $200,000,000 Letter of 

Credit sublimit that is automatically convertible into a secured exit facility upon the satisfaction 

(or waiver) of certain conditions in the form of $400,000,000 in aggregate principal amount of 

commitments to be made available to the Borrowers at any time and from time to time until the 

Maturity Date subject to the terms and conditions set forth herein (the “Revolving Credit 

Facility”).

The Borrowers and other Loan Parties have agreed to secure all of their 

Obligations under the Loan Documents by granting to the Administrative Agent, for the benefit 

of the Administrative Agent and the other Lender Parties, a Lien in and upon all of their existing 

and after-acquired personal and real property, subject to the Intercreditor Agreement, as 

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2

supplemented and modified by the Intercreditor Acknowledgment, and the limitations and 

priorities contained in the Loan Documents and the Final Order.

Accordingly, in consideration of the mutual agreements herein contained and 

other good and valuable consideration, the sufficiency and receipt of which are hereby 

acknowledged, the parties hereto agree as follows:

ARTICLE I

Definitions

SECTION 1.01. Defined Terms. As used in this Agreement, the following terms 

have the meanings specified below:

“ABR”, when used in reference to any Loan or Borrowing, refers to whether such 

Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference 

to the Alternate Base Rate.

“Acceptable Plan” means a Plan of Reorganization that is consistent with the RSA 

and otherwise satisfactory to the Administrative Agent, the Required Lenders and the Loan 

Parties in their reasonable discretion (as the same may be amended, supplemented, or modified 

from time to time after entry thereof in accordance with the terms thereof); it being agreed that 

the Plan (as defined in the RSA) is an “Acceptable Plan” to the Administrative Agent and the 

Required Lenders.

“Account Debtor” means any Person obligated on an Account.

“Accounts” has the meaning set forth in the Security Agreement.

“Actual Net Cash Flow Amount” means the actual net cash flows of the Loan 

Parties during the relevant period of determination.

“Additional Eligible Pledged Cash” means, on any date of determination, (a) cash 

that is on deposit in a special purpose Deposit Account established by the Company with the 

Administrative Agent and (b) cash that is invested in a money market fund account established 

by the Company and managed by the Administrative Agent or one of its Affiliates and, in each 

case, that is subject to the Lien in favor of the Administrative Agent set forth in the Final Order,

the Security Agreement and a Deposit Account Control Agreement or other control agreement 

reasonably satisfactory to the Administrative Agent and with respect to which the Administrative 

Agent shall have sole dominion and control, except that withdrawals thereof by the Company 

shall be permitted so long as, on a pro forma basis, the Company shall be in compliance with the 

second sentence of Section 2.09(a). Neither Eligible Pledged Cash nor cash pledged pursuant to 

Section 2.06(j) shall constitute Additional Eligible Pledged Cash.

“Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any 

Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 

1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve 

Rate.

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3

“Administrative Agent” means JPMCB, in its capacity as administrative agent 

hereunder and under the other Loan Documents, and its successors in such capacity as provided 

in Article VIII.

“Administrative Questionnaire” means an Administrative Questionnaire in a form 

supplied by the Administrative Agent.

“Affiliate” means, with respect to a specified Person, another Person that directly 

or indirectly Controls or is Controlled by or is under common Control with the Person specified.

“Agent Fee Letter” means the Fee Letter dated August 14, 2020, between the 

Company and JPMCB, with respect to fees payable to the Administrative Agent and the other 

persons named therein for their respective accounts.

“Aggregate Credit Exposure” means the sum of the Credit Exposures of all the 

Lenders.

“Agreement” means this Senior Secured Super-Priority Debtor-In-Possession 

Credit Agreement, as modified, supplemented, amended or restated from time to time.

“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest 

of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus 1⁄2 of 

1.00% per annum and (c) the Adjusted LIBO Rate on such day (or if such day is not a Business 

Day, the immediately preceding Business Day) for a deposit in dollars with a maturity of one 

month plus 1.00% per annum. For purposes of clause (c) above, the Adjusted LIBO Rate on any 

day shall be based on the Screen Rate on such day for a deposit in dollars with a maturity of one 

month (or, if the Screen Rate is not available for such one month maturity, the Interpolated 

Screen Rate) at approximately 11:00 a.m., London time, on such day; provided that if such rate 

shall be less than zero, such rate shall be deemed to be zero. Any change in the Alternate Base 

Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be 

effective from and including the effective date of such change in the Prime Rate, the NYFRB

Rate or the Adjusted LIBO Rate, respectively. If the Alternate Base Rate is being used as an 

alternate rate of interest pursuant to Section 2.14, then the Alternate Base Rate shall be the 

greater of clauses (a) and (b) above and shall be determined without reference to clause (c) 

above.

“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction 

applicable to the Company and its Subsidiaries from time to time concerning or relating to 

bribery or corruption, including the United States Foreign Corrupt Practices Act of 1977 and the 

UK Bribery Act 2010.

“Applicable Percentage” means, with respect to any Lender, a percentage equal to 

a fraction the numerator of which is such Lender’s Revolving Commitment and the denominator 

of which is the total Revolving Commitments of all the Lenders (if the Revolving Commitments 

have terminated or expired, the Applicable Percentages shall be determined based upon the 

Revolving Commitments most recently in effect, giving effect to any assignments at or prior to 

the time of determination); provided that for purposes of Section 2.20 when a Defaulting Lender 

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4

shall exist, any such Defaulting Lender’s Revolving Commitment shall be disregarded in the 

calculation.

“Applicable Rate” means, for any day, with respect to any ABR Loan or 

Eurodollar Revolving Loan or the participation fee for any Standby Letter of Credit or 

Commercial Letter of Credit, as the case may be, the applicable rate per annum set forth in the 

table below under the caption “ABR Spread”, “Eurodollar Spread”, “Standby Letter of Credit 

Fee” or “Commercial Letter of Credit Fee”, as the case may be:

ABR

Spread

Eurodollar 

Spread

Standby Letter 

of Credit Fee

Commercial Letter 

of Credit Fee

1.50% 2.50% 2.00% 0.75%

“Applicable Share” has the meaning set forth in Section 10.10.

“Approved Budget” means the budget prepared by the Company in the form of 

Annex A and initially furnished to the Administrative Agent on or prior to the Effective Date, as 

the same may be updated, modified or supplemented from time to time as provided in Section 

5.01. The initial Approved Budget shall depict, on a weekly and line item basis, (i) projected 

cash receipts, (ii) projected cash disbursements (including ordinary course operating expenses, 

bankruptcy-related expenses (including professional fees of the Loan Parties’ professionals and 

advisors), asset sales and any other fees and expenses relating to the Loan Documents), (iii) net 

cash flows, (iv) Liquidity and (v) professional fees and disbursements with respect to the Loan 

Parties’ professionals, in each case for the first thirteen (13) week period from the Effective 

Date, and such initial Approved Budget shall be approved by, and in form and substance 

reasonably satisfactory to, the Administrative Agent and the Required Lenders in their sole 

discretion (it being acknowledged and agreed that the initial Approved Budget attached hereto as 

Annex A is approved by and reasonably satisfactory to the Administrative Agent and the 

Required Lenders). 

“Approved Fund” means any Person (other than a natural person) that is engaged 

in making, purchasing, holding or investing in commercial loans and similar extensions of credit 

in the ordinary course of its activities and that is administered or managed by (a) a Lender, (b) an 

Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a 

Lender.

“Arrangers” means JPMCB and BofA, in their capacities as joint bookrunners and 

joint lead arrangers for the credit facility established hereby (or, with respect to BofA, any other 

registered broker-dealer wholly owned by Bank of America Corporation to which all or 

substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment 

banking, commercial lending services or related businesses may be transferred following the date 

hereof).

“Article 55 BRRD" means Article 55 of Directive 2014/59/EU establishing a 

framework for the recovery and resolution of credit institutions and investment firms.

“Asset Sale” has the meaning set forth in Section 6.05.

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“Assignment and Assumption” means an assignment and assumption entered into 

by a Lender and an Eligible Assignee, with the consent of any Person whose consent is required 

by Section 9.04, and accepted by the Administrative Agent, in the form of Exhibit A or any other 

form approved by the Administrative Agent.

“Automatic Stay” means the automatic stay provided under Section 362 of the 

Bankruptcy Code.

“Availability” means, at any time, an amount equal to (a) the Credit Limit then in 

effect minus (b) the Aggregate Credit Exposure at such time.

“Availability Period” means the period from and including the Effective Date to 

but excluding the Maturity Date.

“Average Daily Availability” means, with respect to any fiscal quarter, (a)(i) the 

sum of Availability for each day during such fiscal quarter divided by (ii) the number of days in 

such fiscal quarter, divided by (b)(i) the sum of the total Revolving Commitments in effect for 

each day during such fiscal quarter divided by (ii) the number of days in such fiscal quarter.

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers.

“Bail-In Legislation” means in relation to an EEA Member Country which has 

implemented, or which at any time implements, Article 55 BRRD, the relevant implementing 

law or regulation 13 as described in the EU Bail-In Legislation Schedule from time to time.

“Banking Services” means each and any of the following bank services provided 

to any Loan Party by any Lender or any of its Affiliates: (a) credit cards for commercial 

customers (including, without limitation, “commercial credit cards” and purchasing cards), (b) 

stored value cards and (c) treasury management services (including, without limitation, 

controlled disbursement, automated clearinghouse transactions, return items, overdrafts and 

interstate depository network services).

“Banking Services Obligations” means any and all obligations of the Loan 

Parties, whether absolute or contingent and howsoever and whensoever created, arising, 

evidenced or acquired (including all renewals, extensions and modifications thereof and 

substitutions therefor) in connection with Banking Services.

“Banking Services Reserves” mean all Reserves that the Administrative Agent 

from time to time establishes in its Permitted Discretion for Banking Services then provided or 

Banking Services Obligations then outstanding.

“Bankruptcy Code” means the Bankruptcy Reform Act of 1978, as codified at 11 

U.S.C. §§ 101 et seq.

“Bankruptcy Rules” means the Federal Rules of Bankruptcy Procedure, as the 

same may from time to time be in effect and applicable to the Cases.

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“Beneficial Ownership Certification” means a certification regarding the 

beneficial ownership or control as required by the Beneficial Ownership Regulation.

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

“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in 

ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code 

or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for 

purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee 

benefit plan” or “plan”.

“Board of Governors” means the Board of Governors of the Federal Reserve 

System of the United States of America.

“BofA” means Bank of America, N.A., a national banking association, in its 

individual capacity, and its successors.

“Borrower Representative” means the Company, in its capacity as contractual 

representative of the Borrowers pursuant to Article XI.

“Borrowers” means the Company and the Borrowing Subsidiaries, collectively.

“Borrowing” means (a) Revolving Loans of the same Type made, converted or 

continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest 

Period is in effect, (b) a Protective Advance or (c) an Overadvance.

“Borrowing Base” means, at any time (subject to modification as provided 

below), an amount equal to the sum of (a) 90% of the Loan Parties’ Eligible Credit Card 

Accounts Receivable at such time, plus (b) the Inventory Percentage multiplied by the Net 

Orderly Liquidation Value percentage identified in the most recent inventory appraisal ordered 

by the Administrative Agent multiplied by the Loan Parties’ Eligible Inventory, valued at the 

lower of cost, determined on a first-in-first-out basis, or market value, plus (c) the lesser of (i) 

100% of Eligible Pledged Cash and (ii) $100,000,000, minus (d) Reserves. The Administrative 

Agent may, in its Permitted Discretion and with no fewer than four (4) Business Days’ prior 

written notice to the Borrower Representative, reduce the advance rates set forth above, adjust 

Reserves or reduce one or more of the other elements used in computing the Borrowing Base;

provided, that (A) the Borrowers may not obtain any new Revolving Loans or Letters of Credit 

to the extent that such Revolving Loan or Letter of Credit would cause an Overadvance after 

giving effect to the reduction of any advance rate, adjustment of such Reserve or other reduction 

of such element as set forth in such notice and (B) no such prior notice shall be required in 

respect of any adjustment of a Reserve during the continuance of any Event of Default. Subject 

to the immediately preceding sentence and the other provisions hereof (including Section 2.23) 

expressly providing for adjustment of, or permitting the Administrative Agent to adjust, the 

Borrowing Base, the Borrowing Base at any time shall be determined by reference to the 

Borrowing Base Certificate delivered to the Administrative Agent on or most recently prior to 

such day pursuant to Section 4.02(a)(iii) or 5.01(h) (or, prior to the first such delivery following 

the Effective Date, the Borrowing Base Certificate delivered to the Administrative Agent 

pursuant to Section 4.01(e)); provided that the Administrative Agent may modify the Borrowing 

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Base in its Permitted Discretion on a weekly basis to account for Inventory sales in connection 

with Specified Dispositions; and provided, further, that if any Borrowing Base Certificate 

delivered under Section 4.01(e), 4.02(a)(iii) or 5.01(h) shall prove to have been materially 

inaccurate (regardless of whether any Revolving Commitments are in effect or any amounts are 

outstanding hereunder when such inaccuracy is discovered), and such inaccuracy shall have 

resulted in the payment of any interest or fees at rates lower than those that were in fact 

applicable for any period (based on the actual Borrowing Base), the applicable Borrowers shall 

pay to the Administrative Agent, for distribution to the Lenders (or former Lenders) as their 

interests may appear, the accrued interest or fees that should have been paid but were not paid as 

a result of such inaccuracy. Notwithstanding the foregoing provisions of this definition, until the 

Administrative Agent shall have completed with respect to any Loan Party, whether before or 

after the Effective Date, an Inventory appraisal of the sort contemplated by Section 5.12, and a 

field examination of the sort contemplated by Section 5.13, in each case reasonably satisfactory 

to the Administrative Agent, no amounts attributable to Inventory or Credit Card Accounts 

Receivable of such Loan Party shall be included in the Borrowing Base.

“Borrowing Base Certificate” means a certificate, signed and certified as accurate 

and complete by a Financial Officer or chief restructuring officer of the Borrower 

Representative, in substantially the form of Exhibit B (with such changes thereto as may be 

required by the Administrative Agent from time to time to reflect the components of and 

Reserves against the Borrowing Base as provided for hereunder) or another form that is 

acceptable to the Administrative Agent in its Permitted Discretion.

“Borrowing Base Reporting Date” means the last day of each fiscal month;

provided that during any Enhanced Borrowing Base Reporting Period, the last day of each week 

will also be a Borrowing Base Reporting Date.

“Borrowing Request” means a request by the Borrower Representative for a 

Revolving Borrowing in accordance with Section 2.03, which shall be, in the case of any such 

written request, in the form of Exhibit C or any other form approved by the Administrative 

Agent.

“Borrowing Subsidiary” means, until such time as it ceases to be a Borrowing 

Subsidiary pursuant to Section 2.22, each of (a) DBI Holdings, Inc., a Connecticut corporation, 

(b) Tween Brands, Inc., a Delaware corporation, (c) Ann Inc., a Delaware corporation, (d) 

Charming Shoppes of Delaware, Inc., a Pennsylvania corporation, (e) CSI Industries, Inc., a 

Delaware corporation, (f) Catherines, Inc., a Delaware corporation, (g) Catherines Stores 

Corporation, a Tennessee corporation, (h) Lane Bryant, Inc., a Delaware corporation, (i) Lane 

Bryant Purchasing Corp., an Ohio corporation, and (j) any wholly-owned Subsidiary designated 

as Borrowing Subsidiary pursuant to Section 2.22, in each case as a debtor and debtor-inpossession under the Cases.

“Budgeted Net Cash Flow Amount” means the amount described in the line item 

contained in the Approved Budget across from the heading “Unlevered Operating Cash Flow, 

Including Restructuring”, during the relevant period of determination.

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“Business Day” means any day that is not a Saturday, Sunday or other day on 

which commercial banks in New York City are authorized or required by law to remain closed; 

provided that, when used in connection with a Eurodollar Loan, the term “Business Day” shall 

also exclude any day on which banks are not open for dealings in dollar deposits in the London 

interbank market.

“Capital Expenditures” means, for any period, (a) the additions to property, plant 

and equipment and other capital expenditures of the Company and the Subsidiaries that are (or 

would be) set forth in a consolidated statement of cash flows of the Company for such period 

prepared in accordance with GAAP and (b) such portion of principal payments on Capital Lease 

Obligations or Synthetic Lease Obligations made by the Company and its consolidated 

Subsidiaries during such period as is attributable to additions to property, plant and equipment 

that have not otherwise been reflected on the consolidated statement of cash flows as additions to 

property, plant and equipment for such period; provided that the term “Capital Expenditures” 

shall not include (i) expenditures made in connection with the replacement, substitution, 

restoration or repair of assets to the extent financed with (A) insurance proceeds paid on account 

of the loss of or damage to the assets being replaced, restored, or repaired or (B) awards of 

compensation arising from the taking by eminent domain or condemnation of the assets being 

replaced, (ii) the purchase price of equipment that is purchased simultaneously with the trade-in 

of existing equipment to the extent that the gross amount of such purchase price is reduced by 

the credit granted by the seller of such equipment for the equipment being traded in at such time, 

(iii) the purchase of plant, property or equipment or software to the extent financed with the net 

proceeds of any sale, transfer, lease, or other disposition (including pursuant to a Sale/Leaseback 

Transaction or by way of merger or consolidation) of any asset of the Company or any 

Subsidiary, including any sale or issuance to a Person other than the Company or any Subsidiary 

of Equity Interests in any Subsidiary, but excluding sales of Inventory in the ordinary course of 

business, (iv) expenditures that constitute rental expenses under operating leases of real or 

personal property, (v) expenditures that are accounted for as capital expenditures by the 

Company or any Subsidiary and that actually are paid for by a Person other than the Company or 

any Subsidiary and for which neither the Company nor any Subsidiary has provided or is 

required to provide or incur, directly or indirectly, any consideration or obligation to such Person 

or any other Person (whether before, during or after such period), or (vi) the book value of any 

asset owned by the Company or any Subsidiary prior to or during such period to the extent that 

such book value is included as a capital expenditure during such period as a result of such Person 

reusing or beginning to reuse such asset during such period without a corresponding expenditure 

actually having been made in such period; provided that (A) any expenditure necessary in order 

to permit such asset to be reused shall be included as a Capital Expenditure during the period in 

which such expenditure actually is made and (B) such book value shall have been included in 

Capital Expenditures when such asset was originally acquired.

“Capital Lease Obligations” of any Person means 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 capital leases on a balance sheet of such Person under GAAP (as 

in effect on December 31, 2018, notwithstanding any modification or interpretative change 

thereto after such date and excluding the effect to any treatment of lease under Accounting 

Standards Codification 842 (or any other Accounting Standards Codification or Financial 

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Accounting Standard have a similar result or effect)), the amount of such obligations shall be the 

capitalized amount thereof determined in accordance with GAAP. 

“Carve Out” has the meaning set forth in the Final Order.

“Cases” has the meaning set forth in the Recitals.

“Cash Management Order” means the order of the Court entered in the Cases 

after the “first day” or “second day” hearing on a final basis, together with all extensions, 

modifications and amendments thereto, in form and substance reasonably satisfactory to the 

Administrative Agent and the Required Lenders, which among other matters authorizes the 

Debtors to maintain their existing cash management and treasury arrangements (as set forth in 

the Pre-Petition Credit Agreement) or such other arrangements as shall be reasonably acceptable 

to the Administrative Agent and the Required Lenders in all material respects.

“CFC” means (a) any Person that is a “controlled foreign corporation” within the 

meaning of Section 957(a) of the Code, and (b) each subsidiary of any Person described in clause 

(a).

“CFC Holdco” means a Subsidiary with no material assets other than Equity 

Interests of one or more Foreign Subsidiaries that are CFCs.

“Change in Control” means (a) any transaction (including a merger or 

consolidation) the result of which is that any “person” or “group” (within the meaning of 

Sections 13(d) and 14(d)(2) of the Exchange Act), other than the Permitted Investor, becomes the 

“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of more than 35% of the 

total voting power of all classes of the voting stock of the Company and/or warrants or options to 

acquire such voting stock, calculated on a fully diluted basis, and the percentage of the aggregate 

voting power represented by such voting stock of the Company owned by such “person” or 

“group” then or at any time thereafter exceeds the percentage of the aggregate voting power 

represented by the voting stock of the Company owned by the Permitted Investor or (b) during 

any period of 12 consecutive months, a majority of the members of the board of directors or 

other equivalent governing body of the Company cease to be composed of individuals (i) who 

were members of that board or equivalent governing body on the first day of such period, (ii) 

whose election or nomination to that board or equivalent governing body was approved by 

individuals referred to in clause (i) above constituting at the time of such election or nomination 

at least a majority of that board or equivalent governing body or (iii) whose election or 

nomination to that board or other equivalent governing body was approved by individuals 

referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at 

least a majority of that board or equivalent governing body.

“Change in Law” means the occurrence, after the Effective Date, of any of the 

following: (a) the adoption or taking effect of any rule, regulation, treaty or other law, (b) any 

change in any rule, regulation, treaty or other law 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, (i) 

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the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, 

guidelines or directives thereunder or issued in connection therewith and (ii) 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, promulgated or issued.

“Charges” has the meaning set forth in Section 9.16.

“Claim” means any (a) right to payment, whether or not such right is reduced to 

judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, 

legal, equitable, secured, or unsecured; or (b) right to an equitable remedy for breach of 

performance if such breach gives rise to a right to payment, whether or not such right to an 

equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, 

undisputed, secured, or unsecured.

“Class”, when used in reference to any Loan or Borrowing, refers to whether such 

Loan, or the Loans comprising such Borrowing, are Revolving Loans, Protective Advances or 

Overadvances.

“Code” means the Internal Revenue Code of 1986.

“Collateral” means (a) any and all “Collateral” or words of similar intent as 

defined in any applicable Collateral Document and (b) the “DIP Collateral” referred to in the 

Final Order, it being understood that “Collateral” shall include all such “DIP Collateral” 

irrespective of whether any such property was excluded pursuant to the Pre-Petition Loan 

Documents.

“Collateral Access Agreement” has the meaning set forth in the Security 

Agreement.

“Collateral Documents” means the Final Order, the Security Agreement and each 

other document granting a Lien upon any assets of any Loan Party as security for payment of the 

Secured Obligations.

“Commercial LC Exposure” means, at any time, the sum of (a) the aggregate 

undrawn amount of all outstanding Commercial Letters of Credit at such time plus (b) the 

aggregate amount of all LC Disbursements relating to Commercial Letters of Credit that have not 

yet been reimbursed by or on behalf of the Borrowers at such time. The Commercial LC 

Exposure of any Lender at any time shall be its Applicable Percentage of the total Commercial 

LC Exposure at such time, adjusted to give effect to any reallocation under Section 2.20 of the 

Commercial LC Exposures of Defaulting Lenders in effect at such time.

“Commercial Letter of Credit” means a Letter of Credit that is (a) designated as a 

Commercial Letter of Credit by the Borrower Representative at the time of, or prior to, the 

issuance thereof, (b) issued to provide for the payment of the purchase price for goods or 

services purchased by the Company or any Subsidiary and (c) intended to be drawn when such 

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purchase price is due and payable and not merely upon the occurrence of a default or other 

contingency.

“Commitment Letter” means the Commitment Letter dated August 14, 2020, 

among JPMCB, the Lenders and the Borrower Representative.

“Committee” means an official committee of unsecured creditors appointed in any 

of the Cases by the U.S. Trustee.

“Communications” means, collectively, any written notice, demand, 

communication, information, document or other material provided by or on behalf of any Loan 

Party pursuant to any Loan Document or the transactions contemplated therein that is distributed 

to the Administrative Agent, any Lender or any Issuing Bank by means of electronic 

communications pursuant to Section 9.01, including through the Platform.

“Company” means Ascena Retail Group, Inc., a Delaware corporation.

“Compliance Certificate” means a Compliance Certificate in the form of Exhibit 

D or any other form approved by the Administrative Agent.

“Concentration Account” has the meaning set forth in the Security Agreement.

“Confirmation Order” means an order of the Court entered in the Cases pursuant 

to section 1129 of the Bankruptcy Code, which order (x) shall confirm an Acceptable Plan, be a 

final Order and otherwise be in form and substance reasonably satisfactory to the Administrative 

Agent and the Required Lenders, together with all extensions, modifications, and amendments 

thereto, also in form and substance reasonably satisfactory to the Administrative Agent and the 

Required Lenders and (y) (i) if the Revolving Credit Facility converts to the credit facility under 

the Exit Facility Agreement, shall authorize and approve the extensions of credit under the Exit 

Facility Credit Agreement and the performance of the Borrowers’ (or the entities assuming 

and/or acquiring directly or indirectly the operations and assets of the Borrowers in the 

Acceptable Plan) and Loan Guarantors’ obligations thereunder, authorize a pro forma capital 

structure that satisfies the conditions precedent to the occurrence of the Conversion Date and 

otherwise satisfies all other conditions to the Conversion Date or (ii) if the Revolving Credit 

Facility is to be repaid in cash, shall authorize and approve such repayment, any financing the 

proceeds of which will be used to fund such repayment, and the termination in full of all 

outstanding commitments under the Revolving Credit Facility.

“Connection Income Taxes” means Other Connection Taxes that are imposed on 

or measured by net income (however denominated) or that are franchise Taxes or branch profits 

Taxes. 

“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.

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“Conversion Date” means the date upon which each of the conditions precedent to 

effectiveness of the Exit Facility Agreement set forth in the Exit Facility Term Sheet shall have 

been satisfied or waived.

“Court” has the meaning set forth in the Recitals.

“Credit Card Accounts Receivable” means any receivables due to any Loan Party 

from a credit card issuer or a credit card processor in connection with purchases of Inventory of 

such Loan Party on (a) credit cards issued by Visa, MasterCard, American Express, Discover and 

any other credit card issuers that are reasonably acceptable to the Administrative Agent, 

(b) private label credit cards of any Loan Party issued through the Company’s credit card 

program with any credit card issuer or manager of a credit card program approved in writing by 

the Administrative Agent (such approval not to be unreasonably withheld, conditioned or 

delayed) or (c) debit cards and mall cards issued by issuers or providers that are reasonably 

acceptable to the Administrative Agent, in each case which have been earned by performance by 

such Loan Party but not yet paid to such Loan Party by such credit card issuer or credit card 

processor.

“Credit Card Agreement” means any agreement between a Loan Party, on the one 

hand, and a credit card issuer or a credit card processor (including any credit card processor that 

processes purchases of Inventory from a Loan Party through debit cards or mall cards), on the 

other hand.

“Credit Card Notifications” means each Credit Card Notification, in form and 

substance reasonably satisfactory to the Administrative Agent, executed by one or more Loan 

Parties and delivered by such Loan Parties to credit card issuers or credit card processors that are 

party to any Credit Card Agreement.

“Credit Exposure” means, as to any Lender at any time, the sum of the 

outstanding principal amount of such Lender’s Revolving Loans and the sum of such Lender’s 

LC Exposure, Protective Advance Exposure and Overadvance Exposure at such time.

“Credit Limit” means, at any time, the lesser of (a) the total Revolving 

Commitments then in effect and (b) the Borrowing Base then in effect.

“Cumulative Four-Week Period” means the four-week period up to and through 

the Saturday of the week most recently ended prior to the applicable Variance Report Date, or if 

a four-week period has not then elapsed from the Petition Date, such shorter period since the 

Petition Date through the Saturday of the most recent week then ended.

“Debtor” has the meaning set forth in the Recitals.

“Debtors’ Investment Banker” means Guggenheim Securities, LLC.

“Default” means any event or condition that constitutes an Event of Default or 

that upon notice, lapse of time or both would, unless cured or waived, become an Event of 

Default.

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“Defaulting Lender” means any Lender that has (a) failed, within three (3) 

Business Days of the date required to be funded or paid, (i) to fund any portion of its Loans, (ii) 

to fund any portion of its participations in Letters of Credit, Protective Advances or 

Overadvances or (iii) to pay to any Loan Party any other amount required to be paid by it 

hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent 

in writing that such failure is the result of such Lender’s good faith determination that a 

condition precedent to funding (specifically identified in such writing, including, if applicable, 

by reference to a specific Default) has not been satisfied, (b) notified any Borrower, the 

Administrative Agent, any Issuing Bank or any Lender in writing that it does not intend to 

comply with any of its funding obligations under this Agreement or has made a public statement 

to the effect that it does not intend to comply with its funding obligations under this Agreement 

(unless such writing or public statement indicates that such position is based on such Lender’s 

good-faith determination that a condition precedent (specifically identified in such writing, 

including, if applicable, by reference to a specific Default) to funding a Loan cannot be satisfied) 

or generally under other agreements in which it commits to extend credit, (c) failed, within three 

(3) Business Days after request by the Administrative Agent made in good faith, to provide a 

certification in writing from an authorized officer of such Lender that it will comply with the 

terms of this Agreement relating to its obligations (and is financially able to meet such 

obligations) to fund prospective Loans and participations in then outstanding Letters of Credit, 

Protective Advances or Overadvances, provided that such Lender shall cease to be a Defaulting 

Lender pursuant to this clause (c) upon the Administrative Agent’s receipt of such certification in 

form and substance satisfactory to the Administrative Agent, (d) (i) become or is insolvent or has 

a parent company that has become or is insolvent or (ii) become the subject of a bankruptcy or 

insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, 

or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence 

in any such proceeding or appointment or has a parent company that has become the subject of a 

bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian 

appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of 

or acquiescence in any such proceeding or appointment, provided that a Lender shall not be a 

Defaulting Lender under this clause (d) solely by virtue of the ownership or acquisition of any 

Equity Interest in such 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, or (e) has, or has a direct or indirect parent company that has, become 

the subject of a Bail-In Action.

“Deposit Account Control Agreement” has the meaning set forth in the Security 

Agreement.

“Deposit Accounts” has the meaning set forth in the Security Agreement.

“Designated Jurisdiction” means any country, region or territory to the extent that 

such country, region or territory itself is the subject of any Sanction.

“Designated Persons” means any Person or entity listed on a Sanctions list.

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“Designated Subsidiary” means each Subsidiary other than an Excluded 

Subsidiary.

“Disclosed Matters” means the actions, suits and proceedings and the 

environmental matters disclosed in Schedule 3.06.

“Disqualified Stock” means any Equity Interests which, by its terms (or by the 

terms of any security into which it is convertible or for which it is exchangeable), or upon the 

happening of any event, (a) matures (excluding any maturity as the result of an optional 

redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund 

obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, 

or requires the payment of any cash dividend or any other scheduled payment constituting a 

return of capital, in each case at any time on or prior to the date that is 91 days after the Maturity 

Date (determined as of the date of issuance thereof or, in the case of any such Equity Interests 

outstanding on the Effective Date, the Effective Date), or (b) is convertible into or exchangeable 

(unless at the sole option of the issuer thereof) for (i) cash, (ii) debt or (iii) any Equity Interests 

referred to in (a) above, in each case at any time prior to the date that is 91 days after the 

Maturity Date (determined as of the date of issuance thereof or, in the case of any such Equity 

Interests outstanding on the Effective Date, the Effective Date). Notwithstanding the foregoing, 

any Equity Interests that would constitute Disqualified Stock solely because holders of the 

Equity Interests have the right to require the issuer of such Equity Interests to repurchase such 

Equity Interests upon the occurrence of a change in control or an asset sale will not constitute 

Disqualified Stock if the terms of such Equity Interests provide that the issuer may not 

repurchase or redeem any such Equity Interests pursuant to such provisions unless such 

repurchase or redemption is permitted under the terms of this Agreement.

“Document” means a document as such term is defined in the UCC, including all 

bills of lading, warehouse receipts or other documents of title, now owned or hereafter acquired 

by any Loan Party.

“Documentation Agents” means Fifth Third Bank, National Association,

Goldman Sachs Bank USA, Capital One, National Association and U.S. Bank National 

Association.

“dollars” or “$” refers to lawful money of the United States of America.

“Domestic Subsidiary” means any Subsidiary of the Company that is organized 

under the laws of the United States, any state of the United States or the District of Columbia, 

except for a Subsidiary directly or indirectly owned by a CFC.

“Dominion Period” means any period during which (a) any Event of Default has 

occurred and is continuing or (b) Availability shall have been less than the greater of (i) 12.5% of 

the Credit Limit and (ii) $50,000,000 for five (5) consecutive Business Days; provided that if a 

Dominion Period shall have commenced and (A) no Event of Default described in clause (a) of 

this definition shall be continuing and (B) Availability shall have been at least equal to the 

greater of (1) 12.5% of the Credit Limit and (2) $50,000,000 for a period of thirty (30) 

consecutive days, but not more than two (2) times during each period of twelve (12) consecutive 

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15

months, the Borrowers may request that the Administrative Agent discontinue the applicable 

Dominion Period, and the Administrative Agent will promptly comply with such request so long 

as the applicable Dominion Period termination event in clause (A) or (B) shall have been 

satisfied and will provide notification of such discontinuance to the Loan Parties’ credit card 

issuers, credit card processors and such other parties as necessary or appropriate.

“EEA Member Country” means any member state of the European Union, 

Iceland, Liechtenstein and Norway.

“Effective Date” means the date on which the conditions specified in Section 4.01 

are satisfied (or waived in accordance with Section ZKLFKGDWHLV6HSWHPEHU>Ɣ@

“Electronic Signature” means an electronic sound, symbol, or process attached to, 

or associated with, a contract or other record and adopted by a Person with the intent to sign, 

authenticate or accept such contract or record.

“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an 

Approved Fund and (d) any other Person, other than, in each case, (i) a natural person, (ii) a

Defaulting Lender or (iii) the Company or any Subsidiary or any other Affiliate of the Company.

“Eligible Credit Card Accounts Receivable” means, at any time, the Credit Card 

Accounts Receivable of a Loan Party that the Administrative Agent determines in its Permitted 

Discretion are eligible as the basis for (i) the extension of Revolving Loans and (ii) the issuance 

of Letters of Credit. Without limiting the Administrative Agent’s discretion provided herein, 

Eligible Credit Card Accounts Receivable shall not include any Credit Card Account Receivable:

(a) which is not earned or does not represent the bona fide amount due to a Loan 

Party from a credit card processor or a credit card issuer that originated in the ordinary 

course of business of the applicable Loan Party;

(b) which is not owned by a Loan Party or to which a Loan Party does not have 

good or marketable title;

(c) in which the payee of such Credit Card Account Receivable is a Person other

than a Loan Party;

(d) which does not constitute an “Account” (as defined in the UCC);

(e) which has been outstanding for more than five (5) Business Days (or, in the 

case of American Express, fifteen (15) Business Days) from the date of sale;

(f) with respect to which the applicable credit card issuer, credit card processor or 

debit card or mall card issuer or provider has (i) applied for, suffered, or consented to the 

appointment of any receiver, interim receiver, custodian, trustee, monitor, administrator, 

sequestrator or liquidator of its assets, (ii) had possession of all or a material part of its 

property taken by any receiver, interim receiver, custodian, trustee, monitor, 

administrator, sequestrator or liquidator, (iii) filed, or had filed against it (but only so 

long as any such involuntary filing has not been stayed or vacated), any request or 

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petition for liquidation, reorganization, arrangement, adjustment of debts, adjudication as 

bankrupt, winding-up, or voluntary or involuntary case under any state, provincial, 

territorial or federal bankruptcy laws, (iv) admitted in writing its inability, or is generally 

unable to, pay its debts as they become due, (v) become insolvent or (vi) ceased operation 

of its business;

(g) which is not a valid, legally enforceable obligation of the applicable credit 

card issuer or credit card processor with respect thereto;

(h) which is not subject to a properly perfected first priority Lien in favor of the 

Administrative Agent (for the benefit of the Lender Parties);

(i) which is subject to any Lien, other than (i) a Lien in favor of the 

Administrative Agent (for the benefit of the Lender Parties), (ii) any Permitted 

Encumbrances contemplated by the applicable processor agreements and for which 

appropriate Reserves (as determined by the Administrative Agent in its Permitted 

Discretion) have been established and (iii) a Lien permitted by Section 6.02(i) to the 

extent such Liens are subject to, and subordinate and junior to the Liens securing the 

Secured Obligations under, the Intercreditor Agreement;

(j) with respect to which (i) any covenant has been breached or (ii) any 

representation or warranty is not true in all material respects, in each case to the extent 

contained in this Agreement, the Security Agreement or in the Credit Card Agreements 

relating to such Credit Card Account Receivable; provided that each such representation 

and warranty shall be true and correct in all respects to the extent already qualified by a 

materiality standard;

(k) which is subject to risk of set-off, recoupment, non-collection or not being 

processed due to unpaid and/or accrued credit card processor fee balances, to the extent 

of the lesser of the balance of the applicable Credit Card Accounts Receivable or the 

unpaid credit card processor fees;

(l) which the Administrative Agent in its Permitted Discretion determines may 

not be paid by reason of the applicable credit card processor’s, credit card issuer’s or 

debit card or mall card issuer’s or provider’s inability to pay;

(m) which represents a deposit or partial payment in connection with the 

purchase of Inventory of such Loan Party;

(n) which is not subject to a Credit Card Notification; or

(o) which does not meet such other usual and customary eligibility criteria for 

Credit Card Accounts Receivable in the Loan Parties’ industry generally as the 

Administrative Agent in its Permitted Discretion may determine from time to time;

provided, however, that the Administrative Agent shall not add any additional eligibility criteria 

(or amend any then-existing eligibility criteria to make the same more restrictive) without giving 

at least four (4) Business Days’ prior notice to the Borrower Representative.

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In the event that (a) a Financial Officer of any Loan Party has actual knowledge 

that any credit card issuer, credit card processor or debit card or mall card issuer or provider with 

respect to Eligible Credit Card Accounts Receivable ceases to comply with the requirements of 

clause (f) above or (b) a Credit Card Account Receivable in an amount in excess of $1,000,000 

which was previously an Eligible Credit Card Account Receivable ceases to be an Eligible Credit 

Card Account Receivable hereunder (other than by reason of clause (l) or (o) above), the 

applicable Loan Party or the Borrower Representative shall notify the Administrative Agent 

thereof promptly, and in any event not later than the time of submission to the Administrative 

Agent of the next Borrowing Base Certificate; provided that, other than as required for the 

purpose of preparing Borrowing Base Certificates, such Financial Officers shall have no 

affirmative duty to monitor, audit or otherwise investigate the status of any such issuers, 

processors or providers or Credit Card Accounts Receivable other than as explicitly set forth in 

the Loan Documents.

In determining the amount of an Eligible Credit Card Account Receivable, the 

face amount of a Credit Card Account Receivable may, in the Administrative Agent’s Permitted 

Discretion, 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 any Loan Party may be obligated to rebate to an Account Debtor pursuant to the 

terms of any agreement or understanding (written or oral)) applicable to such Credit Card 

Account Receivable, (ii) the aggregate amount of all cash received in respect of such Credit Card 

Account Receivable but not yet applied by any Loan Party to reduce the amount of such Credit 

Card Account Receivable and (iii) the amount of all customary fees and expenses in connection 

with any credit card arrangement. Standards of eligibility may be made more restrictive from 

time to time solely by the Administrative Agent in the exercise of its Permitted Discretion, with 

any such changes to be effective four (4) Business Days after delivery of notice thereof to the 

Borrower Representative and the Lenders.

“Eligible Inventory” means, at any time, the Inventory of a Loan Party which the 

Administrative Agent determines in its Permitted Discretion is eligible as the basis for (i) the 

extension of Revolving Loans and (ii) the issuance of Letters of Credit. Without limiting the 

Administrative Agent’s discretion provided herein, Eligible Inventory shall not include any 

Inventory:

(a) which is not subject to a first priority perfected Lien in favor of the 

Administrative Agent (for the benefit of the Lender Parties), regardless of location;

(b) which is subject to any Lien other than (i) a Lien in favor of the 

Administrative Agent (for the benefit of the Lender Parties), (ii) a Permitted 

Encumbrance which does not have priority over the Lien in favor of the Administrative 

Agent (for the benefit of the Lender Parties) or (iii) a Lien permitted by Section 6.02(i) to 

the extent such Lien is subject to, and subordinate and junior to the Liens securing the 

Secured Obligations under, the Intercreditor Agreement;

(c) which is unmerchantable, defective, damaged or unfit for sale (as such terms 

are customarily used in the Loan Parties’ industry), or is not salable at prices 

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approximating at least the cost of such Inventory in the ordinary course of business or is 

unacceptable due to age, type, category and/or quantity, in each case, consistent with the 

usage of such terms in the most recent inventory appraisal received by the Administrative 

Agent as contemplated hereby;

(d) with respect to which any covenant, representation, or warranty contained in 

this Agreement or the Security Agreement has been breached or is not true or which does 

not conform in all material respects to all standards imposed by any applicable 

Governmental Authority having regulatory authority over such goods;

(e) in which any Person other than such Loan Party shall (i) have any direct or 

indirect ownership, interest or title to such Inventory or (ii) be indicated on any purchase 

order or invoice with respect to such Inventory as having or purporting to have an interest 

therein;

(f) which is not finished goods or which constitutes packaging and shipping 

material, samples, prototypes, displays or display items, bill-and-hold goods, goods that 

are returned or marked for return, repossessed goods, goods held on consignment, or 

goods which are not of a type held for sale in the ordinary course of business (for the 

avoidance of doubt, sales in the ordinary course of business includes clearance sales);

(g) which is not located in the United States or Puerto Rico or is in transit with a 

common carrier from vendors and suppliers; provided that an amount of Inventory in 

transit not greater than 30% of the total Revolving Commitments then in effect shall not 

be excluded from being Eligible Inventory pursuant to this clause (g) so long as, except 

as otherwise agreed by the Administrative Agent in its Permitted Discretion, such 

Inventory (i) is either (A) in transit from outside the United States or in transit within the 

United States, and in each case subject to a negotiable Document showing a Loan Party 

or, if requested by the Administrative Agent, the Administrative Agent as consignee, 

which Document is in the possession of a Loan Party or such other Person as the 

Administrative Agent shall approve or, if requested by the Administrative Agent, the 

Administrative Agent, or (B) in transit within the United States or, if approved by the 

Administrative Agent in writing, in transit from outside the United States, and in each 

case subject to a non-negotiable Document, (ii) in the case of Inventory in transit from 

outside the United States and, if requested by the Administrative Agent, in the case of 

Inventory in transit within the United States, is subject to a duly executed Collateral 

Access Agreement or other bailee agreement reasonably satisfactory to the 

Administrative Agent from the customs broker, freight-forwarder or other handler in 

possession of such Inventory, (iii) has been identified to the applicable sales contract and 

title to such Inventory has passed to such Loan Party, (iv) is not sold by a vendor that has 

a right to reclaim, divert shipment of, repossess, stop delivery, claim any reservation of 

title or otherwise assert Lien rights against the Inventory, or with respect to which any 

Loan Party is in default of any obligations, (v) is subject to purchase orders and other sale 

documentation satisfactory to the Administrative Agent, (vi) has not been in transit for 

more than forty-five (45) days from the date such Inventory first became Eligible 

Inventory, (vii) is covered by insurance policies (including, without limitation, marine 

cargo insurance) reasonably acceptable to the Administrative Agent, (viii) is being 

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handled by a customs broker, freight-forwarder or other handler that has delivered a 

customs broker agreement or other lien waiver acceptable to the Administrative Agent, 

(ix) the common carrier with respect to which is not an Affiliate of the applicable vendor 

or supplier and (x) the customs broker with respect to which is not an Affiliate of any 

Loan Party; provided that, upon the request of the Administrative Agent, the Company 

shall promptly deliver to the Administrative Agent copies of all of the documents referred 

to in this clause (g);

(h) which is located in any location leased by the applicable Loan Party (other 

than any retail store of such Loan Party located in a jurisdiction that does not provide for 

a common law or statutory landlord’s lien on the personal property of tenants that would 

be prior or superior to that of the Administrative Agent) unless (i) the lessor has delivered 

to the Administrative Agent a Collateral Access Agreement or (ii) a Rent Reserve has 

been established by the Administrative Agent in its Permitted Discretion;

(i) which is located in any third party warehouse or is in the possession of a 

bailee (other than a third party processor) and is not evidenced by a Document (other than 

bills of lading to the extent permitted pursuant to clause (g) above), unless (i) such 

warehouseman or bailee has delivered to the Administrative Agent a Collateral Access 

Agreement and such other documentation as the Administrative Agent may require or (ii) 

an appropriate Reserve has been established by the Administrative Agent in its Permitted 

Discretion; provided that up to $10,000,000 at any one time of such Inventory described 

in this clause (i) and not meeting the requirements of the preceding subclauses (i) and (ii) 

may be included as Eligible Inventory to the extent such Inventory is being held for not 

more than sixty (60) days in a warehouse pending delivery to a store upon the initial 

opening thereof (including the initial opening after the renovation or remodeling of a 

store);

(j) which is being processed offsite at a third party location or outside processor, 

or is in-transit to or from said third party location or outside processor;

(k) which is the subject of a consignment by a Loan Party as consignor;

(l) which contains or bears any intellectual property rights licensed to a Loan 

Party unless the Administrative Agent is satisfied that it may sell or otherwise dispose of 

such Inventory without (i) infringing the rights of such licensor, (ii) violating any contract 

with such licensor or (iii) incurring any liability with respect to payment of royalties other 

than royalties incurred pursuant to sale of such Inventory under the current licensing 

agreement;

(m) which is not reflected in a current perpetual inventory report of the applicable 

Loan Party (unless such Inventory is reflected in a report to the Administrative Agent as 

“in transit” Inventory);

(n) for which reclamation rights have been asserted by the seller;

(o) which has been acquired from a Sanctioned Person; or

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(p) which does not meet such other eligibility criteria for Inventory as the 

Administrative Agent in its Permitted Discretion may determine from time to time;

provided, however, that the Administrative Agent shall not add any additional eligibility criteria (or 

amend any then-existing eligibility criteria to make the same more restrictive) without giving at least four 

(4) Business Days’ prior notice to the Borrower Representative; provided further that in determining the 

value of the Eligible Inventory, such value shall be reduced by, without duplication, any amounts 

representing (i) Vendor Rebates; (ii) costs included in Inventory relating to advertising; (iii) to the extent 

determined by the Administrative Agent in its Permitted Discretion to be appropriate, the shrink reserve; 

(iv) the unreconciled discrepancy between the general inventory ledger and the perpetual inventory 

ledger, to the extent the general inventory ledger reflects less Inventory than the perpetual inventory 

ledger; and (v) a reserve for Inventory which is designated or demanded to be returned to or retained by 

the applicable vendor or which is recognized as damaged or off quality by the applicable Loan Party.

In the event that a Financial Officer of any Loan Party has actual knowledge that 

Inventory at any location having a fair market value of $7,500,000 or more which was previously 

Eligible Inventory ceases to be Eligible Inventory hereunder (other than by reason of clause (p) 

above), such Loan Party or the Borrower Representative shall promptly notify the Administrative 

Agent thereof; provided that the Loan Parties shall not be required to deliver an updated 

Borrowing Base Certificate until such time as submission to the Administrative Agent of the next 

Borrowing Base Certificate is required hereunder; provided further that the Administrative Agent 

may, in its reasonable discretion, upon receipt of such notice as set forth above, adjust the 

Borrowing Base to reflect such change in Eligible Inventory.

“Eligible Pledged Cash” means, on any date of determination, the aggregate 

amount of cash as of such date (including cash represented by shares in any money market fund) 

that (a) is on deposit in the Eligible Pledged Cash Account and subject to a duly perfected first 

priority Lien in favor of the Administrative Agent and (b) does not constitute (i) cash pledged 

pursuant to Section 2.06(j) or (ii) Term Loan Priority Collateral (as defined in the Intercreditor 

Agreement).

“Eligible Pledged Cash Account” means (a) a special purpose Deposit Account 

established by the Company with the Administrative Agent or (b) shares representing 

immediately withdrawable cash in a money market fund managed by the Administrative Agent 

or one of its Affiliates, in either case subject to the Lien of the Security Agreement and to a 

Deposit Account Control Agreement or other control agreement reasonably satisfactory to the 

Administrative Agent, designated by the Company and the Administrative Agent as the “Eligible 

Pledged Cash Account”, and withdrawals from which are subject to the provisions of Section 

2.23.

“Eligible Successor Agent” means a bank or financial institution that is organized 

under the laws of the United States or any State or district thereof with an office in New York, 

New York which has a combined capital surplus of at least $200,000,000.

“Enhanced Borrowing Base Reporting Period” means any period (a) commencing 

at any time when the total Revolving Loans outstanding exceeds $25,000,000 and (b) ending 

when the total Revolving Loans outstanding shall have been equal to or less than $25,000,000 

for a period of thirty (30) consecutive days.

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“Environment” means ambient air, indoor air, surface water, groundwater, 

drinking water, land surface and subsurface strata, and natural resources such as wetlands, flora 

and fauna.

“Environmental Laws” means all applicable federal, state, and local laws 

(including common law), regulations, rules, ordinances, codes, decrees, judgments, directives, 

orders (including consent orders) issued by, and binding agreements with, any Governmental 

Authority, in each case, relating to pollution or protection of the Environment, human health and 

safety (to the extent related to exposure to toxic or hazardous substances, materials or wastes), or 

the presence, Release of, or exposure to, toxic or hazardous substances, materials or wastes, or 

the generation, manufacture, processing, distribution, use, treatment, storage, transport, recycling 

or handling of, or the arrangement for such activities with respect to, toxic or hazardous 

substances, materials or wastes.

“Environmental Liability” means any liability, claim, action, suit, agreement, 

judgment or order arising under or relating to any Environmental Law for any obligation, 

damages, injunctive relief, losses, fines, penalties, fees, expenses (including reasonable fees and 

expenses of attorneys and consultants) or costs, whether contingent or otherwise, including those 

arising from or relating to: (a) compliance or non-compliance with any Environmental Law or 

permit, license or approval issued thereunder, (b) the generation, use, handling, transportation, 

storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous 

Materials, (d) the presence, Release or threat of Release of any Hazardous Materials or (e) any 

contract, agreement or other consensual arrangement pursuant to which liability is assumed or 

imposed with respect to any of the foregoing.

“Equity Interests” means shares of capital stock, partnership interests, 

membership interests in a limited liability company, beneficial interests in a trust or other equity 

ownership interests in a Person, and any warrants, options or other rights entitling the holder 

thereof to purchase or acquire any such equity interest (other than, prior to the date of such 

conversion, any Indebtedness that is convertible into any such Equity Interests).

“ERISA” means the Employee Retirement Income Security Act of 1974, as 

amended from time to time, and the rules and regulations promulgated thereunder.

“ERISA Affiliate” means any trade or business (whether or not incorporated) that, 

together with any Loan Party, is treated as a single employer under Section 414(b) or 414(c) of 

the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated 

as a single employer under Section 414(m) or 414(o) of the Code.

“ERISA Event” means (a) any “reportable event,” as defined in Section 4043(c) 

of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for 

which the 30-day notice period is waived), (b) any failure by any Plan to satisfy the minimum 

funding requirements of Section 412 or 430 of the Code or Section 302 or 303 of ERISA with 

respect to such Plan, in each case whether or not waived, or any failure by any Loan Party or any 

ERISA Affiliate to make a required contribution to a Multiemployer Plan, (c) the filing pursuant 

to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the 

minimum funding standard with respect to any Plan, (d) a determination that any Plan is in 

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“at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code), (e) 

the incurrence by any Loan Party or any ERISA Affiliate of any liability under Title IV of 

ERISA (other than PBGC premiums due but not delinquent under Section 4007 of ERISA), (f) 

the receipt by any Loan Party or any ERISA Affiliate from the PBGC or a plan administrator of 

any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to 

administer any Plan under Section 4042 of ERISA, (g) 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 Plan or Multiemployer Plan, (h) a complete withdrawal or partial withdrawal by 

any Loan Party or any ERISA Affiliate from any Plan or Multiemployer Plan, (i) the receipt by 

any Loan Party or any ERISA Affiliate of any notice concerning the imposition of Withdrawal 

Liability, or a determination that a Multiemployer Plan is insolvent, within the meaning of Title 

IV of ERISA, or in “endangered” or “critical” status, within the meaning of Section 305 of 

ERISA or Section 432 of the Code, (j) a failure by any Loan Party or any ERISA Affiliate to pay 

when due (after expiration of any applicable grace period) any installment payment with respect 

to Withdrawal Liability, (k) the imposition of a Lien upon any Loan Party or any ERISA 

Affiliate pursuant to Section 430(k) of the Code or Section 303(k) of ERISA or (l) the 

occurrence of a non-exempt “prohibited transaction” (as defined in Section 4975 of the Code or 

Section 406 of ERISA) with respect to which any Loan Party or any ERISA Affiliate is a 

“disqualified person” (within the meaning of Section 4975 of the Code) or a “party in interest” 

(within the meaning of Section 406 or Section 3(14) of ERISA) or could otherwise reasonably be 

expected to be liable.

“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.

“Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether 

such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by 

reference to the Adjusted LIBO Rate.

“Events of Default” has the meaning set forth in Article VII.

“Exchange Act” means the United States Securities Exchange Act of 1934.

“Excluded Deposit Account” means (a) any Deposit Account that is an operating 

account maintained by any Loan Party solely for the use of one of its retail stores (or a group of 

125 or fewer retail stores) in which payments received from customers are deposited and which 

is not an account to which amounts held in other deposit accounts of the Loan Parties are swept, 

provided that (i) such Loan Party shall cause all amounts on deposit in such Deposit Account 

(other than amounts reasonably determined by such Loan Party to be required for the operating 

needs of the retail store or stores to which such Deposit Account relates) to be swept on each 

Business Day into one or more Deposit Accounts that are not Excluded Deposit Accounts and 

(ii) no such Deposit Account shall contain payment of or in respect of any Credit Card Account 

Receivable of any Loan Party, (b) any Deposit Account that is a zero balance disbursement 

account the funds in which are used solely for the payment of salaries and wages, (c) any Deposit 

Account that is a zero balance disbursement account the funds in which are used solely for 

payment of medical or insurance reimbursement, workers’ compensation and similar expenses, 

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(d) any escrow account to the extent the creation of a Lien therein would violate any agreement 

with a Person other than the Company or a Subsidiary, and (e) any fiduciary or trust account.

“Excluded Subsidiary” means (a) any Subsidiary that is not a wholly-owned 

Subsidiary of the Company, (b) any Foreign Subsidiary of the Company, (c) any Subsidiary that 

is a CFC or a CFC Holdco, (d) any Subsidiary of any CFC or CFC Holdco, (e) any Subsidiary 

that is prohibited or restricted by applicable law, rule or regulation or by a contractual obligation 

in existence on the Effective Date (from providing a Guarantee of the Obligations (solely for so 

long as such prohibition or restriction remains in existence) or if such Guarantee would require 

governmental (including regulatory) consent, approval, license or authorization unless such

consent, approval, license or authorization has been received (but without obligation to seek the 

same), (f) any Subsidiary that is a not-for-profit organization, (g) [reserved], (h) any Subsidiary 

that is an Immaterial Subsidiary (unless the Company otherwise elects), and (i) any other 

Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent 

(confirmed in writing by notice to the Company), the cost or other consequences of becoming a 

Loan Guarantor shall be excessive in view of the benefits to be obtained by the Lenders 

therefrom. In no event shall (i) any Borrowing Subsidiary be an Excluded Subsidiary or (ii) any 

Subsidiary of the Company that is a “Loan Party” (under and as defined in the Term Credit 

Agreement), or that is otherwise a guarantor of, or has otherwise provided security for, the 

obligations under the Term Credit Agreement or any other Material Indebtedness of the 

Company or any Subsidiary that is not a CFC, a CFC Holdco or a Foreign Subsidiary, be an 

Excluded Subsidiary.

“Excluded Taxes” means any of the following Taxes imposed on or with respect 

to a 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 applicable 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 Revolving Commitment pursuant to a law in effect on the date on which (i) such Lender 

acquires such interest in the Loan or Revolving Commitment (other than pursuant to an 

assignment request by the Company under Section 2.19(b)) or (ii) such Lender changes its 

lending office, except in each case to the extent that, pursuant to Section 2.17, amounts with 

respect to such Taxes were payable either to such Lender’s assignor immediately before such 

Lender acquired the applicable interest in such Loan or Revolving Commitment or to such 

Lender immediately before it changed its lending office, (c) Taxes attributable to such 

Recipient’s failure to comply with Section 2.17(f) and (d) any U.S. Federal withholding Taxes 

imposed under FATCA.

“Existing Letters of Credit” means the letters of credit referred to on Schedule 

2.06.

“Exit Facility Agreement” means the credit agreement that is approved by the 

Confirmation Order and entered into on the Conversion Date that has been negotiated in good 

faith by the Loan Parties, the Administrative Agent and the Lenders, and that is consistent in all 

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material respects with the terms set forth in the Exit Facility Term Sheet and any related 

schedules and exhibits attached thereto; provided, that such credit agreement shall have been 

made available and is satisfactory to the Administrative Agent, the Issuing Banks and all 

Lenders.

“Exit Facility Term Sheet” means the term sheet attached as Exhibit G hereto, as 

amended, supplemented or otherwise modified from time to time in accordance with the terms of 

this Agreement.

“Extraordinary Receipt” means any cash received by any Person (net of all losses 

and expenses incurred by such Person in connection with the event resulting in the Extraordinary 

Receipt) in an aggregate amount in excess of $5,000,000 in respect of tax refunds, pension plan 

reversions, indemnity payments and purchase price adjustments (but not, for the avoidance of 

doubt, with respect to any Prepayment Event described in clauses (a) through (c) thereof).

“FATCA” means Sections 1471 through 1474 of the Code, as of the Effective 

Date (or any amended or successor version that is substantively comparable and not materially 

more onerous to comply with), any current or future Treasury regulations or other official 

administrative interpretations thereof, any agreements entered into pursuant to current Section 

1471(b) of the Code (or any amended or successor version described above), and any fiscal or 

regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement 

between a non-U.S. jurisdiction and the United States of America.

“Federal Funds Effective Rate” means, for any day, the rate calculated by the 

NYFRB based on such day’s federal funds transactions by depository institutions (as determined 

in such manner as the NYFRB shall be set forth on the Federal Reserve Bank of New York’s 

Website from time to time) and published on the next succeeding Business Day by the NYFRB 

as the federal funds effective rate; provided that such rate shall in no event be less than zero.

“Fee Letters” means, collectively, the Agent Fee Letter and the Lender Fee Letter.

“Final Order” means, collectively, the order of the Court entered in the Cases 

after a final hearing under Bankruptcy Rule 4001(c)(2) or such other procedures as approved by 

the Court, which order shall be satisfactory in form and substance to the Administrative Agent

and the Required Lenders and approves a full roll-up of all Pre-Petition Lender Obligations, and 

from which no appeal or motion to reconsider has been timely filed, or if timely filed, such 

appeal or motion to reconsider has been dismissed or denied with no further appeal and the time 

for filing such appeal has passed (unless Administrative Agent and the Required Lenders waive 

such requirement), together with all extensions, modifications, and amendments thereto, in form 

and substance satisfactory to the Administrative Agent and each Lender, which, among other 

matters but not by way of limitation, authorizes the Loan Parties to obtain credit, incur (or 

guaranty) Indebtedness, and grant Liens under this Agreement and the other Loan Documents, as 

the case may be, and provides for the super-priority of the Administrative Agent’s and the 

Lenders’ claims.

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“Financial Officer” means, with respect to any Person, the chief financial officer, 

principal accounting officer, treasurer, assistant treasurer, chief restructuring officer or controller 

of such Person.

“Flood Hazard Property” means any Mortgaged Property that includes a 

“Building” (as defined in 12 CFR Chapter III, Section 339.2) that on the relevant date of 

determination is located in an area identified by the Federal Emergency Management Agency (or 

any successor agency) as a special flood hazard area.

“Flood Insurance Documents” means, with respect to any Mortgaged Property 

that is a Flood Hazard Property, (a) the applicable Loan Party’s written acknowledgment of 

receipt of written notification from the Administrative Agent as to the fact that such Mortgaged 

Property is a Flood Hazard Property and as to whether the community in which each such Flood 

Hazard Property is located is participating in the National Flood Insurance Program and (b) (i) 

copies of the applicable Loan Party’s application for a flood insurance policy, together with 

proof of premium payment, (ii) a declaration page confirming that flood insurance has been 

issued or (iii) such other evidence of flood insurance as shall be reasonably satisfactory to the 

Administrative Agent.

“Flood Insurance Laws” means, collectively, (a) National Flood Insurance 

Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 

and the Flood Disaster Protection Act of 1973), as now or hereafter in effect or any successor 

statute thereto, (b) the Flood Insurance Reform Act of 2004, as now or hereafter in effect or any 

successor statute thereto, (c) the Biggert-Waters Flood Insurance Reform Act of 2012, as now or 

hereafter in effect or any successor statute thereto, and (d) Regulation H of the Board of 

Governors.

“Flood Laws” has the meaning set forth in Article VIII.

“Foreign Lender” means a Lender that is not a U.S. Person.

“Foreign Subsidiary” means any Subsidiary of the Company, other than a 

Domestic Subsidiary.

“Funding Account(s)” means the deposit account(s) of the Borrowers to which the 

Administrative Agent is authorized by the Borrowers (or by the Borrower Representative on 

their behalf) to transfer the proceeds of any Borrowings requested or authorized pursuant to this 

Agreement.

“GAAP” means generally accepted accounting principles in the United States of 

America, applied in accordance with the consistency requirements thereof.

“Gift Card Reserve” means, at any time, the sum of (a) a percentage determined 

from time to time by the Administrative Agent in the exercise of its Permitted Discretion of the 

aggregate remaining amount at such time of outstanding gift certificates and gift cards sold by 

the Loan Parties 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 of Inventory and (b) a percentage determined from time 

to time by the Administrative Agent in the exercise of its Permitted Discretion of the aggregate 

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amount at such time of outstanding customer deposits and merchandise credits entitling the 

holder thereof to use all or a portion of such deposit or credit to pay all or a portion of the 

purchase price of Inventory.

“Governmental Authority” means the government of the United States of 

America, any other nation or any political subdivision thereof, whether state, local, county, 

provincial or otherwise, 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 

body exercising such powers or functions, such as the European Union or the European Central 

Bank).

“Guarantee” of or by any Person (the “guarantor”) means any obligation, 

contingent or otherwise, of the guarantor guaranteeing or having the economic effect of 

guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in 

any manner, whether directly or indirectly, and including any obligation of the guarantor, direct 

or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) 

such Indebtedness or other obligation or to purchase (or to advance or supply funds for the 

purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or 

services for the purpose of assuring the owner of such Indebtedness or other obligation of the 

payment thereof, (c) to maintain working capital, equity capital or any other financial statement 

condition or liquidity of the primary obligor so as to enable the primary obligor to pay such 

Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or 

letter of guaranty issued to support such Indebtedness or other obligation; provided that the term 

“Guarantee” shall not include endorsements for collection or deposit in the ordinary course of 

business. The amount, as of any date of determination, of any Guarantee shall be the principal 

amount outstanding on such date of Indebtedness or other obligation guaranteed thereby (or, in 

the case of (i) any Guarantee the terms of which limit the monetary exposure of the guarantor or 

(ii) any Guarantee of an obligation that does not have a principal amount, the maximum 

monetary exposure as of such date of the guarantor under such Guarantee (as determined, in the 

case of clause (i), pursuant to such terms or, in the case of clause (ii), reasonably and in good 

faith by a Financial Officer of the Company)).

“Guaranteed Obligations” has the meaning set forth in Section 10.01.

“Hazardous Materials” means any chemical, material, substance or waste that is 

prohibited, limited or regulated by or pursuant to any applicable Environmental Law, including, 

without limitation, any petroleum products or byproducts and all other hydrocarbons, coal ash, 

radon gas, asbestos-containing materials, urea formaldehyde foam insulation, polychlorinated 

biphenyls, chlorofluorocarbons and all other ozone-depleting substances or mold.

“Immaterial Subsidiary” means, at any date of determination, any Subsidiary 

(other than any Borrowing Subsidiary) that, at the last day of the most recently ended fiscal 

quarter of the Company for which financial statements have been delivered pursuant to Section 

4.01(f), Section 5.01(a) or (b), accounted for less than (x) 5.0% of Total Assets at such date and 

(y) less than 5.0% of the consolidated revenues of the Company and its Subsidiaries for the four 

fiscal quarter period ended on such date; provided that, notwithstanding the above, “Immaterial

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Subsidiary” shall exclude any of the Company’s Subsidiaries designated in writing to the 

Administrative Agent, by a responsible officer of the Company (which the Company shall be 

required to designate (and hereby undertakes to designate)) to the extent necessary to ensure that 

Immaterial Subsidiaries, in the aggregate, accounted for, at the last day of any fiscal quarter of 

the Company for which financial statements have theretofore been most recently delivered 

pursuant to Section 4.01(f), Section 5.01(a) or (b), less than 10.0% of Total Assets at such date 

and less than 10.0% of consolidated revenues of the Company and its Subsidiaries for the four 

fiscal quarter period ending on such date.

“Indebtedness” of any Person means, without duplication, (a) all obligations of 

such Person for borrowed money or with respect to deposits or advances of any kind, (b) all 

obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all 

obligations of such Person under conditional sale or other title retention agreements relating to 

property acquired by such Person (excluding trade accounts payable incurred in the ordinary 

course of business), (d) all obligations of such Person in respect of the deferred purchase price of 

property or services (excluding (i) current accounts payable incurred in the ordinary course of 

business, (ii) deferred compensation payable to directors, officers or employees of the Company 

or any Subsidiary and (iii) any purchase price adjustment or earnout incurred in connection with 

an acquisition, except to the extent that the amount payable pursuant to such purchase price 

adjustment or earnout is, or becomes, payable), (e) all Capital Lease Obligations and Synthetic 

Lease Obligations of such Person, (f) all obligations, contingent or otherwise, of such Person as 

an account party in respect of letters of credit and letters of guaranty, (g) all obligations, 

contingent or otherwise, of such Person in respect of bankers’ acceptances, (h) all Indebtedness 

of others secured by (or for which the holder of such Indebtedness has an existing right, 

contingent or otherwise, to be secured by) any Lien on property owned or acquired by such 

Person, whether or not the Indebtedness secured thereby has been assumed by such Person (but

only to the extent of the lesser of (x) the amount of such Indebtedness and (y) the fair market 

value of such property, if such Indebtedness has not been assumed by such Person), (i) net 

payments that would have to be made in the event of an early termination in respect of any 

outstanding Swap Agreement, (j) all obligations of such Persons with respect to the redemption, 

repayment or repurchase of Disqualified Stock (excluding accrued dividends) and (k) all 

Guarantees by such Person of Indebtedness of others. The Indebtedness of any Person shall 

include the Indebtedness of any other Person (including any partnership in which such Person is 

a general partner) to the extent such Person is liable therefor by contract, as a matter of law or 

otherwise as a result of such Person’s ownership interest in or other relationship with such other 

Person, except to the extent the terms of such Indebtedness provide that such Person is not liable 

therefor. It is acknowledged and agreed that private label and corporate letters of credit issued 

by the Company or any Subsidiary for the making of payment for the purchase of Inventory in 

the ordinary course of business (and in respect of which no Issuing Bank or other financial 

institution is an issuer thereof or has any disbursement obligations thereunder) do not constitute 

Indebtedness of the Company or such Subsidiary.

“Indemnified Taxes” means (a) all 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), all Other Taxes.

“Indemnitee” has the meaning set forth in Section 9.03(b).

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“Intercreditor Acknowledgment” means that certain Acknowledgment and 

Agreement, dated as of the Effective Date, by and among the Administrative Agent, the PrePetition Agent, the Term Agent and the Pre-Petition Term Agent, and acknowledged by the Loan 

Parties.

“Intercreditor Agreement” means the Intercreditor Agreement, dated as of August 

21, 2015, among the Pre-Petition Agent, as ABL collateral agent, the Pre-Petition Term Agent, 

as term collateral agent, and acknowledged by the Loan Parties, as supplemented and modified 

by the Intercreditor Acknowledgment, and as may be further amended, amended and restated, 

supplemented or otherwise modified and in effect from time to time.

“Interest Election Request” means a request by the Borrower Representative to 

convert or continue a Revolving Borrowing in accordance with Section 2.08, which shall be, in 

the case of any such written request, in the form of Exhibit F or any other form reasonably 

approved by the Administrative Agent.

“Interest Payment Date” means (a) with respect to any ABR Loan (other than a 

Protective Advance or an Overadvance), the first Business Day of each calendar quarter and the 

Maturity Date, (b) with respect to any Eurodollar Loan, the last day of the Interest Period 

applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar 

Borrowing with an Interest Period of more than three months’ duration, such day or days prior to 

the last day of such Interest Period as shall occur at intervals of three months’ duration after the 

first day of such Interest Period, and the Maturity Date, and (c) with respect to any Protective 

Advance or Overadvance, the day that such Loan is required to be repaid and the Maturity Date.

“Interest Period” means with respect to any Eurodollar Borrowing, the period 

commencing on the date of such Borrowing and ending on the numerically corresponding day in 

the calendar month that is one, two, three or six months (or, with the consent of each Lender, 

twelve months) thereafter, as the Borrower Representative may elect; provided that (a) if any 

Interest Period would end on a day other than a Business Day, such Interest Period shall be 

extended to the next succeeding Business Day unless such next succeeding Business Day would 

fall in the next calendar month, in which case such Interest Period shall end on the next 

preceding Business Day and (b) any Interest Period that commences on the last Business Day of 

a calendar month (or on a day for which there is no numerically corresponding day in the last 

calendar month of such Interest Period) shall end on the last Business Day of the last calendar

month of such Interest Period. 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.

“Interpolated Screen Rate” means, with respect to any Eurodollar Borrowing for 

any Interest Period, a rate per annum which results from interpolating on a linear basis between 

(a) the Screen Rate for the longest maturity for which a Screen Rate is available that is shorter 

than such Interest Period and (b) the Screen Rate for the shortest maturity for which a Screen 

Rate is available that is longer than such Interest Period, in each case at 11:00 a.m., London time, 

two (2) Business Days prior to the commencement of such Interest Period.

“Inventory” has the meaning set forth in the Security Agreement.

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“Inventory Percentage” means 90%; provided, that on not more than one occasion 

during any calendar year, the Company may deliver to the Administrative Agent a notice 

electing to have the Inventory Percentage increased to 92.5% for a period of ninety (90) days 

identified in such notice, in which case, for purposes of any determination of the Borrowing Base 

as of a date within such specified period, the Inventory Percentage shall be 92.5%.

“Investment” means, with respect to a specified Person, any direct or indirect 

acquisition or investment by such Person in any other Person, in the form of (a) the purchase or 

other acquisition (including without limitation by merger or otherwise) of Equity Interests or 

debt or other securities of another Person, (b) a loan, advance or capital contribution to, 

Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or 

equity participation or interest in, another Person, including any partnership or joint venture 

interest in such other Person or (c) the purchase or other acquisition (in one transaction or a 

series of transactions, including without limitation by merger or otherwise) of all or substantially 

all of the property and assets or business of another Person or assets constituting a business unit, 

division, product or line of business of such Person. For purposes of covenant compliance, the 

amount of any Investment at any time shall be the amount actually invested (measured at the 

time made), without adjustment for subsequent changes in the value of such Investment, net of 

any return representing a return of capital with respect to such Investment.

“IRS” means the United States Internal Revenue Service.

“Issuing Bank” means (a) each of JPMCB, BofA and Wells Fargo Bank, in its 

capacity as an issuer of Letters of Credit hereunder, and its successors in such capacity as 

provided in Section 2.06(i), and (b) solely with respect to any Existing Letter of Credit, any 

Lender that shall have issued such Letter of Credit. An Issuing Bank may, in its discretion, 

arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in 

which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of 

Credit issued by such Affiliate (it being agreed that such Issuing Bank shall, or shall cause such 

Affiliate to, comply with the requirements of Section 2.06 with respect to such Letters of Credit).

“Issuing Bank Agreement” means an Issuing Bank Agreement between an Issuing 

Bank, the Administrative Agent and the Company substantially in the form of Exhibit E.

“JPMCB” means JPMorgan Chase Bank, N.A., a national banking association, in 

its individual capacity, and its successors.

“LC Collateral Account” has the meaning set forth in Section 2.06(j).

“LC Commitment” means, as to any Issuing Bank, the maximum permitted 

amount of the LC Exposure that may be attributable to Letters of Credit issued by such Issuing 

Bank. The initial amount of each Issuing Bank’s LC Commitment is set forth on Schedule 2.01

or in such Issuing Bank’s Issuing Bank Agreement.

“LC Disbursement” means a payment made by an Issuing Bank pursuant to a 

Letter of Credit.

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“LC Exposure” means, at any time, the sum of the Commercial LC Exposure and 

the Standby LC Exposure. The LC Exposure of any Lender at any time shall be its Applicable 

Percentage of the total LC Exposure at such time, adjusted to give effect to any reallocation 

under Section 2.20 of the LC Exposures of Defaulting Lenders in effect at such time.

“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 space in a 

structure, land, improvements or premises for any period of time.

“Lease Rejection Date” means, as to any leased location, the last day of the 120-

day lease rejection/assumption period, as such period may be extended or shortened by the 

Court, as such period may be further extended with the consent of the landlord for such location.

“Lease Reserve” means a reserve that shall be established by the Administrative 

Agent (unless otherwise determined by the Required Lenders) (a) solely with respect to Ann 

Taylor Inventory, after the date (i) that is one hundred and five (105) days after the Petition Date, 

unless the Court shall have entered the Confirmation Order on or prior to such date, and (ii) that 

Liquidity is less than $150,000,000, in respect of any such Ann Taylor Inventory held at any 

leased store locations (x) intended to be closed with respect to which the Lease therefor is, or is 

intended to be, terminated by the applicable Loan Party, or (y) with respect to which the Lease 

therefor has not been assumed, commencing on the Lease Reserve Commencement Date set 

forth in clause (a) of the definition thereof, and (b) with respect to all other Inventory (other than 

Ann Taylor Inventory) held at any leased store locations (x) intended to be closed with respect to 

which the Lease therefor is, or is intended to be, terminated by the applicable Loan Party, or (y) 

with respect to which the Lease therefor has not been assumed, commencing on the Lease 

Reserve Commencement Date set forth in clause (b) of the definition thereof. The amount of the 

Lease Reserve in effect from time to time shall not exceed the anticipated reduction in the Net 

Orderly Liquidation Value, as communicated to the Administrative Agent by the applicable 

appraiser (which information the Administrative Agent is authorized to obtain), which is 

anticipated to result from (x) the Modified Sale Term being more than (y) the number of days 

remaining until the Lease Rejection Date.

“Lease Reserve Commencement Date” means, (a) solely with respect to any Ann 

Taylor Inventory and any leased location at which such Ann Taylor Inventory is located, the date 

that is the number of days prior to the Lease Rejection Date applicable thereto that is equal to the 

Modified Sale Term, and (b) with respect to all other Inventory (other than Ann Taylor 

Inventory) and any leased location where such Inventory (other than Ann Taylor Inventory) is 

located, the later of (x) the date that is the number of days prior to the Lease Rejection Date 

applicable thereto that is equal to the Modified Sale Term and (y) ten (10) weeks prior to the 

Lease Rejection Date.

“Lender Advisors” means the professionals and experts retained by 

Administrative Agent and the Required Lenders, consisting of Berkeley Research Group, LLC, 

Morgan Lewis & Bockius LLP and Hunton Andrews Kurth LLP. 

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“Lender Fee Letter” means the Fee Letter dated August 14, 2020, among the 

Company and JPMCB, with respect to fees payable to the Administrative Agent for the benefit 

of the Lenders.

“Lender Parties” means (a) the Administrative Agent, (b) the Arrangers, (c) the 

Syndication Agents, (d) the Documentation Agents, (e) the Lenders, (f) the Issuing Banks, 

(g) Lenders and their Affiliates to whom any Banking Services Obligations are owing, 

(h) Lenders and their Affiliates to whom Swap Obligations constituting Secured Obligations 

hereunder are owing, (i) the beneficiaries of each indemnification obligation undertaken by any 

Loan Party under any Loan Document and (j) the permitted successors and assigns of the 

foregoing.

“Lenders” means the Persons listed on Schedule 2.01 and any other Person that 

shall have become a party hereto pursuant to an Assignment and Assumption, other than any 

such Person that shall have ceased to be a party hereto pursuant to an Assignment and 

Assumption. 

“Letter of Credit” means each Existing Letter of Credit and any letter of credit 

issued pursuant to this Agreement. It is acknowledged that private label letters of credit issued 

by the Company or any Subsidiary do not constitute Letters of Credit (it being further 

acknowledged that no Issuing Bank is an issuer of any such private label letter of credit or has 

any disbursement obligations thereunder).

“LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest 

Period, a rate per annum equal to the London interbank offered rate as administered by the ICE 

Benchmark Administration (or any other Person that takes over the administration of such rate) 

for deposits in dollars (for delivery on the first day of such Interest Period) with a term 

equivalent to such Interest Period as displayed on the Reuters screen page that displays such rate 

(currently page LIBOR01) (or, in the event such rate does not appear on a page of the Reuters 

screen, on the appropriate page of such other information service that publishes such rate as shall 

be selected by the Administrative Agent from time to time in its reasonable discretion) (the 

“Screen Rate”) at 11:00 a.m., London time, two (2) Business Days prior to the commencement 

of such Interest Period. If no Screen Rate shall be available for a particular Interest Period but 

Screen Rates shall be available for maturities both longer and shorter than such Interest Period, 

then the LIBO Rate for such Interest Period shall be the Interpolated Screen Rate. 

Notwithstanding the foregoing, if the LIBO Rate, determined as provided above in this 

definition, would be less than 0.75%, the LIBO Rate shall for all purposes of this Agreement be 

0.75%.

“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, 

pledge, hypothecation, charge, security interest or other encumbrance in, on or of such asset and 

(b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title 

retention agreement (or any financing lease having substantially the same economic effect as any 

of the foregoing) relating to such asset.

“Liquidity” means, at any time, the sum of, without duplication, (a) Availability,

(b) unrestricted cash and cash equivalents of the Company and its Subsidiaries that would be 

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reflected on a consolidated balance sheet of the Company in accordance with GAAP on such 

date (other than the cash proceeds of any Indebtedness being incurred on such date) and (c) cash 

and cash equivalents of the Company and its Subsidiaries (excluding Eligible Pledged Cash to 

the extent duplicative of clause (a)) that are restricted in favor of the Administrative Agent or any 

Lender (which cash and cash equivalents may also secure other Indebtedness together with the 

Obligations).

“Loan Documents” means this Agreement, the Commitment Letter, the Fee 

Letters, the Collateral Documents, the Intercreditor Agreement, the Intercreditor 

Acknowledgment, any agreement referred to in Section 2.06(i) and, except for purposes of 

Section 9.02, any promissory notes issued pursuant to this Agreement, any Letter of Credit 

applications and all other agreements, instruments, documents and certificates identified in 

Section 4.01 executed and delivered to, or in favor of, the Administrative Agent or any other 

Lender Party and including all other pledges, powers of attorney, consents, assignments, 

contracts, notices and letter of credit agreements whether heretofore, now or hereafter executed 

by or on behalf of any Loan Party, or any employee of any Loan Party, and delivered to the 

Administrative Agent or any other Lender Party in connection with the Agreement or the 

transactions contemplated thereby. Any reference in this Agreement or any other Loan 

Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all 

amendments, restatements, supplements or other modifications thereto, and shall refer to this 

Agreement or such Loan Document as the same may be in effect at any and all times such 

reference becomes operative.

“Loan Guarantee” means Article X of this Agreement.

“Loan Guarantor” means the Company and each Subsidiary (including each 

Borrowing Subsidiary) that is a party to this Agreement.

“Loan Parties” means the Company and the Subsidiary Loan Parties.

“Loans” means the loans and advances made by the Lenders or the Administrative 

Agent pursuant to this Agreement, including Overadvances and Protective Advances.

“Material Adverse Effect” means a material adverse effect on (a) the results of 

operations, assets, business or financial condition of the Company and the Subsidiaries, taken as 

a whole, excluding in any event (i) the effect of filing the Cases, the events and conditions 

leading up to and customarily resulting from the commencement and continuation of the Cases, 

the effects thereof and any action required to be taken under the Loan Documents or the Final 

Order and the Cases themselves, (ii) any matters publicly disclosed prior to the filing of the 

Cases, and (iii) any matters or transactions disclosed, contemplated or required to be taken in any 

“first day” or “second day” orders on a final basis, motions related thereto or in any supporting 

declarations thereof, (b) the ability of the Loan Parties to perform any of their monetary 

obligations under the Loan Documents to which it is a party or (c) the rights of or benefits 

available to the Administrative Agent, the Issuing Banks or the Lenders under the Loan 

Documents; provided that in determining whether a “material adverse effect” has occurred or 

exists under clause (a) hereof solely during the period from the Effective Date through the 

Maturity Date, the impacts of COVID-19 on the results of operations, assets, business or 

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financial condition of the Company and the Subsidiaries will be disregarded (provided that this 

exception shall not apply to the extent that it is materially disproportionately adverse to the 

Company and its Subsidiaries, taken as a whole, as compared to other companies in the same 

industry in which the Company and its Subsidiaries operate).

“Material Indebtedness” means Indebtedness (other than the Loans, Letters of 

Credit and the Loan Guarantee), or obligations in respect of one or more Swap Agreements, of 

any one or more of the Company and the Subsidiaries in an aggregate principal amount 

exceeding $20,000,000. For purposes of determining Material Indebtedness, the “principal 

amount” of the obligations of the Company or any Subsidiary in respect of any Swap Agreement 

at any time shall be the maximum aggregate amount (giving effect to any netting agreements) 

that the Company or such Subsidiary would be required to pay if such Swap Agreement were 

terminated at such time.

“Maturity Date” means the date that is the earliest of (i) six (6) months after the 

Effective Date, (ii) the date of the substantial consummation (as defined in Section 1101(2) of 

the Bankruptcy Code) of an Acceptable Plan, (iii) the date the Court converts any of the Cases to 

a Chapter 7 case, (iv) the date the Court dismisses any of the Cases, (v) the date on which the 

Loan Parties consummate a sale of all or substantially all of the assets of the Loan Parties 

pursuant to section 363 of the Bankruptcy Code or otherwise, and (vi) such earlier date on which 

the Loans shall become due and payable by acceleration or otherwise in accordance with the 

terms of this Agreement and the other Loan Documents.

“Maximum Liability” has the meaning set forth in Section 10.09.

“Maximum Rate” has the meaning set forth in Section 9.16.

“Modified Sale Term” means, with respect to any Inventory, the sum of (a) the 

number of days specified as the anticipated sale term period for such Inventory in the most recent 

appraisal delivered to the Administrative Agent for such Inventory plus (b) twenty (20) days.

“Moody’s” means Moody’s Investors Service, Inc., and any successor to its rating 

agency business.

“Mortgaged Property” means each parcel of real property located in the United 

States of America owned in fee by a Loan Party, and the improvements thereto, subject to the 

Lien of the Administrative Agent in accordance with the Final Order that (together with such 

improvements) has a fair market value of $5,000,000 or more on the Effective Date or at the time 

of acquisition thereof by any Loan Party.

“Multiemployer Plan” means a “multiemployer plan” as defined in Section 

4001(a)(3) of ERISA that is or was, during the past six years, maintained or sponsored by any 

Loan Party or ERISA Affiliate or to which any Loan Party or any ERISA Affiliate makes or is 

obligated to make contributions, or during the past six years has made or been obligated to make 

contributions.

“National Flood Insurance Program” means the program created pursuant to the 

Flood Insurance Laws.

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“Net Orderly Liquidation Value” means, with respect to Inventory of any Person, 

the orderly liquidation value thereof, as determined on a basis consistent in all material respects 

with the inventory appraisals most recently delivered to the Administrative Agent prior to the 

Effective Date pursuant to the Pre-Petition Credit Agreement by an appraiser acceptable to the 

Administrative Agent (with such adjustments as shall be deemed appropriate to reflect events or 

changes in circumstances after the dates of such appraisals), net of all costs of liquidation 

thereof.

“Net Proceeds” means, with respect to any event, (a) the cash (which term, for 

purposes of this definition, shall include cash equivalents) proceeds (including, in the case of any 

casualty, condemnation or similar proceeding, insurance, condemnation or similar proceeds) 

received in respect of such event, including any cash received in respect of any noncash 

proceeds, but only as and when received, net of (b) the sum, without duplication, of (i) all actual 

fees and out-of-pocket expenses paid in connection with such event by the Company and the 

Subsidiaries to Persons that are not Affiliates of the Company or any Subsidiary, (ii) in the case 

of a sale, transfer or other disposition (including pursuant to a Sale/Leaseback Transaction or a 

casualty or a condemnation or similar proceeding) of an asset, the amount of all payments 

required to be made by the Company and the Subsidiaries as a result of such event to repay 

Indebtedness (other than Loans and Indebtedness under the Term Credit Agreement) secured by 

such asset on a basis prior to the Liens, if any, on such assets securing the Obligations and 

(iii) the amount of all taxes paid (or reasonably estimated to be payable) by the Company and the 

Subsidiaries, and the amount of any reserves established by the Company and the Subsidiaries in 

accordance with GAAP to fund purchase price adjustment, indemnification and similar 

contingent liabilities (other than any earnout obligations) reasonably estimated to be payable, in 

each case during the year that such event occurred or the next succeeding year and that are 

directly attributable to the occurrence of such event (as determined reasonably and in good faith 

by the chief financial officer of the Borrower Representative). For purposes of this definition, in 

the event any contingent liability reserve established with respect to any event as described in

clause (b)(iii) above shall be reduced, the amount of such reduction shall, except to the extent 

such reduction is made as a result of a payment having been made in respect of the contingent 

liabilities with respect to which such reserve has been established, be deemed to be receipt, on 

the date of such reduction, of cash proceeds in respect of such event.

“Non-Paying Guarantor” has the meaning set forth in Section 10.10.

“NYFRB” means the Federal Reserve Bank of New York.

“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective 

Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day; 

provided that if both such rates are not published for any day that is a Business Day, the NYFRB 

Rate shall be the rate quoted for such day for a federal funds transaction at 11:00 a.m., New York 

City time, on such day received by the Administrative Agent from a federal funds broker of 

recognized standing selected by it; provided that the NYFRB Rate shall in no event be less than 

zero.

“Obligated Party” has the meaning set forth in Section 10.02.

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“Obligations” means all unpaid principal of and accrued and unpaid interest on 

the Loans, all LC Exposure, all accrued and unpaid fees and all expenses, reimbursements, 

indemnities and other obligations of the Loan Parties to any Lender, the Administrative Agent, 

any Arranger, any Documentation Agent, any Syndication Agent, any Issuing Bank or any 

Indemnitee arising under the Loan Documents, 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 (at the rate stated herein, including default 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 bankruptcy or insolvency 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.

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

Control.

“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 Lien under, engaged in any other transaction pursuant to or enforced any Loan 

Document, or sold or assigned an interest in any Loan Document).“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 Lien 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 2.19).

“Overadvance” has the meaning set forth in Section 2.05(a).

“Overadvance Exposure” means, at any time, the sum of the aggregate principal 

amount of all outstanding Overadvances at such time. The Overadvance Exposure of any Lender 

at any time shall be its Applicable Percentage of the total Overadvance Exposure at such time, 

adjusted to give effect to any reallocation under Section 2.20 of the Overadvance Exposures of 

Defaulting Lenders in effect at such time.

“Overnight Bank Funding Rate” means, for any day, the rate comprised of both 

overnight federal funds and overnight Eurodollar borrowings by US-managed banking offices of 

depository institutions (as such composite rate shall be determined by the New York Federal 

Reserve Bank as set forth on the Federal Reserve Bank of New York’s Website from time to 

time) and published on the next succeeding Business Day as an Overnight Bank Funding Rate 

(from and after such date as the New York Federal Reserve Bank shall commence to publish 

such composite rate).

“Participant Register” has the meaning set forth in Section 9.04(c)(ii).

“Participants” has the meaning set forth in Section 9.04(c)(i).

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“Patriot Act” means the Uniting and Strengthening America by Providing 

Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub.L. 

No. 107-56 (signed into law October 26, 2001)).

“Paying Guarantor” has the meaning set forth in Section 10.10.

“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined 

in ERISA and any successor entity performing similar functions under ERISA.

“Permitted Discretion” means a determination made in good faith and in the 

exercise of reasonable (from the perspective of a secured asset-based lender) business judgment.

“Permitted Encumbrances” means:

(a) Liens imposed by law for (i) Taxes that were not yet due on the Petition Date 

or which are being contested in compliance with Section 5.06 and (ii) Taxes arising PostPetition that are not yet delinquent or are being contested in compliance with 

Section 5.06;

(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other 

like Liens imposed by law (other than any Lien imposed pursuant to Section 430(k) of 

the Code or Section 303(k) of ERISA), 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 5.06;

(c) pledges and deposits made (i) 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 pursuant to Section 430(k) of 

the Code or Section 303(k) of ERISA) and (ii) in respect of letters of credit, bank 

guarantees or similar instruments issued for the account of the Company or any 

Subsidiary in the ordinary course of business supporting obligations of the type set forth 

in clause (i) above or reimbursement or indemnification obligations to insurance carriers 

providing property, casualty or liability insurance to the Company and its Subsidiaries;

(d) pledges and deposits made (i) to secure the performance of bids, trade 

contracts (other than Indebtedness for borrowed money), leases (other than Capital Lease 

Obligations), statutory obligations (other than any Lien imposed pursuant to Section 

430(k) of the Code or Section 303(k) of ERISA), surety and appeal bonds, performance 

bonds and other obligations of a like nature, in each case in the ordinary course of 

business and (ii) in respect of letters of credit, bank guarantees or similar instruments 

issued for the account of the Company or any Subsidiary in the ordinary course of 

business supporting obligations of the type set forth in clause (i) above;

(e) judgment Liens in respect of judgments that do not constitute an Event of 

Default under clause (k) of Article VII;

(f) easements, zoning restrictions, rights-of-way, site plan agreements, 

development agreements, operating agreements, cross-easement agreements, reciprocal 

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easement agreements and other encumbrances and exceptions to title on real property 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 the 

Company or any Subsidiary or the ordinary operation of such real property;

(g) customary rights of setoff upon deposits of cash in favor of banks and other 

depository institutions and Liens of a collecting bank arising under the UCC in respect of 

payment items in the course of collection;

(h) Liens arising from precautionary UCC financing statement filings (or similar 

filings under applicable law) regarding operating leases or consignments;

(i) Liens representing any interest or title of a licensor, lessor or sublicensor or 

sublessor, or a licensee, lessee or sublicensee or sublessee, in the property subject to any 

lease (other than Capital Lease Obligations), license or sublicense or concession 

agreement permitted by this Agreement;

(j) Liens arising in the ordinary course of business in favor of custom and 

forwarding agents and similar Persons in respect of imported goods and merchandise in 

the custody of such Persons;

(k) Liens in favor of customs and revenue authorities arising as a matter of law to 

secure payment of customs duties in connection with the importation of goods;

(l) Liens or rights of setoff against credit balances of the Company or any 

Subsidiary with credit card issuers or credit card processors to secure obligations of the 

Company or such Subsidiary, as the case may be, to any such credit card issuer or credit 

card processor incurred in the ordinary course of business as a result of fees and 

chargebacks;

(m) Liens on Equity Interests of any joint venture (i) securing obligations of such 

joint venture or (ii) pursuant to the relevant joint venture agreement, in each case in 

existence on or prior to the Petition Date; and

(n) other Liens that are contractual rights of set-off;

provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness, other 

than Liens referred to in clause (c) or (d) above securing letters of credit, bank guarantees or similar 

instruments.

“Permitted Investments” means:

(a) marketable direct obligations issued or unconditionally guaranteed by the 

United States Government, the Government of Canada or the UK government, or issued 

by an agency thereof and backed by the full faith and credit of the United States 

Government, the Government of Canada or the UK government, as the case may be, in 

each case maturing within two years after the date of acquisition thereof;

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(b) marketable direct obligations issued by any state of the United States of 

America or any province of Canada, the UK or any member of the European Union or 

any political subdivision of any such state or province or any public instrumentality 

thereof, in each case maturing within two years after the date of acquisition thereof and, 

at the time of acquisition, having a rating of at least A by S&P or Moody’s (or, if at any 

time neither S&P nor Moody’s shall be rating such obligations, then from such other 

nationally recognized rating services acceptable to the Administrative Agent);

(c) commercial paper maturing no more than one year after the date of creation 

thereof and, at the time of acquisition, having a rating of at least A-2 or P-2 from either 

S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such 

obligations, then the highest rating from such other nationally recognized rating services 

acceptable to the Administrative Agent);

(d) certificates of deposit or bankers acceptances denominated in US Dollars, 

Canadian Dollars, Sterling or Euro and maturing within one year after the date of 

acquisition thereof issued by any Lender or any other commercial bank organized under 

the laws of the United States of America or Canada or any state or province thereof or the 

District of Columbia, or the UK, in each case having combined capital and surplus of not 

less than $250,000,000 (or the foreign currency equivalent thereof);

(e) repurchase agreements of the Administrative Agent, any Lender or any other 

commercial bank organized under the laws of the United States of America or Canada or 

any state or province thereof or the District of Columbia, or the UK, in each case having 

combined capital and surplus of not less than $250,000,000 (or the foreign currency 

equivalent thereof);

(f) overnight investments with the Administrative Agent, any Lender or any other 

commercial bank organized under the laws of the United States of America or Canada or 

any state or province thereof or the District of Columbia, or the UK, in each case having 

combined capital and surplus of not less than $250,000,000 (or the foreign currency 

equivalent thereof);

(g) other readily marketable instruments issued or sold by the Administrative 

Agent, any Lender or any other commercial bank organized under the laws of the United 

States of America or Canada or any state or province thereof or the District of Columbia, 

or the UK, in each case having combined capital and surplus of not less than 

$250,000,000 (or the foreign currency equivalent thereof);

(h) shares of mutual funds whose investment guidelines restrict 95% of such 

funds’ investments to those satisfying the provisions of clauses (a) through (g) above;

(i) funds invested in brokerage accounts with nationally recognized brokerage 

houses or money market accounts; and

(j) in the case of investments by any Foreign Subsidiary or investments made in a

country outside the United States, other customarily utilized high quality investments in the 

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country where such Foreign Subsidiary is located or in which such investment is made that 

would customarily constitute “cash equivalents”.

“Permitted Investor” means David Jaffe (or any member of his family that is 

actively involved in the management of the Company).

“Permitted Variance” means any variance that does not violate Section 6.12(c)).

“Person” means any natural person, corporation, limited liability company, trust, 

joint venture, association, company, partnership, Governmental Authority or other entity.

“Petition Date” has the meaning set forth in the Recitals.

“Plan” means any “employee pension benefit plan”, as defined in Section 3(2) of 

ERISA (other than a Multiemployer Plan), (a) that is subject to the provisions of Title IV of 

ERISA or Section 412 of the Code or Section 302 of ERISA, and (b) (i) in respect of which any 

Loan Party or any ERISA Affiliate is (or, if such plan were terminated, would under 

Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA 

and/or (ii) that is or was, within the past six years, maintained or sponsored by any Loan Party or 

ERISA Affiliate or to which any Loan Party or ERISA Affiliate makes or is obligated to make 

contributions, or during the past six years, has made or been obligated to make contributions.

“Plan of Reorganization” means a plan of reorganization with respect to the Loan 

Parties and their Subsidiaries pursuant to the Cases.

“Platform” has the meaning set forth in Section 9.01(d).

“Post-Petition” means the time period commencing immediately upon the filing 

of the applicable Case.

“Pre-Petition” means the time period ending immediately prior to the filing of the 

Cases.

“Pre-Petition Agent” means JPMCB, in its capacity as administrative agent under 

any of the Pre-Petition Loan Documents.

“Pre-Petition Aggregate Credit Exposure” means the sum of the Pre-Petition 

Credit Exposures of all the Pre-Petition Lenders under the Pre-Petition Credit Agreement; 

provided, that for purposes of this definition, the Pre-Petition Credit Exposure of the Pre-Petition 

Lender that is the “Swingline Lender” shall be deemed to exclude any amount of its “Swingline 

Exposure” in excess of its “Applicable Percentage” of all outstanding “Swingline Loans” (in 

each case under and as defined in the Pre-Petition Credit Agreement).

“Pre-Petition Credit Agreement” has the meaning assigned to such term in the 

Recitals.

“Pre-Petition Credit Exposure” means, as to any Pre-Petition Lender at any time, 

the sum of the outstanding principal amount of such Pre-Petition Lender’s “Revolving Loans” 

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and the sum of such Pre-Petition Lender’s “LC Exposure,” “Swingline Exposure,” “Protective 

Advance Exposure” and “Overadvance Exposure” (in each case under and as defined in the PrePetition Credit Agreement) at such time.

“Pre-Petition Indebtedness” means the Indebtedness of the Loan Parties existing 

prior to the Effective Date and set forth on Schedule 6.01.

“Pre-Petition Lender Obligations” means all “Obligations” as defined in the PrePetition Credit Agreement.

“Pre-Petition Lenders” means the lenders under the Pre-Petition Credit 

Agreement.

“Pre-Petition Loan Documents” means the “Loan Documents” as defined in the 

Pre-Petition Credit Agreement.

“Pre-Petition Revolving Loans” means Pre-Petition Lender Obligations in respect 

of principal of “Revolving Loans” under, and as defined in, the Pre-Petition Credit Agreement 

and interest, expenses, fees and other sums payable in respect thereof under the Pre-Petition 

Loan Documents.

“Pre-Petition Term Agent” means Goldman Sachs Bank USA, as administrative 

agent under the Pre-Petition Term Credit Agreement.

“Pre-Petition Term Credit Agreement” means the Term Credit Agreement, dated 

as of August 21, 2015, among the Company, AnnTaylor Retail, Inc., the Pre-Petition Term 

Lenders and the Pre-Petition Term Agent, as the same may be amended, modified, restated 

and/or supplemented from time to time through the Petition Date.

“Pre-Petition Term Lenders” means the lenders under the Pre-Petition Term 

Credit Agreement.

“Prepayment Event” means:

(a) any Asset Sale of the type described in clauses (h), (i) and (j) of Section 6.05 

unless such disposition results in aggregate Net Proceeds not exceeding $500,000 for any 

individual transactions or series of related transactions;

(b) any casualty or other insured damage to, or any taking under power of eminent 

domain or by condemnation or similar proceeding of, any asset of the Company or any 

Subsidiary resulting in aggregate Net Proceeds exceeding $500,000; 

(c) the incurrence by the Company or any Subsidiary of any Indebtedness, other 

than Indebtedness permitted to be incurred by Section 6.01;

(d) the receipt by the Company or any Subsidiary of any Extraordinary Receipt; 

or

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(e) the receipt by the Company or any Subsidiary of the Net Proceeds of 

Indebtedness permitted to be incurred by Section 6.01(a)(x)(ii).

“Prime Rate” means the rate of interest per annum publicly announced from time 

to time by JPMCB as its prime rate in effect at its principal office in New York City. Each 

change in the Prime Rate shall be effective from and including the date such change is publicly 

announced as being effective.

“Protective Advance” has the meaning set forth in Section 2.04(a).

“Protective Advance Exposure” means, at any time, the sum of the aggregate 

principal amount of all outstanding Protective Advances at such time. The Protective Advance 

Exposure of any Lender at any time shall be its Applicable Percentage of the total Protective 

Advance Exposure at such time, adjusted to give effect to any reallocation under Section 2.20 of 

the Protective Advance Exposures of Defaulting Lenders in effect at such time.

“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.

“Recipient” means the Administrative Agent, any Lender, any Issuing Bank or 

any combination thereof (as the context requires).

“Register” has the meaning set forth in Section 9.04(b).

“Related Parties” means, with respect to any specified Person, such Person’s 

Affiliates and the directors, officers, partners, members, trustees, employees, agents, 

administrators, managers, representatives and advisors of such Person and of such Person’s 

Affiliates.

“Release” means any release, spill, emission, leaking, dumping, injection, 

pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the 

Environment or within or upon any building, structure, facility or fixture.

“Remedies Notice Period” has the meaning specified in the Final Order.

“Rent Reserve” means, with respect to any leased store, warehouse distribution 

center, regional distribution center or depot where any Inventory subject to Liens arising by 

operation of law is located, a reserve equal to two months’ rent at such store, warehouse 

distribution center, regional distribution center or depot.

“Report” means reports prepared by the Administrative Agent or another Person 

showing the results of appraisals, field examinations or audits pertaining to the Loan Parties’ 

assets from information furnished by or on behalf of the Loan Parties, after the Administrative 

Agent has exercised its rights of inspection pursuant to this Agreement, which Reports may be

distributed to the Lenders by the Administrative Agent.

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“Required Lenders” means, at any time, Lenders having aggregate Credit 

Exposure and unused Revolving Commitments representing more than 50% of the sum of the 

total Credit Exposure and unused Revolving Commitments at such time.

“Required Milestones” means the covenants set forth on Schedule 5.19.

“Reserves” means any and all reserves which the Administrative Agent deems 

necessary, in its Permitted Discretion, to maintain (including, without limitation, reserves in 

respect of the Carve Out, the Lease Reserve, reserves in respect of estimated or actual amounts 

that may be included in the Carve Out or that are or may be payable from any proceeds of a 

transaction (as described in the Final Order), including amounts which are or may become 

payable to any investment bankers or financial advisors of the Debtors or any Committee, 

reserves for reclamation or similar claims (including any such claims that may reasonably be 

expected to be valid) and such other matters as may relate to or arise during the Cases, reserves 

based on appraisals and field exams of the Collateral, reserves for accrued and unpaid interest on 

the Secured Obligations, Rent Reserves, Gift Card Reserves, Banking Services Reserves and 

reserves for loyalty programs, reserves for consignee’s, warehousemen’s and bailee’s charges, 

reserves for dilution of Accounts, reserves for Inventory shrinkage, reserves for customs charges 

and shipping charges and other foreign landing costs related to any Inventory in transit, reserves 

for Swap Obligations, reserves for contingent liabilities of any Loan Party, reserves for 

uninsured losses of any Loan Party, reserves for uninsured, underinsured, un-indemnified or 

under-indemnified liabilities or potential liabilities with respect to any litigation and reserves for 

taxes, fees, assessments, and other governmental charges) with respect to the Collateral or any 

Loan Party.

"Resolution Authority" means any body which has authority to exercise any 

Write-down and Conversion Powers.

“Restricted Payment” means any dividend or other distribution (whether in cash, 

securities or other property) with respect to any Equity Interests in the Company or any 

Subsidiary, or any payment or distribution (whether in cash, securities or other property), 

including any sinking fund or similar deposit, on account of the purchase, redemption, 

retirement, acquisition, exchange, conversion, cancellation or termination of any Equity Interests 

in the Company or any Subsidiary.

“Revolving Commitment” means, with respect to each Lender, the commitment 

of such Lender to make Revolving Loans and to acquire participations in Letters of Credit, 

Protective Advances and Overadvances hereunder, expressed as an amount representing the 

maximum permitted aggregate amount of such Lender’s Credit Exposure hereunder, as such 

commitment may be reduced from time to time pursuant to (a) Section 2.09 and (b) assignments 

by or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s Revolving 

Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to 

which such Lender shall have assumed or acquired its Revolving Commitment, as applicable. 

The aggregate amount of the Lenders’ Revolving Commitments as of the Effective Date is 

$400,000,000.

“Revolving Credit Facility” has the meaning assigned to such term in the Recitals.

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“Revolving Loan” means a Loan made pursuant to Section 2.01.

“RSA” means that certain Restructuring Support Agreement, dated as of July 23, 

2020, executed and delivered by the Loan Parties and the other parties thereto, as such agreement 

may be amended, supplemented or otherwise modified from time to time in accordance with the 

terms thereof.

“S&P” means S&P Global Ratings, a division of S&P Global Inc., or any 

successor to its rating agency business.

“Sale/Leaseback Transaction” means an arrangement relating to property owned 

by the Company or any Subsidiary whereby the Company or such Subsidiary sells or transfers 

such property to any Person and the Company or any Subsidiary leases such property, or other 

property that it intends to use for substantially the same purpose or purposes as the property sold 

or transferred, from such Person or its Affiliates.

“Sanctioned Country” means, at any time, a country, region or territory which is 

itself the subject or target of any Sanctions.

“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctionsrelated list of Designated Persons maintained by OFAC, the U.S. Department of State, the United 

Nations Security Council, Her Majesty’s Treasury of the United Kingdom, the European Union 

or any EU member state, (b) any Person operating, organized or resident in a Sanctioned Country 

or (c) any Person owned or controlled by any Person or Persons described in the preceding 

clauses (a) and (b).

“Sanctions” means economic or financial sanctions or trade embargoes imposed, 

administered or enforced from time to time by (a) the U.S. government, including those 

administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or 

the U.S. Department of State, or (b) the United Nations Security Council, the European Union or 

any EU member state or Her Majesty’s Treasury of the United Kingdom.

“SEC” means the United States Securities and Exchange Commission.

“Secured Obligations” means all Obligations, together with all (a) Banking 

Services Obligations and (b) Swap Obligations owing to one or more Lenders or their respective 

Affiliates; provided that at or prior to the time that any transaction relating to such Swap 

Obligation is executed, the Lender or an Affiliate thereof party thereto (if other than JPMCB or 

an Affiliate thereof) shall have delivered written notice to the Administrative Agent that such a 

transaction has been entered into and that it constitutes a Secured Obligation entitled to the 

benefits of the Collateral Documents.

“Security Agreement” means that certain Pledge and Security Agreement, dated 

as of the Effective Date, between the Loan Parties and the Administrative Agent, for the benefit 

of the Lender Parties, as amended and in effect from time to time.

“Specified Dispositions” means (i) the closure, sale, transfer or disposition of the 

Loan Parties’ or their Subsidiaries’ stores, leases, warehouses, distribution centers and other real 

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property (and all fixtures and equipment in each case in connection therewith), (ii) bulk sales or 

other dispositions of inventory or equipment of a Loan Party or its Subsidiaries and (iii) the 

termination of Leases, licenses, subleases or sublicenses, in each case, in connection therewith;

provided that such Specified Dispositions are identified in writing by the Borrower

Representative to the Administrative Agent and agreed to by the Administrative Agent in its 

reasonable discretion on or prior to the Effective Date, and as may be updated, supplemented or 

modified from time to time, as agreed to in writing by the Administrative Agent in its reasonable 

discretion.

“Specified Indebtedness” means any Subordinated Indebtedness, any unsecured 

Indebtedness or any secured Indebtedness that is not secured on a pari passu basis with the 

Secured Obligations; provided that Indebtedness under the Term Credit Agreement shall 

constitute Specified Indebtedness solely for purposes of Section 6.08(c).

“Standby LC Commitment” means, as to any Issuing Bank, the maximum 

permitted amount of the Standby LC Exposure that may be attributable to Standby Letters of 

Credit issued by such Issuing Bank. The initial amount of each Issuing Bank’s Standby LC 

Commitment is set forth on Schedule 2.01 or in such Issuing Bank’s Issuing Bank Agreement.

“Standby LC Exposure” means, at any time, the sum of (a) the aggregate undrawn 

amount of all outstanding Standby Letters of Credit at such time plus (b) the aggregate amount of 

all LC Disbursements relating to Standby Letters of Credit that have not yet been reimbursed by 

or on behalf of the Borrowers at such time. The Standby LC Exposure of any Lender at any time 

shall be its Applicable Percentage of the total Standby LC Exposure at such time, adjusted to 

give effect to any reallocation under Section 2.20 of the Standby LC Exposures of Defaulting 

Lenders in effect at such time.

“Standby Letter of Credit” means all Letters of Credit other than Commercial 

Letters of Credit.

“Statutory Reserve Rate” means a fraction (expressed as a decimal), the 

numerator of which is the number one and the denominator of which is the number one minus 

the aggregate of the maximum reserve percentages (including any marginal, special, emergency 

or supplemental reserves), expressed as a decimal, established by the Board of Governors to 

which the Administrative Agent is subject for eurocurrency funding (currently referred to as 

“Eurocurrency Liabilities” in Regulation D of the Board of Governors). Such reserve 

percentages shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall 

be deemed to constitute eurocurrency funding and to be subject to such reserve requirements 

without benefit of or credit for proration, exemptions or offsets that may be available from time 

to time to any Lender under such Regulation D or any comparable regulation. The Statutory 

Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any 

reserve percentage.

“Subordinated Indebtedness” of a Person means any Indebtedness of such Person 

which is subordinated in right of payment to the Secured Obligations.

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“subsidiary” means, with respect to any Person (the “parent”) at any date, (a) any 

Person the accounts of which would be consolidated with those of the parent in the parent’s 

consolidated financial statements if such financial statements were prepared in accordance with 

GAAP as of such date and (b) any other Person (i) of which Equity Interests representing more 

than 50% of the equity value or more than 50% of the ordinary voting power or, in the case of a 

partnership, more than 50% of the general partnership interests are, as of such date, owned, 

controlled or held, or (ii) that is, as of such date, otherwise Controlled, by the parent or one or 

more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

“Subsidiary” means any direct or indirect subsidiary of the Company.

“Subsidiary Loan Party” means each Subsidiary that is a party to this Agreement 

as a Borrower or a Loan Guarantor and is a party to the Security Agreement.

“Supermajority Lenders” means, at any time, Lenders having aggregate Credit 

([SRVXUHDQGXQXVHG5HYROYLQJ&RPPLWPHQWVUHSUHVHQWLQJPRUHWKDQҀRIWKHVXPRIWKH

total Credit Exposure and unused Revolving Commitments at such time.

“Swap Agreement” means any agreement with respect to any swap, forward, 

future or derivative transaction or option or similar agreement involving, or settled by reference 

to, one or more rates, currencies, commodities, equity or debt instruments or securities, or 

economic, financial or pricing indices or measures of economic, financial or pricing risk or value 

or any similar transaction or any combination of these transactions; provided that no phantom 

stock or similar plan providing for payments only on account of services provided by current or 

former directors, officers, employees or consultants of the Company or any Subsidiary shall be a 

Swap Agreement.

“Swap Obligations” of a Person means any and all obligations of such Person, 

whether absolute or contingent and howsoever and whensoever created, arising, evidenced or 

acquired (including all renewals, extensions and modifications thereof and substitutions 

therefor), under (a) any and all Swap Agreements, and (b) any and all cancellations, buy backs, 

reversals, terminations or assignments of any Swap Agreement transaction.

“Syndication Agents” means BofA and Wells Fargo Bank, National Association.

“Synthetic Lease” means, as to any Person, any lease (including leases that may 

be terminated by the lessee at any time) of any property (whether real, personal or mixed) (a) that 

is accounted for as an operating lease under GAAP and (b) in respect of which the lessee retains 

or obtains ownership of the property so leased for U.S. Federal income Tax purposes, other than 

any such lease under which such Person is the lessor.

“Synthetic Lease Obligations” means, as to any Person, an amount equal to the 

sum, without duplication, of (a) the obligations of such Person to pay rent or other amounts 

under any Synthetic Lease which are attributable to principal and (b) the amount of any purchase 

price payment under any Synthetic Lease assuming the lessee exercises the option to purchase 

the leased property at the end of the lease term. For purposes of Section 6.02, a Synthetic Lease 

Obligation shall be deemed to be secured by a Lien on the property being leased and such 

property shall be deemed to be owned by the lessee.

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“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.

“Term Agent” means Alter Domus (US) LLC.

“Term Credit Agreement” means the Senior Secured Super-Priority Debtor-InPossession Term Credit Agreement by and among the Company, the other subsidiaries party 

thereto as loan parties, the Term Agent, and the Term Loan Lenders, in effect on the Effective 

Date and as the same may be amended from time to time in accordance with the Final Order, in 

each case, with the prior written consent of the Administrative Agent (provided that immaterial 

amendments of an administrative, ministerial or technical nature may be made so long as 

contemporaneous notice thereof is given to the Administrative Agent).

“Term Loan Facility” means the term loan facility to be provided by the Term 

Loan Lenders under the Term Credit Agreement in an aggregate principal amount not in excess 

of $312,342,704.17 at any time prior to the Debtors’ emergence from the Cases.

“Term Loan Lenders” means the lenders under the Term Credit Agreement.

“Term Loan Obligations” means the “Obligations” as defined in the Term Credit 

Agreement.

“Term Priority Collateral” has the meaning set forth in the Intercreditor 

Agreement.

“Total Assets” means, at any date of determination, the consolidated total assets 

of the Company as of the last day of the most recent fiscal quarter of the Company for which

financial statements have been (or are required to have been) delivered pursuant to clause (f) of 

Section 4.01, Section 5.01(a) or (b).

“Transactions” means (a) the execution, delivery and performance by the Loan 

Parties of this Agreement and the other Loan Documents, the borrowings hereunder, the use of 

the proceeds thereof and the issuance of Letters of Credit hereunder, (b) the execution, delivery 

and performance by the Loan Parties of the Term Credit Agreement, (c) the creation and 

perfection of the Liens provided for in the Collateral Documents and (d) the payment of all fees, 

commissions, costs and expenses in connection with the foregoing.

“Type”, when used in reference to any Loan or Borrowing, refers to whether the 

rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by 

reference to the Adjusted LIBO Rate or the Alternate Base Rate.

“UCC” means the Uniform Commercial Code as in effect from time to time in the 

State of New York or any other state the laws of which are required to be applied in connection 

with the perfection of Liens created by the Collateral Documents.

“UK Bail-In Legislation” means (to the extent that the United Kingdom is not an 

EEA Member Country which has implemented, or implements, Article 55 BRRD) Part I of the 

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United Kingdom Banking Act 2009 and any other law or regulation applicable in the United 

Kingdom relating to the resolution of unsound or failing banks, investment firms or other 

financial institutions or their affiliates (otherwise than through liquidation, administration or 

other insolvency proceedings).

“Unliquidated Obligations” means, at any time, any Secured Obligations (or 

portion thereof) that are contingent in nature or unliquidated at such time, including any Secured 

Obligation that is, (a) an obligation to reimburse an Issuing Bank for drawings not yet made 

under a Letter of Credit issued by it, (b) any other obligation (including any guarantee) that is 

contingent in nature at such time or (c) an obligation to provide collateral to secure any of the 

foregoing types of obligations.

“U.S. Person” means a “United States person” within the meaning of Section 

7701(a)(30) of the Code.

“U.S. Tax Compliance Certificate” has the meaning set forth in Section 

2.17(f)(ii)(B)(3).

“U.S. Trustee” means the United States Trustee applicable in the Cases.

“Variance Report” shall have the meaning assigned to such term in Section 

5.01(g). 

“Variance Report Date” shall have the meaning assigned to such term in Section 

5.01(g). 

“Variance Testing Period” shall mean the four-week calendar period up to and 

through the Saturday of the week most recently ended prior to the applicable Variance Report 

Date (provided that, the first Variance Testing Period shall include the entire period from the 

Petition Date through the Saturday of the week most recently ended prior to the applicable 

Variance Testing Period).

“Vendor Rebates” means credits earned from vendors for volume purchases that 

reduce net inventory costs for the Loan Parties.

“Wells Fargo Bank” means Wells Fargo Bank, National Association, a national 

banking association, in its individual capacity, and its successors.

“wholly-owned”, when used in reference to a subsidiary of any Person, means 

that all the Equity Interests in such subsidiary (other than directors’ qualifying shares and other 

nominal amounts of Equity Interests that are required to be held by other Persons under 

applicable law) are owned, beneficially and of record, by such Person, another wholly-owned 

subsidiary of such Person or any combination thereof.

“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a 

complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I

of Subtitle E of Title IV of ERISA.

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“Write-Down and Conversion Powers” means:

(a) in relation to any Bail-In Legislation described in the EU Bail-In 

Legislation Schedule from time to time, the powers described as such in relation to that Bail-In 

Legislation in the EU Bail-In Legislation Schedule; and

(b) in relation to any UK Bail-In Legislation:

(i) any powers under that UK Bail-In Legislation to cancel, transfer or dilute 

shares issued by a person that is a bank or investment firm or other financial institution or 

affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or 

change the form of a liability of such a person 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 UK Bail-In Legislation that are related to or ancillary to any of those 

powers; and

(ii) any similar or analogous powers under that UK Bail-In Legislation.

SECTION 1.02. Classification of Loans and Borrowings. For purposes of this 

Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by 

Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Revolving Loan”). 

Borrowings also may be classified and referred to by Class (e.g., a “Revolving Borrowing”) or 

by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar Revolving 

Borrowing”).

SECTION 1.03. Terms Generally. 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”. The words “asset” and “property” shall be construed to have the same meaning and 

effect and to refer to any and all real and personal, tangible and intangible assets and properties, 

including cash, securities, accounts and contract rights. The word “law” shall be construed as

referring to all statutes, rules, regulations, codes and other laws (including official rulings and 

interpretations thereunder having the force of law or with which affected Persons customarily 

comply), and all judgments, orders, writs and decrees, of all Governmental Authorities. Except 

as otherwise provided herein and unless the context requires otherwise, (a) any definition of or 

reference to any agreement, instrument or other document (including this Agreement and the 

other Loan Documents) 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 herein), (b) any 

definition of or reference to any statute, rule or regulation shall be construed as referring thereto 

as from time to time amended, supplemented or otherwise modified (including by succession of 

comparable successor laws), and all references to any statute shall be construed as referring to all 

rules, regulations, rulings and official interpretations promulgated or issued thereunder, (c) any 

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reference herein to any Person shall be construed to include such Person’s successors and 

permitted assigns (subject to any restrictions on assignment set forth herein) and, in the case of 

any Governmental Authority, any other Governmental Authority that shall have succeeded to 

any or all functions thereof, (d) the words “herein”, “hereof” and “hereunder”, and words of 

similar import, shall be construed to refer to this Agreement in its entirety and not to any 

particular provision hereof and (e) all references herein to Articles, Sections, Exhibits and 

Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, 

this Agreement.

SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly 

provided herein, all terms of an accounting or financial nature used herein shall be construed in 

accordance with GAAP as in effect from time to time; provided that (a) if the Borrower 

Representative notifies the Administrative Agent that the Borrowers request an amendment to 

any provision hereof to eliminate the effect of any change occurring after the Effective Date in 

GAAP or in the application thereof on the operation of such provision (or if the Administrative 

Agent notifies the Borrower Representative that the Required Lenders request an amendment to 

any provision hereof for such purpose), regardless of whether any such notice is given before or 

after such change in GAAP or in the application thereof, then such provision shall be interpreted 

on the basis of GAAP as in effect and applied immediately before such change shall have 

become effective until such notice shall have been withdrawn or such provision amended in 

accordance herewith; provided that the Borrower Representative, on the one hand, and the 

Administrative Agent and Lenders, on the other hand, agree to negotiate in good faith with 

respect to any proposed amendment to eliminate or adjust for the effect of any such change in 

GAAP; and (b) 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 (i) any election under Statement of 

Financial Accounting Standards 159, The Fair Value Option for Financial Assets and Financial 

Liabilities, or any successor thereto (including pursuant to the Accounting Standards 

Codification), to value any Indebtedness of the Company or any Subsidiary at “fair value”, as 

defined therein, and (ii) any change in GAAP occurring after July 24, 2015 as a result of the 

adoption of any proposals set forth in the Proposed Accounting Standards Update, Leases (Topic 

840), issued by the Financial Accounting Standards Board on August 17, 2010, or any other 

proposals issued by the Financial Accounting Standards Board in connection therewith, in each 

case if such change would require treating any lease (or similar arrangement conveying the right 

to use) as a capital lease where such lease (or similar arrangement) was not required to be so 

treated under GAAP as in effect on July 24, 2015.

SECTION 1.05. Classification of Actions. For purposes of determining 

compliance at any time with the covenants set forth in Article VI (or, in each case, any defined 

terms used therein), in the event that the subject transaction meets the criteria of more than one 

of the categories of transactions permitted pursuant to the Sections (or related defined terms) in

Article VI, the Company may, in its sole discretion, classify the applicable transaction (or any 

portion thereof) under such Section (or defined term); it being understood that the Company may 

divide and include such transaction under one or more of the clauses of such Section (or any 

relevant portion thereof or of the applicable related defined term) that permit such transaction, 

but will not be permitted to later reclassify such transaction and (ii) notwithstanding anything in 

this Section 1.05 to the contrary for purposes of this Agreement, (x) Indebtedness incurred under 

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the Pre-Petition Term Credit Agreement and the Term Credit Agreement shall only be permitted 

to be incurred or be outstanding under Section 6.01(x) and (y) Indebtedness uncured under the 

Loan Documents or the Pre-Petition Loan Documents shall only be permitted to be incurred or 

be outstanding under Section 6.01(i).

SECTION 1.06. Divisions. For all purposes under the Loan Documents, in 

connection with any division or plan of division under Delaware law (or any comparable event 

under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person 

becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to 

have been transferred from the original Person to the subsequent Person, and (b) if any new 

Person comes into existence, such new Person shall be deemed to have been organized on the 

first date of its existence by the holders of its Equity Interests at such time.

ARTICLE II

The Credits

SECTION 2.01. Commitments; Full-Roll of Pre-Petition Obligations. Subject to 

the terms and conditions set forth herein, each Lender, severally and not jointly, agrees to make 

Revolving Loans to the Borrowers in dollars from time to time during the Availability Period in

an aggregate principal amount that will not result in (a) sum of the Credit Exposure and PrePetition Credit Exposure of any Lender exceeding such Lender’s Revolving Commitment or 

(b) the sum of the Aggregate Credit Exposure and the Pre-Petition Aggregate Credit Exposure 

exceeding the Credit Limit, subject to the Administrative Agent’s authority, in its sole discretion, 

to make Protective Advances and Overadvances pursuant to the terms of Section 2.04 or 2.05, as 

applicable. Within the foregoing limits and subject to the terms and conditions set forth herein, 

the Borrowers may borrow, prepay and reborrow Revolving Loans. Notwithstanding anything to 

the contrary contained herein or in any other Loan Document, (i) on the Effective Date, (x) each 

Existing Letter of Credit shall constitute a “Letter of Credit” for all purposes of this Agreement 

and shall be deemed issued under this Agreement on the Effective Date and all LC Exposure (as 

such term is defined in the Pre-Petition Credit Agreement) shall constitute “LC Exposure” for all 

purposes of this Agreement and (y) all Pre-Petition Lender Obligations constituting “Banking 

Services Obligations” and “Swap Obligations” (as each such term is defined in the Pre-Petition 

Credit Agreement) shall constitute Secured Obligations under the Loan Documents and (ii) upon 

the entry of the Final Order, the total outstanding amount of the Pre-Petition Lender Obligations 

shall constitute Secured Obligations hereunder, with (x) the outstanding amount of all PrePetition Revolving Loans, if any, as of the date of the entry of the Final Order being refinanced 

as Loans hereunder immediately upon the entry of the Final Order and (y) all unpaid interest and 

fees thereon accrued through the entry of the Final Order to be paid on the next scheduled date 

for payment of interest and fees under this Agreement.

SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be made 

as part of a Borrowing consisting of Revolving Loans of the same Type made by the Lenders 

ratably in accordance with their respective Revolving Commitments. Any Protective Advance 

and any Overadvance shall be made in accordance with the procedures set forth in Section 2.04 

or 2.05, as applicable.

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(b) Subject to Section 2.14, each Revolving Borrowing shall be comprised

entirely of ABR Loans or Eurodollar Loans as the Borrower Representative may request 

in accordance herewith. Each Protective Advance or Overadvance shall be an ABR Loan. 

Each Lender at its option may make any Eurodollar Revolving Loan by causing any 

domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that 

any exercise of such option shall not affect the obligation of the Borrowers to repay such 

Loan in accordance with the terms of this Agreement.

(c) At the commencement of each Interest Period for any Eurodollar Revolving 

Borrowing, such Borrowing shall be in an aggregate principal amount that is an integral 

multiple of $1,000,000 and not less than $5,000,000; provided that a Eurodollar 

Revolving Borrowing that results from a continuation of an outstanding Eurodollar 

Revolving Borrowing may be in an aggregate amount that is equal to such outstanding 

Borrowing. At the time each ABR Revolving Borrowing is made, such Borrowing shall 

be in an aggregate principal amount that is an integral multiple of $500,000 and not less 

than $1,000,000; provided that, without affecting the Borrowing Base limitation set forth 

in Section 2.01, an ABR Revolving Borrowing may be in an aggregate principal amount 

that is equal to the entire unused balance of the Revolving Commitments then in effect or 

that is required to finance the repayment of a Protective Advance as contemplated by 

Section 2.04(a) or the reimbursement of an LC Disbursement as contemplated by Section 

2.06(e). Each Protective Advance or Overadvance may be in such principal amount as 

shall be determined by the Administrative Agent in accordance with Section 2.04 or 2.05, 

as applicable. Revolving Borrowings of more than one Type may be outstanding at the 

same time.

(d) Notwithstanding any other provision of this Agreement, the Borrower 

Representative shall not be entitled to request, or to elect to convert to or continue, any 

Eurodollar Revolving Borrowing if the Interest Period requested with respect thereto 

would end after the Maturity Date.

SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving 

Borrowing, the Borrower Representative shall notify the Administrative Agent of such request 

either in writing (delivered by e-mail, hand or facsimile) or by telephone (a) in the case of a 

Eurodollar Revolving Borrowing, not later than 11:00 a.m., New York City time, three (3) 

Business Days before the date of the proposed Borrowing or (b) in the case of an ABR 

Revolving Borrowing, not later than 12:00 p.m., New York City time, on the date of the 

proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be 

confirmed promptly by e-mail, hand delivery or facsimile to the Administrative Agent of an 

executed written Borrowing Request. Each such telephonic and written Borrowing Request shall 

specify the following information in compliance with Section 2.02:

(i) the name of the applicable Borrower;

(ii) the aggregate amount of the requested Borrowing and the manner in 

which the proceeds of such Borrowing are to be disbursed (which shall be consistent with 

Section 2.07);

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(iii) the date of such Borrowing, which shall be a Business Day;

(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar 

Borrowing; 

(v) in the case of a Eurodollar Borrowing, the initial Interest Period to be 

applicable thereto, which shall be a period contemplated by the definition of the term 

“Interest Period”; and

(vi) in the case of any ABR Revolving Borrowing requested to finance the 

reimbursement of an LC Disbursement as contemplated by Section 2.06(e), the identity 

of the Issuing Bank that made such LC Disbursement.

If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving 

Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested 

Eurodollar Revolving Borrowing, then the applicable Borrower(s) shall be deemed to have selected an 

Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in 

accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and 

of the amount of such Lender’s Revolving Loan to be made as part of the requested Revolving 

Borrowing.

SECTION 2.04. Protective Advances. (a) Subject to the limitations set forth 

below, the Administrative Agent is authorized by the Borrowers and the Lenders, from time to 

time during the Availability Period, in the Administrative Agent’s sole discretion (but shall have 

absolutely no obligation) to make Loans in dollars to the Borrowers, on behalf of all Lenders, 

which the Administrative Agent, in its Permitted Discretion, deems necessary or desirable (i) to 

preserve or protect the Collateral or any portion thereof, (ii) to enhance the likelihood of, or 

maximize the amount of, repayment of the Loans and other Obligations or (iii) to pay any other 

amounts required to be paid by the Borrowers pursuant to the terms of this Agreement, including 

payments of reimbursable expenses (including costs, fees, and expenses as described in Section 

9.03) and other sums payable under the Loan Documents which have not been paid by the 

Borrowers after written demand therefor (any of such Loans are herein referred to as “Protective 

Advances”); provided that the aggregate principal amount of Protective Advances outstanding at 

any time shall not exceed (i) $30,000,000 in the aggregate or (ii) together with the aggregate 

principal amount of Overadvances outstanding at such time pursuant to Section 2.05, 

$45,000,000 in the aggregate; provided further that no Protective Advance may be made if, after 

giving effect thereto, the sum of any Lender’s Credit Exposure and Pre-Petition Credit Exposure 

shall exceed its Revolving Commitment. Protective Advances may be made even if the 

conditions precedent set forth in Section 4.02 have not been satisfied. The Protective Advances 

shall be secured by the Liens in favor of the Administrative Agent in and to the Collateral and 

shall constitute Obligations hereunder. All Protective Advances shall be ABR Borrowings. The 

Administrative Agent’s authorization to make Protective Advances may be revoked at any time 

by the Required Lenders. Any such revocation must be in writing and shall become effective 

prospectively upon the Administrative Agent’s receipt thereof. At any time that there is 

sufficient Availability and the conditions precedent set forth in Section 4.02 have been satisfied, 

the Administrative Agent may request the Lenders to make Revolving Loans to repay a 

Protective Advance. At any other time the Administrative Agent may require the Lenders to 

fund their risk participations as described in Section 2.04(b).

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(b) The Administrative Agent may by notice given not later than 12:00 p.m., 

New York City time, on any Business Day require the Lenders to acquire participations 

on such Business Day in all or a portion of any Protective Advance outstanding. Such 

notice shall specify the aggregate principal amount of the Protective Advance in which 

the Lenders will be required to participate and each Lender’s Applicable Percentage of 

such Protective Advance. Each Lender hereby absolutely and unconditionally agrees to 

pay, promptly upon receipt of notice as provided above (and in any event, if such notice 

is received by 12:00 p.m., New York City time, on a Business Day, no later than 5:00 

p.m., New York City time, on such Business Day and if received after 12:00 p.m., New 

York City time, on a Business Day, no later than 10:00 a.m., New York City time, on the 

immediately succeeding Business Day), to the Administrative Agent such Lender’s 

Applicable Percentage of such Protective Advance. Each Lender acknowledges and 

agrees that its obligation to acquire participations in Protective Advances pursuant to this 

paragraph is absolute and unconditional and shall not be affected by any circumstance 

whatsoever, including nonsatisfaction of any of the conditions precedent set forth in 

Section 4.02, the occurrence and continuance of a Default or any reduction or termination 

of the Revolving Commitments, and that each such payment shall be made without any 

offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with 

its obligation under this paragraph by wire transfer of immediately available funds, in the 

same manner as provided in Section 2.07 with respect to Revolving Loans made by such 

Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the 

Lenders pursuant to this paragraph). From and after the date, if any, on which any 

Lender has paid in full for its participation in any Protective Advance purchased 

hereunder, the Administrative Agent shall promptly distribute to such Lender its 

Applicable Percentage of all payments of principal and interest and all proceeds of 

Collateral received by the Administrative Agent in respect of such Protective Advance; 

provided that any such payment or proceeds so distributed shall be repaid to the 

Administrative Agent if and to the extent such payment or proceeds is required to be 

refunded to the Borrowers for any reason. The purchase of participations in any 

Protective Advance pursuant to this paragraph shall not constitute a Loan and shall not 

relieve the Borrowers of their obligation to repay such Protective Advance.

SECTION 2.05. Overadvances.

(a) Any provision of this Agreement to the contrary notwithstanding, at the 

request of the Borrower Representative, the Administrative Agent may in its sole 

discretion (but shall have absolutely no obligation to) make Loans to the Borrowers, on 

behalf of the Lenders, in amounts that exceed Availability (any such Loans are herein 

referred to collectively as “Overadvances”); provided that the aggregate principal amount 

of Overadvances outstanding at any time shall not exceed (i) $30,000,000 in the 

aggregate or (ii) together with the aggregate principal amount of Protective Advances 

outstanding at such time pursuant to Section 2.04, $45,000,000 in the aggregate; 

provided, further, that no Overadvance may be made if, after giving effect thereto, the 

sum of any Lender’s Credit Exposure and Pre-Petition Credit Exposure shall exceed its 

Revolving Commitment. The Overadvances shall be secured by the Liens in favor of the 

Administrative Agent in and on the Collateral and shall constitute Obligations hereunder. 

All Overadvances shall be ABR Borrowings. The Borrowers shall be required to repay 

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each Overadvance no later than the 60th day after the date of the making thereof. The 

Administrative Agent’s authorization to make Overadvances may be revoked at any time 

by the Required Lenders. Any such revocation must be in writing and shall become 

effective prospectively upon the Administrative Agent’s receipt thereof.

(b) The Administrative Agent may by notice given not later than 12:00 p.m., 

New York City time, on any Business Day require the Lenders to acquire participations 

on such Business Day in all or a portion of any Overadvance outstanding. Such notice 

shall specify the aggregate principal amount of the Overadvance in which the Lenders 

will be required to participate and each Lender’s Applicable Percentage of such 

Overadvance. Each Lender hereby absolutely and unconditionally agrees to pay, 

promptly upon receipt of notice as provided above (and in any event, if such notice is 

received by 12:00 p.m., New York City time, on a Business Day, no later than 5:00 p.m., 

New York City time, on such Business Day and if received after 12:00 p.m., New York 

City time, on a Business Day, no later than 10:00 a.m., New York City time, on the 

immediately succeeding Business Day), to the Administrative Agent, the account of the 

Administrative Agent, such Lender’s Applicable Percentage of such Overadvance. Each 

Lender acknowledges and agrees that its obligation to acquire participations in 

Overadvances pursuant to this paragraph is absolute and unconditional and shall not be 

affected by any circumstance whatsoever, including nonsatisfaction of any of the 

conditions precedent set forth in Section 4.02, the occurrence and continuance of a 

Default or any reduction or termination of the Revolving Commitments, and that each 

such payment shall be made without any offset, abatement, withholding or reduction

whatsoever. Each Lender shall comply with its obligation under this paragraph by wire 

transfer of immediately available funds, in the same manner as provided in Section 2.07 

with respect to Revolving Loans made by such Lender (and Section 2.07 shall apply, 

mutatis mutandis, to the payment obligations of the Lenders pursuant to this paragraph). 

From and after the date, if any, on which any Lender has paid in full for its participation 

in any Overadvance purchased hereunder, the Administrative Agent shall promptly 

distribute to such Lender its Applicable Percentage of all payments of principal and 

interest and all proceeds of Collateral thereafter received by the Administrative Agent in 

respect of such Overadvance; provided that any such payment or proceeds so distributed 

shall be repaid to the Administrative Agent if and to the extent such payment or proceeds 

shall be required to be refunded to the Borrowers for any reason. The purchase of 

participations in any Overadvance pursuant to this paragraph shall not constitute a Loan 

and shall not relieve the Borrowers of their obligation to repay such Overadvance.

SECTION 2.06. Letters of Credit. (a) General. Subject to the terms and 

conditions set forth herein, the Borrower Representative may request the issuance of Letters of 

Credit in dollars for its own account or for the account of another Loan Party, in a form 

reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, at any time 

and from time to time during the Availability Period. The Company unconditionally and 

irrevocably agrees that, in connection with any Letter of Credit issued for the account of a Loan 

Party that is not a Borrower as provided in the first sentence of this paragraph, the Company will 

be fully responsible for the reimbursement of LC Disbursements, the payment of interest thereon 

and the payment of fees due under Section 2.12(b) to the same extent as if it were the sole 

account party in respect of such Letter of Credit. In the event of any inconsistency between the 

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terms and conditions of this Agreement and the terms and conditions of any form of letter of 

credit application or other agreement submitted by the Borrowers to, or entered into by the 

Borrowers with, an Issuing Bank relating to any Letter of Credit, the terms and conditions of this 

Agreement shall control.

(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.

To request the issuance of a Letter of Credit or the amendment, renewal or extension of 

an outstanding Letter of Credit (other than an automatic renewal permitted pursuant to 

paragraph (c) of this Section), the Borrower Representative shall e-mail, hand deliver or 

send by facsimile (or transmit by electronic communication, if arrangements for doing so 

have been approved by the recipient) to the applicable Issuing Bank and the 

Administrative Agent (reasonably in advance of the requested date of issuance, 

amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, 

or identifying the Letter of Credit to be amended, renewed or extended, and specifying 

the date of issuance, amendment, renewal or extension (which shall be a Business Day), 

the date on which such Letter of Credit is to expire (which shall comply with 

paragraph (c) of this Section), the amount of such Letter of Credit, the name and address 

of the beneficiary thereof and such other information as shall be necessary to prepare, 

amend, renew or extend such Letter of Credit. If requested by the applicable Issuing 

Bank, the applicable Borrower also shall submit a letter of credit application on such 

Issuing Bank’s standard form in connection with any request for a Letter of Credit. A 

Letter of Credit shall be issued, amended, renewed or extended only if (and upon 

issuance, amendment, renewal or extension of each Letter of Credit the Borrowers shall 

be deemed to represent and warrant that), after giving effect to such issuance, 

amendment, renewal or extension (i) the total LC Exposure shall not exceed 

$200,000,000, (ii) the total Standby LC Exposure shall not exceed $200,000,000, (iii) the 

portion of the LC Exposure attributable to Letters of Credit issued by any Issuing Bank 

will not exceed the LC Commitment of such Issuing Bank, (iv) the portion of the Standby 

LC Exposure attributable to Letters of Credit issued by any Issuing Bank will not exceed 

the Standby LC Commitment of such Issuing Bank, (v) the Credit Exposure of any 

Lender exceeding such Lender’s Revolving Commitment and (vi) the Aggregate Credit 

Exposure shall not exceed the Credit Limit. An Issuing Bank shall not be under any 

obligation to issue, amend, renew or extend any Letter of Credit if any order, judgment or 

decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or 

restrain such Issuing Bank from issuing, amending, renewing or extending such Letter of 

Credit, or any law applicable to such Issuing Bank or any request or directive (whether or 

not having the force of law) from any Governmental Authority with jurisdiction over 

such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the 

issuance of letters of credit generally or such Letter of Credit in particular or shall impose 

upon such Issuing Bank with respect to such Letter of Credit any restriction, reserve or 

capital requirement (for which such Issuing Bank is not otherwise compensated 

hereunder) not in effect on the Effective Date, or shall impose upon such Issuing Bank 

any unreimbursed loss, cost or expense which was not applicable on the Effective Date 

and which such Issuing Bank in good faith deems material to it, or if the issuance, 

amendment, renewal or extension of such Letter of Credit would violate one or more 

policies of such Issuing Bank applicable to letters of credit generally.

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(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of 

business on the earlier of (i) the date one year after the date of the issuance of such Letter 

of Credit (or, in the case of any renewal or extension thereof, one year after such renewal 

or extension) and (ii) the date that is five (5) Business Days prior to the Maturity Date as 

in effect on the date of the issuance of such Letter of Credit (or such renewal or extension 

thereof); provided that, if the applicable Issuing Bank shall so agree, a Letter of Credit 

may expire at a later date if the applicable Borrower shall have deposited cash collateral 

in an LC Collateral Account pursuant to Section 2.06(j) in an amount equal to 103% of 

the undrawn face amount of such Letter of Credit. Any Letter of Credit may provide by 

its terms that it may be automatically extended for additional successive one year periods 

on terms reasonably acceptable to the applicable Issuing Bank. Any Letter of Credit 

providing for automatic extension shall be extended upon the then current expiration date 

without any further action by any Person unless the applicable Issuing Bank shall have 

given notice to the applicable beneficiary (with a copy to the applicable Borrower) of the 

election by such Issuing Bank not to extend such Letter of Credit, such notice to be given 

not fewer than thirty (30) days prior to the then current expiration date of such Letter of 

Credit unless otherwise agreed to by the applicable Issuing Bank; provided that no Letter 

of Credit may be extended automatically or otherwise beyond the date that is five (5) 

Business Days prior to the Maturity Date in effect at the time thereof (other than in 

accordance with this paragraph).

(d) Participations. By the issuance of a Letter of Credit (or an amendment to a 

Letter of Credit increasing the amount thereof) and without any further action on the part 

of the applicable Issuing Bank or the Lenders, such Issuing Bank hereby grants to each 

Lender, and each Lender hereby acquires from such Issuing Bank, a participation in such 

Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate amount 

available to be drawn under such Letter of Credit. In consideration and in furtherance of 

the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the 

Administrative Agent, for the account of such Issuing Bank, such Lender’s Applicable 

Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by 

the Borrowers on the date due as provided in paragraph (e) of this Section, or of any 

reimbursement payment required to be refunded to the Borrowers for any reason. Each 

Lender acknowledges and agrees that its obligation to acquire participations pursuant to 

this paragraph in respect of Letters of Credit is absolute and unconditional and shall not 

be affected by any circumstance whatsoever, including any amendment, renewal or 

extension of any Letter of Credit, the expiration of any Letter of Credit on a date after the 

Maturity Date due to the operation of the proviso in the definition of the term “Maturity 

Date”, the nonsatisfaction of any of the conditions precedent set forth in Section 4.02, the 

occurrence and continuance of a Default, any reduction or termination of the Revolving 

Commitments or any force majeure or other event that under any rule of law or uniform 

practices to which any Letter of Credit is subject (including Section 3.14 of ISP 98 or any 

successor publication of the International Chamber of Commerce) permits a drawing to 

be made under such Letter of Credit after the expiration thereof or of the Revolving 

Commitments, and that each such payment shall be made without any offset, abatement, 

withholding or reduction whatsoever.

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(e) Reimbursement. If an Issuing Bank shall make any LC Disbursement in 

respect of a Letter of Credit, the Borrowers shall, following notice of such LC 

Disbursement to the Borrower Representative, reimburse such LC Disbursement by 

paying to the Administrative Agent or such Issuing Bank an amount equal to such LC 

Disbursement not later than 2:00 p.m., New York City time, on the date that such LC 

Disbursement is made, if the Borrower Representative shall have received notice of such 

LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such 

notice has not been received by the Borrower Representative prior to such time on such 

date, then not later than 2:00 p.m., New York City time, on (i) the Business Day that the 

Borrower Representative receives such notice, if such notice is received prior to 10:00 

a.m., New York City time, on the day of receipt, or (ii) the Business Day immediately 

following the day that the Borrower Representative receives such notice, if such notice is 

not received prior to such time on the day of receipt; provided that the Borrowers may, 

subject to the conditions to borrowing set forth herein, request in accordance with Section 

2.03 that such payment be financed with an ABR Revolving Borrowing in an equivalent 

amount and, to the extent so financed, the Borrowers’ obligation to make such payment 

shall be discharged and replaced by the resulting ABR Revolving Borrowing. If the 

Borrowers fail to make such payment when due, the Administrative Agent shall notify 

each Lender of the applicable LC Disbursement, the payment then due from the 

Borrowers in respect thereof and such Lender’s Applicable Percentage thereof. Promptly 

following receipt of such notice, each Lender shall pay to the Administrative Agent its 

Applicable Percentage of the payment then due from the Borrowers, in the same manner 

as provided in Section 2.07 with respect to Loans made by such Lender (and Section 2.07 

shall apply, mutatis mutandis, to the payment obligations of the Lenders pursuant to this 

paragraph), and the Administrative Agent shall promptly pay to such Issuing Bank the 

amounts so received by it from the Lenders. Promptly following receipt by the 

Administrative Agent of any payment from the Borrowers pursuant to this paragraph, the 

Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to 

the extent that Lenders have made payments pursuant to this paragraph to reimburse such 

Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear. 

Any payment made by a Lender pursuant to this paragraph to reimburse an Issuing Bank 

for any LC Disbursement (other than the funding of ABR Revolving Loans as 

contemplated above) shall not constitute a Loan and shall not relieve the Borrowers of 

their obligation to reimburse such LC Disbursement.

(f) Obligations Absolute. The Borrowers’ joint and several obligation to 

reimburse LC Disbursements as provided in paragraph (e) of this Section is absolute, 

unconditional and irrevocable, and shall be performed strictly in accordance with the 

terms of this Agreement under any and all circumstances whatsoever and irrespective of 

(i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any 

term or provision therein, (ii) any draft or other document presented under a Letter of 

Credit proving to be forged, fraudulent or invalid in any respect or any statement therein 

being untrue or inaccurate in any respect, (iii) payment by any Issuing Bank under a 

Letter of Credit against presentation of a draft or other document that does not 

substantially comply with the terms of such Letter of Credit, (iv) any force majeure or 

other event that under any rule of law or uniform practices to which any Letter of Credit 

is subject (including Section 3.14 of ISP 98 or any successor publication of the 

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International Chamber of Commerce) permits a drawing to be made under such Letter of 

Credit after the stated expiration date thereof or of the Revolving Commitments or (v) 

any other event or circumstance whatsoever, whether or not similar to any of the 

foregoing, that might, but for the provisions of this paragraph, constitute a legal or 

equitable discharge of, or provide a right of setoff against, the Borrowers’ obligations 

hereunder. None of the Administrative Agent, the Lenders or the Issuing Banks, or any 

of their Related Parties, shall have any liability or responsibility by reason of or in 

connection with the issuance or transfer of any Letter of Credit or any payment or failure 

to make any payment thereunder (irrespective of any of the circumstances referred to in 

the preceding sentence), any error, omission, interruption, loss or delay in transmission or 

delivery of any draft, notice or other communication under or relating to any Letter of 

Credit (including any document required to make a drawing thereunder), any error in 

interpretation of technical terms or any other act, failure to act or other event or 

circumstance; provided that the foregoing shall not be construed to excuse any Issuing 

Bank from liability to the Borrowers to the extent of any direct damages (as opposed to 

special, indirect, consequential or punitive damages, claims in respect of which are 

hereby waived by the Borrowers to the extent permitted by applicable law) suffered by 

any Borrower that are caused by such Issuing Bank’s failure to exercise care when 

determining whether drafts and other documents presented under a Letter of Credit 

comply with the terms thereof. The parties hereto expressly agree that, in the absence of 

bad faith, gross negligence or willful misconduct on the part of an Issuing Bank (with 

such absence to be presumed unless otherwise determined by a court of competent 

jurisdiction in a final and nonappealable judgment), such Issuing Bank shall be deemed to 

have exercised care in each such determination. In furtherance of the foregoing and 

without limiting the generality thereof, the parties agree that, with respect to documents 

presented which appear on their face to be in substantial compliance with the terms of a 

Letter of Credit, an Issuing Bank may, in its sole discretion, either accept and make 

payment upon such documents without responsibility for further investigation, regardless 

of any notice or information to the contrary, or refuse to accept and make payment upon 

such documents if such documents are not in strict compliance with the terms of such 

Letter of Credit.

(g) Disbursement Procedures. Each Issuing Bank shall, promptly following its 

receipt thereof, examine all documents purporting to represent a demand for payment 

under a Letter of Credit. Each Issuing Bank shall promptly notify the Administrative 

Agent and the Borrower Representative by telephone (confirmed by e-mail or facsimile) 

of such demand for payment and whether such Issuing Bank has made or will make an 

LC Disbursement thereunder; provided that any failure to give or delay in giving such 

notice shall not relieve the Borrowers of their obligation to reimburse such Issuing Bank 

and the Lenders with respect to any such LC Disbursement.

(h) Interim Interest. If any Issuing Bank shall make any LC Disbursement, then, 

unless the Borrowers shall reimburse such LC Disbursement in full on the date such LC 

Disbursement is made, the unpaid amount thereof shall bear interest, for each day from 

and including the date such LC Disbursement is made to but excluding the date that the 

Borrowers reimburse such LC Disbursement in full, at the rate per annum then applicable 

to ABR Revolving Loans; provided that, if the Borrowers fail to reimburse such LC 

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Disbursement when due pursuant to paragraph (e) of this Section, then Section 2.13(d) 

shall apply. Interest accrued pursuant to this paragraph shall be paid to the 

Administrative Agent for the account of the applicable Issuing Bank, except that interest 

accrued on and after the date of payment by any Lender pursuant to paragraph (e) of this 

Section to reimburse the Issuing Bank shall be for the account of such Lender to the 

extent of such payment, and shall be payable on demand or, if no demand has been made, 

on the date on which the Borrowers reimburse the applicable LC Disbursement in full.

(i) Replacement of the Issuing Banks. Any Issuing Bank may be replaced at any 

time by written agreement among the Borrower Representative, the Administrative 

Agent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative 

Agent shall notify the Lenders of any such replacement of an Issuing Bank. At the time 

any such replacement shall become effective, the Borrowers shall pay all unpaid fees 

accrued for the account of the replaced Issuing Bank pursuant to Section 2.12(b). From 

and after the effective date of any such replacement, (i) the successor Issuing Bank shall 

have all the rights and obligations of an Issuing Bank under this Agreement with respect 

to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing 

Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to 

such successor and all previous Issuing Banks, as the context shall require. After the 

replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party 

hereto and shall continue to have all the rights and obligations of an Issuing Bank under 

this Agreement with respect to Letters of Credit issued by it prior to such replacement, 

but shall not be required to issue additional Letters of Credit.

(j) Cash Collateralization. If any Event of Default shall occur and be continuing, 

on the Business Day that the Borrower Representative receives notice from the 

Administrative Agent or the Required Lenders demanding the deposit of cash collateral 

pursuant to this paragraph, the Borrowers shall deposit in an account with the 

Administrative Agent, in the name of the Administrative Agent and for the benefit of the 

Lenders (the “LC Collateral Account”), an amount in cash equal to 103% of the LC 

Exposure as of such date plus accrued and unpaid interest thereon. The Borrowers shall 

also deposit cash collateral in accordance with this paragraph as and to the extent 

required by Section 2.11(b) or 2.20. Each such deposit shall be held by the 

Administrative Agent as collateral for the payment and performance of the Obligations. 

The Administrative Agent shall have exclusive dominion and control, including the 

exclusive right of withdrawal, over the LC Collateral Account and the Borrowers hereby 

grant the Administrative Agent a Lien in the LC Collateral Account. Other than any 

interest earned on the investment of such deposits, which investments shall be made at 

the option and sole discretion of the Administrative Agent and at the Borrowers’ risk and 

expense, such deposits shall not bear interest. Interest or profits, if any, on such 

investments shall accumulate in such account. Moneys in such account shall, 

notwithstanding anything to the contrary herein or in the Collateral Documents, be 

applied by the Administrative Agent to reimburse the applicable Issuing Bank for LC 

Disbursements for which it has not been reimbursed and, to the extent not so applied, 

shall be held for the satisfaction of the reimbursement obligations of the Borrowers for 

the LC Exposure at such time or, if the maturity of the Loans has been accelerated, be 

applied to satisfy other Obligations (but subject to, in the case of any such application at a 

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time when any Lender is a Defaulting Lender (but only if, after giving effect thereto, the 

remaining cash collateral shall be less than the aggregate LC Exposure of all the 

Defaulting Lenders that has not been reallocated to non-Defaulting Lenders pursuant to 

Section 2.20), the consent of each Issuing Bank). If the Borrowers are required to 

provide an amount of cash collateral hereunder as a result of the occurrence of an Event 

of Default, such amount (to the extent not applied as aforesaid) shall be returned to the 

Borrowers within three (3) Business Days after all Events of Default have been cured or 

waived. If any Borrower is required to provide an amount of cash collateral hereunder 

pursuant to Section 2.11(b), such amount (to the extent not applied as aforesaid) shall be 

returned to such Borrower as and to the extent that, after giving effect to such return, the 

Borrowers would remain in compliance with Section 2.11(b) and no Event of Default 

shall have occurred and be continuing. If any Borrower is required to provide an amount 

of cash collateral hereunder pursuant to Section 2.20, such amount (to the extent not 

applied as aforesaid) shall be returned to such Borrower as promptly as practicable to the 

extent that, after giving effect to such return, no Issuing Bank shall have any exposure in 

respect of any outstanding Letter of Credit that is not fully covered by the Revolving 

Commitments of the non-Defaulting Lenders and/or the remaining cash collateral and no 

Event of Default shall have occurred and be continuing.

(k) Existing Letters of Credit. Each Existing Letter of Credit shall constitute a 

“Letter of Credit” for all purposes of this Agreement and shall be deemed issued under 

this Agreement on the Effective Date and all LC Exposure (as defined in the Pre-Petition 

Credit Agreement) shall constitute “LC Exposure” for all purposes of this Agreement, 

and no issuance or similar fees (as distinguished from ongoing participation or fronting 

fees) will be required in connection with the Existing Letters of Credit. Without limiting 

the foregoing, (i) each such Existing Letter of Credit shall be included in the calculation 

of the LC Exposure, (ii) all liabilities of the Borrowers and the other Loan Parties with 

respect to such Existing Letters of Credit shall constitute Obligations and (iii) each 

Lender shall have reimbursement obligations with respect to such Existing Letters of 

Credit as provided in this Section 2.06. Notwithstanding any other provision contained in 

this Section 2.06, no Existing Letter of Credit that has not been issued by an Issuing Bank 

referred to in clause (a) of the definition of such term may be renewed or extended.

(l) Issuing Bank Reports to the Administrative Agent. Unless otherwise agreed 

by the Administrative Agent, each Issuing Bank shall, in addition to its notification 

obligations set forth elsewhere in this Section, report in writing to the Administrative 

Agent (i) periodic activity (for such period or recurrent periods as shall be requested by 

the Administrative Agent) in respect of Letters of Credit issued by such Issuing Bank, 

including all issuances, extensions, amendments and renewals, all expirations and 

cancelations and all disbursements and reimbursements, (ii) reasonably prior to the time 

that such Issuing Bank issues, amends, renews or extends any Letter of Credit, the date of 

such issuance, amendment, renewal or extension, and the stated amount of the Letters of 

Credit issued, amended, renewed or extended by it and outstanding after giving effect to 

such issuance, amendment, renewal or extension (and whether the amounts thereof shall 

have changed), (iii) on each Business Day on which such Issuing Bank makes any LC 

Disbursement, the date and amount of such LC Disbursement, (iv) on any Business Day 

on which the Borrowers fail to reimburse an LC Disbursement required to be reimbursed 

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to such Issuing Bank on such day, the date of such failure and the amount of such LC 

Disbursement and (v) on any other Business Day, such other information as the 

Administrative Agent shall reasonably request as to the Letters of Credit issued by such 

Issuing Bank.

(m) LC Exposure Determination. For all purposes of this Agreement, the amount 

of a Letter of Credit that, by its terms or the terms of any document related thereto, 

provides for one or more automatic increases in the stated amount thereof 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 the time of 

determination

SECTION 2.07. Funding of Borrowings. (a) Each Lender shall make each 

Revolving Loan to be made by it hereunder on the proposed date thereof by wire transfer of 

immediately available funds by 2:00 p.m., New York City time, to the account of the 

Administrative Agent most recently designated by it for such purpose by notice to the Lenders. 

The Administrative Agent will make such Loans available to the Borrower Representative by 

promptly crediting the amounts so received, in like funds, to the Funding Account(s); provided

that ABR Revolving Loans made to finance the reimbursement of (i) an LC Disbursement as 

provided in Section 2.06(e) shall be remitted by the Administrative Agent to the applicable 

Issuing Bank and (ii) a Protective Advance or an Overadvance shall be retained by the 

Administrative Agent.

(b) Unless the Administrative Agent shall have received notice from a Lender 

prior to the proposed date of any Revolving Borrowing that such Lender will not make 

available to the Administrative Agent such Lender’s share of such Borrowing, the 

Administrative Agent may assume that such Lender has made such share available on 

such date in accordance with paragraph (a) of this Section and may, in reliance on such 

assumption, make available to the applicable Borrower a corresponding amount. In such 

event, if a Lender has not in fact made its share of the applicable Borrowing available to 

the Administrative Agent, then the applicable Lender and the Borrowers severally agree 

to pay to the Administrative Agent forthwith on demand such corresponding amount with 

interest thereon, for each day from and including the date such amount is made available 

to the applicable Borrower to but excluding the date of payment to the Administrative 

Agent, at (i) in the case of a payment to be made by such Lender, the greater of the 

Federal Funds Effective Rate and a rate determined by the Administrative Agent in 

accordance with banking industry rules on interbank compensation or (ii) in the case of a 

payment to be made by the Borrowers, the interest rate applicable to ABR Revolving 

Loans. If the Borrowers and such Lender shall pay such interest to the Administrative 

Agent for the same or an overlapping period, the Administrative Agent shall promptly 

remit to the Borrowers the amount of such interest paid by the Borrowers for such period. 

If such Lender pays such amount to the Administrative Agent, then such amount shall 

constitute such Lender’s Revolving Loan included in such Borrowing. Any payment by 

the Borrowers shall be without prejudice to any claim the Borrowers may have against a 

Lender that shall have failed to make such payment to the Administrative Agent.

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SECTION 2.08. Interest Elections. (a) Each Revolving Borrowing initially shall 

be of the Type and, in the case of a Eurodollar Revolving Borrowing, shall have an initial 

Interest Period as specified in the applicable Borrowing Request or as otherwise provided in 

Section 2.03. Thereafter, the Borrower Representative may elect to convert such Borrowing to a 

Revolving Borrowing of a different Type or to continue such Borrowing and, in the case of a 

Eurodollar Revolving Borrowing, may elect Interest Periods therefor, all as provided in this 

Section. The Borrower Representative may elect different options with respect to different 

portions of the affected Borrowing, in which case each such portion shall be allocated ratably 

among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising 

each such portion shall be considered a separate Borrowing. This Section shall not apply to 

Overadvances or Protective Advances, which may not be converted or continued.

(b) To make an election pursuant to this Section, the Borrower Representative 

shall notify the Administrative Agent of such election by telephone by the time that a 

Borrowing Request would be required under Section 2.03 if the Borrowers were 

requesting a Revolving Borrowing of the Type resulting from such election to be made 

on the effective date of such election. Each such telephonic Interest Election Request 

shall be irrevocable and shall be confirmed promptly by e-mail, hand delivery or 

facsimile to the Administrative Agent of an executed written Interest Election Request. 

Each telephonic and written Interest Election Request shall specify the following 

information in compliance with Section 2.02:

(i) the Borrower and the Revolving Borrowing to which such Interest 

Election Request applies and, if different options are being elected with respect to 

different portions thereof, the portions thereof to be allocated to each resulting Borrowing 

(in which case the information to be specified pursuant to clauses (iii) and (iv) below 

shall be specified for each resulting Borrowing);

(ii) the effective date of the election made pursuant to such Interest 

Election Request, which shall be a Business Day;

(iii) whether the resulting Borrowing is to be an ABR Borrowing or a 

Eurodollar Borrowing; and

(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest 

Period to be applicable thereto after giving effect to such election, which shall be a period 

contemplated by the definition of the term “Interest Period”.

If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest 

Period, then the Borrowers shall be deemed to have selected an Interest Period of one month’s duration.

(c) Promptly following receipt of an Interest Election Request in accordance with 

this Section, the Administrative Agent shall advise each Lender of the details thereof and 

of such Lender’s portion of each resulting Borrowing.

(d) If the Borrower Representative fails to deliver a timely Interest Election 

Request with respect to a Eurodollar Revolving Borrowing prior to the end of the Interest 

Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the 

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end of such Interest Period such Borrowing shall be converted to an ABR Revolving 

Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has 

occurred and is continuing and the Administrative Agent, at the request of the Required 

Lenders, so notifies the Borrower Representative, then, so long as an Event of Default is 

continuing (i) no outstanding Revolving Borrowing may be converted to or continued as 

a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Revolving Borrowing 

shall be converted to an ABR Borrowing at the end of the Interest Period applicable 

thereto.

SECTION 2.09. Termination and Reduction of Revolving Commitments. (a) 

Unless previously terminated, the Revolving Commitments shall automatically terminate on the 

Maturity Date. 

(b) The Borrowers may at any time terminate the Revolving Commitments upon 

(i) the payment in full in cash of all outstanding Loans and any LC Disbursements, 

together with accrued and unpaid interest thereon and on any LC Disbursements, (ii) the 

cancellation and return of all outstanding Letters of Credit (or alternatively, with respect 

to each such Letter of Credit, (x) the furnishing to the applicable Issuing Bank of a cash 

deposit (or at the discretion of such Issuing Bank a back -up standby letter of credit 

reasonably satisfactory to such Issuing Bank equal to 103% of the portion of the LC 

Exposure attributable to such Letter of Credit as of such time) or (y) such other 

alternative arrangements with respect to any such Letters of Credit that is satisfactory to 

the Administrative Agent and the Issuing Bank), and such cash deposit shall not be 

subject to or subordinate to the Carve Out, (iii) the payment in full in cash of all accrued 

and unpaid fees and (iv) the payment in full in cash of all reimbursable expenses and all 

other Obligations outstanding at such time; provided that, upon the termination of the 

Revolving Commitments pursuant to this clause (b), the “Exit Revolving Commitments”

under and as defined in the Exit Facility Term Sheet and the rights and obligations of the 

parties hereto under Section 2.25 shall, in each case, automatically terminate without any 

further consent or action required by any Person.

(c) The Borrowers may from time to time reduce the Revolving Commitments; 

provided that (i) each reduction of the Revolving Commitments shall be in an amount 

that is an integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the 

Borrowers shall not reduce the Revolving Commitments if, after giving effect to any 

concurrent prepayment of the Loans in accordance with Section 2.11, the Aggregate 

Credit Exposure would exceed the Credit Limit.

(i) The Borrower Representative shall notify the Administrative Agent of 

any election to terminate or reduce the Revolving Commitments under paragraph (b) or 

(c) of this Section at least three (3) Business Days prior to the effective date of such 

termination or reduction, specifying such election and the effective date thereof. 

Promptly following receipt of any such notice, the Administrative Agent shall advise the

Lenders of the contents thereof. Each notice delivered by the Borrower Representative 

pursuant to this Section shall be irrevocable; provided that a notice of termination of the 

Revolving Commitments delivered by the Borrower Representative may state that such 

notice is conditioned upon the effectiveness of other credit facilities, in which case such 

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notice may be revoked by the Borrower Representative (by notice to the Administrative 

Agent on or prior to the specified effective date) if such condition is not satisfied. Any 

termination or reduction of the Revolving Commitments shall be permanent. Each 

reduction of the Revolving Commitments shall be made ratably among the Lenders in 

accordance with their respective Revolving Commitments.

SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) The Borrowers 

hereby unconditionally promise to pay (i) to the Administrative Agent for the account of each 

Lender the then unpaid principal amount of each Revolving Loan on the Maturity Date and (ii) to 

the Administrative Agent the then unpaid principal amount of each Protective Advance and 

Overadvance on the earliest of (A) the Maturity Date, (B) demand by the Administrative Agent 

therefor and (C) in the case of any Overadvance, the 60th day after the date of the making 

thereof.

(b) On each Business Day during any Dominion Period, the Administrative 

Agent shall apply all funds credited to a Concentration Account on such Business Day or 

the immediately preceding Business Day (at the discretion of the Administrative Agent, 

whether or not immediately available), first, to prepay the Pre-Petition Revolving Loans 

that may be outstanding in the order and manner provided in the Pre-Petition Credit 

Agreement, second to prepay any Protective Advances and Overadvances that may be 

outstanding and, third, to prepay the Revolving Loans and to cash collateralize 

outstanding LC Exposure.

(c) Each Lender shall maintain in accordance with its usual practice an account or 

accounts evidencing the indebtedness of the Borrowers to such Lender resulting from 

each Loan made by such Lender, including the amounts of principal and interest payable 

and paid to such Lender from time to time hereunder.

(d) The Administrative Agent shall maintain accounts in which it shall record (i) 

the amount of each Loan made hereunder, the Class and Type thereof and the Interest 

Period applicable thereto, (ii) the amount of any principal or interest due and payable or 

to become due and payable from the Borrowers to each Lender hereunder and (iii) the 

amount of any sum received by the Administrative Agent hereunder for the account of 

the Lenders and each Lender’s share thereof.

(e) The entries made in the accounts maintained pursuant to paragraph (c) or (d) 

of this Section shall be prima facie evidence of the existence and amounts of the 

obligations recorded therein; provided that the failure of any Lender or the 

Administrative Agent to maintain such accounts or any error therein shall not in any 

manner affect the obligation of the Borrowers to pay any amounts due hereunder in 

accordance with the terms of this Agreement.

(f) Any Lender may request that Loans made by it be evidenced by a promissory 

note. In such event, the Borrowers shall prepare, execute and deliver to such Lender a 

promissory note payable to such Lender (or, if requested by such Lender, to such Lender 

and its registered assigns) and in a form approved by the Administrative Agent. 

Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all 

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times (including after assignment pursuant to Section 9.04) be represented by one or 

more promissory notes in such form payable to the payee named therein (or, if such 

promissory note is a registered note, to such payee and its registered assigns).

SECTION 2.11. Prepayment of Loans. (a) The Borrowers shall have the right at 

any time and from time to time to prepay any Borrowing in whole or in part, subject to prior 

notice in accordance with paragraph (d) of this Section; provided that, any such prepayments 

shall be applied, first, to the Pre-Petition Revolving Loans then outstanding (in the order and 

manner provided in the Pre-Petition Credit Agreement) and then to the Revolving Loans.

(b) In the event and on each occasion that the total Credit Exposure exceeds the 

lesser of (i) the sum of (A) the Borrowing Base then in effect, (B) the Protective Advance 

Exposure and (C) the Overadvance Exposure and (ii) the total Revolving Commitments

then in effect, the Borrowers shall prepay first, the Pre-Petition Revolving Loans then 

outstanding (in the order and in the manner provided in the Pre-Petition Credit 

Agreement) and, second, the Revolving Loans (or, if no such Borrowings are 

outstanding, deposit cash collateral in the LC Collateral Account in accordance with 

Section 2.06(j)) in an aggregate amount equal to such excess.

(c) Subject to the priority of Liens and application of funds set forth in the Final 

Order with respect to the Collateral that is sold pursuant to an Asset Sale, in the event and 

on each occasion that any Net Proceeds are received by or on behalf of the Company or 

any Subsidiary in respect of any Prepayment Event, the Borrowers shall, on the day such 

Net Proceeds are received, prepay Borrowings in an amount equal to 100% of such Net 

Proceeds (or, with respect to a Prepayment Event described in clause (e) of the definition 

of the term “Prepayment Event” up to $50,000,000 of such Net Proceeds); provided that 

in the case of a Prepayment Event described in clauses (a), (b) or (d) of the definition 

thereof, any Net Proceeds in respect of Term Loan Priority Collateral received by the 

Borrowers as a result of such Prepayment Event shall be applied (A) unless waived in 

accordance with the Term Credit Agreement, first, to the Term Loan Obligations, until 

paid in full, and (B) second, as set forth in Section 2.11(d) below. Notwithstanding the 

foregoing, the Loan Parties or any Subsidiary shall be permitted to reinvest the Net 

Proceeds of any Prepayment Event described in clauses (a) or (b) of the definition of 

Prepayment Event with the prior written consent of the Administrative Agent and the 

Required Lenders (in their sole and absolute discretion).

(d) The Borrower Representative shall notify the Administrative Agent by 

telephone (confirmed by e-mail, hand delivery or facsimile) of any prepayment hereunder 

(i) in the case of prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 

a.m., New York City time, three (3) Business Days before the date of prepayment or (ii) 

in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York 

City time, on the date of prepayment. Each such notice shall be irrevocable and shall 

specify the prepayment date and the principal amount of each Borrowing or portion 

thereof to be prepaid; provided that, if a notice of prepayment is given in connection with 

a conditional notice of termination of the Revolving Commitments as contemplated by 

Section 2.09, then such notice of prepayment may be revoked if such notice of 

termination is revoked in accordance with Section 2.09. Promptly following receipt of 

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any such notice relating to a Revolving Borrowing, the Administrative Agent shall advise 

the Lenders of the contents thereof. Each partial prepayment of any Revolving 

Borrowing shall be in an amount that would be permitted in the case of an advance of a 

Revolving Borrowing of the same Type as provided in Section 2.02, except as necessary 

to apply fully the required amount of a mandatory prepayment. Each prepayment of a 

Revolving Borrowing shall be applied ratably to the Revolving Loans included in the 

prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent 

required by Section 2.13.

(e) Notwithstanding any provisions of this Section 2.09 to the contrary, if any 

prepayment would otherwise be required to be made pursuant to clause (c) of this Section 

2.11, solely as it relates to the portion of such Net Proceeds generated outside of the 

United States, so long as (x) the applicable local law will not permit repatriation of such 

Net Proceeds to the United States or (y) material adverse tax consequences to the 

Borrower Representative or any of its Subsidiaries would result from such repatriation, 

such Net Proceeds so affected shall not be required to be included in the mandatory 

prepayments referred to in such clause (c).

SECTION 2.12. Fees. (a) The Borrowers agree to pay to the Administrative 

Agent for the account of each Lender a commitment fee, which shall accrue on the Effective

Date and each day thereafter on the amount of the unused Revolving Commitment of such 

Lender on such day at a rate per annum equal to 0.50%. Accrued commitment fees shall be 

payable in arrears on the first Business Day of each January, April, July and October, 

commencing on the first such date to occur after the Effective Date, and on the date on which the 

Revolving Commitments terminate. All commitment fees shall be computed on the basis of a 

year of 360 days and shall be payable for the actual number of days elapsed (including the first 

day but excluding the last day). For purposes of computing commitment fees, the Revolving 

Commitment of a Lender shall be deemed to be used to the extent of the outstanding Revolving 

Loans and LC Exposure of such Lender (and the Protective Advance Exposure and Overadvance 

Exposure of such Lender shall be disregarded for such purpose).

(b) The Borrowers agree to pay (i) to the Administrative Agent for the account of 

each Lender a participation fee with respect to its participation in each Standby Letter of 

Credit or Commercial Letter of Credit at the Applicable Rate for a Letter of Credit of 

such type, in each case on the average daily amount of the portion of such Lender’s LC 

Exposure attributable to such Letter of Credit (excluding any portion thereof attributable 

to unreimbursed LC Disbursements) during the period from and including the Effective 

Date to but excluding the later of the date on which such Lender’s Revolving 

Commitment terminates and the date on which such Lender ceases to have any LC 

Exposure, and (ii) to each Issuing Bank a fronting fee, which shall accrue at the rate of 

0.10% per annum, on the average daily amount of the LC Exposure attributable to Letters 

of Credit issued by such Issuing Bank (excluding any portion thereof attributable to 

unreimbursed LC Disbursements) during the period from and including the Effective 

Date to but excluding the later of the date of termination of the Revolving Commitments 

and the date on which there ceases to be any LC Exposure, as well as such Issuing Bank’s 

standard fees with respect to the issuance, amendment, renewal or extension of any Letter 

of Credit or processing of drawings thereunder. Participation fees and fronting fees 

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accrued through and including the last day of each calendar month shall be payable on 

the first Business Day of the next succeeding month, commencing on the first such date 

to occur after the Effective Date; provided that all such fees shall be payable on the date 

on which the Revolving Commitments terminate and any such fees accruing after the 

date on which the Revolving Commitments terminate shall be payable on demand. Any 

other fees payable to the Issuing Banks pursuant to this paragraph shall be payable within 

ten (10) days after demand. All participation fees and fronting fees shall be computed on 

the basis of a year of 360 days and shall be payable for the actual number of days elapsed 

(including the first day but excluding the last day).

(c) The Borrowers agree to pay the fees in the amounts and payable at the times 

separately agreed upon in the Fee Letters or as otherwise agreed between the Borrowers 

and the Administrative Agent.

(d) All fees payable hereunder shall be paid on the dates due, in immediately 

available funds, to the Administrative Agent (or to the applicable Issuing Bank, in the 

case of fees payable to it) for distribution, in the case of commitment fees and 

participation fees, to the Lenders. Fees paid shall not be refundable under any 

circumstances (absent manifest error in the amount paid).

SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing 

(excluding Protective Advances and Overadvances) shall bear interest at the Alternate Base Rate 

plus the Applicable Rate.

(b) The Loans comprising each Eurodollar Borrowing shall bear interest at the 

Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the 

Applicable Rate.

(c) Each Protective Advance and Overadvance shall bear interest at the Alternate 

Base Rate plus the Applicable Rate for ABR Revolving Loans plus 2% per annum.

(d) Notwithstanding the foregoing, if any principal of or interest on any Loan or 

any fee or other amount payable by the Borrowers hereunder is not paid when due (after 

giving effect to any applicable grace period), whether at stated maturity, upon

acceleration or otherwise, such overdue amount shall bear interest, after as well as before 

judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 

2% per annum plus the rate otherwise applicable to such Loan as provided in the 

preceding paragraphs of this Section or (ii) in the case of any other amount, 2% per 

annum plus the rate applicable to ABR Revolving Loans as provided in paragraph (a) of 

this Section.

(e) Accrued interest on each Loan (for ABR Loans, accrued through the last day 

of the prior calendar quarter) shall be payable in arrears on each Interest Payment Date 

for such Loan and upon termination of the Revolving Commitments; provided that (i) 

interest accrued pursuant to paragraph (d) of this Section shall be payable on demand, (ii) 

in the event of any repayment or prepayment of any Loan (other than a prepayment of an 

ABR Revolving Loan prior to the end of the Availability Period), accrued interest on the 

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principal amount repaid or prepaid shall be payable on the date of such repayment or 

prepayment and (iii) in the event of any conversion of any Eurodollar Revolving Loan 

prior to the end of the current Interest Period therefor, accrued interest on such Loan shall 

be payable on the effective date of such conversion.

(f) All interest hereunder shall be computed on the basis of a year of 360 days, 

except that interest computed by reference to the Alternate Base Rate at times when the 

Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year 

of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual 

number of days elapsed (including the first day but excluding the last day). The 

applicable Alternate Base Rate or Adjusted LIBO Rate shall be determined by the 

Administrative Agent, and such determination shall be conclusive absent manifest error.

SECTION 2.14. Alternate Rate of Interest. (a) If prior to the commencement of 

any Interest Period for a Eurodollar Revolving Borrowing:

(i) the Administrative Agent determines in good faith (which 

determination shall be conclusive absent manifest error) that adequate and reasonable 

means do not exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or

(ii) the Administrative Agent is advised by the Required Lenders that the 

Adjusted LIBO Rate for such Interest Period will not adequately and fairly reflect the 

cost to such Lenders of making or maintaining their Loans included in such Borrowing 

for such Interest Period;

then the Administrative Agent shall give notice (which may be telephonic) thereof to the Borrower 

Representative and the Lenders as promptly as practicable thereafter and, until the Administrative Agent 

notifies the Borrower Representative and the Lenders that the circumstances giving rise to such notice no 

longer exist (which notification shall be made promptly after the Administrative Agent obtains knowledge 

of the cessation of such circumstances), (A) any Interest Election Request that requests the conversion of 

any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Eurodollar Borrowing 

shall be ineffective, and such Revolving Borrowing shall be continued as an ABR Borrowing, and (B) 

any Borrowing Request for a Eurodollar Revolving Borrowing shall be treated as a request for an ABR 

Revolving Borrowing.

(b) If at any time the Administrative Agent determines (which determination 

shall be conclusive absent manifest error) that (i) the circumstances set forth in paragraph 

(a)(i) of this Section have arisen (including because the Screen Rate is not available or 

published on a current basis) and such circumstances are unlikely to be temporary or (ii) 

the circumstances set forth in paragraph (a)(i) of this Section have not arisen but the 

supervisor for the administrator of the Screen Rate or a Governmental Authority having 

jurisdiction over the Administrative Agent has made a public statement identifying a 

specific date after which the Screen Rate shall no longer be used for determining interest 

rates for loans, then the Administrative Agent and the Company shall endeavor to 

establish an alternate rate of interest to the Adjusted LIBO Rate that gives due 

consideration to the then prevailing market convention for determining a rate of interest 

for syndicated loans denominated in dollars in the United States at such time, and the 

Administrative Agent and the Company shall enter into an amendment to this Agreement 

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to reflect such alternate rate of interest and such other related changes to this Agreement 

as may be applicable; provided that if such alternate rate of interest shall be less than 

zero, such rate shall be deemed to be zero for all purposes of this Agreement. Such 

amendment shall become effective without any further action or consent of any other 

party to this Agreement so long as the Administrative Agent shall not have received, 

within five (5) Business Days of the date notice of such alternate rate of interest is 

provided to the Lenders, a written notice from the Required Lenders stating that the 

Required Lenders object to such amendment. Until an alternate rate of interest shall be 

determined in accordance with this paragraph (but, in the case of the circumstances 

described in clause (ii) above, only to the extent the Screen Rate for such Interest Period 

is not available or published at such time on a current basis), (x) any Interest Election 

Request that requests the conversion of any Borrowing to, or continuation of any 

Borrowing as, a Eurodollar Revolving Borrowing shall be ineffective, and such 

Borrowing shall be continued as an ABR Revolving Borrowing, and (y) any Borrowing 

Request for a Eurodollar Revolving Borrowing shall be treated as a request for an ABR 

Revolving Borrowing.

SECTION 2.15. Increased Costs. (a) If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit, 

compulsory loan, insurance charge or similar requirement against assets of, deposits with 

or for the account of, or credit extended or participated in by, any Lender (except any 

such reserve requirement reflected in the Adjusted LIBO Rate) or any Issuing Bank;

(ii) impose on any Lender or any Issuing Bank or the London interbank 

market any other condition, cost or expense (other than Taxes) affecting this Agreement 

or Loans made by such Lender or any Letter of Credit or participation therein; or

(iii) subject any Recipient to any Taxes (other than (A) Indemnified 

Taxes, (B) Taxes described in clauses (b) through (d) of the definition of the term 

“Excluded Taxes” and (C) Connection Income Taxes) on its loans, loan principal, letters 

of credit, commitments or other obligations, or its deposits, reserves, other liabilities or 

capital attributable thereto;

and the result of any of the foregoing shall be to increase the cost to such Lender or other Recipient of 

making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any 

Loan), or to increase the cost to such Lender or other Recipient of participating in, issuing or maintaining 

any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or 

to reduce the amount of any sum received or receivable by such Lender or other Recipient hereunder 

(whether of principal, interest or any other amount) then, from time to time upon request of such Lender 

or other Recipient, the Borrowers will pay to such Lender or other Recipient, as the case may be, such 

additional amount or amounts as will compensate such Lender or other Recipient, as the case may be, for 

such additional costs or expenses incurred or reduction suffered. Notwithstanding the foregoing, if the 

Company reasonably believes that any such Taxes were not correctly or legally asserted, the applicable 

Recipient will use commercially reasonable efforts to cooperate with the Company to obtain a refund of 

such Taxes so long as such efforts would not, in the sole determination of such Recipient exercised in 

good faith, result in any non-reimbursable additional costs, expenses or risks or be otherwise 

disadvantageous to it.

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(b) If any Lender or any Issuing Bank determines that any Change in Law 

regarding capital or liquidity requirements has had or would have the effect of reducing 

the rate of return on such Lender’s or such Issuing Bank’s capital or on the capital of 

such Lender’s or such Issuing Bank’s holding company, if any, as a consequence of this 

Agreement, the Revolving Commitment of such Lender or the Loans made by, or 

participations in Letters of Credit or Loans held by, such Lender, or the Letters of Credit 

issued by such Issuing Bank, to a level below that which such Lender or such Issuing 

Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but 

for such Change in Law (taking into consideration such Lender’s or such Issuing Bank’s 

policies and the policies of such Lender’s or such Issuing Bank’s holding company with 

respect to capital adequacy or liquidity), then, from time to time upon request of such 

Lender or such Issuing Bank, the Borrowers will pay to such Lender or such Issuing 

Bank, as the case may be, such additional amount or amounts as will compensate such 

Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company 

for any such reduction suffered.

(c) A certificate of a Lender or an Issuing Bank setting forth the amount or 

amounts necessary to compensate such Lender or such Issuing Bank or its holding 

company, as the case may be, as well as a reasonably detailed description of the 

occurrence giving rise to such event, as specified in paragraph (a) or (b) of this Section 

delivered to the Borrower Representative shall be conclusive absent manifest error. The 

Borrowers shall pay such Lender or such Issuing Bank, as the case may be, the amount 

shown as due on any such certificate within ten (10) days after receipt thereof.

(d) Failure or delay on the part of any Lender or any Issuing Bank to demand 

compensation pursuant to this Section shall not constitute a waiver of such Lender’s or 

Issuing Bank’s right to demand such compensation; provided that the Borrowers shall not 

be required to compensate a Lender or an Issuing Bank pursuant to this Section for any 

increased costs or expenses incurred or reductions suffered more than 180 days prior to 

the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower 

Representative of the Change in Law giving rise to such increased costs or expenses or 

reductions and of such Lender’s or Issuing Bank’s intention to claim compensation 

therefor; provided further that if the Change in Law giving rise to such increased costs or 

expenses or reductions is retroactive, then the 180-day period referred to above shall be 

extended to include the period of retroactive effect thereof.

(e) Notwithstanding the above, a Lender or an Issuing Bank will not demand 

compensation for any increased cost or reduction set forth in this Section 2.15 at any time 

if it is not the general practice and policy of such Lender or Issuing Bank to demand such 

compensation from similarly situated borrowers in similar circumstances under 

agreements containing provisions permitting such compensation to be claimed at such

time.

SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any 

principal of any Eurodollar Loan other than on the last day of an Interest Period applicable 

thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan 

other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, 

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convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered 

pursuant hereto (regardless of whether such notice may be revoked under Section 2.11(d) and is 

revoked in accordance therewith), or (d) the assignment of any Eurodollar Loan other than on the 

last day of the Interest Period applicable thereto as a result of a request by the Borrower 

Representative pursuant to Section 2.19, then, in any such event, the Borrowers shall compensate 

each Lender for the loss, cost and expense (excluding any loss of margin) attributable to such 

event. Such loss, cost or expense to any Lender shall be deemed to include an amount 

determined by such Lender to be the excess, if any, of (i) the amount of interest that would have 

accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO 

Rate that would have been applicable to such Loan (but not including the Applicable Rate 

applicable thereto), for the period from the date of such event to the last day of the then current 

Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period 

that would have been the Interest Period for such Loan), over (ii) the amount of interest that 

would accrue on such principal amount for such period at the interest rate such Lender would 

bid if it were to bid, at the commencement of such period, for dollar deposits of a comparable 

amount and period from other banks in the London interbank market. A certificate of any 

Lender delivered to the Borrower Representative and setting forth and explaining in reasonable 

detail any amount or amounts that such Lender is entitled to receive pursuant to this Section shall 

be conclusive absent manifest error. The Borrowers shall pay such Lender the amount shown as 

due on any such certificate within thirty (30) days after receipt thereof.

SECTION 2.17. Taxes. (a) Payments Free of Taxes. Any and all payments by 

or on account of any obligation of any Loan Party under any Loan Document shall be made 

without deduction or withholding for any Taxes, except as required by applicable law. If any 

applicable law (as determined in the good faith discretion of an applicable withholding agent) 

requires the deduction or withholding of any Tax from any such payment by a withholding agent, 

then the applicable withholding agent shall be entitled to make such deduction or withholding 

and shall timely pay the full amount deducted or withheld to the relevant Governmental 

Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the 

sum payable by the applicable Loan Party shall be increased as necessary so that after such 

deduction or withholding has been made (including such deductions and withholdings applicable 

to additional sums payable under this Section) the applicable Recipient receives an amount equal 

to the sum it would have received had no such deduction or withholding been made.

(b) Payment of Other Taxes by the Loan Parties. The Loan Parties shall timely 

pay to the relevant Governmental Authority in accordance with applicable law, or at the 

option of the Administrative Agent timely reimburse it for the payment of, any Other 

Taxes.

(c) Evidence of Payment. As soon as practicable after any payment of Taxes by 

any Loan Party to a Governmental Authority pursuant to this Section, such Loan Party 

shall deliver to the Administrative Agent the original or a certified copy of a receipt 

issued by such Governmental Authority evidencing such payment, a copy of the return 

reporting such payment or other evidence of such payment reasonably satisfactory to the 

Administrative Agent.

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(d) Indemnification by the Loan Parties. The Loan Parties shall jointly and 

severally indemnify each Recipient, within thirty (30) days after written demand therefor, 

for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or 

asserted on or attributable to amounts payable under this Section) payable or paid by such 

Recipient or required to be withheld or deducted from a payment to such Recipient and 

any reasonable expenses arising therefrom or with respect thereto, whether or not such 

Indemnified Taxes were correctly or legally imposed or asserted by the relevant 

Governmental Authority. A certificate as to the amount of such payment or liability 

delivered to the Borrower Representative by a Lender (with a copy to the Administrative 

Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall 

be conclusive absent manifest error.

(e) Indemnification by the Lenders. Each Lender shall severally indemnify the 

Administrative Agent, within thirty (30) days after demand therefor, for (i) any 

Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party 

has not already indemnified the Administrative Agent for such Indemnified Taxes and 

without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to 

such Lender’s failure to comply with the provisions of Section 9.04(c)(ii) relating to the 

maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such 

Lender, in each case, that are payable or paid by the Administrative Agent in connection 

with any Loan Document, and any reasonable expenses arising therefrom or with respect 

thereto, whether or not such Taxes were correctly or legally imposed or asserted by the 

relevant Governmental Authority. A certificate as to the amount of such payment or 

liability delivered to any Lender by the Administrative Agent shall be conclusive absent 

manifest error. Each Lender hereby authorizes the Administrative Agent to set off and 

apply any and all amounts at any time owing to such Lender under any Loan Document 

or otherwise payable by the Administrative Agent to the Lender from any other source 

against any amount due to the Administrative Agent under this paragraph (e).

(f) Status of Lenders. (i) Any Lender that is entitled to an exemption from or 

reduction of withholding Tax with respect to payments made under any Loan Document 

shall deliver to the Borrower Representative and the Administrative Agent, at the time or 

times reasonably requested by the Borrower Representative or the Administrative Agent, 

such properly completed and executed documentation reasonably requested by the 

Borrower Representative or the Administrative Agent as will permit such payments to be 

made without withholding or at a reduced rate of withholding. In addition, any Lender, if 

reasonably requested by the Borrower Representative or the Administrative Agent, shall 

deliver such other documentation prescribed by applicable law or reasonably requested 

by the Borrower Representative or the Administrative Agent as will enable the Borrower 

Representative or the Administrative Agent to determine whether or not such Lender is 

subject to backup withholding or information reporting requirements. Notwithstanding 

anything to the contrary in the preceding two sentences, the completion, execution and 

submission of such documentation (other than such documentation set forth in Section 

2.17(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s 

reasonable judgment such completion, execution or submission would subject such 

Lender to any material unreimbursed cost or expense or would materially prejudice the 

legal or commercial position of such Lender.

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(ii) Without limiting the generality of the foregoing:

(A) any Lender that is a U.S. Person shall deliver to the Borrower 

Representative and the Administrative Agent on or prior to the date on which such 

Lender becomes a Lender under this Agreement (and from time to time thereafter upon 

the reasonable request of the Borrower Representative or the Administrative Agent), 

executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. 

Federal backup withholding Tax;

(B) any Foreign Lender shall, to the extent it is legally entitled to do so, 

deliver to the Borrower Representative and the Administrative Agent (in such number of 

copies as shall be requested by the recipient) on or prior to the date on which such 

Foreign Lender becomes a Lender under this Agreement (and from time to time 

thereafter upon the reasonable request of the Borrower Representative or the 

Administrative Agent), whichever of the following is applicable:

(1) in the case of a Foreign Lender claiming the benefits of an income tax 

treaty to which the United States is a party (x) with respect to payments of interest 

under any Loan Document, executed originals of IRS Form W-8BEN or W8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. 

Federal withholding Tax pursuant to the “interest” article of such tax treaty and 

(y) with respect to any other applicable payments under any Loan Document, 

executed originals of IRS Form W-8BEN or W-8BEN-E, as applicable, 

establishing an exemption from, or reduction of, U.S. Federal withholding Tax 

pursuant to the “business profits” or “other income” article of such tax treaty;

(2) executed originals of IRS Form W-8ECI;

(3) in the case of a Foreign Lender claiming the benefits of the exemption 

for portfolio interest under Section 881(c) of the Code, (x) a certificate 

substantially in the form of Exhibit I-1 to the effect that such Foreign Lender is 

not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 

percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) 

of the Code, or a “controlled foreign corporation” described in Section 

881(c)(3)(C) of the Code and that no payments in connection with any Loan 

Document are effectively connected with the Foreign Lender’s conduct of a U.S. 

trade or business (a “U.S. Tax Compliance Certificate”) and (y) executed 

originals of IRS Form W-8BEN or W-8BEN-E, as applicable; or

(4) to the extent a Foreign Lender is not the beneficial owner, executed 

originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form 

W-8BEN or W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate 

substantially in the form of Exhibit I-2 or Exhibit I-3, IRS Form W-9, and/or other 

certification documents from each beneficial owner, as applicable; provided that 

if the Foreign Lender is a partnership and one or more direct or indirect partners 

of such Foreign Lender are claiming the portfolio interest exemption, such 

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Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in 

the form of Exhibit I-4 on behalf of each such direct and indirect partner;

(C) any Foreign Lender shall, to the extent it is legally entitled to do so, 

deliver to the Borrower Representative and the Administrative Agent (in such number of 

copies as shall be requested by the recipient) on or prior to the date on which such 

Foreign Lender becomes a Lender under this Agreement (and from time to time 

thereafter upon the reasonable request of the Borrower Representative or the 

Administrative Agent), executed originals of any other form prescribed by applicable law 

as a basis for claiming exemption from or a reduction in U.S. Federal withholding Tax, 

duly completed, together with such supplementary documentation as may be prescribed 

by applicable law to permit the Borrower Representative or the Administrative Agent to 

determine the withholding or deduction required to be made; and

(D) if a payment made to a Lender under any Loan Document would be 

subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail 

to comply with the applicable reporting requirements of FATCA (including those 

contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall 

deliver to the Borrower Representative and the Administrative Agent at the time or times 

prescribed by law and at such time or times reasonably requested by the Borrower 

Representative or the Administrative Agent such documentation prescribed by applicable 

law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional 

documentation reasonably requested by the Borrower Representative or the 

Administrative Agent as may be necessary for the Borrower Representative and the 

Administrative Agent to comply with their obligations under FATCA and to determine 

that such Lender has complied with such Lender’s obligations under FATCA or to 

determine the amount to deduct and withhold from such payment. Solely for purposes of 

this clause (D), “FATCA” shall include any amendments made to FATCA after the 

Effective Date.

Each Lender agrees that if any form or certification it previously delivered expires or 

becomes obsolete or inaccurate in any respect, it shall promptly update such form or certification 

or promptly notify the Borrower Representative and the Administrative Agent in writing of its 

legal inability to do so.

(g) Treatment of Certain Refunds. If any party determines, in its sole discretion 

exercised in good faith, that it has received a refund of any Taxes as to which it has been 

indemnified pursuant to this Section (including by the payment of additional amounts 

pursuant to this Section), it shall pay to the indemnifying party an amount equal to such 

refund (but only to the extent of indemnity payments made under this Section with 

respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses 

(including Taxes) of such indemnified party and without interest (other than any interest 

paid by the relevant Governmental Authority with respect to such refund). Such 

indemnifying party, upon the request of such indemnified party, shall repay to such 

indemnified party the amount paid over pursuant to this paragraph (plus any penalties, 

interest or other charges imposed by the relevant Governmental Authority) in the event 

that such indemnified party is required to repay such refund to such Governmental 

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Authority. Notwithstanding anything to the contrary in this paragraph, in no event will 

the indemnified party be required to pay any amount to an indemnifying party pursuant to 

this paragraph the payment of which would place the indemnified party in a less 

favorable net after-Tax position than the indemnified party would have been in if the Tax 

subject to indemnification and giving rise to such refund had not been deducted, withheld 

or otherwise imposed and the indemnification payments or additional amounts with 

respect to such Tax had never been paid. This paragraph shall not be construed to require 

any indemnified party to make available its Tax returns (or any other information relating 

to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(h) Defined Terms. For purposes of this Section, the term “Lender” shall include 

any Issuing Bank, and the term “applicable law” includes FATCA.

(i) Survival. Each party’s obligations under this Section 2.17 shall survive the 

resignation or replacement of the Administrative Agent or any assignment of rights by, or 

the replacement of, a Lender or Issuing Banks, the termination of the Revolving 

Commitments and the repayment, satisfaction or discharge of all obligations under any 

Loan Document.

(j) FATCA Grandfathering. For purposes of determining withholding Taxes 

imposed under FATCA, from and after the Effective Date, the Borrowers and the 

Administrative Agent shall treat (and the Lenders hereby authorize the Administrative 

Agent to treat) the Loans as not qualifying as a “grandfathered obligation” within the 

meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).

SECTION 2.18. Payments Generally; Allocation of Proceeds; Sharing of Setoffs. (a) The Borrowers shall make each payment required to be made by them hereunder or 

under any other Loan Document on or prior to the time expressly required hereunder or under 

such other Loan Document for such payment or, if no such time is expressly required, on or prior 

to 3:00 p.m., New York City time, on the date when due, in immediately available funds, without 

any defense, setoff, recoupment or counterclaim. Any amounts received after such time on any 

date may, in the discretion of the Administrative Agent, be deemed to have been received on the 

next succeeding Business Day for purposes of calculating interest thereon. All such payments 

shall be made to the Administrative Agent at its offices at 10 South Dearborn Street, 22nd Floor, 

Chicago, Illinois, or by wire transfer using the Administrative Agent’s wire instructions, except 

that payments required to be made directly to an Issuing Bank shall be so made and except that 

payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons 

entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons 

specified therein. The Administrative Agent shall distribute any such payment received by it for 

the account of any other Person to the appropriate recipient promptly following receipt thereof. 

If any payment hereunder or under any other Loan Document shall be due on a day that is not a 

Business Day, the date for payment shall be extended to the next succeeding Business Day and, 

in the case of any payment accruing interest, interest thereon shall be payable for the period of 

such extension. All payments under each Loan Document shall be made in dollars.

(b) Any proceeds of Collateral received by the Administrative Agent (i) not 

constituting (A) a specific payment of principal, interest, fees or other sum payable under 

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the Loan Documents (which shall be applied as specified by the Borrowers), (B) amounts 

to be applied from a Concentration Account during any Dominion Period (which shall be 

applied in accordance with Section 2.10(b)) or (C) so long as no Event of Default shall 

have occurred and be continuing, amounts which are received into any Concentration 

Account (which shall be deposited to the Borrowers’ Funding Account in accordance 

with the Security Agreement) or (ii) after an Event of Default has occurred and is 

continuing and the Administrative Agent so elects or the Required Lenders so direct, 

shall be applied ratably first, to permanently reduce the fees, interest and principal in 

respect of the Pre-Petition Lender Obligations then outstanding (if any) constituting fees, 

interest and principal in accordance with Section 2.18(b) of the Pre-Petition Credit 

Agreement, until paid in full, second to permanently reduce the other Pre-Petition Lender 

Obligations then outstanding (if any) in accordance with Section 2.18(b) of the PrePetition Credit Agreement until paid in full, third, to pay any fees, indemnities, or 

expense reimbursements then due to the Administrative Agent and the Issuing Banks 

from the Borrowers (other than in connection with Banking Services or Swap 

Obligations), fourth, to pay any fees or expense reimbursements then due to the Lenders 

from the Borrowers (other than in connection with Banking Services or Swap 

Obligations), fifth, to pay interest due in respect of the Protective Advances and 

Overadvances, sixth, to pay the principal of the Protective Advances and Overadvances,

seventh, to pay interest then due and payable on the Loans (other than the Protective 

Advances and Overadvances) ratably, eighth, to prepay principal on the Loans (other than 

the Protective Advances and Overadvances) and unreimbursed LC Disbursements 

ratably, ninth, to pay an amount to the Administrative Agent equal to 103% of the 

aggregate undrawn face amount of all outstanding Letters of Credit and the aggregate 

amount of any unpaid LC Disbursements, to be held as cash collateral for such 

Obligations, tenth, to payment of any amounts owing with respect to Banking Services 

and Swap Obligations, eleventh, to the payment of any other Secured Obligations due to 

the Administrative Agent or any Lender, and twelfth, any excess to be returned to 

Borrower Representative to be used in accordance with the Approved Budget; provided,

that if and to the extent that it would be unlawful for any Subsidiary Loan Party to secure any 

Swap Obligation under the Commodity Exchange Act or any rule, regulation or order of the 

Commodity Futures Trading Commission (or the application or official interpretation of any 

thereof) by virtue of such Subsidiary Loan Party’s failure for any reason (and after giving 

effect to the guarantees by the other Loan Guarantors of the Secured Obligations of such 

Subsidiary Loan Party) to constitute an “eligible contract participant” as defined in the 

Commodity Exchange Act at the time the Liens created by the Loan Documents in the assets 

of such Subsidiary Loan Party become effective with respect to such Swap Obligation, no 

proceeds of Collateral of such Subsidiary Loan Party will be applied pursuant to clause 

eighth of the preceding sentence to the payment of such Swap Obligation. Notwithstanding 

any other provision of this Agreement, unless so directed by the Borrower 

Representative, or unless a Default is in existence, neither the Administrative Agent nor 

any Lender shall apply any payment which it receives to any Eurodollar Loan, except (a) 

on the expiration date of the Interest Period applicable to such Eurodollar Loan or (b) in 

the event, and only to the extent, that there are no outstanding ABR Loans and, in any 

such event, the Borrowers shall pay the break funding payment required in accordance 

with Section 2.16.

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(c) At the election of the Administrative Agent, all payments of principal, 

interest, LC Disbursements, fees, reimbursable expenses (including, without limitation, 

all reimbursements of fees and expenses pursuant to Section 9.03) and other sums 

payable under the Loan Documents or in respect of the Pre-Petition Lender Obligations 

may be paid from the proceeds of Borrowings made hereunder, whether made following 

a request by the Borrower Representative pursuant to Section 2.03 or a deemed request as 

provided in this Section or may be deducted from any deposit account of any Borrower 

maintained with the Administrative Agent. Each Borrower hereby irrevocably authorizes 

(i) the Administrative Agent to make a Borrowing for the purpose of paying each 

payment of principal, interest, fees or any other amount due under the Loan Documents 

or in respect of the Pre-Petition Lender Obligations and agrees that all such amounts 

charged shall constitute Loans (including Overadvances, but such a Borrowing may only 

constitute a Protective Advance if it is to reimburse costs, fees and expenses pursuant to 

Section 9.03) and that all such Borrowings shall be deemed to have been requested 

pursuant to Section 2.03, 2.04 or 2.05, as applicable, and (ii) the Administrative Agent to 

charge any deposit account of any Borrower (other than, so long as no Dominion Period 

is in effect or no Event of Default shall have occurred or be continuing, any Excluded 

Deposit Account) maintained with the Administrative Agent for each payment of 

principal, interest, fees or any other amount due under the Loan Documents or in respect 

of the Pre-Petition Lender Obligations.

(d) If any Lender shall, by exercising any right of set-off or counterclaim or 

otherwise, obtain payment in respect of any principal of or interest on any of its 

Revolving Loans or participations in LC Disbursements, Protective Advances or 

Overadvances resulting in such Lender receiving payment of a greater proportion of the 

aggregate amount of its Revolving Loans and participations in LC Disbursements, 

Protective Advances or Overadvances and accrued interest thereon than the proportion 

received by any other Lender, then the Lender receiving such greater proportion shall 

notify the Administrative Agent of such fact and shall purchase (for cash at face value) 

participations in the Revolving Loans and participations in LC Disbursements, Protective 

Advances and Overadvances of other Lenders to the extent necessary so that the amount 

of all such payments shall be shared by the Lenders ratably in accordance with the 

aggregate amounts of principal of and accrued interest on their respective Revolving 

Loans and participations in LC Disbursements, Protective Advances and Overadvances; 

provided that (i) if any such participations are purchased and all or any portion of the 

payment giving rise thereto is recovered, such participations shall be rescinded and the 

purchase price restored to the extent of such recovery, without interest, and (ii) the 

provisions of this paragraph shall not be construed to apply to any payment made by the 

Borrowers pursuant to and in accordance with the express terms of this Agreement (for 

the avoidance of doubt, as in effect from time to time) or any payment obtained by a 

Lender as consideration for the assignment of or sale of a participation in any of its 

Revolving Loans or participations in LC Disbursements, Protective Advances or 

Overadvances to any Person that is an Eligible Assignee (as such term is defined from 

time to time). Each Borrower consents to the foregoing and agrees, to the extent it may 

effectively do so under applicable law, that any Lender acquiring a participation pursuant 

to the foregoing arrangements may exercise against such Borrower rights of set-off and 

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counterclaim with respect to such participation as fully as if such Lender were a direct 

creditor of such Borrower in the amount of such participation.

(e) Unless the Administrative Agent shall have received notice from the 

Borrower Representative prior to the date on which any payment is due to the 

Administrative Agent for the account of the Lenders or the Issuing Banks hereunder that 

the Borrowers will not make such payment, the Administrative Agent may assume that 

the Borrowers have made such payment on such date in accordance herewith and may, in 

reliance upon such assumption, distribute to the Lenders or the Issuing Banks, as the case 

may be, the amount due. In such event, if the Borrowers have not in fact made such 

payment, then each of the Lenders or Issuing Banks, as the case may be, severally agrees 

to repay to the Administrative Agent forthwith on demand the amount so distributed to 

such Lender or Issuing Bank with interest thereon, for each day from and including the 

date such amount is distributed to it to but excluding the date of payment to the 

Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate 

determined by the Administrative Agent in accordance with banking industry rules on 

interbank compensation.

(f) f any Lender shall fail to make any payment required to be made by it 

hereunder to or for the account of the Administrative Agent, then the Administrative 

Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply 

any amounts thereafter received by the Administrative Agent for the account of such 

Lender to satisfy such Lender’s obligations in respect of such payment until all such 

unsatisfied obligations have been discharged and/or (ii) hold any such amounts in a 

segregated account as cash collateral for, and apply any such amounts to, any future 

payment obligations of such Lender hereunder to or for the account of the Administrative 

Agent.

SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any 

Lender requests compensation under Section 2.15, or if the Borrowers are required to pay any 

Indemnified Taxes or additional amounts to any Lender or to any Governmental Authority for 

the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts 

to designate a different lending office for funding or booking its Loans hereunder or to assign 

and delegate its rights and obligations hereunder to another of its offices, branches or Affiliates, 

if, in the judgment of such Lender, such designation or assignment and delegation (i) would 

eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the 

future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not 

otherwise be disadvantageous to such Lender. The Borrowers hereby agree to pay all reasonable 

costs and expenses incurred by any Lender in connection with any such designation or 

assignment and delegation.

(b) If (i) any Lender requests compensation under Section 2.15, (ii) the 

Borrowers are required to pay any Indemnified Taxes or additional amounts to any 

Lender or any Governmental Authority for the account of any Lender pursuant to Section 

2.17, (iii) any Lender becomes a Defaulting Lender or (iv) any Lender has failed to 

consent to a proposed amendment or waiver that under Section 9.02 requires the consent 

of all the Lenders (or all the affected Lenders or Supermajority Lenders) and with respect 

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to which the Required Lenders shall have granted their consent, then the Borrowers may, 

at their sole expense and effort, upon notice to such Lender and the Administrative Agent 

by the Borrower Representative, require such Lender to assign and delegate, without 

recourse (in accordance with and subject to the restrictions contained in Section 9.04), all 

its interests, rights (other than its existing rights to payments pursuant to Section 2.15 or 

2.17) and obligations under this Agreement and the other Loan Documents to an Eligible 

Assignee that shall assume such obligations (which Eligible Assignee may be another 

Lender, if a Lender accepts such assignment and delegation); provided that (A) the 

Borrowers shall have received the prior written consent of the Administrative Agent and 

the Issuing Banks, which consent shall not unreasonably be withheld, conditioned or 

delayed, (B) such Lender shall have received payment of an amount equal to the 

outstanding principal of its Loans and participations in LC Disbursements, Protective 

Advances and Overadvances, accrued interest thereon, accrued fees and all other amounts 

payable to it hereunder, from the assignee (to the extent of such outstanding principal and 

accrued interest and fees) or the Borrowers (in the case of all other amounts), (C) in the 

case of any such assignment and delegation resulting from a claim for compensation 

under Section 2.15 or payments required to be made pursuant to Section 2.17, such 

assignment will result in a reduction in such compensation or payments, (D) in the case 

of any such assignment and delegation resulting from the failure to provide a consent, the 

assignee shall have given such consent and, as a result of such assignment and delegation 

and any contemporaneous assignments and delegations and consents, the applicable 

amendment or waiver can be effected and (E) such assignment and delegation does not 

conflict with applicable law. A Lender shall not be required to make any such 

assignment and delegation if, prior thereto, as a result of a waiver or consent by such 

Lender or otherwise, the circumstances entitling the Borrowers to require such 

assignment and delegation have ceased to apply. Each party hereto agrees that an 

assignment and delegation required pursuant to this paragraph may be effected pursuant 

to an Assignment and Assumption executed by the Borrower Representative, the 

Administrative Agent and the assignee (subject to any required consents referred to 

above) and that the Lender required to make such assignment and delegation need not be 

a party thereto.

SECTION 2.20. Defaulting Lenders. Notwithstanding any provision of this 

Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following 

provisions shall apply for so long as such Lender is a Defaulting Lender:

(a) commitment fees shall cease to accrue on the unused portion of the Revolving 

Commitment of such Defaulting Lender pursuant to Section 2.12(a);

(b) the Revolving Commitment and Credit Exposure of such Defaulting Lender 

shall not be included in determining whether all Lenders, all affected Lenders, the 

Required Lenders or the Supermajority Lenders have taken or may take any action 

hereunder or under any other Loan Documents (including any consent to any amendment, 

waiver or other modification pursuant to Section 9.02); provided that any waiver, 

amendment or other modification requiring the consent of all Lenders or all Lenders 

affected thereby shall, except as otherwise provided in Section 9.02, require the consent 

of such Defaulting Lender in accordance with the terms hereof;

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(c) if any LC Exposure, Protective Advance Exposure and Overadvance 

Exposure exists at the time such Lender becomes a Defaulting Lender, then:

(i) such Defaulting Lender’s LC Exposure (other than any portion thereof 

attributable to unreimbursed LC Disbursements with respect to which such Defaulting 

Lender shall have funded its participation as contemplated by Section 2.06(d)), Protective 

Advance Exposure (other than any portion thereof with respect to which such Defaulting 

Lender shall have funded its participation as contemplated by Section 2.04(b)) and 

Overadvance Exposure (other than any portion thereof with respect to which such 

Defaulting Lender shall have funded its participation as contemplated by Section 2.05(b)) 

shall be reallocated among the non-Defaulting Lenders in accordance with their 

respective Applicable Percentages, but only to the extent the sum of all non-Defaulting 

Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure, 

Protective Advance Exposure and Overadvance Exposure does not exceed the total of all 

non-Defaulting Lenders’ Revolving Commitments;

(ii) if the reallocation described in clause (i) above cannot, or can only 

partially, be effected, the Borrowers shall within one Business Day following notice by 

the Administrative Agent, without prejudice to any rights or remedies of the Borrowers 

against such Defaulting Lender, (A) first, prepay the portion of such Defaulting Lender’s 

Overadvance Exposure (other than any portion thereof referred to in the parenthetical in 

such clause (i)) that has not been so reallocated, (B) second, prepay the portion of such 

Defaulting Lender’s Protective Advance Exposure that has not been so reallocated, and 

(C) third, cash collateralize such Defaulting Lender’s LC Exposure (other than any 

portion thereof referred to in the parenthetical in such clause (i)) that has not been so 

reallocated in accordance with the procedures set forth in Section 2.06(j) for so long as 

such LC Exposure is outstanding;

(iii) if the Borrowers cash collateralize any portion of such Defaulting 

Lender’s LC Exposure pursuant to clause (ii) above, the Borrowers shall not be required 

to pay any letter of credit participation fees to such Defaulting Lender pursuant to Section 

2.12(b) with respect to such Defaulting Lender’s cash collateralized LC Exposure during 

the period such Defaulting Lender’s LC Exposure is cash collateralized;

(iv) if any portion of the LC Exposure of such Defaulting Lender is 

reallocated pursuant to clause (c)(i) above, then the fees payable to the Lenders pursuant 

to Section 2.12(b) shall be adjusted to give effect to such reallocation; and

(v) if any portion of such Defaulting Lender’s LC Exposure (other than 

any portion thereof referred to in the parenthetical in clause (i) above) is neither cash 

collateralized nor reallocated pursuant to clause (c)(i) or (c)(ii) above, then, without 

prejudice to any rights or remedies of the applicable Issuing Bank or any Lender 

hereunder, all letter of credit participation fees payable under Section 2.12(b) with respect 

to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and 

allocated among them ratably based on the amount of such Defaulting Lender’s LC 

Exposure attributable to Letters of Credit issued by each Issuing Bank) until such LC 

Exposure is cash collateralized and/or reallocated; and

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(d) no Issuing Bank shall be required to issue, amend, renew, extend or increase 

any Letter of Credit, in each case, unless it is satisfied that the related exposure will be 

100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or 

cash collateral provided by the Borrowers in accordance with clause (c) of this Section, 

and participating interests in any such newly issued, amended, renewed, extended or 

increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner 

consistent with clause (c)(i) of this Section (and Defaulting Lenders shall not participate 

therein).

In the event and on the date that each of the Administrative Agent, the Company, each Issuing Bank 

agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a 

Defaulting Lender, then the LC Exposure, Protective Advance Exposure and Overadvance Exposure of 

the other Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and 

on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders as the 

Administrative Agent shall determine may be necessary in order for such Lender to hold Revolving Loans 

in accordance with its Applicable Percentage.

SECTION 2.21. Returned Payments. If after receipt of any payment which is 

applied to the payment of all or any part of the Obligations, the Administrative Agent, any 

Issuing Bank or any Lender is for any reason compelled to surrender such payment or proceeds 

to any Person because such payment or application of proceeds is invalidated, declared 

fraudulent, set aside or determined to be void or voidable as a preference, impermissible setoff, 

or a diversion of trust funds, or for any other reason, then the Obligations or part thereof intended 

to be satisfied shall be revived and continued and this Agreement and the other Loan Documents 

shall continue in full force as if such payment or proceeds had not been received by the 

Administrative Agent, such Issuing Bank or such Lender. The provisions of this Section shall be 

and remain effective notwithstanding any contrary action which may have been taken by the 

Administrative Agent, any Issuing Bank or any Lender in reliance upon such payment or 

application of proceeds. The provisions of this Section shall survive the termination of this 

Agreement.

SECTION 2.22. Borrowing Subsidiaries. The Company may designate any 

Subsidiary that is a wholly owned Domestic Subsidiary of the Company as a Borrowing 

Subsidiary upon five (5) Business Days’ notice to the Administrative Agent and the Lenders 

(such notice to include the name, primary business address and tax identification number of such 

proposed Borrowing Subsidiary). Upon (i) the Lenders’ receipt of documentation (including, to 

the extent such proposed Borrowing Subsidiary qualifies as a “legal entity customer” under the 

Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such

Subsidiary) and other information required by regulatory authorities under applicable 

“know-your-customer” rules and regulations, including the Patriot Act, and (ii) proper notice and 

receipt by the Administrative Agent of such agreements, documents and legal opinions as the 

Administrative Agent may reasonably request and subject to the Administrative Agent’s 

determining in consultation with the Lenders that designating such Subsidiary as a Borrowing 

Subsidiary would not cause any Lender to suffer any economic, legal or regulatory disadvantage, 

such Subsidiary shall be a Borrowing Subsidiary and a party to this Agreement and the other 

Loan Documents. A Subsidiary shall cease to be a Borrowing Subsidiary hereunder at such time 

as the Company gives notice to the Administrative Agent and the Lenders of its intention to 

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terminate such Subsidiary as a Borrowing Subsidiary; provided that any such termination shall 

not be effective (other than to terminate such Borrowing Subsidiary’s right to make further 

Borrowings or, except to the extent such Subsidiary remains a Loan Party after such termination, 

to obtain Letters of Credit) and such Subsidiary shall remain a Borrowing Subsidiary until such 

time as all Loans to such Borrowing Subsidiary and accrued interest thereon and all other 

amounts then due from such Borrowing Subsidiary have been paid in full and, unless such 

Subsidiary shall remain a Loan Party after such termination, no Letter of Credit issued for the 

account of such Borrowing Subsidiary shall be outstanding.

SECTION 2.23. Eligible Pledged Cash Account. The Company may from time 

to time, on any Business Day, deposit or cause to be deposited cash in dollars into the Eligible 

Pledged Cash Account, and on the Business Day following the delivery by the Borrower 

Representative to the Administrative Agent of a notice setting forth the amount so deposited and 

certifying that the amount so deposited constitutes Eligible Pledged Cash, the Borrowing Base

shall be adjusted to include the aggregate amount of Eligible Pledged Cash after giving effect to

such deposit (subject to the limit in the definition of “Borrowing Base” on the amount of Eligible 

Pledged Cash includible therein). The Company may withdraw cash from the Eligible Pledged 

Cash Account solely with the prior written consent of the Administrative Agent; provided that 

the Administrative Agent agrees to promptly provide such written consent so long as the 

Borrower Representative shall have delivered an updated Borrowing Base Certificate 

demonstrating that, after giving effect to such withdrawal, the Loan Parties shall be in 

compliance with the terms of this Agreement and no payment would then be due under Section 

2.11(b) of this Agreement. At the time of any withdrawal of cash from the Eligible Pledged 

Cash Account, the Borrowing Base shall be adjusted with immediate effect to include only the 

aggregate amount of Eligible Pledged Cash after giving effect to such withdrawal (subject to the 

limit in the definition of “Borrowing Base” on the amount of Eligible Pledged Cash includible 

therein). At the time of any termination of the Deposit Account Control Agreement or other 

control agreement entered into in respect of the Eligible Pledged Cash Account, unless such 

agreement shall have been replaced by another effective Deposit Account Control Agreement or 

other control agreement reasonably satisfactory to the Administrative Agent, the Borrowing Base 

shall be adjusted with immediate effect to exclude Eligible Pledged Cash. Interest or profits, if 

any, on amounts deposited in the Eligible Pledged Cash Account shall accumulate in such 

account and constitute Eligible Pledged Cash.

SECTION 2.24. Super-Priority Nature of Obligations and Administrative 

Agent’s Liens; Payment of Obligations.

(a) The priority of Administrative Agent’s Liens on the Collateral, claims and 

other interests shall be as set forth in the Final Order.

(b) Upon the maturity (whether by acceleration or otherwise) of any of the 

Secured Obligations, the Administrative Agent and Lenders shall be entitled to 

immediate payment of such Secured Obligations without further application to or order of 

the Court.

SECTION 2.25. Conversion to Exit Facility Agreement. Upon the satisfaction or 

waiver by the Administrative Agent and each Lender of each of the conditions precedent to the 

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Conversion Date set forth in the section entitled “Conditions to Conversion” in the Exit Facility 

Term Sheet on or prior to the Maturity Date, automatically and without any further consent or 

action required by the Administrative Agent, any Lender, or any other Lender Party, (i) the 

Borrowers (or the entities assuming and/or acquiring directly or indirectly the operations and 

assets of the Borrowers in the Acceptable Plan, and each Loan Guarantor and each entity 

assuming the operations and assets of each Loan Guarantor that is a Debtor in the Acceptable 

Plan, to the extent such Person is required under the Exit Facility Term Sheet to continue to be a 

guarantor thereunder), shall assume all obligations in respect of the Revolving Commitments, 

Loans and Letters of Credit hereunder and all other monetary obligations in respect hereof, (ii) 

each Loan and Letter of Credit hereunder shall be continued as a Loan or Letter of Credit under 

the Exit Facility Agreement, (iii) each Lender hereunder shall be a Lender under the Exit Facility 

Agreement and (iv) this Agreement shall terminate and be superseded and replaced in its entirety 

by, and deemed amended and restated in its entirety in the form of, the Exit Facility Agreement 

(with such changes and insertions thereto, as are reasonably satisfactory to the Administrative 

Agent and the Borrower, incorporated as necessary to make any technical changes necessary to 

effectuate the intent of this Section 2.25), and each of the Revolving Commitments hereunder 

shall automatically be Revolving Commitments under the Exit Facility Agreement. 

Notwithstanding the foregoing, all obligations of the Borrowers and the Loan Guarantors to the 

Administrative Agent, the Issuing Banks and the Lenders under this Agreement and any other 

Loan Document which are expressly stated in this Agreement or such other Loan Document as 

surviving such agreement’s termination shall, as so specified, survive without prejudice and 

remain in full force and effect. Each of the Loan Parties, the Administrative Agent, the Lenders 

and the Issuing Banks shall take such actions and execute and deliver such agreements, 

instruments or other documents as the Administrative Agent may reasonably request to give 

effect to the provisions of this Section 2.25 and as are required to complete the schedules to the 

Exit Facility Agreement or other agreements contemplated thereby. Each Lender and Issuing 

Bank party hereto hereby agrees that, on the Conversion Date, the Administrative Agent may 

execute and deliver the security documents contemplated by the Exit Facility Term Sheet. 

ARTICLE III

Representations and Warranties

Each Loan Party represents and warrants to the Lenders on the Effective Date 

(and will be deemed to represent at such other times as are specified in this Agreement) as 

follows:

SECTION 3.01. Organization; Powers. The Company and each Subsidiary is 

duly organized, validly existing and (to the extent the concept is applicable in such jurisdiction 

and, in the case of any Subsidiary other than a Borrowing Subsidiary, except where the failure to 

be so, individually or in the aggregate, would not reasonably be expected to result in a Material 

Adverse Effect) in good standing under the laws of the jurisdiction of its organization, has all 

requisite power and authority to, subject to the entry of the Final Order, carry on its business as 

now conducted and, except where the failure to do so, individually or in the aggregate, would not 

reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and 

is in good standing in, every jurisdiction where such qualification is required.

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SECTION 3.02. Authorization; Enforceability; Benefit to Loan Parties. (a) 

Subject to entry of the Final Order, the Transactions, insofar as they are to be carried out by each 

Loan Party, are within such Loan Party’s corporate or other organizational powers and have been 

duly authorized by all necessary corporate or other organizational and, if required, shareholder or 

other equity holder action. Subject to entry of the Final Order, this Agreement has been duly 

executed and delivered by each Loan Party and constitutes, and each other Loan Document to 

which any Loan Party is to be a party, when executed and delivered by such Loan Party, will 

constitute, a legal, valid and binding obligation of such Loan Party, enforceable against it in 

accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, 

moratorium or other laws affecting creditors’ rights generally and to general principles of equity, 

regardless of whether considered in a proceeding in equity or at law. 

(b) Each Loan Party expects to derive benefit (and its board of directors or other 

governing body has determined that it may reasonably be expected to derive benefit), 

directly and indirectly, from (i) successful operations of each of the other Loan Parties 

and (ii) the credit extended by the Lenders to the Borrowers hereunder. Each Loan Party 

has determined that, subject to entry of the Final Order, the execution, delivery and 

performance of this Agreement and any other Loan Documents to be executed by such 

Loan Party is within its purpose, will be of direct and indirect benefit to such Loan Party, 

and is in its best interest.

SECTION 3.03. Governmental Approvals; No Conflicts. Except for the entry of, 

and pursuant to the terms of, the Final Order, the Transactions (a) do not require any consent or 

approval of, registration or filing with, or any other action by, any Governmental Authority, 

except such as have been obtained or made and are (or so will be) in full force and effect, (b) will 

not violate any applicable law, including any order of any Governmental Authority, (c) will not 

violate the charter, by-laws or other organizational documents of the Company or any 

Subsidiary, (d) will not violate or result in a default under any indenture or agreement (including 

the Pre-Petition Term Credit Agreement, the Term Credit Agreement or other instrument binding 

upon the Company or any Subsidiary or any of their assets) (other than defaults arising solely as 

a result of the commencement of the Cases), or give rise to a right thereunder to require any 

payment to be made by the Company or any Subsidiary, and (e) will not result in the creation or 

imposition of any Lien on any asset of the Company or any Subsidiary, except Liens created 

pursuant to the Loan Documents or Liens created in connection with Pre-Petition Term Credit 

Agreement, the Term Credit Agreement or the Pre-Petition Agreement, in the case of clauses (a) 

(as to the Transactions other than the entry into the Loan Documents), (b) and (d) above, except 

for a failure to obtain or make, violation, default or payment, as applicable, which, individually 

or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

SECTION 3.04. Financial Condition; No Material Adverse Effect. (a) The Loan 

Parties have heretofore furnished to the Lenders (i) the audited consolidated balance sheets and 

related consolidated statements of operations, comprehensive income, equity and cash flows of 

the Company and its consolidated Subsidiaries as of and for the fiscal year ended August 3, 

2019, and (ii) the unaudited consolidated balance sheets and related consolidated statements of 

operations, comprehensive income and cash flows of the Company and its consolidated 

Subsidiaries as of and for each of the fiscal quarters and the portion of the fiscal year ended 

November 2, 2019 and February 1, 2020. Such financial statements present fairly, in all material 

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respects, the financial position and results of operations and cash flows of the Company and its 

consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, 

subject to year-end audit adjustments and the absence of footnotes in the case of the statements 

referred to in clause (ii) above.

(b) Since the Effective Date, other than those customarily resulting from the 

commencement of the Cases and changes contemplated in the Borrower Representative’s 

business plan delivered to the Administrative Agent, there has been no event, 

development or circumstance that has had, or would reasonably be expected to have, a 

Material Adverse Effect.

SECTION 3.05. Properties. (a) The Company and each Subsidiary has good 

title to, or valid leasehold interests in, all its tangible property material to its business, except for 

defects in title that, individually or in the aggregate, would not reasonably be expected to result 

in a Material Adverse Effect and Liens expressly permitted by Section 6.02.

(b) (i) The Company and each Subsidiary owns, is licensed to use, or otherwise 

has the right to use, all trademarks, service marks, tradenames, trade dress, copyrights, 

patents, designs and other intellectual property material to its business, and (ii) the 

conduct of their respective businesses, including the use thereof by the Company and the 

Subsidiaries in their respective businesses, does not infringe upon the rights of any other 

Person, except for any such infringements or any such failure to own, license or have the 

right to use that, individually or in the aggregate, would not reasonably be expected to 

result in a Material Adverse Effect.

(c) Schedule 3.05 sets forth the address of each real property that is owned in fee 

by the Loan Parties as of the Effective Date.

SECTION 3.06. Litigation and Environmental Matters. (a) Except for the 

Disclosed Matters and the Cases, there are no actions, suits or proceedings by or before any 

arbitrator or Governmental Authority pending against or, to the knowledge of the Borrowers, 

threatened against the Company or any Subsidiary (i) as to which there is a reasonable likelihood 

of an adverse determination and that, if adversely determined, would reasonably be expected, 

individually or in the aggregate, to result in a Material Adverse Effect or (ii) that involve any of 

the Loan Documents or the Transactions.

(b) Except for the Disclosed Matters or matters that, individually or in the 

aggregate, would not reasonably be expected to result in a Material Adverse Effect, 

neither the Company nor any Subsidiary (i) has failed to comply with any Environmental 

Law or to obtain, maintain or comply with any permit, license or other approval required 

under any Environmental Law, (ii) has become subject to any Environmental Liability, 

(iii) has received written notice of any claim with respect to any Environmental Liability 

or (iv) knows of any reasonable basis for any Environmental Liability to be imposed on 

or asserted against the Company or any Subsidiary.

SECTION 3.07. Compliance with Laws and Agreements. (a) The Company and 

each Subsidiary is in compliance with all laws, including all orders of Governmental Authorities, 

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applicable to it or its property and all indentures, agreements and other instruments binding upon 

it or its property, except any non-compliance arising solely as a result of the commencement of 

the Cases or where the failure to do so, individually or in the aggregate, would not reasonably be 

expected to result in a Material Adverse Effect (it being agreed that this Section does not apply 

to any law which is specifically addressed in Section 3.06(b), 3.07(b), 3.08, 3.09, 3.10 or 3.14). 

Except for any defaults or events of defaults arising solely as a result of the commencement of 

the Cases, any defaults or events of defaults arising under the Pre-Petition Credit Agreement or 

the Pre-Petition Term Credit Agreement, no Event of Default has occurred and is continuing.

(b) The Borrowers have implemented and maintain in effect policies and 

procedures designed to ensure compliance in all material respects by the Company, its 

Subsidiaries and their respective directors, officers, employees and agents with AntiCorruption Laws and applicable Sanctions, and the Company, its Subsidiaries and their 

respective officers and employees and to the knowledge of the Borrowers, their 

respective directors and agents, are in compliance with Anti-Corruption Laws and 

applicable Sanctions in all material respects. None of (i) the Company, any Subsidiary 

or, to the knowledge of the Borrowers, any of their respective directors, officers or 

employees, or (ii) to the knowledge of the Borrowers any agent of the Company or any 

Subsidiary that will act in any capacity in connection with or benefit from the credit 

facility established hereby, is a Sanctioned Person. No Borrowing, use of proceeds or 

other transaction contemplated by this Agreement will violate Anti-Corruption Laws or 

applicable Sanctions.

SECTION 3.08. Investment Company Status. No Loan Party is an “investment 

company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

SECTION 3.09. Taxes. The Company and each Subsidiary has (a) timely filed 

or caused to be filed all Tax returns and reports required to have been filed, except to the extent 

that the failure to do so would not, individually or in the aggregate, reasonably be expected to 

result in a Material Adverse Effect, and (b) paid or caused to be paid all Taxes required to have 

been paid by it (including in its capacity as withholding agent), except (i) any Taxes that are 

being contested in good faith by appropriate proceedings diligently conducted and for which the 

Company or such Subsidiary has set aside on its books reserves with respect thereto to the extent 

required by GAAP or (ii) to the extent that the failure to do so would not, individually or in the 

aggregate, reasonably be expected to result in a Material Adverse Effect. There is no current or 

proposed tax assessment, deficiency or other claim against the Company or any of the 

Subsidiaries that would, individually or in the aggregate, reasonably be expected to result in a 

Material Adverse Effect.

SECTION 3.10. ERISA; Labor Matters. (a) Except as could not reasonably be 

expected, individually or in the aggregate, to result in a Material Adverse Effect, (i) no ERISA 

Event has occurred or is reasonably expected to occur, (ii) neither any Loan Party nor any 

ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of 

ERISA, and (iii) each Plan is in compliance with the applicable provisions of ERISA, the Code 

and other applicable laws. On the Effective Date, the excess of the present value of all 

accumulated benefit obligations under each Plan (based on the assumptions used for purposes of 

preparing the audited financial statements set forth in the Company’s most recent Annual Report 

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on Form 10-K), as of the date of the most recent financial statements reflecting such amounts, 

over the fair market value of the assets of such Plan, if any, could not be reasonably expected, 

individually or in the aggregate, to result in a Material Adverse Effect.

(b) Except as would not reasonably be expected, individually or in the aggregate, 

to result in a Material Adverse Effect, (i) there are no strikes, lockouts, slowdowns or any 

other labor disputes against the Company or any Subsidiary pending or, to the knowledge 

of the Borrowers, threatened, (ii) the hours worked by and payments made to employees 

of the Company and the Subsidiaries have not been in violation of the Fair Labor 

Standards Act of 1938 or any other applicable Federal, state, local or foreign law dealing 

with such matters, (iii) all payments due from the Company or any Subsidiary, or for 

which any claim may be made against the Company or any Subsidiary, on account of 

wages and employee health and welfare insurance and other benefits, have been paid or 

accrued as a liability on the books of the Company or such Subsidiary to the extent 

required by GAAP and (iv) the consummation of the Transactions will not give rise to 

any right of termination or right of renegotiation on the part of any union under any 

collective bargaining agreement to which the Company or any Subsidiary is bound.

(c) None of the Borrower or any of its Subsidiaries is an entity deemed to hold 

“plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) 

of ERISA).

SECTION 3.11. Disclosure. No reports, financial statements, certificates or other 

written information (other than forward-looking information, management projections or 

information of a general economic or industry nature) furnished by or on behalf of the Company 

or any Subsidiary to the Administrative Agent, any Arranger or any Lender in connection with 

the negotiation of this Agreement or any other Loan Document or delivered hereunder or 

thereunder (as modified or supplemented by other information so furnished), when delivered and 

taken as a whole, contains any material misstatement of fact or omits to state any material fact 

necessary to make the statements therein, in the light of the circumstances under which they were 

made, not materially misleading; provided that, with respect to forecasts and projected financial 

information, the Loan Parties represent only that such information was prepared in good faith 

based upon assumptions believed by them to be reasonable at the time made and at the time so 

furnished and, if furnished prior to the Effective Date, as of the Effective Date (it being 

understood that such forecasts and projections may vary from actual results and that such 

variances may be material).

SECTION 3.12. Subsidiaries and Joint Ventures. Schedule 3.12 sets forth, as of 

the Effective Date, the name, type of organization and jurisdiction of organization of, and the 

percentage of each class of Equity Interests owned by the Company or any Subsidiary in, (a) 

each Subsidiary and (b) each joint venture in which the Company or any Subsidiary owns any 

Equity Interests, and identifies each Designated Subsidiary. All the issued and outstanding 

Equity Interests in each Subsidiary owned by any Loan Party have been (to the extent such 

concepts are relevant with respect to such Equity Interests) duly authorized and validly issued 

and are fully paid and non -assessable (except as such rights may arise under mandatory 

provisions of applicable statutory law that may not be waived and not as a result of any rights 

contained in organizational documents). Except as set forth in Schedule 3.12, as of the Effective 

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Date, there is no existing option, warrant, call, right, commitment or other agreement to which 

the Company or any Subsidiary is a party requiring, and there are no Equity Interests in any 

Subsidiary outstanding that upon exercise, conversion or exchange would require, the issuance 

by any Subsidiary of any additional Equity Interests or other securities exercisable for, 

convertible into, exchangeable for or evidencing the right to subscribe for or purchase any Equity 

Interests in any Subsidiary.

SECTION 3.13. Insurance. Schedule 3.13 sets forth a description of all 

insurance maintained by or on behalf of the Company and the Subsidiaries as of the Effective 

Date. As of the Effective Date, all premiums due and payable in respect of such insurance have 

been paid. The Loan Parties believe that the insurance maintained by or on behalf of the 

Company and the Subsidiaries is adequate.

SECTION 3.14. Federal Reserve Regulations. Neither the Company nor any 

Subsidiary is principally, or as one of its important activities, in the business of extending credit 

for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U of 

the Board of Governors), or extending credit for the purpose of purchasing or carrying margin 

stock. No part of the proceeds of any Loan or any Letter of Credit will be used, whether directly 

or indirectly, and whether immediately, incidentally or ultimately, in any manner or for any 

purpose that would entail a violation of Regulations T, U or X of the Board of Governors.

SECTION 3.15. [Reserved].

SECTION 3.16. Collateral Matters. (a) Subject to the entry of the Final Order,

the Security Agreement and the Final Order are effective to create in favor of the Administrative

Agent (for the benefit of the Lender Parties) legal, valid, enforceable and perfected Liens on the 

Collateral described therein (with such priority as provided for therein).

(b) Except for the entry of the Final Order, no filing or other action will be

necessary to perfect such Liens.

(c) The Final Order is (or will be, as applicable) effective to create in favor of the 

Administrative Agent, for the benefit of the Lender Parties, a legal, valid, binding and 

enforceable perfected Lien in the Collateral without the necessity of the execution of 

mortgages, security agreements, pledge agreements, financing statements or other 

agreements or documents except to the extent set forth in such Final Order.

SECTION 3.17. Use of Proceeds. The Borrowers will use the proceeds of the 

Loans and will request the issuance of Letters of Credit only for purposes set forth in 

Section 5.11.

SECTION 3.18. Credit Card Agreements. Schedule 3.18 (as updated from time 

to time as permitted by Section 5.16) sets forth a list of all Credit Card Agreements to which any 

Loan Party is a party. A true and complete copy of each Credit Card Agreement listed in 

Schedule 3.18 has been delivered to the Administrative Agent, together with all material 

amendments, waivers and other modifications thereto. All such Credit Card Agreements are in 

full force and effect, currently binding upon each Loan Party that is a party thereto and, to the 

knowledge of the Loan Parties, binding upon other parties thereto in accordance with their terms. 

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The Loan Parties are in compliance in all material respects with each such Credit Card 

Agreement.

SECTION 3.19. Approved Budget. As of the Effective Date, the Borrowers have 

furnished to the Administrative Agent the initial Approved Budget. Each Approved Budget was 

prepared in good faith based upon assumptions the Borrowers believed to be reasonable 

assumptions on the date of delivery of such Approved Budget. 

SECTION 3.20. Chapter 11 Cases.

(a) The Cases were commenced on the Petition Date in accordance with 

applicable laws and proper notice thereof was given for (i) the motion seeking approval 

of the Loan Documents and the Final Order, and (ii) the hearing for the entry of the Final 

Order. The Debtors shall give, on a timely basis as specified in the Final Order, all 

notices required to be given to all parties specified in the Final Order.

(b) After the entry of the Final Order, and pursuant to and to the extent permitted 

in the Final Order, the Obligations will constitute allowed administrative expense claims 

in the Cases having priority over all administrative expense claims and unsecured claims 

against the Debtors now existing or hereafter arising, of any kind whatsoever, including 

all administrative expense claims of the kind specified in Sections 105, 326, 330, 331, 

503(b), 506(c), 507(a), 507(b), 546(c), 726, 1114 or any other provision of the 

Bankruptcy Code or otherwise, as provided under Section 364(c)(l) of the Bankruptcy 

Code, subject to (i) the Carve Out and (ii) the priorities set forth in the Final Order.

(c) After the entry of the Final Order and pursuant to and to the extent provided 

in the Final Order, the Obligations will be secured by a valid and perfected first priority 

Lien on all of the Collateral subject, as to priority, only to (i) the Carve Out, (ii) the Liens 

pursuant to Section 6.02(i), subject to the terms of such Section 6.02(i) and (iii) to the 

extent set forth in the Final Order.

(d) The Final Order is in full force and effect and has not been reversed, stayed 

(whether by statutory stay or otherwise), vacated, or, without the Administrative Agent’s 

consent, modified or amended. The Loan Parties are in compliance in all material 

respects with the Final Order.

(e) Notwithstanding the provisions of Section 362 of the Bankruptcy Code, and 

subject to the applicable provisions of the Final Order, as the case may be, upon the 

Maturity Date (whether by acceleration or otherwise) of any of the Obligations, to the 

extent the Conversion Date has not occurred, the Administrative Agent and Lenders shall 

be entitled to immediate payment of such Obligations and to enforce the remedies 

provided for hereunder or under applicable laws, without further notice, motion or 

application to, hearing before, or order from, the Court.

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ARTICLE IV

Conditions

SECTION 4.01. Conditions to Effectiveness of Credit Agreement. The 

effectiveness of this Agreement is subject to the satisfaction or waiver of the following 

conditions precedent:

(a) The Administrative Agent shall have received from each Borrower, each 

Loan Guarantor, each Lender and each Issuing Bank a duly executed counterpart of this 

Agreement.

(b) The Administrative Agent and the Lenders shall have received a written 

opinion (addressed to the Administrative Agent, the Lenders and the Issuing Banks and 

dated the Effective Date) of Kirkland & Ellis LLP, counsel to the Borrowers and the 

other Loan Parties, addressing corporate authority matters and other matters as the 

Administrative Agent shall reasonably request, each such opinion to be in form, scope 

and substance reasonably satisfactory to the Administrative Agent.

(c) (i)The representations and warranties of the Loan Parties set forth in the Loan 

Documents shall be true and correct (A) in the case of the representations and warranties

qualified as to materiality, in all respects and (B) otherwise, in all material respects, in 

each case on and as of the Effective Date, except in the case of any such representation 

and warranty that expressly relates to a prior date, in which case such representation and 

warranty shall be so true and correct on and as of such prior date and (ii) at the time of 

and immediately after giving effect to the Transactions to occur on the Effective Date, no 

Event of Default shall have occurred and be continuing.

(d) The Administrative Agent shall have received as to each Loan Party such 

customary documents and certificates as it shall reasonably have requested relating to the 

organization, existence and good standing of such Loan Party and the authorization of the 

Loan Documents or the Transactions, all in form and substance reasonably satisfactory to 

the Administrative Agent.

(e) The Administrative Agent shall have received a completed Borrowing Base 

Certificate, which shall be dated the Effective Date and signed by a Financial Officer of 

the Company and shall set forth information required therein as of the last day of the 

most recent month ended at least fifteen (15) days prior to the Effective Date.

(f) The Lenders shall have received (i) unaudited interim consolidated financial 

statements of the Company for each fiscal month ended after the fiscal quarter ending 

February 1, 2020 through the end of June 30, 2020, (ii) satisfactory projections (including 

the Borrowing Base and Availability forecasts) and the Approved Budget, (iii) a copy of 

the fully executed and effective RSA, in form and substance reasonably satisfactory to 

the Administrative Agent, and (iv) an Acceptable Plan.

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(g) The Administrative Agent shall have received a certificate, dated the 

Effective Date and signed by the chief financial officer of the Company, certifying 

satisfaction of the conditions set forth in paragraphs (c) and (l) of this Section 4.01.

(h) All fees due to the Administrative Agent, the Arrangers and the Lenders in 

connection with the effectiveness of this Agreement and the Fee Letters, and all expenses 

to be paid or reimbursed to the Administrative Agent and the Arrangers on or prior to the 

Effective Date that have been invoiced at least three (3) Business Days prior to such date, 

shall have been paid, in each case, from the proceeds of the initial funding hereunder.

(i) The Administrative Agent shall have received from each Loan Party the 

documentation and other information (including, to the extent any Loan Party qualifies as 

a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial 

Ownership Certification in relation to such Loan Party) required by regulatory authorities 

under applicable “know-your-customer” rules and regulations, including the Patriot Act, 

at least three (3) Business Days prior to the Effective Date to the extent such information 

has been requested at least ten (10) Business Days prior to the Effective Date.

(j) The Administrative Agent, for its benefit and the benefit of each other Lender

Party, shall have been granted a perfected Lien on the Collateral by the Final Order on 

the terms and conditions set forth herein and in the other Loan Documents.

(k) The Administrative Agent shall have received the results of a search of the 

UCC (or equivalent) filings made with respect to the Loan Parties in the jurisdictions 

reasonably requested by the Administrative Agent.

(l) Since the Petition Date, there has been no event or circumstance, either

individually or in the aggregate, that has or could reasonably be expected to have a

Material Adverse Effect.

(m) (i) The Court shall have entered the Final Order by no later than fifty (50) 

days after the Petition Date and (ii) all motions, orders (including any “first day” or 

“second day” orders on a final basis and the Cash Management Order) and other 

documents shall be in form and substance reasonably satisfactory to the Administrative 

Agent and the Required Lenders, and the Court shall have approved and entered all “first 

day” or “second day” orders on a final basis, including, without limitation, the Cash 

Management Order.

(n) The Intercreditor Acknowledgment and the Security Agreement each shall 

have been duly executed and delivered by each party thereto, and shall be in full force 

and effect. 

(o) The Term Credit Agreement shall have been duly executed and delivered by 

each of the parties thereto and shall be in full force and effect, and the Term Loan 

Lenders shall have funded not less than $150,000,000 of aggregate debtor-in-possession 

term loans thereunder. 

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(p) After giving effect to (i) the initial extensions of credit under the Agreement, 

(ii) the payment of all fees and expenses required to be paid by the Loan Parties on the 

Effective Date in connection with the Transactions and (iii) the Transactions to occur on 

the Effective Date, including the repayment of Pre-Petition Indebtedness, Availability 

shall not be less than $100,000,000.

(q) The Borrowers shall have (i) reimbursed all outstanding “LC Disbursements” 

under drawn “Letters of Credit” (as such terms are defined in the Pre-Petition Credit 

Agreement), and (ii) paid all outstanding “Swap Obligations” arising from the 

termination of “Swap Agreements” (as such terms are defined in the Pre-Petition Credit 

Agreement) prior to the Effective Date, in each case, from the proceeds of the initial 

funding contemplated pursuant to the Transactions and cash on hand.

The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and 

such notice shall be conclusive and binding.

SECTION 4.02. Each Credit Event. (a) Except as provided in paragraph (b) of 

this Section 4.02, the obligation of each Lender to make a Loan on the occasion of any 

Borrowing, and of each Issuing Bank to issue, amend, renew or extend any Letter of Credit, is 

subject to receipt of the request therefor in accordance herewith and to the satisfaction of the 

following conditions:

(i) The representations and warranties of the Loan Parties set forth in the 

Loan Documents shall be true and correct (A) in the case of the representations and 

warranties qualified as to materiality, in all respects and (B) otherwise, in all material 

respects, in each case on and as of the date of the making of such Loan or the date of 

issuance, amendment, renewal or extension of such Letter of Credit, as applicable, except 

in the case of any such representation and warranty that expressly relates to a prior date, 

in which case such representation and warranty shall be so true and correct on and as of 

such prior date.

(ii) At the time of and immediately after giving effect to the making of 

such Loan or the issuance, amendment, renewal or extension of such Letter of Credit, as 

applicable, no Default shall have occurred and be continuing.

(iii) After giving effect to the making of such Loan or the issuance, 

amendment, renewal or extension of such Letter of Credit, the sum of the Aggregate 

Credit Exposure and Pre-Petition Aggregate Credit Exposure shall not exceed the lesser 

of (i) the total Revolving Commitments then in effect or (ii) other than in the case of a 

Protective Advance or an Overadvance, the Borrowing Base then in effect, and, other 

than in the case of a Protective Advance or an Overadvance, the Administrative Agent 

shall have received a Borrowing Base Certificate as of a date not earlier than the last day 

of the most recent fiscal month ended at least twenty (20) days prior to the date of the 

making of such Loan or such issuance, amendment, renewal or extension.

(iv) The Borrowers shall have paid the balance of all fees and expenses then

due and payable under this Agreement.

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Each making of a Loan and each issuance, amendment, renewal or extension of a Letter of Credit shall be 

deemed to constitute a representation and warranty by the Borrowers on the date thereof as to the matters 

specified in paragraphs (i) through (iv) of this Section 4.02(a).

(b) Notwithstanding the failure to satisfy the conditions precedent set forth in 

paragraph (a)(i) or (a)(ii) of this Section 4.02, unless otherwise directed by the Required 

Lenders, the Administrative Agent may, but shall have no obligation to, continue to make 

Loans and an Issuing Bank may but shall have no obligation to, issue, amend, renew or 

extend or cause to be issued, amended, renewed or extended any Letter of Credit for the 

ratable account and risk of Lenders from time to time if the Administrative Agent 

believes that making such Loans or taking such action with respect to such Letter of 

Credit is in the best interests of the Lenders.

ARTICLE V

Affirmative Covenants

Until the earlier to occur of the date on which (a) the Revolving Commitments 

have expired or terminated and the principal of and interest on each Loan and all fees, expenses 

and other amounts payable under any Loan Document (other than Banking Services Obligations, 

Swap Obligations and contingent or indemnity obligations for which no claim has been made) 

have been paid in full in cash and all Letters of Credit have expired or terminated and all LC 

Disbursements shall have been reimbursed, or (b) the Conversion Date set forth in the section 

entitled “Conditions to Conversion” in the Exit Facility Term Sheet shall have occurred, the 

Loan Parties covenant and agree, jointly and severally, with the Lenders that:

SECTION 5.01. Financial Statements; Borrowing Base and Other Information.

The Borrowers will furnish to the Administrative Agent, for distribution to each Lender and, in 

the case of clauses (e), (f) and (g), to the Lender Advisors:

(a) within ninety (90) days after the end of each fiscal year of the Company, its 

consolidated balance sheet and related consolidated statements of operations, 

comprehensive income, equity and cash flows as of the end of and for such fiscal year, 

setting forth in each case in comparative form the figures for the previous fiscal year, all 

certified by a Financial Officer of the Company, to the effect that such consolidated 

financial statements present fairly, in all material respects, the financial position, results 

of operations and cash flows of the Company and its consolidated Subsidiaries as of the 

end of and for such fiscal year on a consolidated basis in accordance with GAAP;

(b) within forty-five (45) days after the end of each of the first three (3) fiscal 

quarters of each fiscal year of the Company, its consolidated balance sheet as of the end 

of such fiscal quarter, the related consolidated statements of operations and 

comprehensive income for such fiscal quarter and the then elapsed portion of the fiscal 

year and the related consolidated statement of cash flows for the then elapsed portion of 

the fiscal year, setting forth in each case in comparative form the figures for the 

corresponding period or periods of (or, in the case of the balance sheet, as of the end of) 

the previous fiscal year, all certified by a Financial Officer of the Company as presenting 

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fairly, in all material respects, the financial position, results of operations and cash flows 

of the Company and its consolidated Subsidiaries as of the end of and for such fiscal 

quarter and such portion of the fiscal year on a consolidated basis in accordance with 

GAAP, subject to normal year-end audit adjustments and the absence of footnotes;

(c) within thirty (30) days after the end of each of the first two (2) fiscal months 

of each fiscal quarter of the Company, the consolidated balance sheet and related 

statements of operations and comprehensive income of the Company as of the end of and 

for such fiscal month and the then elapsed portion of the fiscal year and the related 

consolidated statement of cash flows of the Company for the then elapsed portion of the 

fiscal year, setting forth in each case in comparative form the figures for the 

corresponding period or periods of (or, in the case of the balance sheet, as of the end of) 

the previous fiscal year, all certified by a Financial Officer of the Company as presenting 

fairly in all material respects the financial position, results of operations and cash flows 

of the Company and its consolidated Subsidiaries as of the end of and for such fiscal 

month and such portion of the fiscal year on a consolidated basis in accordance with 

GAAP, subject to normal year-end audit adjustments and the absence of footnotes (it

being understood and agreed that any adjustments reflected in such monthly financial 

statements may differ (in part or entirely) from any adjustments reflected in the financial 

statements delivered in the foregoing clauses (a) or (b));

(d) concurrently with each delivery of financial statements under clause (a), (b) 

or (c) above, a completed Compliance Certificate signed by a Financial Officer of the 

Company (i) certifying, in the case of the financial statements delivered under clause (a), 

(b) or (c), that such financial statements present fairly in all material respects the financial 

position, results of operations and cash flows of the Company and its consolidated 

Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal yearend audit adjustments and the absence of footnotes, (ii) certifying as to whether a Default 

has occurred and, if a Default has occurred, specifying the details thereof and any action 

taken or proposed to be taken with respect thereto, (iii) to the extent applicable, setting 

forth reasonably detailed calculations demonstrating compliance with Section 6.12, (iv) if

any change in GAAP or in the application thereof has occurred since the date of the 

audited financial statements referred to in Section 3.04, specifying the effect of such 

change on the financial statements accompanying such certificate, and (v) certifying that 

all notices required to be provided under Sections 5.03 and 5.04 have been provided;

(e) by no later than 5:00 p.m. New York City time on the four-week anniversary 

of the Effective Date and each fourth (4th) calendar week thereafter (or such later time as 

agreed to in writing (including via e-mail) by the Required Lenders in their sole 

discretion), an updated budget consistent with the form and level of detail set forth in the 

initial Approved Budget, including the same line-items provided with the initial 

Approved Budget, and otherwise in form and substance reasonably acceptable to the 

Lender Advisors and the Required Lenders in their reasonable discretion. Upon, and 

subject to, the approval of any such updated budget by the Lender Advisors and the 

Required Lenders in their reasonable discretion, such supplemented budget shall 

constitute the then-approved Approved Budget, effective as of the beginning of the week

immediately following the week in which it was delivered; provided that unless and until 

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the Lender Advisors and the Required Lenders approve such supplemental budget in their 

reasonable discretion, the then-current Approved Budget shall remain in effect and, upon 

the expiration of the then-current Approved Budget, the Approved Budget shall be based 

upon the Borrower Representative’s business plan delivered to the Administrative Agent 

prior to the Effective Date, adjusted to a weekly basis in a manner acceptable to the 

Company, the Lender Advisors and the Required Lenders in their reasonable discretion;

(f) by no later than 5:00 p.m. New York City time on the Thursday of each 

calendar week (or such later time as agreed to in writing (including via e-mail) by the 

Required Lenders in their sole discretion) commencing on (a) the date that is the third 

Thursday following the Effective Date, (i) a line-item by line-item report setting forth for 

each line item in the Approved Budget, in reasonable detail, the actual receipts received 

and operating disbursements (including any professional fees) made during the prior 

week then-ended and (b) the date that is the first Thursday following the Effective Date, a 

report setting forth the Liquidity as of the Friday of the most recently ended calendar 

week;

(g) by no later than 5:00 p.m. New York City time on the Thursday (or such later 

time as agreed to in writing (including via e-mail) by the Required Lenders in their sole 

discretion) of each calendar week commencing on the date that is the second Thursday 

following the Effective Date (each such Thursday or later time, a “Variance Report 

Date”), a line-item by line-item variance report (each, a “Variance Report”), substantially 

in the form attached hereto as Exhibit J or otherwise as reasonably acceptable to the 

Administrative Agent and the Required Lenders in their sole discretion, setting forth, in 

reasonable detail: (x) any variances between actual amounts for each line item in the 

Approved Budget for the Variance Testing Period versus projected amounts set forth in 

the applicable Approved Budget for each line item included therein on a cumulative basis 

for such Variance Testing Period (for the avoidance of doubt, to be prepared by 

comparing the sum of the four (4) figures for each relevant week for such corresponding 

line item in the relevant Approved Budget that was in effect in respect of each relevant 

week at the time) and (y) the computations necessary to determine compliance with 

Section 6.12, together with a statement from a Financial Officer certifying the 

information contained in the report. The Variance Report shall also provide a reasonably 

detailed explanation for any negative variance in such Variance Report in excess of 15%

in actual receipts and any positive variance in such Variance Report in excess of 15% in

actual operating disbursements during the Variance Testing Period (unless the dollar 

amount corresponding to such percentage variance is less than $1,000,000) as compared 

to projections for such corresponding line items during the Variance Testing Period as set 

forth in the Approved Budget;

(h) as soon as available but in any event within twenty (20) days (or, during any 

Enhanced Borrowing Base Reporting Period, three (3) days) after each Borrowing Base 

Reporting Date, a Borrowing Base Certificate setting forth a computation of the 

Borrowing Base as of such Borrowing Base Reporting Date, together with supporting 

information and any additional reports with respect to the Borrowing Base that the 

Administrative Agent may reasonably request;

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(i) as soon as available but in any event within twenty (20) days (or, during any 

Enhanced Borrowing Base Reporting Period, three (3) days) after each Borrowing Base 

Reporting Date, the following information as of such Borrowing Base Reporting Date, all 

delivered electronically in a text formatted file reasonably acceptable to the 

Administrative Agent:

(i) a detailed aging of the Loan Parties’ Credit Card Accounts Receivable 

(A) including aging by each credit card issuer and credit card processor and 

(B) reconciled to the Borrowing Base Certificate delivered as of such date, prepared in a 

manner reasonably acceptable to the Administrative Agent, together with a summary 

specifying the balance due from each credit card issuer or credit card processor;

(ii) a schedule detailing the Loan Parties’ Inventory, in form reasonably 

satisfactory to the Administrative Agent, (A) by location (showing Inventory in transit, 

any Inventory located with a third party under any consignment, bailee arrangement or

warehouse agreement), by product type and by volume on hand, which Inventory shall be 

valued at the lower of cost (determined on a first-in, first-out basis) or market and 

adjusted for Reserves as the Administrative Agent has previously indicated to the 

Borrower Representative are deemed by the Administrative Agent to be appropriate, (B) 

including a report of any variances or other results of Inventory counts performed by the 

Loan Parties since the last Inventory schedule (including information regarding sales or 

other reductions, additions, returns, and credits issued by the Loan Parties), and 

(C) reconciled to the Borrowing Base Certificate delivered as of such date;

(iii) a worksheet of calculations prepared by the Loan Parties to determine 

Eligible Credit Card Accounts Receivable and Eligible Inventory, such worksheets 

detailing the Credit Card Accounts Receivable and Inventory excluded from Eligible 

Credit Card Accounts Receivable and Eligible Inventory and the reasons for such 

exclusion; and

(iv) a reconciliation of the Loan Parties’ Credit Card Accounts Receivable 

and Inventory between the amounts shown in the Loan Parties’ general ledger and 

financial statements and the reports delivered pursuant to clauses (i) and (ii) above;

(j) at any time that any Revolving Loan is outstanding or the LC Exposure is 

equal to or greater than $100,000,000, as soon as available but in any event within twenty 

(20) days after the end of each calendar month, (i) a schedule and aging of the Loan 

Parties’ accounts payable as of the month then ended and (ii) a reconciliation of the loan 

balance per the Loan Parties’ general ledger to the loan balance under this Agreement, in 

each case delivered electronically in a text formatted file reasonably acceptable to the 

Administrative Agent;

(k) at such other times as may be reasonably requested by the Administrative 

Agent, copies of all Tax returns filed by any Loan Party with the IRS;

(l) [reserved];

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(m) promptly after the same become publicly available, copies of all periodic and 

other reports, proxy statements and other materials filed by the Company or any 

Subsidiary with the SEC, or with any national securities exchange, or distributed by the 

Company to its shareholders generally, as the case may be;

(n) promptly after any written request therefor, evidence of insurance renewals as 

required under Section 5.08 in form and substance reasonably acceptable to the 

Administrative Agent; and

(o) promptly after any written request therefor, such other information regarding 

the operations, business affairs and financial condition of the Company or any 

Subsidiary, or compliance with the terms of any Loan Document, as the Administrative 

Agent or any Lender may reasonably request.

Information required to be delivered pursuant to clause (a), (b) or (m) of this Section shall be 

deemed to have been delivered if such information, or one or more annual or quarterly reports 

containing such information, shall have been posted by the Administrative Agent on an Intralinks 

or similar site to which the Lenders have been granted access or shall be available on the website 

of the SEC at http://www.sec.gov. Information required to be delivered pursuant to this 

Section may also be delivered by electronic communications pursuant to procedures approved by 

the Administrative Agent.

SECTION 5.02. Notices of Material Events. The Company will furnish to the 

Administrative Agent (for distribution to the Lenders) written notice promptly upon any 

Financial Officer, or other officer or employee responsible for compliance with the Loan 

Documents, of any Borrower becoming aware of any of the following:

(a) the occurrence of any Default;

(b) the filing or commencement of any action, suit or proceeding by or before any 

arbitrator or Governmental Authority (other than in connection with the Cases) against or 

affecting the Company or any Subsidiary, or any adverse development in any such 

pending action, suit or proceeding not previously disclosed in writing by the Company to 

the Administrative Agent and the Lenders, that in each case would reasonably be 

expected to result in a Material Adverse Effect or that in any manner questions the 

validity of any Loan Document;

(c) any Lien (other than a Permitted Encumbrance) or claim made or asserted 

against any material portion of the Collateral;

(d) any and all default notices received under or with respect to any leased 

location or public warehouse where Collateral having an aggregate value in excess of 

$5,000,000 is located (which shall be delivered within ten (10) Business Days after 

receipt thereof);

(e) the occurrence of an ERISA Event that has resulted, or would reasonably be 

expected to result, in a Material Adverse Effect; 

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(f) (i) as soon as practicable in advance of filing with the Court or delivering to 

the Committee appointed in a Case, if any, or to the U.S. Trustee, as the case may be, all 

material proposed orders and pleadings related to (x) the Cases (all of which must be in 

form and substance reasonably satisfactory to the Administrative Agent) or (y) the PrePetition Credit Agreement and this Agreement and the credit facilities contemplated

thereby and/or any sale contemplated in accordance with any Plan of Reorganization 

and/or any disclosure statement related thereto (all of which must be in form and 

substance reasonably satisfactory to the Administrative Agent), and (ii) substantially 

simultaneously with the filing with the Court or delivering to the Committee appointed in 

any Case, if any, or to the U.S. Trustee, as the case may be, monthly operating reports 

and all other notices, filings, motions, pleadings or other information concerning the 

financial condition of the Loan Parties or their Subsidiaries or the Cases that may be filed 

with the Court or delivered to the Committee appointed in any Case, if any, or to the U.S. 

Trustee; or

(g) any other development that has resulted, or would reasonably be expected to 

result, in a Material Adverse Effect.

Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or 

other executive officer of the Company setting forth the details of the event or development requiring 

such notice and any action taken or proposed to be taken with respect thereto.

SECTION 5.03. [Reserved].

SECTION 5.04. Information Regarding Collateral. (a) Each Loan Party will 

furnish to the Administrative Agent prompt (and in any event within thirty (30) days thereof (or 

such longer period as the Administrative Agent may agree)) written notice of any change in 

(i) its legal name, as set forth in its organizational documents, (ii) its jurisdiction of organization 

or the form of its organization (including as a result of any merger or consolidation), (iii) the 

location of its chief executive office or (iv) its organizational identification number, if any, and 

its Federal Taxpayer Identification Number, in each case under this clause (iv), only with respect 

to any Loan Party organized under the laws of a jurisdiction that requires such information to be 

set forth on the face of a UCC financing statement of such Loan Party. Each Loan Party also 

agrees promptly to notify the Administrative Agent if any material portion of the Collateral is 

damaged or destroyed.

(b) If any material assets are acquired by any Loan Party after the Effective Date 

(other than assets constituting Collateral under the Collateral Documents that become 

subject to the Lien of the Collateral Documents upon the acquisition thereof), the Loan 

Parties will promptly notify the Administrative Agent thereof and will cause such assets 

to be subjected to a Lien securing the Secured Obligations and will take such actions as 

shall be necessary or reasonably requested by the Administrative Agent to grant and 

perfect such Lien, all at the expense of the Loan Parties and, all to the extent required by 

this Agreement or the Collateral Documents. It is understood and agreed that, 

notwithstanding anything to the contrary set forth in this Agreement or in any Collateral 

Document, the Loan Parties shall not be required to (A) grant leasehold mortgages, (B) 

obtain landlord lien waivers, estoppels or Collateral Access Agreements, (C) perfect 

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Liens in any assets represented by a certificate of title or (D) enter into any Collateral 

Documents governed by the laws of a jurisdiction other than the United States.

(c) If, despite the restrictions set forth in Section 6.02, the Company or any 

Subsidiary shall grant a Lien on any of its assets to secure Indebtedness under the Term 

Credit Agreement or the Pre-Petition Term Credit Agreement and the Secured 

Obligations are not secured by a Lien on such assets, the Company will (i) promptly 

notify the Administrative Agent and cause such assets to be subjected to a Lien securing 

the Secured Obligations and (ii) take, or cause such Subsidiary to take, as the case may 

be, such actions as shall be necessary or reasonably requested by the Administrative 

Agent to grant and perfect such Lien, and to cause such Liens securing Indebtedness 

under the Term Credit Agreement and such Liens securing the Secured Obligations to 

become subject to the Intercreditor Agreement, all at the expense of the Loan Parties.

SECTION 5.05. Existence; Conduct of Business. Subject to any required 

approval by the Court, each Loan Party will, and will cause each Subsidiary to, do or cause to be 

done all things reasonably necessary to preserve, renew and keep in full force and effect (i) its 

legal existence and (ii) the rights, licenses, permits, privileges, franchises, patents, copyrights, 

trademarks and trade names material to the conduct of its business, except in the case of 

clause (ii) where failure to do so, individually or in the aggregate, would not reasonably be 

expected to result in a Material Adverse Effect; provided that the foregoing shall not prohibit any 

merger, consolidation, liquidation, dissolution, disposition or other transaction permitted under 

Section 6.03 or 6.05.

SECTION 5.06. Payment of Obligations. Subject to the Final Order and the 

terms thereof, each Loan Party will, and will cause each Subsidiary to, pay or discharge all its 

material obligations, including material Tax liabilities (whether or not shown on a Tax return), 

before the same shall become delinquent or in default, subject to the Approved Budget (and the 

Permitted Variances) except where (a) (i) the validity or amount thereof is being contested in 

good faith by appropriate proceedings, (ii) such Loan Party or such Subsidiary has set aside on 

its books reserves with respect thereto to the extent required by GAAP and (iii) such contest 

effectively suspends collection of the contested obligation and the enforcement of any Lien 

securing such obligation or (b) the failure to make payment would not, individually or in the 

aggregate, reasonably be expected to result in a Material Adverse Effect.

SECTION 5.07. Maintenance of Properties. Each Loan Party will, and will cause 

each Subsidiary (other than an Immaterial Subsidiary) to, keep and maintain all property material 

to the conduct of its business in good working order and condition, ordinary wear and tear 

excepted, except where the failure to do so, individually or in the aggregate, would not 

reasonably be expected to result in a Material Adverse Effect.

SECTION 5.08. Insurance. The Loan Parties will, and will cause each 

Subsidiary to, maintain, with financially sound and reputable insurance companies, insurance in 

such amounts (with no greater risk retention) and against such risks as are customarily 

maintained by companies of established repute engaged in the same or similar businesses 

operating in the same or similar locations. Each such policy of liability or casualty insurance 

maintained by or on behalf of Loan Parties shall (a) in the case of each liability insurance policy 

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(other than workers’ compensation, director and officer liability or other policies in which such 

endorsements are not customary), name the Administrative Agent, on behalf of the Lender 

Parties, as an additional insured thereunder and (b) in the case of each casualty insurance policy, 

contain a loss payable clause or endorsement that names the Administrative Agent, on behalf of 

the Lender Parties, as a loss payee thereunder, and the Loan Parties will use commercially 

reasonable efforts to have each such policy provide for at least thirty (30) days’ (or such shorter 

number of days as may be agreed to by the Administrative Agent) prior written notice to the 

Administrative Agent of any cancellation of such policy. With respect to each Flood Hazard 

Property owned by any Loan Party with respect to which flood insurance has been made 

available under Flood Insurance Laws, the applicable Loan Party (i) has obtained and will 

maintain, with financially sound and reputable insurance companies, flood insurance in such 

amount and otherwise on such terms as shall be required to comply with all applicable rules and 

regulations promulgated pursuant to Flood Insurance Laws and (ii) promptly upon request of the 

Administrative Agent or any Lender, will deliver to the Administrative Agent or such Lender the 

applicable Flood Insurance Documents and such other evidence of compliance, including 

evidence of annual renewals of such insurance, as may be reasonably requested by the 

Administrative Agent or such Lender and as shall be in form and substance reasonably 

acceptable to the Administrative Agent or such Lender.

SECTION 5.09. Books and Records; Inspection Rights. Each Loan Party will, 

and will cause each Subsidiary to, (a) keep proper books of record and account in which full, true 

and correct (in all material respects) entries in accordance with GAAP and applicable law are 

made of all dealings and transactions in relation to its business and activities and (b) permit any 

representatives designated by the Administrative Agent or any Lender (to the extent 

accompanying the Administrative Agent or any designated representative thereof) (including 

employees of the Administrative Agent, any Lender or any consultants, accountants, lawyers and 

appraisers retained by the Administrative Agent), upon reasonable prior notice (but in no event 

more than once each fiscal year of the Company unless an Event of Default has occurred and is 

continuing), to visit and inspect its properties, to examine and make extracts from its books and 

records and to discuss its affairs, finances and condition with its officers and, accompanied by 

one or more such officers or their designees if requested by the Company, independent 

accountants, all at such reasonable times during normal business hours and as often as 

reasonably requested. The Loan Parties shall have the right to have a representative present at 

any and all inspections. Notwithstanding anything herein to the contrary, the right of the 

Administrative Agent or any Lender to conduct appraisals or field examinations shall be 

governed exclusively by Sections 5.12 and 5.13, respectively, and shall not be limited by this 

Section.

SECTION 5.10. Compliance with Laws. Each Loan Party will, and will cause 

each Subsidiary to, comply with all laws (including Environmental Laws and orders of any 

Governmental Authority) applicable to it or its property, except (i) where the failure to do so, 

individually or in the aggregate, would not reasonably be expected to result in a Material 

Adverse Effect or (ii) to the extent subject to the Automatic Stay.

SECTION 5.11. Use of Proceeds. The proceeds of Loans made, and Letters of 

Credit issued, on or after the Effective Date will be used in accordance with the Approved 

Budget (subject to Permitted Variances) and the Final Order for the following: (i) fund the Cases 

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and repay Pre-Petition Indebtedness, (ii) for working capital, Capital Expenditures, letters of 

credit and other lawful corporate purposes of the Borrowers and their Subsidiaries (including 

payment of certain fees and expenses of professionals retained by the Loan Parties subject to the 

Carve Out and for certain other Pre-Petition and pre-filing expenses that are approved by the 

Court and permitted by the Approved Budget). No part of the proceeds of any Loan and no 

Letter of Credit will be used in contravention of the provisions of the Final Order, including any 

restrictions or limitations on the use of proceeds contained therein. Nothing in this Agreement 

shall prohibit the Post-Petition payment of Pre-Petition Lender Obligations, including principal, 

interest, fees, penalties or recoverable costs, due and payable in connection with the Pre-Petition 

Credit Agreement with the proceeds of the Collateral (as defined herein) or Collateral (as defined 

in the Pre-Petition Credit Agreement).

SECTION 5.12. Appraisals. The Loan Parties will provide to the Administrative 

Agent upon the Administrative Agent’s request, one appraisal (or updates thereof) of the 

Inventory of the Loan Parties from appraisers selected and engaged by the Administrative Agent, 

prepared on a basis consistent in all material respects with the inventory appraisals delivered 

pursuant to the Pre-Petition Credit Agreement (with such adjustments as shall be deemed 

appropriate to reflect events or changes in circumstances after the dates of such appraisals). For 

purposes of the foregoing, it is understood that a single appraisal may consist of appraisals of the 

assets of each Loan Party and may be conducted at multiple sites. Such appraisal shall be at the 

expense of the Loan Parties.

SECTION 5.13. Field Examinations. At any time that the Administrative Agent 

requests, the Company and the Subsidiaries will allow the Administrative Agent to conduct, or 

engage a third party to conduct, one field examination (or updates thereof) upon reasonable prior 

notice during normal business hours to ensure the adequacy of Collateral included in the 

Borrowing Base and related reporting and control systems; provided that the Administrative 

Agent shall be entitled to conduct only one such field examination after the Petition Date. For 

purposes of the foregoing, it is understood that such single field examination may consist of 

examinations of the assets of each Loan Party and may be conducted at multiple sites. Such 

single field examination requested after the Petition Date shall be at the expense of the Loan 

Parties.

SECTION 5.14. Depository Banks. The Loan Parties will, and will cause the 

Subsidiaries to, maintain the Administrative Agent or one or more Lenders acceptable to the 

Administrative Agent as their principal depository bank, including for the maintenance of 

operating, administrative, cash management, collection activity, and other Deposit Accounts for 

the conduct of their business; provided that the Loan Parties shall not be required to satisfy the 

foregoing requirement with respect to any Deposit Account that is an Excluded Deposit Account.

SECTION 5.15. Further Assurances. The Loan Parties will execute and/or 

deliver any and all further documents, financing statements, agreements and instruments, and 

take all such further actions that may be required under any applicable law, or that the 

Administrative Agent may reasonably request, to effectuate the transactions contemplated by the 

Loan Documents or to grant, preserve, protect or perfect the Liens created or intended to be 

created by the Security Documents or the validity or priority of any such Lien, all at the expense 

of the Loan Parties. The Loan Parties also agree to provide to the Administrative Agent, from 

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time to time upon request, evidence reasonably satisfactory to the Administrative Agent as to the 

perfection and priority of the Liens created or intended to be created by the Collateral 

Documents.

SECTION 5.16. Credit Card Agreements and Notifications. Each Loan Party 

will (a) comply in all material respects with all its obligations under each Credit Card Agreement

to which it is party and (b) maintain credit card arrangements solely with the credit card issuers 

and credit card processors identified in Schedule 3.18; provided, however, that the Company 

may amend Schedule 3.18 to remove any credit card issuer or credit card processor identified in 

such Schedule 3.18 or to add additional credit card issuers and credit card processors that are 

satisfactory to the Administrative Agent in its reasonable discretion, and concurrently with the 

making of any such amendment the Company shall provide to the Administrative Agent 

evidence that a Credit Card Notification shall have been delivered to any credit card issuer or 

credit card processor added to such Schedule 3.18.

SECTION 5.17. Loan Parties’ Advisors.

(a) The Loan Parties shall continue to retain the Debtors’ Investment Banker. 

The Loan Parties and their representatives will fully cooperate with the Debtors’ 

Investment Banker and grant them full and complete access to the books and records of 

the Loan Parties. The Loan Parties hereby (i) authorize the Administrative Agent (or 

their respective agents or advisors) to communicate directly with the Debtors’ Investment 

Banker regarding any and all matters related to the Loan Parties and their Affiliates, and 

(ii) authorize the Debtors’ Investment Banker to provide the Administrative Agent (or 

their respective agents or advisors) with reports and other information or materials 

prepared or reviewed by the Debtors’ Investment Banker as the Administrative Agent 

may reasonably request (in the case of each of clauses (i) and (ii), subject to protection as 

necessary in respect of information that is subject to attorney-client or similar privilege or 

constitutes attorney work-product, and entry by the Administrative Agent (or its 

respective agents or advisors) into customary non-reliance/confidentiality arrangements 

in form reasonably satisfactory to the Debtors’ Investment Banker).

(b) the Loan Parties shall host a monthly conference call for Lenders to discuss 

financial information delivered pursuant to Section 5.01. The Loan Parties will hold such 

conference call following the delivery of the required financial information for such 

month pursuant to Section 5.01(c) and not later than five Business Days from the time the 

Borrowers are required to deliver the financial information as set forth in Section 5.01(c).

(c) the Loan Parties shall host bi-weekly conference calls for the Lender Advisors 

to discuss financial information delivered pursuant to Section 5.01(f).

(d) Such monthly and bi-weekly calls will occur as a standing appointment at a 

time to be mutually agreed upon by the Borrower Representative and the Lenders or the 

Lender Advisors, as applicable.

(e) Notwithstanding anything to the contrary contained in this Section 5.17, none 

of the Loan Parties or their respective professionals (including the Debtor’s Investment 

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Banker) will be required to disclose or permit access to any document, information or 

other matter (i) in respect of which disclosure to the Administrative Agent, any Lender or 

any Lender Advisor (or their respective representatives or contractors) by the Loan 

Parties or their respective professionals (including the Debtor’s Investment Banker) is 

prohibited by applicable law or any binding agreement or (ii) that is subject to attorney 

client or similar privilege or constitutes attorney-work product.

SECTION 5.18. Lender Advisors. The Administrative Agent, on behalf of itself 

and the Lenders, shall be entitled to retain or to continue to retain (either directly or through 

counsel) any Lender Advisors to provide advice, analysis and reporting for the benefit of the 

Administrative Agent and the Lenders. The Loan Parties shall pay all fees and expenses of each 

Lender Advisor and all such fees and expenses shall constitute Obligations and be secured by the 

Collateral. 

SECTION 5.19. Bankruptcy Matters. The Loan Parties shall:

(a) cause all proposed (i) “first day” orders on a final basis, (ii) orders (other than 

the Final Order) related to or affecting the Loans and other Obligations and the Loan 

Documents, any other financing or use of cash collateral, any sale or other disposition of 

Collateral outside the ordinary course, cash management, adequate protection, any Plan 

of Reorganization and/or any disclosure statement related thereto, (iii) orders concerning 

the financial condition of the Borrowers or any of their respective Subsidiaries or other 

Indebtedness of the Loan Parties or seeking relief under section 363, 365, 1113 or 1114 

of the Bankruptcy Code or section 9019 of the Federal Rules of Bankruptcy Procedure, 

and (iv) orders establishing procedures for administration of the Cases or approving 

significant transactions submitted to the Court, in each case, proposed by the Loan Parties 

to be in accordance with and permitted by the terms of this Agreement and acceptable to 

the Administrative Agent in its reasonable discretion in all respects, it being understood 

and agreed that the forms of orders approved by the Administrative Agent (and with 

respect to any provision that affects the rights, obligations, liabilities or duties of the 

Administrative Agent) prior to the Petition Date are in accordance with and permitted by 

the terms of this Agreement and are reasonably acceptable in all respects;

(b) comply in a timely manner with their obligations and responsibilities as 

debtors -in -possession under the Final Order; 

(c) except as otherwise permitted by an Acceptable Plan or this Agreement,

provide prior written notice as soon as reasonably practicable to the Required Lenders 

prior to any assumption or rejection of any Loan Party’s or any Subsidiary’s material 

contracts or material non-residential real property Leases pursuant to Section 365 of the 

Bankruptcy Code;

(d) deliver to the Administrative Agent all documents required to be delivered to 

creditors under the RSA, any applicable restructuring support agreement or any case 

stipulation; provided that the Borrower shall not be required to deliver any such 

documents provided by any party in interest to the extent that any such document is filed 

under seal; provided, further, that such documents that are filed under seal, to the extent 

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permitted by applicable law, shall be provided to the advisors to the Administrative 

Agent on a professional eyes’ only basis.

(e) comply with each of the Required Milestones contained on Schedule 5.19 

upon the terms and at the times provided for therein.

ARTICLE VI

Negative Covenants

Until the earlier to occur of the date on which (a) the Revolving Commitments 

have expired or terminated and the principal of and interest on each Loan and all fees, expenses 

and other amounts payable under any Loan Document (other than Banking Services Obligations, 

Swap Obligations and contingent or indemnity obligations for which no claim has been made) 

have been paid in full in cash and all Letters of Credit have expired or terminated and all LC

Disbursements shall have been reimbursed, or (b) the Conversion Date set forth in the section 

entitled “Conditions to Conversion” in the Exit Facility Term Sheet shall have occurred, the 

Loan Parties covenant and agree, jointly and severally, with the Lenders that:

SECTION 6.01. Indebtedness; Certain Equity Securities. (a) The Company will 

not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any 

Indebtedness, except:

(i) Indebtedness created under the Loan Documents and the Pre-Petition 

Loan Documents;

(ii) Indebtedness existing on the date hereof and set forth on Schedule 

6.01;

(iii) unsecured Indebtedness of the Company to any Subsidiary and of any 

Subsidiary to the Company or any other Subsidiary; provided that (A) such Indebtedness 

shall not have been transferred to any Person other than the Company or any Subsidiary, 

(B) any such Indebtedness owing by any Loan Party to a Subsidiary that is not a Loan 

Party shall be unsecured, subordinated in right of payment to the Obligations and the PrePetition Lender Obligations and (C) any such Indebtedness shall be incurred in 

compliance with Section 6.04;

(iv) Guarantees incurred in compliance with Section 6.04;

(v) Indebtedness of the Company or any Subsidiary permitted by the 

Approved Budget (including with respect to any Permitted Variances) (A) incurred to 

finance the acquisition, construction or improvement of any fixed or capital assets, 

including Capital Lease Obligations and Synthetic Lease Obligations, provided that such 

Indebtedness is incurred prior to or within 270 days after such acquisition or the 

completion of such construction or improvement and the principal amount of such 

Indebtedness does not exceed the cost of acquiring, constructing or improving such fixed 

or capital assets or (B) assumed in connection with the acquisition of any fixed or capital 

assets, and Refinancing Indebtedness in respect of any of the foregoing; provided that the 

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aggregate principal amount of Indebtedness permitted by this clause (v) at the time of 

incurrence thereof shall not exceed $1,000,000;

(vi) Indebtedness in respect of netting services, overdraft protections and 

deposit and checking accounts, in each case, in the ordinary course of business;

(vii) Indebtedness in respect of letters of credit, bank guarantees and 

similar instruments issued for the account of the Company or any Subsidiary in the 

ordinary course of business supporting obligations under workers’ compensation, health, 

disability, unemployment insurance and other social security laws;

(viii) Indebtedness permitted by the Approved Budget (including with 

respect to any Permitted Variances);

(ix) [reserved];

(x) Indebtedness under (i) the Pre-Petition Term Credit Agreement in an 

aggregate principal amount not to exceed $1,271,597,089.65 and (ii) the Term Credit 

Agreement in an aggregate principal amount not to exceed $312,342,704.17 at any time 

outstanding, provided that the Term Loan Facility shall at all times be subject to the 

Intercreditor Agreement as supplemented by the Intercreditor Acknowledgment;

(xi) Indebtedness of Loan Parties in respect of surety bonds (whether bid, 

performance, appeal or otherwise) and performance and completion guarantees and other 

obligations of a like nature, in each case incurred in the ordinary course of business;

(xii) the Carve Out;

(xiii) Indebtedness incurred under leases of real property in respect of 

tenant improvements;

(xiv) [reserved];

(xv) other unsecured Indebtedness in an aggregate principal amount not to 

exceed at the time of incurrence thereof $4,000,000 permitted by the Approved Budget 

(including with respect to any Permitted Variances);

(xvi) Indebtedness consisting of (A) the financing of insurance premiums 

and (B) take-or-pay obligations contained in supply arrangements, in each case, in the 

ordinary course of business;

(xvii) obligations under any agreement governing the provision of treasury 

or cash management services, including deposit accounts, overnight draft, credit cards, 

debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, 

automated clearinghouse, zero balance accounts, returned check concentration, controlled 

disbursement, lockbox, account reconciliation and reporting and trade finance services 

and other cash management services; and

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(xviii) Indebtedness in the form of Swap Agreements permitted under 

Section 6.07.

(b) The accrual of interest, the accretion of accreted value and the payment of 

interest or dividends in the form of additional Indebtedness or Disqualified Stock, as 

applicable, the accretion of original issue discount, the accretion of liquidation preference 

and increases in the amount of Indebtedness outstanding solely as a result of fluctuations 

in the exchange rate of currencies shall not be deemed to be an incurrence of 

Indebtedness or Disqualified Stock for purposes of Section 6.01(a).

(c) Notwithstanding any of the foregoing, no Indebtedness permitted under this 

Section 6.01 shall be permitted to have an administrative expense claim status under the 

Bankruptcy Code senior to or pari passu with the superpriority administrative expense 

claims of (i) the Administrative Agent and the Lenders and (ii) the Pre-Petition Agent and 

the Pre-Petition Lenders, in each case, as set forth herein and in the Final Order, other 

than, solely with respect to Collateral that is not ABL Priority Collateral (as defined in 

the Intercreditor Agreement), Indebtedness under the Term Credit Agreement permitted 

under Section 6.01(a)(x).

SECTION 6.02. Liens. The Company will not, and will not permit any 

Subsidiary to, create, incur, assume or permit to exist any Lien on any asset now owned or 

hereafter acquired, or assign or sell any accounts receivable or rights in respect thereof of the 

Company or any Domestic Subsidiary that is a Subsidiary, except:

(a) Liens granted by the Final Order or created under the Loan Documents or 

Pre-Petition Loan Documents;

(b) Permitted Encumbrances;

(c) any Lien on any asset of the Company or any Subsidiary existing on the 

Effective Date and set forth on Schedule 6.02; provided that (i) such Lien shall not apply 

to any other asset of the Company or any Subsidiary and (ii) such Lien shall secure only 

those obligations that it secures on the Effective Date and any extensions, renewals and 

refinancings thereof that do not increase the outstanding principal amount thereof;

(d) the Carve Out;

(e) Liens on fixed or capital assets acquired, constructed or improved by the 

Company or any Subsidiary; provided that (i) such Liens secure only Indebtedness 

permitted by Section 6.01(a)(v) and obligations relating thereto not constituting 

Indebtedness and (ii) such Liens shall not apply to any other asset of the Company or any

Subsidiary (other than the proceeds and products thereof); provided further that in the 

event purchase money obligations are owed to any Person with respect to financing of 

more than one purchase of any fixed or capital assets, such Liens may secure all such 

purchase money obligations and may apply to all such fixed or capital assets financed by 

such Person;

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(f) in connection with the sale or transfer of any Equity Interests or other assets in 

a transaction permitted under Section 6.05, customary rights and restrictions contained in 

agreements relating to such sale or transfer pending the completion thereof, solely to the 

extent such sale or transfer would have been permitted on the date of creation of such 

Lien;

(g) in the case of (i) any Subsidiary that is not a wholly-owned Subsidiary or (ii) 

the Equity Interests in any Person that is not a Subsidiary, any encumbrance or 

restriction, including any put and call arrangements, related to Equity Interests in such 

Subsidiary or such other Person set forth in the organizational documents of such 

Subsidiary or such other Person or any related joint venture, shareholders’ or similar 

agreement, in each case, so long as such encumbrance or restriction is in existence on the 

Petition Date;

(h) Liens solely on any cash earnest money deposits, escrow arrangements or 

similar arrangements made by the Company or any Subsidiary in connection with the 

purchase or other acquisition of equipment or inventory in the ordinary course of 

business;

(i) Liens on the Collateral securing Indebtedness and Guarantees of the Loan 

Parties permitted by Section 6.01(a)(x) and obligations relating thereto not constituting 

Indebtedness; provided that any such Liens on the Collateral shall be subject to the 

Intercreditor Agreement and the Final Order;

(j) any Lien on assets of any Foreign Subsidiary; provided that such Lien shall 

secure only Indebtedness of such Foreign Subsidiary permitted by Section 6.01(a) and 

obligations relating thereto not constituting Indebtedness;

(k) other Liens securing Indebtedness or other obligations in an aggregate 

principal amount at the time of incurrence of such Liens not to exceed $1,000,000 (it 

being understood that in the event any such Liens extend to Credit Card Accounts 

Receivable or Inventory, such Credit Card Accounts Receivable or Inventory shall, to the 

extent otherwise included therein, cease to be Eligible Credit Card Accounts Receivable 

or Eligible Inventory, as applicable);

(l) non-exclusive licenses of intellectual property granted in the ordinary course 

of business; and

(m) Liens in favor of the Pre-Petition Lenders as adequate protection granted 

pursuant to the Final Order.

Notwithstanding the foregoing, (i) none of the Liens permitted pursuant to this 

Section 6.02 may at any time attach to any Loan Party’s Collateral included in the Borrowing 

Base, other than those permitted under clauses (a) and (b) of the definition of Permitted 

Encumbrances and clauses (a), (i) and (l) above, and (ii) Liens permitted under this Section 6.02, 

other than the Liens securing the credit facility under the Pre-Petition Term Credit Agreement or 

the Term Credit Agreement on Term Priority Collateral (solely to the extent set forth in the Final 

Order) shall at all times be junior and subordinate to the Liens under the Loan Documents and 

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the Final Order securing the Secured Obligations. The prohibition provided for in this Section 

6.02 specifically includes any material step by any Debtor, the Committee or any other party in 

interest in the Cases, as applicable, to prime any claims, Liens or interests of (x) the 

Administrative Agent and the Lenders or (y) for so long as the Pre-Petition Lender Obligations 

have not been indefeasibly paid in full in cash, the Pre-Petition Agent and the Pre-Petition 

Lenders, any Lien, in each case, other than as set forth in the Final Order and irrespective of 

whether such claims, Liens or interests may be “adequately protected.” The designation of a 

Lien as a Permitted Encumbrance shall not limit or restrict the ability of the Administrative 

Agent to establish any Reserve relating thereto in accordance with the terms hereof.

SECTION 6.03. Fundamental Changes; Business Activities. (a) The Company 

will not, and will not permit any Subsidiary to, merge into or consolidate with any other Person, 

or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except 

that, if at the time thereof and immediately after giving effect thereto no Default shall have 

occurred and be continuing, (i) any Subsidiary may (A) merge into the Company in a transaction 

in which the Company is the surviving entity and (B) merge into a Borrowing Subsidiary in a 

transaction in which the Borrowing Subsidiary is the surviving entity, (ii) any Person (other than 

the Company) may merge into or consolidate with any Subsidiary in a transaction in which the 

surviving entity is a Subsidiary and (A) if any party to such merger or consolidation is a 

Borrowing Subsidiary, a Borrowing Subsidiary and (B) if any party to such merger or 

consolidation is a Loan Party, a Loan Party, (iii) [reserved] and (iv) any Subsidiary (other than a 

Borrowing Subsidiary) may liquidate or dissolve if the Company determines in good faith that 

such liquidation or dissolution is in the best interests of the Company and is not materially 

disadvantageous to the Lenders; provided that any such merger or consolidation involving a 

Person that is not a wholly-owned Subsidiary immediately prior to such merger or consolidation 

shall not be permitted unless it is also permitted by Section 6.04. 

(b) The Company will not, and will not permit any of its Subsidiaries to, engage 

to any material extent in any business other than businesses of the type conducted by the 

Company and the Subsidiaries on the Effective Date and businesses reasonably related or 

complementary thereto.

SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions.

The Company will not, and will not permit any Subsidiary to, purchase, hold, acquire (including 

pursuant to any merger or consolidation), make or otherwise permit to exist any Investment in 

any other Person, except:

(a) Investments in cash and Permitted Investments;

(b) Investments existing on, or contractually committed to as of, the Effective 

Date and set forth in Schedule 6.04 and any extensions, renewals or reinvestments thereof 

(but not any additions thereto (including any capital contributions) made after the 

Effective Date);

(c) Investments by the Company and the Subsidiaries in Equity Interests in their 

respective subsidiaries; provided that (i) such subsidiaries are Subsidiaries prior to such 

Investments, (ii) the aggregate amount of such Investments by the Loan Parties in, and 

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loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of 

Indebtedness and other obligations of, Subsidiaries that are not Loan Parties (excluding 

all such Investments, loans, advances and Guarantees existing on the Effective Date and 

permitted by clause (b) above) permitted pursuant this clause (c) and pursuant to clauses 

(d) and (e) below shall not exceed $10,000,000, and (iii) such Investments are made in

the ordinary course of business in connection with the operational and compliance needs 

of the Company and the Subsidiaries and are permitted by the Approved Budget (subject 

to Permitted Variances);

(d) loans or advances made by the Company to any Subsidiary or made by any 

Subsidiary to the Company or any other Subsidiary; provided that (i) the Indebtedness 

resulting therefrom is permitted by Section 6.01(a)(iii) and (ii) the amount of such loans 

and advances made by the Loan Parties to Subsidiaries that are not Loan Parties shall be 

subject to the limitation set forth in clause (c) above and shall be permitted by the 

Approved Budget (subject to Permitted Variances);

(e) Guarantees by the Company or any Subsidiary of Indebtedness or other 

obligations of the Company or any Subsidiary (including any such Guarantees (i) arising 

as a result of any such Person being a joint and several co-applicant with respect to any 

letter of credit or letter of guaranty or (ii) of any leases of retail store locations and related 

obligations arising thereunder); provided that the aggregate amount of Indebtedness and 

other obligations of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan 

Party shall be subject to the limitation set forth in clause (c) above and shall be permitted 

by the Approved Budget (subject to Permitted Variances);

(f) [reserved];

(g) 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;

(h) [reserved];

(i) deposits, prepayments and other credits to suppliers, lessors and landlords 

made in the ordinary course of business;

(j) advances by the Company or any Subsidiary to employees in the ordinary 

course of business consistent with past practices for travel and entertainment expenses, 

relocation costs and similar purposes to the extent permitted by the Approved Budget 

(subject to Permitted Variances);

(k) [reserved];

(l) Investments in the form of Swap Agreements permitted under Section 6.07;

(m) investments constituting deposits described in clauses (c) and (d) of the 

definition of “Permitted Encumbrances” and endorsements of instruments for collection 

or deposit in the ordinary course of business;

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(n) [reserved];

(o) other Investments to the extent permitted in the Final Order;

(p) other Investments in an aggregate amount not to exceed $1,000,000 to the 

extent permitted by the Approved Budget (subject to Permitted Variances); and

(q) to the extent constituting Investments, actions permitted by Section 6.05.

SECTION 6.05. Asset Sales. The Company will not, and will not permit any 

Subsidiary to, sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest 

owned by it, nor will the Company permit any Subsidiary to issue any additional Equity Interests 

in such Subsidiary (other than to the Company or any other Subsidiary in compliance with 

Section 6.04, and other than directors’ qualifying shares and other nominal amounts of Equity 

Interests that are required to be held by other Persons under applicable law) (each of the 

foregoing, an “Asset Sale”), except:

(a) (i) sales of inventory, (ii) sales, transfers and other dispositions of used, 

surplus, obsolete or outmoded machinery or equipment, (iii) contributions of merchandise 

to charitable organizations, to the extent in the ordinary course of business and consistent 

with past practices, and (iv) dispositions of cash and Permitted Investments in accordance 

with the Approved Budget, in each case (other than in the case of clause (iii) and (iv)) in 

the ordinary course of business;

(b) sales, transfers, leases and other dispositions to the Company or any 

Subsidiary in the ordinary course of business; provided that any such sales, transfers, 

leases or other dispositions involving a Subsidiary that is not a Loan Party shall be made 

in compliance with Sections 6.04 and 6.09;

(c) the sale or discount of accounts receivable arising in the ordinary course of 

business, but only in connection with the compromise or collection thereof and not in 

connection with any financing transaction;

(d) dispositions of assets subject to any casualty or condemnation proceeding 

(including in lieu thereof);

(e) leases or subleases of real property granted by the Company or any Subsidiary 

to third Persons not interfering in any material respect with the business of the Company 

or any Subsidiary, including retail store lease assignments and surrenders;

(f) [reserved];

(g) direct or indirect transfers or other dispositions by any Subsidiary of any 

foreign assets or the Equity Interests of a Foreign Subsidiary that is a Subsidiary to any 

other Subsidiary in connection with the consolidation of foreign operations of the 

Company and its Subsidiaries;

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(h) sales, transfers and other dispositions of assets provided for in the Approved 

Budget that are not permitted by any other clause of this Section in an aggregate amount 

equal to a fair market value, as determined by a Responsible Officer of the Borrower 

Representative reasonably and acting in good faith, of not more than $1,000,000; 

(i) other sales, transfers or dispositions pursuant to an order of the Court which 

sale, transfer or disposition are consistent with the Restructuring Support Agreement and 

the Approved Budget; 

(j) Specified Dispositions or dispositions expressly identified and provided for in 

the Approved Budget; and

(k) the elimination or forgiving of intercompany balances in connection with 

intercompany restructurings (including dissolutions, liquidations and mergers) between 

or among the Company and its Subsidiaries;

provided that all sales, transfers, leases and other dispositions permitted hereby 

(other than those permitted by clause (a)(ii), (a)(iii), (a)(iv), (b), (c), (d), (e), (g), (i), (j) or (k) 

above) shall be made for fair value. Notwithstanding the foregoing, other than in connection with 

a Specified Disposition or dispositions to the Company or any Subsidiary in compliance with 

Section 6.04, and other than directors’ qualifying shares and other nominal amounts of Equity 

Interests that are required to be held by other Persons under applicable requirements of law, no

such sale, transfer or other disposition of any Equity Interests in any Borrowing Subsidiary shall 

be permitted.

SECTION 6.06. Sale/Leaseback Transactions. The Company will not, and will 

not permit any Subsidiary to, enter into any Sale/Leaseback Transaction, except to the extent 

such Sale/Leaseback Transaction is entered into in connection with a Specified Disposition.

SECTION 6.07. Swap Agreements. The Company will not, and will not permit 

any Subsidiary to, enter into any Swap Agreement, other than Swap Agreements entered into in 

the ordinary course of business to hedge or mitigate risks to which the Company or a Subsidiary 

is exposed in the conduct of its business or the management of its liabilities and not for 

speculative purposes.

SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness. (a) 

The Company will not, and will not permit any Subsidiary to, declare or make, or agree to pay or 

make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or 

otherwise) to do so, except that:

(i) the Company may declare and pay dividends with respect to its Equity 

Interests payable solely in additional Equity Interests (other than Disqualified Stock) of 

the Company;

(ii) any Subsidiary may declare and pay dividends or make other 

distributions with respect to its Equity Interests, or make other Restricted Payments in 

respect of its Equity Interests, in each case ratably to the holders of such Equity Interests 

(or, if not ratably, on a basis more favorable to the Company and the Subsidiaries);

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(iii) [reserved];

(iv) [reserved];

(v) the Company may make cash payments in lieu of the issuance of 

fractional shares representing insignificant interests in the Company in connection with 

the exercise of warrants, options or other securities convertible into or exchangeable for 

shares of common stock in the Company;

(vi) the Company’s Subsidiaries may make Restricted Payments to the

Borrower Representative on or around and upon the execution and effectiveness of the 

RSA to pay fees and expenses in accordance therewith to the extent permitted in the Final 

Order;

(vii) [reserved];

(viii) the Company and its Subsidiaries may make Restricted Payments to 

the extent provided for in the Approved Budget (subject to Permitted Variances thereto) 

and permitted by the Final Order; and

(ix) to the extent constituting a Restricted Payment, the Company and its 

Subsidiaries may consummate the transactions permitted by Section 6.05; and

(x) Restricted Payments to permit payment of franchise and similar taxes, 

administrative and maintenance expenses, and foreign independent director (or foreign 

independent member or manager) fees and expenses and related expenses, in each case,

of certain non-Debtor affiliate entities to the extent provided in the “first day” or “second 

day” orders on a final basis entered by the Court in respect of ongoing cash management

in the ordinary course of business consistent with past practice and to the extent provided 

for in the Approved Budget (including Permitted Variances thereto).

(b) The Company will not, and will not permit any Subsidiary to, make or agree 

to pay or make, directly or indirectly, any payment or other distribution (whether in cash, 

securities or other property), including any sinking fund or similar deposit, on account of 

the purchase, redemption, retirement, acquisition, cancellation or termination of any 

Specified Indebtedness, except:

(i) payments of regularly scheduled interest and principal payments as and 

when due in respect of any Specified Indebtedness to the extent provided for in in the 

Approved Budget (including Permitted Variances thereto) and permitted by the Final 

Order;

(ii) [reserved];

(iii) to the extent not subject to any mandatory prepayment of the Loans or 

reinvestment required pursuant to the mandatory prepayment provisions and/or 

reinvestment provisions of Section 2.11(c), payment of secured Indebtedness that 

becomes due as a result of (A) any voluntary sale or transfer of any assets securing such 

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Indebtedness or (B) any casualty or condemnation proceeding (including a disposition in 

lieu thereof) of any assets securing such Indebtedness;

(iv) payments of or in respect of Indebtedness solely by issuance of the 

Equity Interests (other than Disqualified Stock) of the Company;

(v) payments of or in respect of Indebtedness incurred by any Subsidiary 

that is not a Debtor; and

(vi) payments to the extent provided for in the Approved Budget 

(including Permitted Variances thereto) and permitted by the Final Order

(c) The Company will not, and will not permit any Subsidiary to, amend, modify 

or change in any manner adverse to the interests of the Lenders any term or condition of 

any documentation governing Specified Indebtedness; provided that immaterial 

amendments of an administrative, ministerial or technical nature may be made so long as 

contemporaneous written notice thereof is provided to the Administrative Agent.

SECTION 6.09. Transactions with Affiliates. The Company will not, and will 

not permit any Subsidiary to, sell, lease, license or otherwise transfer any assets to, or purchase, 

lease, license or otherwise acquire any assets from, or otherwise engage in any other transactions 

with any of its Affiliates, except (a) transactions on terms and conditions not less favorable to the 

Company or such Subsidiary than those that would prevail in an arm’s-length transaction with 

unrelated third parties, (b) transactions between or among the Company and the Subsidiaries, (c) 

any Restricted Payment permitted by Section 6.08 or Investments permitted pursuant to 

Section 6.04(j), (d) the payment of reasonable fees and compensation to, and the providing of 

reasonable indemnities on behalf of, directors and officers of the Company or any Subsidiary, as 

determined by the board of directors of the Company in good faith, (e) employment contracts or 

subscription, put/call arrangements with employees, officers or directors, (f) transactions 

necessary to make adequate protection payments on account of secured Pre-Petition 

Indebtedness pursuant to the Final Order and (g) the transactions described on Schedule 6.09.

SECTION 6.10. Restrictive Agreements. The Company will not, and will not 

permit any Subsidiary to, directly or indirectly, enter into, incur or permit to exist any agreement 

or other arrangement that restricts or imposes any condition upon (a) the ability of the Company 

or any Subsidiary to create, incur or permit to exist any Lien upon any of its assets to secure any 

Secured Obligations or (b) the ability of any Subsidiary to pay dividends or other distributions 

with respect to its Equity Interests or to make or repay loans or advances to the Company or any 

other Loan Party or to Guarantee the Secured Obligations; provided that (i) the foregoing shall 

not apply to (A) restrictions and conditions imposed by law or by any Loan Document, 

(B) restrictions and conditions existing on the Effective Date identified on Schedule 6.10 (but 

shall apply to any amendment or modification expanding the scope of any such restriction or 

condition), (C) customary restrictions and conditions contained in agreements relating to the sale 

of a Subsidiary pending such sale, provided that such restrictions and conditions apply only to 

the Subsidiary that is to be sold and such sale is permitted hereunder, (D) in the case of any 

Subsidiary that is not a wholly-owned Subsidiary, restrictions and conditions imposed by its 

organizational documents or any related joint venture or similar agreement, provided that such 

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restrictions and conditions apply only to such Subsidiary and to any Equity Interests in such 

Subsidiary, (E) restrictions and conditions set forth in the Pre-Petition Term Credit Agreement, 

the Term Credit Agreement, (F) restrictions and conditions imposed by agreements relating to 

Indebtedness of Subsidiaries that are not Loan Parties permitted under Section 6.01(a) and (G) 

restrictions and conditions imposed on cash to secure letters of credit and other segregated 

deposits that are permitted pursuant to Section 6.02(h), provided that such restrictions and 

conditions apply only to such Subsidiaries that are not Loan Parties, (ii) clause (a) of the 

foregoing shall not apply to (A) restrictions or conditions imposed by any agreement relating to 

secured Indebtedness permitted by Section 6.01(a)(v) if such restrictions or conditions apply 

only to the assets securing such Indebtedness and (B) customary provisions in leases and other 

agreements restricting the assignment thereof and (iii) clause (b) of the foregoing shall not apply 

to restrictions and conditions imposed by agreements relating to Indebtedness of any Subsidiary 

in existence at the time such Subsidiary became a Subsidiary and otherwise permitted under 

Section 6.01(a) (but shall apply to any amendment or modification expanding the scope of, any 

such restriction or condition), provided that such restrictions and conditions apply only to such 

Subsidiary.

SECTION 6.11. Amendment of Organizational Documents. The Company will 

not, and will not permit any Subsidiary to, amend, modify or waive any of its rights under its 

certificate of incorporation, by-laws or other organizational documents, in either case, to the 

extent such amendment, modification or waiver would be adverse to the rights or interests of the 

Lenders hereunder or under any other Loan Document; provided that immaterial amendments of 

an administrative, ministerial or technical nature may be made so long as contemporaneous 

written notice thereof is provided to the Administrative Agent.

SECTION 6.12. Financial Covenants.

(a) Minimum Availability. The Company will not permit Availability at any time 

to be less than the greater of (i) 10% of the Credit Limit and (ii) $40,000,000. 

(b) Minimum Liquidity. The Company will not permit Liquidity at any time to 

be less than $100,000,000.

(c) Net Cash Flow. Solely to the extent that Liquidity is less than $150,000,000, 

the Company will not permit any negative variance between the Actual Net Cash Flow

Amount for any Cumulative Four-Week Period and the Budgeted Net Cash Flow Amount 

for such Cumulative Four-Week Period to be greater than 20%.

SECTION 6.13. Accounting Changes. The Company will not make any change 

in the Company’s fiscal quarter or fiscal year other than as required pursuant to GAAP.

SECTION 6.14. Sanctions. The Company and its Subsidiaries will not, directly 

or indirectly, use the proceeds of any Borrowing or any Letter of Credit, or lend, contribute or 

otherwise make available such proceeds to any Subsidiary, joint venture partner or other 

individual or entity, to fund any activities of or business with any individual or entity, or in any 

Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any 

other manner that will result in a violation by an individual or entity (including any individual or 

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entity participating in the transaction, whether as Lender, Arranger, Administrative Agent, or 

otherwise) of Sanctions.

SECTION 6.15. Anti-Corruption Laws. The Company and its Subsidiaries will 

not, directly or indirectly, use the proceeds of any Borrowing or any Letter of Credit for any 

purpose which would breach any Anti-Corruption Laws.

SECTION 6.16. Subrogation. No Loan Party shall assert any right of 

subrogation or contribution against any other Loan Party.

ARTICLE VII

Events of Default

If any of the following events (“Events of Default”) shall occur:

(a) the Borrowers shall fail to pay any principal of any Loan or any 

reimbursement obligation in respect of any LC Disbursement when and as the same shall 

become due and payable, whether at the due date thereof or at a date fixed for 

prepayment thereof or otherwise;

(b) the Borrowers shall fail to pay any interest on any Loan or any fee or any 

other amount (other than an amount referred to in clause (a) of this Article) payable under 

this Agreement, when and as the same shall become due and payable, and such failure 

shall continue unremedied for a period of three (3) Business Days;

(c) any representation, warranty or certification made or deemed made by the 

Company or any Subsidiary in this Agreement or any other Loan Document or any 

amendment or modification thereof or waiver thereunder, or in any report, certificate, 

financial statement or other document furnished pursuant to or in connection with this 

Agreement or any other Loan Document or any amendment or modification thereof or 

waiver thereunder, shall prove to have been materially incorrect when made or deemed 

made (or, in the case of any representation, warranty or certification qualified by 

materiality, incorrect);

(d) any Loan Party shall fail to observe or perform any covenant, condition or 

agreement contained in the second sentence of Section 2.09(a), 5.01, 5.02(a), 5.05 (with 

respect to the Company’s or a Borrowing Subsidiary’s existence), 5.11, 5.12, 5.13, 5.17, 

5.18 or 5.19 or in Article VI;

(e) the Loan Parties shall fail to comply with Section 5.08 or Article VII of the 

Security Agreement and any such failure shall continue unremedied for a period of three 

(3) Business Days or more, or any Loan Party shall fail to observe or perform any other 

covenant, condition or agreement contained in this Agreement or any other Loan 

Document (other than those specified in clause (a), (b) or (d) of this Article or in the 

preceding provisions of this clause (e)), and such failure shall continue unremedied for a 

period of twenty (20) days after receipt of written notice thereof from the Administrative 

Agent;

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(f) except as a result of commencement of the Cases or entry into this Agreement

and the Term Credit Agreement, unless the payment, acceleration and/or the exercise of 

remedies with respect to any such Indebtedness is stayed by the Court or unless any of 

the following results from obligations with respect to which the Court prohibits or does 

not permit any Loan Party from applicable compliance, any Loan Party or any Subsidiary

shall fail to make any payment (whether of principal, interest, termination payment or 

other payment obligation and regardless of amount) in respect of the Term Credit 

Agreement or any other Material Indebtedness (other than the Obligations) when and as 

the same shall become due and payable (after giving effect to any applicable grace 

period);

(g) except as a result of commencement of the Cases or entry into this Agreement

and the Term Credit Agreement, unless the payment, acceleration and/or the exercise of 

remedies with respect to any such Indebtedness is stayed by the Court or unless any of 

the following results from obligations with respect to which the Court prohibits or does 

not permit any Loan Party from applicable compliance, (i) any event or condition shall 

occur that results in Indebtedness under the Term Credit Agreement or any other Material 

Indebtedness becoming due, or being terminated or required to be prepaid, repurchased, 

redeemed or defeased, prior to its scheduled maturity, or that enables or permits (with the 

giving of notice, if required) the holder or holders of any Material Indebtedness or any 

trustee or agent on its or their behalf, or, in the case of any Swap Agreement, the 

applicable counterparty, to cause any Indebtedness under the Term Credit Agreement or 

any other Material Indebtedness to become due, or to terminate or to require the 

prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled 

maturity; provided that this clause (g) shall not apply to any secured Indebtedness that 

becomes due as a result of the voluntary sale or transfer of the assets securing such 

Indebtedness

(h) [reserved];

(i) [reserved];

(j) [reserved];

(k) except for any order of the Court fixing the amount of any Claim in the Cases,

one or more judgments for the payment of money in an aggregate amount in excess of 

$20,000,000 (to the extent not covered by independent third-party insurance as to which 

the insurer has been notified of such judgment and has not denied coverage) shall be 

rendered against the Company or any Subsidiary, or any combination thereof, and the 

same shall remain undischarged for a period of thirty (30) consecutive days during which 

execution shall not be effectively stayed, or any action shall be legally taken by a 

judgment creditor to attach or levy upon any assets of the Company or any Subsidiary to 

enforce any such judgment;

(l) one or more ERISA Events shall have occurred that would, individually or in 

the aggregate, reasonably be expected to result in a Material Adverse Effect;

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(m) a Change in Control shall occur;

(n) the Loan Guarantee or the Loan Guarantee (as defined in the Pre-Petition 

Credit Agreement) shall fail to remain in full force or effect or any action shall be taken 

to discontinue or to assert the invalidity or unenforceability of the Loan Guarantee or the 

Loan Guarantee (as defined in the Pre-Petition Credit Agreement), or any Loan 

Guarantor shall fail to comply in any material respect with any of the terms or provisions 

of the Loan Guarantee or the Loan Guarantee (as defined in the Pre-Petition Credit 

Agreement) to which it is a party, or any Loan Guarantor shall deny that it has any further 

liability under the Loan Guarantee or the Loan Guarantee (as defined in the Pre-Petition 

Credit Agreement)to which it is a party, or shall give notice to such effect (except as a 

result of the release thereof as provided herein); or

(o) any Lien purported to be created under any Collateral Document or any 

Collateral Document (as defined in the Pre-Petition Credit Agreement) and the Final 

Order shall cease to be, or shall be asserted by any Loan Party not to be, a valid and 

perfected Lien on any material Collateral, with the priority required by the applicable 

Collateral Document or applicable Collateral Document (as defined in the Pre-Petition 

Credit Agreement), except (i) as a result of the sale or other disposition of the applicable 

Collateral in a transaction permitted under the Loan Documents to a Person that is not a 

Loan Party, (ii) the release thereof as provided in the applicable Collateral Document or 

applicable Collateral Document (as defined in the Pre-Petition Credit Agreement) or 

Section 9.02(c), or (iii) as a result of the failure of the Administrative Agent to 

(A) maintain possession of any stock certificates, promissory notes or other instruments 

delivered to it under the Security Agreement or (B) continue in accordance with 

applicable law the effectiveness of any UCC financing statement;

(p) the provisions of the Intercreditor Agreement, as supplemented and modified 

by the Intercreditor Acknowledgment, shall for any reason be revoked or invalidated, in 

whole or in part, or otherwise cease to be in full force and effect, or any Loan Party, the 

Term Agent, any Term Loan Lender, the Pre-Petition Term Agent, any Pre-Petition Term 

Lender or any Affiliate of any of the foregoing shall have commenced a suit or an action, 

including any motion or adversary proceeding in the Cases, contesting in any manner the 

validity or enforceability thereof or deny that it has any further liability or obligation 

thereunder, or the Obligations, for any reason shall not have the priority contemplated by 

this Agreement, the Pre-Petition Credit Agreement or the Intercreditor Agreement, as 

supplemented and modified by the Intercreditor Acknowledgment;

(q) any Loan Party or any of its Subsidiaries is enjoined, restrained or in any way 

prevented by the order of any court or any Governmental Authority from conducting, or 

otherwise ceases to conduct for any reason whatsoever, all or any material part of its

business for more than thirty (30) consecutive days (other than in connection with 

Specified Dispositions);

(r) the Loan Parties attempt to consummate a sale of substantially all of its assets 

via a Plan of Reorganization (other than an Acceptable Plan) or a 363 sale without the 

prior written consent of the Required Lenders;

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(s) the RSA is terminated for any reason, or is modified, amended or waived in 

any manner materially adverse to the Lender Parties without the prior written consent of 

the Administrative Agent and the Required Lenders;

(t) any Loan Party or any Subsidiary, or any Person claiming by or through any 

Loan Party or any Subsidiary, shall file a motion in the Cases or take any action or file 

any Plan of Reorganization or disclosure statement attendant thereto without the express 

written consent of the Required Lenders (or the Administrative Agent at the direction of 

the Required Lenders), (i) to obtain additional financing under Section 364(d) of the 

Bankruptcy Code not otherwise permitted under this Agreement or (ii) except as provided 

in the Final Order, to use cash collateral of the Administrative Agent, the Lenders and the 

other Lender Parties or the Pre-Petition Agent, the Pre-Petition Lenders or the Lender 

Parties (as defined under the Pre-Petition Credit Agreement) under Section 363(c) of the 

Bankruptcy Code, that, in each case, does not either have the prior written consent of the 

Required Lenders (or the Administrative Agent at the direction of the Required Lenders) 

or provide for the payment of the Obligations and the Pre-Petition Lender Obligations in 

full and in cash upon the incurrence of such additional financing;

(u) an order with respect to any of the Cases shall be entered by the Court (i) 

appointing a trustee under Section 1104, (ii) appointing an examiner with enlarged 

powers relating to the operation of the business (powers beyond those set forth in section 

1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy 

Code, or (iii) converting the Cases to cases under Chapter 7 of the Bankruptcy Code; 

(v) an order shall be entered by the Court dismissing any of the Cases which does 

not contain a provision for termination of all Revolving Commitments, and payment in 

full in cash of all Obligations and Pre-Petition Lender Obligations upon entry thereof; 

(w) an order with respect to any of the Cases shall be entered by the Court 

without the express prior written consent of the Required Lenders (and with respect to 

any provisions that affect the rights or duties of the Administrative Agent) (i) to revoke, 

reverse, stay, modify, supplement or amend the Final Order in a manner adverse to the 

Lenders and/or the Administrative Agent or (ii) to permit, unless otherwise contemplated 

by the Final Order, any administrative expense or any Claim (now existing or hereafter

arising, of any kind or nature whatsoever) to have administrative priority equal or 

superior to the administrative priority of the Loan Parties’ Claims in respect of the 

Obligations (other than the Carve Out);

(x) (i) an application for any of the orders described in clause (u) above shall be 

made by a Loan Party or any such application shall be made by a Person other than the 

Loan Parties and such application is not contested by the Loan Parties in good faith or the 

relief requested is not withdrawn, dismissed or denied within forty-five (45) days after 

the filing or (ii) any Person obtains an order under Section 506(c) of the Bankruptcy 

Code against the Administrative Agent, any Lender or any of the Collateral or against the 

Pre-Petition Agent, any Pre-Petition Lender or any Collateral (as defined in the PrePetition Credit Agreement);

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(y) (i) the entry of an order by the Court terminating or modifying the exclusive 

right of any Loan Party to file a Plan of Reorganization pursuant to Section 1121 of the 

Bankruptcy Code, without the prior written consent of the Required Lenders or (ii) any 

Loan Party’s exclusive right to file a Plan of Reorganization expires;

(z) any Loan Party shall fail to comply with the Final Order;

(aa) any order by the Court is entered granting any superpriority claim that is pari 

passu with or senior to those of the Lender Parties or any Lien that is senior to or pari

passu with the Liens securing the Obligations, other than in accordance with the Final 

Order;

(bb) the Court enters an order that is adverse in any material respect, when taken 

as a whole, to the interests of the Administrative Agent and the Lenders or the PrePetition Agent and the Pre-Petition Lenders or their respective rights and remedies in 

their capacities as such under this Agreement or the Pre-Petition Credit Agreement or in 

any of the Cases;

(cc) the Loan Parties or any of their Subsidiaries, or any Person claiming by or 

through the Loan Parties or any of their Subsidiaries, obtain court authorization to 

commence, or commence, join in, assist or otherwise participate as an adverse party in 

any suit or other proceeding against any of the Administrative Agent or the Lenders in 

each case relating to this Agreement, in each case other than as permitted by the Final 

Order;

(dd) the Court enters an order in the Cases avoiding or permitting recovery of any 

portion of the payments made on account of the Obligations owing under this Agreement 

or the other Loan Documents or the Pre-Petition Lender Obligations owing under the PrePetition Loan Documents;

(ee) the filing by any of the Loan Parties of a Plan of Reorganization other than 

an Acceptable Plan or any order in any of the Cases is entered by the Court confirming a 

Plan of Reorganization other than an Acceptable Plan;

(ff) any Loan Party shall challenge, support (in any such case by way of any 

motion or other pleading filed with the Court or any other writing to another party-ininterest executed by or on behalf of such Loan Party) any other Person’s motion to, 

disallow in whole or in part, any payments made to the Administrative Agent or any other 

Lender Party with respect to the Obligations or the Pre-Petition Agent or the Pre-Petition 

Lenders with respect to the Pre-Petition Lender Obligations, or without the consent of the 

Administrative Agent, the filing of any motion by the Loan Parties seeking approval of 

(or the entry of an order by any Court approving) adequate protection or similar 

protections to any Pre-Petition agent or creditor that is inconsistent with the Final Order; 

or

(gg) any Loan Party shall file a motion seeking, or the Court shall enter an order 

granting, relief from or modifying the Automatic Stay (other than in connection with the 

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Specified Disposition or in accordance with Approved Budget) to permit actions that 

would have a Material Adverse Effect on the Debtors or their estates (taken as a whole).

then, notwithstanding anything in Section 362 of the Bankruptcy Code, but subject to the Final Order, and 

in every such event, and at any time thereafter during the continuance of such event, the Administrative 

Agent may, and at the request of the Required Lenders shall, by notice to the Borrower Representative, 

take any or all of the following actions, at the same or different times: (i) terminate the Revolving 

Commitments, and thereupon the Revolving Commitments shall terminate immediately, (ii) terminate the 

“Exit Revolving Commitments” under and as defined in the Exit Facility Term Sheet, and (iii) declare the 

Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so 

declared to be due and payable may thereafter be declared to be due and payable), and thereupon the 

principal of the Loans so declared to be due and payable, together with accrued interest thereon and all 

fees and other obligations of the Borrowers accrued hereunder, shall become due and payable 

immediately, in each case without presentment, demand, protest or other notice of any kind, all of which 

are hereby waived by the Borrowers, and, subject to the Remedies Notice Period, the Automatic Stay

shall be deemed automatically vacated without further action or order of the Court and the Administrative 

Agent shall be entitled to (A) exercise on behalf of itself and the Lender Parties all rights and remedies 

available to it and the Lender Parties under the Loan Documents or applicable law (including, without 

limitation, the right to direct any or all of the Loan Parties to sell or otherwise dispose of any or all of the 

Collateral (subject to the Intercreditor Agreement)) or (B) take any and all actions described in the Final 

Order, including, without limitation, those actions specified in the Final Order after the occurrence of any 

Event of Default.

At any hearing during the Remedies Notice Period to contest the enforcement of remedies, the only issue

that may be raised by any party in opposition thereto shall be whether, in fact, an Event of Default has 

occurred, and the Loan Parties hereby waive their right to and shall not be entitled to seek relief, 

including, without limitation, under Section 105 of the Bankruptcy Code, to the extent that such relief 

would in way impair or restrict the rights and remedies of the Administrative Agent or the Lender Parties, 

as set forth in this Agreement, the Final Order or other Loan Documents. It is agreed and understood that 

the Administrative Agent may not charge default interest pursuant to this Agreement during such time as 

the occurrence of such Event of Default is being contested during the Remedies Notice Period but once 

determined that such Event of Default exists, the Administrative Agent may charge default interest 

pursuant to this Agreement retroactively to cover the period from which the Event of Default exists 

through the date of determination

ARTICLE VIII

The Administrative Agent

Each of the Lenders and the Issuing Banks hereby irrevocably appoints the entity 

named as Administrative Agent in the heading of this Agreement and its successors to serve as 

administrative agent and collateral agent under the Loan Documents, and authorizes the 

Administrative Agent to take such actions on its behalf, including execution of the other Loan 

Documents, and to exercise such powers as are delegated to the Administrative Agent by the 

terms of the Loan Documents, together with such actions and powers as are reasonably 

incidental thereto. Without limiting the generality of the foregoing, each Lender hereby 

authorizes the Administrative Agent to consent, on behalf of each Lender, to the Final Order, 

each to be negotiated between the Loan Parties, the Administrative Agent, certain other parties 

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and the statutory committees appointed pursuant to Sections 327 and 1103 of the Bankruptcy 

Code.

The Person serving as the Administrative Agent hereunder shall have the same 

rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing 

Bank and may exercise the same as though it were not the Administrative Agent, and such 

Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the 

financial advisor or in any other advisory capacity for and generally engage in any kind of 

business with the Company or any Subsidiary or other Affiliate thereof as if such Person were 

not the Administrative Agent hereunder and without any duty to account therefor to the Lenders 

or the Issuing Banks.

The Administrative Agent shall not have any duties or obligations except those 

expressly set forth in the Loan Documents, and its duties hereunder shall be administrative in 

nature. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not 

be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred 

and is continuing (and it is understood and agreed that the use of the term “agent” herein or in 

any other Loan Documents (or any other similar term) with reference to the Administrative 

Agent is not intended to connote any fiduciary or other implied (or express) obligations arising 

under agency doctrine of any applicable law, and that such term is used as a matter of market 

custom and is intended to create or reflect only an administrative relationship between 

contracting parties), (b) the Administrative Agent shall not have any duty to take any 

discretionary action or to exercise any discretionary power, except discretionary rights and 

powers expressly contemplated by the Loan Documents that the Administrative Agent is 

required to exercise as directed in writing by the Required Lenders (or such other number or 

percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in 

good faith to be necessary, under the circumstances as provided in the Loan Documents), 

provided that the Administrative Agent shall not be required to take any action that, in its 

opinion, could expose the Administrative Agent to liability or be contrary to any Loan Document 

or applicable law, and (c) except as expressly set forth in the Loan Documents, the 

Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to 

disclose, any information relating to the Company or any Subsidiary or other Affiliate thereof 

that is communicated to or obtained by the Person serving as Administrative Agent or any of its 

Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or 

not taken by it with the consent or at the request of the Required Lenders (or such other number 

or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe 

in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in 

the absence of its own bad faith, gross negligence or willful misconduct (such absence to be 

presumed unless otherwise determined by a court of competent jurisdiction by a final and 

nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of 

any Default unless and until written notice thereof (stating that it is a “notice of default”) is given 

to the Administrative Agent by the Borrower Representative or a Lender, and the Administrative 

Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, 

warranty or representation made in or in connection with any Loan Document, (ii) the contents 

of any certificate (including any Borrowing Base Certificate), report or other document delivered 

hereunder or in connection with any Loan Document, (iii) qualification of (or lapse of any 

qualification of) any Account or Inventory under the eligibility criteria set forth herein, other 

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than eligibility criteria expressly referring to the matters described therein being acceptable or 

satisfactory to, or being determined by, the Administrative Agent, (iv) the performance or 

observance of any of the covenants, agreements or other terms or conditions set forth in any 

Loan Document or the occurrence of any Default, (v) the sufficiency, validity, enforceability, 

effectiveness or genuineness of any Loan Document or any other agreement, instrument or 

document, (vi) the creation, perfection or priority of Liens on the Collateral or the existence of 

the Collateral, or (vii) the satisfaction of any condition set forth in Article IV or elsewhere in any 

Loan Document, other than to confirm receipt of items expressly required to be delivered to the 

Administrative Agent or satisfaction of any condition that expressly refers to the matters 

described therein as being acceptable or satisfactory to the Administrative Agent. 

Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, 

or be responsible for any loss, cost or expense suffered by any Borrower or any Lender as a 

result of any determination of the Aggregate Credit Exposure, the Borrowing Base or the 

component amounts of any of the foregoing.

The Administrative Agent shall be entitled to rely, and shall not incur any liability 

for relying, upon any notice, request, certificate (including any Borrowing Base Certificate), 

consent, statement, instrument, document or other writing (including any electronic message, 

Internet or intranet website posting or other distribution) believed by it to be genuine and to have 

been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in 

fact meets the requirements set forth in the Loan Documents for being the signatory, sender or 

authenticator thereof). The Administrative Agent also shall be entitled to rely, and shall not 

incur any liability for relying, upon any statement made to it orally or by telephone and believed 

by it to be made by the proper Person (whether or not such Person in fact meets the requirements 

set forth in the Loan Documents for being the maker thereof), and may act upon any such 

statement prior to receipt of written confirmation thereof. In determining compliance with any 

condition hereunder to the making of a Loan, or the issuance, extension, renewal or amendment 

of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an 

Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such 

Lender or Issuing Bank unless the Administrative Agent shall have received notice to the 

contrary from such Lender or Issuing Bank sufficiently in advance to the making of such Loan or 

the issuance, extension, renewal or amendment of such Letter of Credit. The Administrative 

Agent may consult with legal counsel (who may be counsel for the Borrowers), independent 

accountants and other experts selected by it, and shall not be liable for any action taken or not 

taken by it in accordance with the advice of any such counsel, accountants or experts.

The Administrative Agent may perform any of and all of its duties and exercise its 

rights and powers hereunder or under any other Loan Document by or through any one or more 

sub-agents appointed by the Administrative Agent. The Administrative Agent and any such subagent may perform any of and all of their duties and exercise their rights and powers through 

their respective Related Parties. The exculpatory provisions of this Article shall apply to any 

such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, 

and shall apply to their respective activities in connection with the syndication of the credit 

facilities provided for herein as well as activities as Administrative Agent. The Administrative 

Agent shall not be responsible for the bad faith, negligence or misconduct of any sub-agents 

except to the extent that a court of competent jurisdiction determines in a final and 

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nonappealable judgment that the Administrative Agent acted with bad faith, gross negligence or 

willful misconduct in the selection of such sub-agents.

Subject to the appointment and acceptance of a successor Administrative Agent as 

provided in this paragraph, the Administrative Agent may resign at any time by notifying the 

Lenders, the Issuing Banks and the Borrower Representative. Upon any such resignation, the 

Required Lenders shall have the right, in consultation with the Borrowers, to appoint a successor 

that is an Eligible Successor Agent. If no successor shall have been so appointed by the 

Required Lenders and shall have accepted such appointment within thirty (30) days after the 

retiring Administrative Agent gives notice of its resignation, then the retiring Administrative 

Agent may, in consultation with the Borrower Representative, on behalf of the Lenders and the 

Issuing Banks, appoint a successor Administrative Agent which is an Eligible Successor Agent, 

until such time, if any, as the Required Lenders appoint a successor Administrative Agent. Upon 

the acceptance of its appointment as Administrative Agent hereunder by a successor, such 

successor shall succeed to and become vested with all the rights, powers, privileges and duties of 

the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged 

from its duties and obligations hereunder and under the other Loan Documents. The fees 

payable by the Borrowers to a successor Administrative Agent shall be the same as those payable 

to its predecessor unless otherwise agreed between the Borrowers and such successor. 

Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been 

so appointed and shall have accepted such appointment within thirty (30) days after the retiring 

Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may 

give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the 

Borrower Representative, whereupon, on the date of effectiveness of such resignation stated in 

such notice, (a) the retiring Administrative Agent shall be discharged from its duties and 

obligations hereunder and under the other Loan Documents, provided that, solely for purposes of 

maintaining any Lien granted to the Administrative Agent under any Collateral Document for the 

benefit of the Lender Parties, the retiring Administrative Agent shall continue to be vested with 

such Lien as collateral agent for the benefit of the Lender Parties and, in the case of any 

Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, 

in each case until such time as a successor Administrative Agent is appointed and accepts such 

appointment in accordance with this paragraph (it being understood and agreed that the retiring 

Administrative Agent shall have no duty or obligation to take any further action under any 

Collateral Document, including any action required to maintain the perfection of any such Lien), 

and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, 

privileges and duties of the retiring Administrative Agent, provided that (i) all payments required 

to be made hereunder or under any other Loan Document to the Administrative Agent for the 

account of any Person other than the Administrative Agent shall be made directly to such Person 

and (ii) all notices and other communications required or contemplated to be given or made to 

the Administrative Agent shall also directly be given or made to each Lender and each Issuing 

Bank. After the Administrative Agent’s resignation hereunder, the provisions of this Article, 

Section 2.17(d) and Section 9.03, as well as any exculpatory, reimbursement and indemnification 

provisions set forth in any other Loan Document, shall continue in effect for the benefit of such

retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of 

any actions taken or omitted to be taken by any of them while it was acting as Administrative 

Agent and in respect of the matters referred to in the proviso under clause (a) above.

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Each Lender and Issuing Bank acknowledges that it has, independently and 

without reliance upon the Administrative Agent, any Arranger, any Lender or any Issuing Bank 

or the Debtors’ Investment Banker, or any of the Related Parties of any of the foregoing, and 

based on such documents and information as it has deemed appropriate, made its own credit 

analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also 

acknowledges that it will, independently and without reliance upon the Administrative Agent, 

any Arranger, any Lender or any Issuing Bank, or any of the Related Parties of any of the 

foregoing, and based on such documents and information as it shall from time to time deem 

appropriate, continue to make its own decisions in taking or not taking action under or based 

upon this Agreement, any other Loan Document or any related agreement or any document 

furnished hereunder or thereunder.

Each Lender and Issuing Bank, by delivering its signature page to this Agreement 

and funding its Loans on the Effective Date, or delivering its signature page to an Assignment 

and Assumption or any other Loan Document pursuant to which it shall become a Lender or 

Issuing Bank hereunder, shall be deemed to have acknowledged receipt of, and consented to and 

approved, each Loan Document and each other document required to be delivered to, or be 

approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date.

The Loan Parties acknowledge and agree that the Administrative Agent may 

prepare and distribute to the Lenders any Reports containing information obtained by the 

Administrative Agent through the conduct of appraisals and field examinations pursuant to 

Sections 5.12 and 5.13 and the exercise of its inspection rights under Section 5.09. Each Lender 

hereby agrees that: (a) it has requested a copy of each Report prepared by or on behalf of the 

Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, 

express or implied, as to the completeness or accuracy of any Report or any of the information 

contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall 

not be liable for any information contained in any Report; (c) the Reports are not comprehensive 

audits or examinations, and that any Person performing any field examination will inspect only 

specific information regarding the Loan Parties and will rely significantly upon the Loan Parties’ 

books and records, as well as on representations of the Loan Parties’ personnel and that the 

Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) 

it will keep all Reports confidential and strictly for its internal use, not share the Report with any 

Loan Party or any other Person except as otherwise permitted pursuant to this Agreement; and 

(e) without limiting the generality of any other indemnification provision contained in this 

Agreement, it will pay and protect, and indemnify, defend, and hold the Administrative Agent 

and any such other Person preparing a Report harmless from and against, the claims, actions, 

proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) 

incurred by as the direct or indirect result of any third parties who might obtain all or part of any 

Report through the indemnifying Lender.

Except with respect to the exercise of setoff rights of any Lender in accordance 

with Section 9.08 or with respect to a Lender’s right to file a proof of claim in an insolvency 

proceeding, no Lender Party (other than the Administrative Agent) shall have any right 

individually to realize upon any of the Collateral or to enforce any Guarantee of the Secured 

Obligations, it being understood and agreed that all powers, rights and remedies under the Loan 

Documents may be exercised solely by the Administrative Agent on behalf of the Lender Parties 

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in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent 

on any of the Collateral pursuant to a public or private sale or other disposition, the 

Administrative Agent or any Lender may be the purchaser or licensor of any or all of such 

Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and 

representative of the Lender Parties (but not any Lender or Lenders in its or their respective 

individual capacities unless the Required Lenders shall otherwise agree in writing) shall be 

entitled, for the purpose of bidding and making settlement or payment of the purchase price for 

all or any portion of the Collateral sold at any such public sale, to use and apply any of the 

Obligations as a credit on account of the purchase price for any collateral payable by the 

Administrative Agent on behalf of the Lender Parties at such sale or other disposition. In 

furtherance of the foregoing and not in limitation thereof, no agreement giving rise to Banking 

Services Obligations or Swap Obligations that constitute Secured Obligations will create (or be 

deemed to create) in favor of any Lender Party that is a party thereto any rights in connection 

with the management or release of any Collateral or of the obligations of any Loan Party under 

any Loan Document. 

The Administrative Agent shall not be responsible for or have a duty to ascertain 

or inquire into any representation or warranty regarding the existence, value or collectability of 

the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or 

any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative 

Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion 

of the Collateral, except to the extent such failure is the result of the Administrative Agent’s 

gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a 

final and nonappealable judgment.

In case of the pendency of any proceeding with respect to any Loan Party under 

any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter 

in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any LC 

Disbursement shall then be due and payable as herein expressed or by declaration or otherwise 

and irrespective of whether the Administrative Agent shall have made any demand on any 

Borrower) shall be entitled and empowered (but not obligated) by intervention in such 

proceeding or otherwise:

(a) to file and prove a claim for the whole amount of the principal and interest 

owing and unpaid in respect of the Loans, LC Exposure and all other Secured Obligations 

that are owing and unpaid and to file such other documents as may be necessary or 

advisable in order to have the claims of the Lenders, the Issuing Banks and the 

Administrative Agent (including any claim under Sections 2.12, 2.13, 2.15, 2.16, 2.17

and 9.03) allowed in such judicial proceeding; and

(b) to collect and receive any monies or other property payable or deliverable on 

any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in 

any such proceeding is hereby authorized by each Lender, each Issuing Bank and each other 

Lender Party to make such payments to the Administrative Agent and, in the event that the 

Administrative Agent shall consent to the making of such payments directly to the Lenders, the 

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Issuing Banks or the other Lender Parties, to pay to the Administrative Agent any amount due to 

it, in its capacity as the Administrative Agent, under the Loan Documents (including under 

Section 9.03).

Unless otherwise expressly stated or referred to in this Article, the provisions of 

this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing 

Banks, and, except solely to the extent of the Borrowers’ rights to consent pursuant to and 

subject to the conditions set forth in this Article, none of the Borrowers or any other Loan Party 

shall have any rights as a third party beneficiary of any such provisions. Each Lender Party, 

whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral 

and of the Loan Guarantee provided under the Loan Documents, to have agreed to the provisions 

of this Article and Section 9.19.

Notwithstanding anything herein to the contrary, none of the Arrangers, the 

Debtors’ Investment Banker and any Person named on the cover page of this Agreement as a 

Syndication Agent or a Documentation Agent shall have any duties or obligations under this 

Agreement or any other Loan Document (except, with respect to an Arranger, in its capacity, as 

applicable, as a Lender or an Issuing Bank), but all such Persons shall have the benefit of the 

indemnities to the extent referenced and provided for hereunder.

The Lenders are not partners or co-venturers, and no Lender shall be liable for the 

acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) 

authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right 

on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after 

the date such principal or interest has become due and payable pursuant to the terms of this 

Agreement.

In its capacity, the Administrative Agent is a “representative” of the Lender 

Parties within the meaning of the term “secured party” as defined in the New York Uniform 

Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the 

Collateral Documents to which it is a party and to take all action contemplated by such 

documents. In the event that any Collateral is hereafter pledged by any Person as collateral 

security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby 

granted a power of attorney, to execute and deliver on behalf of the Lender Parties any Loan 

Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the 

Administrative Agent on behalf of the Lender Parties.

The bank serving as the Administrative Agent hereunder has adopted internal 

policies and procedures that address requirements placed on federally regulated lenders under the 

National Flood Insurance Reform Act of 1994 and related legislation (the “Flood Laws”). The 

Administrative Agent will post on the Platform (or otherwise distribute to each Lender) 

documents that it receives in connection with the Flood Laws. However, the Administrative 

Agent reminds each Lender and Participant that, pursuant to the Flood Laws, each federally 

regulated Lender (whether acting as a Lender or Participant) is responsible for assuring its own 

compliance with the flood insurance requirements.

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Each Lender (a) represents and warrants, as of the date such Person became a 

Lender party hereto, to and (b) covenants, from the date such Person became a Lender party 

hereto to the date such Person ceases being a Lender party hereto, that at least one of the 

following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of 29 

CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in 

connection with the Loans, the Letters of Credit or the Revolving Commitments, (ii) the 

transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for

certain transactions determined by independent qualified professional asset managers), PTE 95-

60 (a class exemption for certain transactions involving insurance company general accounts), 

PTE 90-1 (a class exemption for certain transactions involving insurance company pooled 

separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank 

collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined 

by in-house asset managers), is applicable with respect to such Lender’s entrance into, 

participation in, administration of and performance of the Loans, the Letters of Credit, the 

Revolving Commitments and this Agreement, (iii) (A) such Lender is an investment fund 

managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 

84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf 

of such Lender to enter into, participate in, administer and perform the Loans, the Letters of 

Credit, the Revolving Commitments and this Agreement, (C) the entrance into, participation in, 

administration of and performance of the Loans, the Letters of Credit, the Revolving 

Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of

Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of 

subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, 

participation in, administration of and performance of the Loans, the Letters of Credit, the 

Revolving Commitments and this Agreement or (iv) such other representation, warranty and 

covenant as may be agreed in writing between the Administrative Agent, in its sole discretion,

and such Lender.

In addition, unless clause (i) of the immediately preceding paragraph is true with 

respect to a Lender or such Lender has not provided another representation, warranty and 

covenant as provided in clause (iv) of the immediately preceding paragraph, such Lender further 

(a) represents and warrants, as of the date such Person became a Lender party hereto, to and (b)

covenants, from the date such Person became a Lender party hereto to the date such Person 

ceases being a Lender party hereto, for the benefit of the Administrative Agent and the Arrangers

and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of any 

Borrower or any other Loan Party, that: (i) neither the Administrative Agent nor any Arranger or 

any of their respective Affiliates is a fiduciary with respect to the assets of such Lender 

(including in connection with the reservation or exercise of any rights by the Administrative 

Agent under this Agreement, any Loan Document or any documents related to hereto or thereto), 

(ii) the Person making the investment decision on behalf of such Lender with respect to the 

entrance into, participation in, administration of and performance of the Loans, the Letters of 

Credit, the Revolving Commitments and this Agreement is independent (within the meaning of 

29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer 

or other person that holds, or has under management or control, total assets of at least 

$50,000,000, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E), (iii) the Person 

making the investment decision on behalf of such Lender with respect to the entrance into, 

participation in, administration of and performance of the Loans, the Letters of Credit, the 

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Revolving Commitments and this Agreement is capable of evaluating investment risks 

independently, both in general and with regard to particular transactions and investment 

strategies (including in respect of the Obligations), (iv) the Person making the investment 

decision on behalf of such Lender with respect to the entrance into, participation in, 

administration of and performance of the Loans, the Letters of Credit, the Revolving 

Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect 

to the Loans, the Revolving Commitments and this Agreement and is responsible for exercising 

independent judgment in evaluating the transactions hereunder and (v) no fee or other 

compensation is being paid directly to the Administrative Agent or the Arrangers or any their 

respective Affiliates for investment advice (as opposed to other services) in connection with the 

Loans, the Letters of Credit, the Revolving Commitments or this Agreement.

The Administrative Agent and the Arrangers hereby inform the Lenders that each 

such Person is not undertaking to provide impartial investment advice, or to give advice in a 

fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person 

has a financial interest in the Transactions in that such Person or an Affiliate thereof (a) may 

receive interest or other payments with respect to the Loans, the Letters of Credit, the Revolving 

Commitments and this Agreement, (b) may recognize a gain if it extended the Loans, the Letters 

of Credit or the Revolving Commitments for an amount less than the amount being paid for an 

interest in the Loans, the Letters of Credit or the Revolving Commitments by such Lender or (c)

may receive fees or other payments in connection with the Transactions, the Loan Documents or 

otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront 

fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, 

utilization fees, minimum usage fees, fronting fees, deal-away or alternate transaction fees, 

amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or 

other early termination fees or fees similar to the foregoing.

ARTICLE IX

Miscellaneous

SECTION 9.01. Notices. (a) Except in the case of notices and other 

communications expressly permitted to be given by telephone (and subject to paragraph (b) of 

this Section), all notices and other communications provided for herein shall be in writing and 

shall be delivered by e-mail, hand or overnight courier service, mailed by certified or registered 

mail or, except in the case of notices or communications to the Borrower Representative or any 

other Loan Party, sent by facsimile, as follows:

(i) if to any Loan Party, to the Borrower Representative at:

933 MacArthur Boulevard 

Mahwah, NJ 07430

Attention: Dan Lamadrid, Executive Vice President and Chief Financial 

Officer

E-mail: dan.lamadrid@ascenaretail.com

With a copy to the Borrower Representative at:

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933 MacArthur Boulevard

Mahwah, NJ 07430

Attention: Gary Holland, General Counsel and VP

E-mail: gary.holland@ascenaretail.com

With a copy to:

Kirkland & Ellis LLP

2049 Century Park East, Suite 3700 

Los Angeles, CA 90067

Attention: David M. Nemecek, P.C.

E-mail: david.nemecek@kirkland.com

(ii) if to the Administrative Agent, JPMCB in its capacity as an Issuing 

Bank, to JPMorgan Chase Bank, N.A. at:

4 New York Plaza, 17th Floor

Mail Code: NY1-E061

New York, New York 10004

Attention: Ascena Retail Group, Inc. Credit Risk Manager

Facsimile No: (212) 623-7309

E-mail: donna.diforio@jpmorgan.com

With a copy to:

Morgan Lewis & Bockius LLP

One Federal Street

Boston, Massachusetts 02110

Attention: Matthew F. Furlong, Esq.

Facsimile No. (617) 341-7701

E-mail: matthew.furlong@morganlewis.com

(iii) if to any other Issuing Bank, to it at its address, e-mail or facsimile 

number most recently specified by it in a notice delivered to the Administrative Agent 

and the Borrower Representative; and

(iv) if to any other Lender, to it at its address, e-mail or facsimile number 

set forth in its Administrative Questionnaire.

All such notices and other communications (i) sent by hand or overnight courier service, or mailed by 

certified or registered mail, shall be deemed to have been given when received, (ii) sent by facsimile shall 

be deemed to have been given when sent (or, if not given during normal business hours for the recipient, 

at the opening of business on the next Business Day for the recipient), it being understood that notices and 

other communications shall not be sent by facsimile to the Borrower Representative or any Loan Party, 

and (iii) delivered through electronic communications to the extent provided in paragraph (b) of this 

Section shall be effective as provided in such paragraph.

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(b) Notices and other communications to the Lenders and Issuing Banks 

hereunder may be delivered or furnished by electronic communications (including e-mail 

and internet or intranet websites) pursuant to procedures approved by the Administrative 

Agent; provided that the foregoing shall not apply to notices under Article II to any 

Lender or Issuing Bank if such Lender or Issuing Bank, as applicable, has notified the 

Administrative Agent that it is incapable of receiving notices under such Article by 

electronic communication. The Administrative Agent or the Borrower Representative 

(on behalf of the Loan Parties) may, in its discretion, agree to accept notices and other 

communications to it hereunder by electronic communications pursuant to procedures 

approved by it; provided that approval of such procedures may be limited to particular 

notices or communications. All such notices and other communications (i) sent to an email address shall be deemed received upon the sender’s receipt of an acknowledgement 

from the intended recipient (such as by return e-mail or other written acknowledgement), 

provided that if not given during the normal business hours of the recipient, such notice 

or communication shall be deemed to have been given at the opening of business on the 

next Business Day for the recipient, and (ii) posted to an Internet or intranet website shall 

be deemed received upon the deemed receipt by the intended recipient at its e-mail 

address as described in the foregoing clause (b)(i) of notification that such notice or 

communication is available and identifying the website address therefor.

(c) Any party hereto may change its address, email or facsimile number for 

notices and other communications hereunder by notice to the other parties hereto.

(d) The Loan Parties agree that the Administrative Agent may, but shall not be

obligated to, make any Communication by posting such Communication on Debt 

Domain, Intralinks, Syndtrak or a similar electronic transmission system (the 

“Platform”). The Platform is provided “as is” and “as available”. Neither the 

Administrative Agent nor any of its Related Parties warrants, or shall be deemed to 

warrant, the adequacy of the Platform and each expressly disclaims liability for errors or 

omissions in the Communications. No warranty of any kind, express, implied or 

statutory, including any warranty of merchantability, fitness for a particular purpose, noninfringement of third-party rights or freedom from viruses or other code defects, is made, 

or shall be deemed to be made, by the Administrative Agent or any of its Related Parties 

in connection with the Communications or the Platform. In no event shall the 

Administrative Agent or any of its Related Parties have any liability to the Loan Parties, 

any Lender, any Issuing Bank or any other Person for damages of any kind, including 

direct or indirect, special, incidental or consequential damages, losses or expenses 

(whether in tort, contract or otherwise) arising out of any Loan Party’s or the 

Administrative Agent’s transmission of Communications through the Platform.

SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the 

Administrative Agent, any Issuing Bank or any Lender in exercising any right or power 

hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any 

single or partial exercise of any such right or power, or any abandonment or discontinuance of 

steps to enforce such a right or power, preclude any other or further exercise thereof or the 

exercise of any other right or power. The rights and remedies of the Administrative Agent, the 

Issuing Banks and the Lenders hereunder and under any other Loan Document are cumulative 

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and are not exclusive of any rights or remedies that they would otherwise have. No waiver of 

any provision of any Loan Document (other than the Agent Fee Letter) or consent to any 

departure by any Loan Party therefrom shall in any event be effective unless the same shall be 

permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective 

only in the specific instance and for the specific purpose for which given. Without limiting the 

generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be 

construed as a waiver of any Default, regardless of whether the Administrative Agent, any 

Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.

(b) Except as provided in Sections 2.14(b), 5.16 or 9.02(d), none of this 

Agreement, any other Loan Document or any provision hereof or thereof (other than the 

Agent Fee Letter) may be waived, amended or modified except (i) in the case of this 

Agreement, pursuant to an agreement or agreements in writing entered into by the 

Borrowers and the Required Lenders or (ii) in the case of any other Loan Document, 

pursuant to an agreement or agreements in writing entered into by the Administrative 

Agent and the Loan Party or Loan Parties that are parties thereto, with the consent of the 

Required Lenders; provided that (A) any provision of this Agreement or any other Loan 

Document may be amended by an agreement in writing entered into by the Company and 

the Administrative Agent to cure any technical error, ambiguity, omission, defect or 

inconsistency so long as, in each case, (1) such amendment does not adversely affect the 

rights of any Lender or (2) the Lenders shall have received at least five (5) Business 

Days’ prior written notice thereof and the Administrative Agent shall not have received, 

within five (5) Business Days of the date of such notice to the Lenders, a written notice 

from the Required Lenders stating that the Required Lenders object to such amendment 

and (B) no such agreement shall (1) increase the Revolving Commitment of any Lender 

without the written consent of such Lender (provided that the Administrative Agent may 

make Protective Advances and Overadvances as set forth in Section 2.04 or 2.05, as 

applicable), (2) reduce or forgive the principal amount of any Loan or LC Disbursement 

or reduce the rate of interest thereon, or reduce or forgive any interest or fees payable 

hereunder, without the written consent of each Lender directly affected thereby, (3) 

postpone any scheduled date of payment of the principal amount of any Loan or LC 

Disbursement, or any date for the payment of any interest, fees or other Obligations 

payable hereunder, or reduce the amount of, waive or excuse any such payment, or 

postpone the scheduled date of expiration of any Revolving Commitment, without the 

written consent of each Lender directly affected thereby, (4) change Section 2.18(b) or 

2.18(d) in a manner that would alter the manner in which payments are shared, without 

the written consent of each Lender, (5) increase the advance rates set forth in the 

definition of Borrowing Base or add new categories of eligible assets, without the written 

consent of the Supermajority Lenders, (6) change any of the provisions of this Section or 

the percentage set forth in the definition of the term “Required Lenders” or 

“Supermajority Lenders” or any other provision of any Loan Document specifying the 

number or percentage of Lenders required to waive, amend or modify any rights 

thereunder or make any determination or grant any consent thereunder, without the 

written consent of each Lender, (7) change Section 2.20 without the consent of each 

Lender (other than any Defaulting Lender), (8) release Loan Guarantors representing all 

or substantially all the value of the Loan Guarantees from their obligation under such 

Loan Guarantees without the written consent of each Lender, (9) except as provided in 

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paragraph (c) of this Section or in any Collateral Document, release all or substantially all 

Liens on the Collateral without the written consent of each Lender, or (10) amend, 

modify or waive the condition precedent in Section 4.01(o) without the written consent of 

each Lender; provided further that no such agreement shall amend, modify or otherwise 

affect the rights or duties of the Administrative Agent or any Issuing Bank hereunder or 

under any other Loan Document without the prior written consent of the Administrative 

Agent or such Issuing Bank, as the case may be (it being understood that any change to 

Section 2.20 shall require the consent of the Administrative Agent and the Issuing 

Banks). The Administrative Agent may also amend Schedule 2.01 to reflect increases in 

the Revolving Commitments in the manner contemplated by Section 2.09 or assignments 

entered into pursuant to Section 9.04.

(c) The Lenders and the Issuing Banks hereby irrevocably authorize the 

Administrative Agent, at its option and in its sole discretion, (i) to release or to 

subordinate any Liens granted to the Administrative Agent by the Loan Parties on any 

Collateral (A) upon the termination of all the Revolving Commitments, payment and 

satisfaction in full in cash of all Secured Obligations (other than Unliquidated 

Obligations) and the cash collateralization of all Unliquidated Obligations in a manner 

satisfactory to each affected Lender, (B) constituting property being sold, disposed of or 

transferred, if the Loan Party selling, disposing of or transferring such property certifies 

to the Administrative Agent that the sale, disposition or transfer is made in compliance 

with the terms of this Agreement (and the Administrative Agent may rely conclusively on 

any such certificate, without further inquiry), and to the extent that the property being 

sold, disposed of or transferred constitutes 100% of the Equity Interest of a Subsidiary, 

the Administrative Agent is authorized to release any Loan Guarantee provided by such 

Subsidiary, (C) constituting property leased to a Loan Party under a lease which has 

expired or been terminated in a transaction not prohibited under this Agreement and 

(D) as required to effect any sale, disposition or other transfer of such Collateral in 

connection with any exercise of remedies of the Administrative Agent and the Lenders 

pursuant to Article VII, (ii) to release any Loan Guarantee provided by any Subsidiary 

that may be dissolved pursuant to Section 6.03(a)(iv) in connection with a voluntary 

liquidation or dissolution thereof permitted by such Section and, in connection therewith, 

to release any Liens granted to the Administrative Agent by such Subsidiary on any 

Collateral, if the Company certifies to the Administrative Agent that such liquidation or 

dissolution is made in compliance with the terms of this Agreement (and the 

Administrative Agent may rely conclusively on any such certificate, without further 

inquiry), (iii) to release any Loan Guarantee provided by any Excluded Subsidiary and, in 

connection therewith, to release any Liens granted to the Administrative Agent by such 

Subsidiary on any Collateral and to release any pledge of voting Equity Interests of such 

Subsidiary in excess of 65% of the aggregate voting Equity Interests of such Subsidiary, 

(iv) to release any Loan Guarantee provided by any Subsidiary that becomes an 

Immaterial Subsidiary and, in connection therewith, to release any Liens granted to the 

Administrative Agent by such Subsidiary on any Collateral and to release any pledge of 

Equity Interests of such Subsidiary and (v) to release or subordinate any Lien on any 

property granted to or held by the Administrative Agent under any Loan Document to the 

holder of any Lien on such property that is permitted by Section 6.02(d) or 6.02(e); 

provided that, in the case of any prospective release of any Loan Guarantee pursuant to 

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clauses (i)(B), (ii), (iii) and (iv) above with respect to any Guarantor having assets 

included in the Borrowing Base, (1) no Overadvance shall result after giving effect to any 

such release and (2) the Borrowers shall have delivered to the Administrative Agent an 

updated Borrowing Base Certificate giving pro forma effect to such release (as if such 

release occurred on such date of such Borrowing Base Certificate). The Lenders and the 

Issuing Banks hereby further irrevocably authorize the release or subordination of Liens 

on the Term Priority Collateral as provided in the Intercreditor Agreement. Any such 

release or subordination shall not in any manner discharge, affect, or impair the 

Obligations or any Liens (other than those expressly being released or subordinated) upon 

(or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, 

including the proceeds of any sale, all of which shall continue to constitute part of the 

Collateral. Upon any sale or other transfer by any Loan Party (other than to a Borrower 

or any other Loan Party) of any Collateral in a transaction permitted under this 

Agreement, or upon the effectiveness of any written consent to the release of the Lien 

created under any Collateral Document in any Collateral pursuant to this Section, the 

Liens in such Collateral created by the Collateral Documents shall be automatically 

released. In connection with any termination or release pursuant to this Section, the 

Administrative Agent shall execute and deliver to any Loan Party, at such Loan Party’s 

expense, all documents that such Loan Party shall reasonably request to evidence such 

termination or release. Any execution and delivery of documents pursuant to this Section 

9.02(c) shall be without recourse to or warranty by the Administrative Agent.

(d) No real property shall be taken as Collateral unless each Lender confirms to 

the Administrative Agent that it has completed all flood due diligence, received copies of 

all flood insurance documentation and confirmed flood insurance compliance as required 

by the Flood Laws or as otherwise satisfactory to such Lender. At any time that any real 

property constitutes Collateral, no modification of a Loan Document shall add, increase, 

renew or extend any loan, commitment or credit line hereunder until the completion of 

flood due diligence, documentation and coverage as required by the Flood Laws or as 

otherwise satisfactory to all Lenders.

(e) The Administrative Agent may, but shall have no obligation to, with the 

concurrence of any Lender, execute amendments, waivers or other modifications on 

behalf of such Lender. Any amendment, waiver or other modification effected in 

accordance with this Section 9.02 shall be binding upon each Person that is at the time 

thereof a Lender and each Person that subsequently becomes a Lender.

(f) Notwithstanding the foregoing, Exhibit G to this Agreement, the definitions of 

“Exit Facility Agreement” and “Exit Facility Term Sheet” and Section 2.25 (or any other 

provision which would result in an amendment, restatement, waiver or modification of 

any of the foregoing) may be amended, restated, waived or otherwise modified with the 

prior written consent of the Lenders, the Administrative Agent and the Borrower 

Representative; provided that the Lenders hereby authorize the Administrative Agent to 

enter into any amendments to this Agreement and the other Loan Documents as may be 

necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to 

give effect to the transactions contemplated by Section 2.25 and such other technical or 

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immaterial amendments as may be necessary or appropriate in the reasonable opinion of 

the Administrative Agent and the Borrower Representative in connection therewith.

SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrowers shall 

pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative 

Agent, the Arrangers and their respective Affiliates, including the reasonable and documented 

out-of-pocket fees, charges and disbursements of one primary counsel for the Administrative 

Agent, the Arrangers and their Affiliates, and if deemed necessary by the Administrative Agent, 

one local counsel in each applicable jurisdiction, in connection with the preparation of this 

Agreement and the other Loan Documents, the syndication and distribution (including, without 

limitation, via the internet or through a service such as Intralinks) of the Revolving Credit 

Facility, the preparation and administration of the Loan Documents or any amendments, 

modifications or waivers of the provisions of the Loan Documents (whether or not the 

transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and 

documented out-of-pocket expenses incurred by each Issuing Bank in connection with the 

issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment 

thereunder and (iii) all reasonable and documented out-of-pocket expenses incurred by the 

Administrative Agent, the Arrangers, any Issuing Bank or any Lender, including the fees, 

charges and disbursements of any counsel for the Administrative Agent, the Arrangers, any 

Issuing Bank or any Lender, in connection with the enforcement, collection or protection of its 

rights in connection with the Loan Documents, including its rights under this Section, or in 

connection with the Loans made or Letters of Credit issued hereunder, including all such outof-pocket expenses incurred during any workout, restructuring or negotiations in respect of such 

Loans or Letters of Credit. Subject to the provisions of Sections 5.09, 5.12 and 5.13, expenses 

subject to reimbursement by the Borrowers under this Section include, without limiting the 

generality of the foregoing, reasonable costs and expenses incurred in connection with, but 

without duplication:

(i) appraisals and insurance reviews;

(ii) field examinations and the preparation of Reports based on the fees 

charged by a third party retained by the Administrative Agent or the internally allocated 

fees for each Person employed by the Administrative Agent with respect to each field 

examination;

(iii) taxes, fees and other charges for (A) lien searches and (B) filing 

financing statements and continuations, and other actions to perfect, protect, and continue 

the Administrative Agent’s Liens;

(iv) sums paid or incurred to take any action required of any Loan Party 

under the Loan Documents that such Loan Party fails to pay or take; and

(v) forwarding loan proceeds, collecting checks and other items of 

payment, and establishing and maintaining the accounts and lock boxes, and costs and 

expenses of preserving and protecting the Collateral.

All of the foregoing costs and expenses may be charged to the Borrowers as Revolving Loans or to 

another deposit account, all as described in Section 2.18(c).

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(b) The Borrowers agree, jointly and severally, to indemnify the Administrative 

Agent (or any sub-agent thereof), the Arrangers, each Syndication Agent, each 

Documentation Agent, each Issuing Bank and each Lender, and each Related Party of 

any of the foregoing Persons (each such Person being called an “Indemnitee”), against, 

and hold each Indemnitee harmless from, any and all losses, claims, damages, penalties, 

liabilities and related expenses, including the reasonable fees, charges and disbursements 

of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising 

out of, in connection with, or as a result of (i) the syndication of the Revolving Credit 

Facility and the execution or delivery of the Loan Documents or any agreement or 

instrument contemplated thereby, the performance by the parties hereto and thereto of 

their respective obligations hereunder and thereunder or the Transactions or any other 

transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the 

proceeds thereof (including any refusal by an Issuing Bank to honor a demand for 

payment under a Letter of Credit if the documents presented in connection with such 

demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or 

alleged presence or Release of Hazardous Materials on, at, to or from any property owned 

or operated by the Company or any of its Subsidiaries, or any other Environmental 

Liability related in any way to the Company or any of its Subsidiaries, or (iv) any actual 

or prospective claim, litigation, investigation or proceeding relating to any of the 

foregoing, whether based on contract, tort or any other theory and regardless of whether 

such proceeding is initiated against or by any party to this Agreement (including the 

Company), or any Affiliate thereof, by an Indemnitee or any third party or whether any 

Indemnitee is a party thereto; provided that such indemnity shall not, as to any 

Indemnitee, be available to the extent that such losses, claims, damages, penalties, 

liabilities or related expenses (A) are determined by a court of competent jurisdiction by a 

final and nonappealable judgment to have resulted from the bad faith, gross negligence or 

willful misconduct of such Indemnitee or from a material breach by such Indemnitee of 

its agreements hereunder (other than any unintentional breach that is corrected promptly 

after such Indemnitee becomes aware thereof), or (B) have arisen from a proceeding by 

an Indemnitee against another Indemnitee not involving any act or omission of the 

Company or any Subsidiary (other than a proceeding against the Administrative Agent, 

an Arranger or an Issuing Bank in its capacity or in fulfilling its role as such). This 

Section 9.03(b) shall not apply to any Taxes (other than Other Taxes or any Taxes that 

represent losses, claims, damages or related expenses arising from any non-Tax claim).

(c) To the extent the Borrowers fail to pay any amount required to be paid by 

them to the Administrative Agent (or any sub-agent thereof) or any Issuing Bank, or any 

Related Party of any of the foregoing, under paragraph (a) or (b) of this Section, each 

Lender severally agrees to pay to the Administrative Agent, such Issuing Bank or such 

Related Party, as the case may be, such Lender’s Applicable Percentage (determined as 

of the time that the applicable unreimbursed expense or indemnity payment is sought) of 

such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, 

damage, penalty, liability or related expense, as the case may be, was incurred by or 

asserted against the Administrative Agent (or such sub-agent) or such Issuing Bank in its 

capacity as such, or against any Related Party of any of the foregoing acting for the 

Administrative Agent (or any such sub-agent) or any Issuing Bank in connection with 

such capacity.

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(d) To the extent permitted by applicable law, no Loan Party shall assert, and 

each hereby waives, any claim against any Indemnitee (i) for any damages arising from 

the use by others of information or other materials obtained through telecommunications, 

electronic or other information transmission systems (including the Internet) or (ii) on 

any theory of liability, for special, indirect, consequential or punitive damages (as 

opposed to direct or actual damages) arising out of, in connection with, or as a result of, 

this Agreement, any other Loan Document, or any agreement or instrument contemplated 

hereby or thereby, the Transactions, any Loan or Letter of Credit or the use of the 

proceeds thereof.

(e) All amounts due under this Section shall be payable not later than ten 

(10) days after written demand therefor.

SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement 

shall be binding upon and inure to the benefit of the parties hereto and their respective successors 

and assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter 

of Credit), except that (i) the Borrowers may not assign or otherwise transfer any of their rights 

or obligations hereunder without the prior written consent of each Lender (and any attempted 

assignment or transfer by a Borrower without such consent shall be null and void) and (ii) no 

Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance 

with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer 

upon any Person (other than the parties hereto, their respective successors and assigns permitted 

hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit), Participants 

(to the extent provided in paragraph (c) of this Section) the Debtors’ Investment Banker (to the 

extent provided in Article VIII), the Arrangers, each Syndication Agent, each Documentation 

Agent, and, to the extent expressly contemplated hereby, the sub-agents of the Administrative 

Agent and the Related Parties of any of the Administrative Agent, the Arrangers, the Syndication 

Agents, the Documentation Agents, the Issuing Banks and the Lenders) any legal or equitable 

right, remedy or claim under or by reason of this Agreement.

(b) (i)Subject to the conditions set forth in paragraph (b)(ii) below, any Lender 

may assign to one or more Eligible Assignees all or a portion of its rights and obligations 

under this Agreement (including all or a portion of its Revolving Commitment and the 

Loans at the time owing to it) with the prior written consent (such consent not to be 

unreasonably withheld, conditioned or delayed) of:

(A) the Borrower Representative; provided that no consent of the 

Borrower Representative shall be required for an assignment to a Lender, an Affiliate of a 

Lender, an Approved Fund or, if an Event of Default referred to in clause (a) or (b) of 

Article VII has occurred and is continuing, any other assignee; provided that if the 

Borrower Representative has not provided written notice of its objection to any proposed 

assignment within ten (10) Business Days of its receipt thereof from the Administrative 

Agent, the Borrower Representative shall be deemed to have consented to such proposed 

assignment;

(B) the Administrative Agent;

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(C) [reserved]; and

(D) each Issuing Bank; provided that if any Issuing Bank has not provided 

written notice of its objection to any proposed assignment within ten (10) Business Days 

of its receipt thereof from the Administrative Agent, such Issuing Bank shall be deemed 

to have consented to such proposed assignment.

(ii) Assignments shall be subject to the following additional conditions:

(A) except in the case of an assignment to a Lender or an Affiliate of a 

Lender or an assignment of the entire remaining amount of the assigning Lender’s 

Revolving Commitment or Loans, the amount of the Revolving Commitment or Loans 

of the assigning Lender subject to each such assignment (determined as of the date the 

Assignment and Assumption with respect to such assignment is delivered to the 

Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower 

Representative and the Administrative Agent otherwise consent; provided that no such 

consent of the Borrower Representative shall be required if an Event of Default referred 

to in clause (a) or (b) of Article VII has occurred and is continuing; provided that if the 

Borrower Representative has not provided written notice of its objection to any proposed 

assignment within ten (10) Business Days of its receipt thereof from the Administrative 

Agent, the Borrower Representative shall be deemed to have consented to such proposed 

assignment;

(B) each partial assignment shall be made as an assignment of a 

proportionate part of all the assigning Lender’s rights and obligations under this 

Agreement;

(C) the parties to each assignment shall execute and deliver to the 

Administrative Agent an Assignment and Assumption (or an agreement incorporating by 

reference a form of Assignment and Assumption posted on the Platform), together with a 

processing and recordation fee of $3,500; and

(D) the assignee, if it shall not be a Lender, shall deliver to the 

Administrative Agent any Tax forms required by Section 2.17(f) and an Administrative 

Questionnaire in which the assignee designates one or more credit contacts to whom all 

syndicate-level information (which may contain material non-public information about 

the Company, the Subsidiaries and other Affiliates thereof or their respective securities)

will be made available and who may receive such information in accordance with the 

assignee’s compliance procedures and applicable law, including Federal, State and 

foreign securities laws.

(iii) Subject to acceptance and recording thereof pursuant to 

paragraph (b)(iv) of this Section, from and after the effective date specified in each 

Assignment and Assumption the assignee thereunder shall be a party hereto and, to the 

extent of the interest assigned by such Assignment and Assumption, have the rights and 

obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, 

to the extent of the interest assigned by such Assignment and Assumption, be released 

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from its obligations under this Agreement (and, in the case of an Assignment and 

Assumption covering all of the assigning Lender’s rights and obligations under this 

Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled 

to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a

Lender of rights or obligations under this Agreement that does not comply with this 

Section shall be treated for purposes of this Agreement as a sale by such Lender of a 

participation in such rights and obligations in accordance with paragraph (c) of this

Section.

(iv) The Administrative Agent, acting solely for this purpose as nonfiduciary agent of the Borrowers, shall maintain at one of its offices a copy of each 

Assignment and Assumption delivered to it and records of the names and addresses of the 

Lenders, and the Revolving Commitment of, and principal amount (and stated interest) of 

the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof 

from time to time (the “Register”). The entries in the Register shall be conclusive absent 

manifest error, and the Borrowers, the Administrative Agent, the Issuing Banks and the 

Lenders shall treat each Person whose name is recorded in the Register pursuant to the 

terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding 

notice to the contrary. The Register shall be available for inspection by the Borrowers, 

any Issuing Bank and, as to entries pertaining to it, any Lender, at any reasonable time 

and from time to time upon reasonable prior notice.

(v) Upon its receipt of a duly completed Assignment and Assumption (or 

an agreement incorporating by reference a form of Assignment and Assumption posted 

on the Platform) executed by an assigning Lender and an assignee, the assignee’s 

completed Administrative Questionnaire (unless the assignee shall already be a Lender 

hereunder), the processing and recordation fee referred to in paragraph (b) of this Section 

and any written consent to such assignment required by paragraph (b) of this Section, the 

Administrative Agent shall accept such Assignment and Assumption and record the 

information contained therein in the Register; provided that if either the assigning Lender 

or the assignee shall have failed to make any payment required to be made by it pursuant 

to Section 2.05, 2.06(d), 2.06(e), 2.07(b), 2.17(d) or 9.03(c), the Administrative Agent 

shall have no obligation to accept such Assignment and Assumption and record the 

information therein in the Register unless and until such payment shall have been made in 

full, together with all accrued interest thereon. No assignment shall be effective for 

purposes of this Agreement unless it has been recorded in the Register as provided in this 

paragraph.

(c) (i) Any Lender may, without the consent of the Borrowers, the Administrative 

Agent or the Issuing Banks, sell participations to one or more Eligible Assignees 

(“Participants”) in all or a portion of such Lender’s rights and obligations under this 

Agreement (including all or a portion of its Revolving Commitment and the Loans owing 

to it); provided that (A) such Lender’s obligations under this Agreement shall remain 

unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for 

the performance of such obligations and (C) the Borrowers, the Administrative Agent, the 

Issuing Banks and the other Lenders shall continue to deal solely and directly with such 

Lender in connection with such Lender’s rights and obligations under the Loan 

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Documents. Any agreement or instrument pursuant to which a Lender sells such a 

participation shall provide that such Lender shall retain the sole right to enforce the Loan 

Documents and to approve any amendment, modification or waiver of any provision of 

the Loan Documents; provided that such agreement or instrument may provide that such 

Lender will not, without the consent of the Participant, agree to any amendment, 

modification or waiver described in clause (B) of the first proviso to Section 9.02(b) that 

affects such Participant or requires the approval of all the Lenders or all the affected 

Lenders. Subject to paragraph (c)(ii) of this Section, the Borrowers agree that each 

Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 (subject to the 

requirements and limitations therein, including the requirements under 2.17(f) (it being 

understood that the documentation required under Section 2.17(f) shall be delivered to 

the participating Lender)) to the same extent as if it were a Lender and had acquired its 

interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted 

by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it 

were a Lender; provided that such Participant agrees to be subject to Section 2.18(d) as 

though it were a Lender.

(ii) A Participant shall not be entitled to receive any greater payment 

under Section 2.15 or 2.17, with respect to any participation, than its participating Lender 

would have been entitled to receive, except to the extent such entitlement to receive a 

greater payment results from a Change in Law that occurs after the Participant acquired 

the applicable participation. Each Lender that sells a participation agrees, at the 

Borrower Representative’s request and expense, to use reasonable efforts to cooperate 

with the Borrowers to effectuate the provisions of Section 2.19(b) with respect to any 

Participant. Each Lender that sells a participation shall, acting solely for this purpose as a 

non-fiduciary agent of the Borrowers, maintain records of the name and address of each

Participant and the principal amounts (and stated interest) of each Participant’s interest in 

the Loans or other obligations under this Agreement (the “Participant Register”); 

provided that no Lender shall have any obligation to disclose all or any portion of the 

Participant Register (including the identity of any Participant or any information relating 

to a Participant’s interest in any Revolving Commitments or Revolving Loans or its other 

obligations under this Agreement or any other Loan Document) to any Person except to 

the extent that such disclosure is necessary to establish that such Revolving Commitment 

or Revolving Loan or other obligation is in registered form under Section 5f.103-1(c) of 

the United States Treasury Regulations. The entries in the Participant Register shall be 

conclusive absent manifest error, and such Lender shall treat each Person whose name is 

recorded in the Participant Register as the owner of such participation for all purposes of 

this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, 

the Administrative Agent (in its capacity as Administrative Agent) shall have no 

responsibility for maintaining a Participant Register.

(d) Any Lender may at any time pledge or assign a security interest in all or any

portion of its rights under this Agreement to secure obligations of such Lender, including 

any pledge or assignment to secure obligations to a Federal Reserve Bank or other central 

bank, and this Section shall not apply to any such pledge or assignment of a security 

interest; provided that no such pledge or assignment of a security interest shall release a 

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Lender from any of its obligations hereunder or substitute any such pledgee or assignee 

for such Lender as a party hereto.

SECTION 9.05. Survival. All covenants, agreements, representations and 

warranties made by the Loan Parties in the Loan Documents and in the certificates or other 

instruments delivered in connection with or pursuant to this Agreement or any other Loan 

Document shall be considered to have been relied upon by the other parties hereto and shall 

survive the execution and delivery of the Loan Documents and the making of any Loans and 

issuance of any Letters of Credit, regardless of any investigation made by any such other party or 

on its behalf and notwithstanding that the Administrative Agent, any Arranger, the Syndication 

Agents, the Documentation Agents, any Issuing Bank, any Lender or any Affiliate of any of the 

foregoing may have had notice or knowledge of any Default or incorrect representation or 

warranty at the time any Loan Document was executed and delivered or became effective or any 

credit was extended hereunder, and shall continue in full force and effect as long as the principal 

of or any accrued interest on any Loan or any fee or any other amount payable under this 

Agreement is outstanding and unpaid or any LC Exposure is outstanding and so long as the 

Revolving Commitments have not expired or terminated. Notwithstanding the foregoing or 

anything else to the contrary set forth in this Agreement or any other Loan Document, in the 

event that an Issuing Bank shall have provided to the Administrative Agent a written consent to 

the release of the Lenders from their obligations hereunder with respect to any Letter of Credit 

issued by such Issuing Bank (whether as a result of the obligations of any Borrower in respect of 

such Letter of Credit having been collateralized in full by a deposit of cash with such Issuing 

Bank, or being supported by a letter of credit that names such Issuing Bank as the beneficiary 

thereunder, or otherwise), then from and after such time such Letter of Credit shall cease to be a 

“Letter of Credit” outstanding hereunder for all purposes of this Agreement and the other Loan 

Documents (including for purposes of determining whether the Borrower is required to comply 

with Article V or Article VI, but excluding Sections 2.15, 2.16, 2.17, 2.21 and 9.03 and any 

expense reimbursement or indemnity provisions set forth in any other Loan Document), and the 

Lenders shall be deemed to have no participations in such Letter of Credit, and no obligations 

with respect thereto, under Sections 2.06(d) or 2.06(e). The provisions of Sections 2.15, 2.16, 

2.17, 2.21 and 9.03 and Article VIII shall survive and remain in full force and effect regardless

of the consummation of the transactions contemplated hereby, the repayment of the Loans, the 

expiration or termination of the Letters of Credit and the Revolving Commitments or the 

termination of this Agreement or any provision hereof.

SECTION 9.06. Counterparts; Integration; Effectiveness; Electronic Execution.

This Agreement may be executed in counterparts (and by different parties hereto on different 

counterparts), each of which shall constitute an original, but all of which when taken together 

shall constitute a single contract. This Agreement and the other Loan Documents, and any 

separate letter agreements with respect to fees payable or indemnities and expense 

reimbursements owed to the Administrative Agent, the Arrangers, the Issuing Banks or their 

Related Parties, constitute the entire contract among the parties relating to the subject matter 

hereof and supersede any and all previous agreements and understandings, oral or written, 

relating to the subject matter hereof. This Agreement shall become effective as provided in 

Section 4.01 and thereafter shall be binding upon and inure to the benefit of the parties hereto 

and their respective permitted successors and assigns. Delivery of an executed counterpart of a 

signature page of this Agreement or any other Loan Document by facsimile or other electronic 

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imaging shall be effective as delivery of a manually executed counterpart of this Agreement. 

The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating 

to any document to be signed in connection with this Agreement and any other Loan Document 

and the transactions contemplated hereby or thereby shall be deemed to include Electronic 

Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the 

same legal effect, validity or enforceability as a manually executed signature, physical delivery 

thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as 

provided for in any applicable law, including the Federal Electronic Signatures in Global and 

National Commerce Act, the New York State Electronic Signatures and Records Act, or any 

other similar state laws based on the Uniform Electronic Transactions Act; provided that nothing 

herein shall require the Administrative Agent to accept Electronic Signatures in any form or 

format without its prior written consent.

SECTION 9.07. Severability. Any provision of any Loan Document held to be 

invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to 

the extent of such invalidity, illegality or unenforceability without affecting the validity, legality 

and enforceability of the remaining provisions thereof; and the invalidity of a particular 

provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and 

be continuing, each Lender and each of its Affiliates is hereby authorized (notwithstanding the 

provisions of Section 362 of the Bankruptcy Code, without any application, motion or notice to, 

hearing before, or order from, the Court) at any time and from time to time, to the fullest extent 

permitted by law, to set off and apply any and all deposits (general or special, time or demand, 

provisional or final) at any time held and other obligations at any time owing by such Lender or 

Affiliate to or for the credit or the account of any Borrower or any Loan Guarantor against any of 

and all the Secured Obligations held by such Lender, irrespective of whether or not such Lender 

shall have made any demand under the Loan Documents and although such obligations may be 

unmatured. The applicable Lender shall notify the Borrower Representative and the 

Administrative Agent of such set-off or application; provided that any failure to give or any 

delay in giving such notice shall not affect the validity of any such set-off or application under 

this Section. The rights of each Lender under this Section are in addition to other rights and 

remedies (including other rights of setoff) which such Lender may have.

SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.

(a) EXCEPT TO THE EXTENT SUPERSEDED BY THE BANKRUPTCY CODE, the Loan 

Documents (other than those containing a contrary express choice of law provision) shall be 

governed by and construed in accordance with the laws of the State of New York, but giving 

effect to federal laws applicable to banks.

(b) Each party hereto hereby irrevocably and unconditionally submits, for itself 

and its property, to the non-exclusive jurisdiction of the Court or the Supreme Court of 

the State of New York sitting in New York County and of the United States District 

Court of the Southern District of New York, and any appellate court from any thereof, in 

any action or proceeding arising out of or relating to this Agreement or any other Loan 

Document, or for recognition or enforcement of any judgment, and each Loan Party 

hereby irrevocably and unconditionally agrees that all claims arising out of or relating to 

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this Agreement or any other Loan Document brought by it or any of its Affiliates shall be 

brought, and shall be heard and determined in the Court, such New York State or, to the 

extent permitted by law, in such Federal court. Each party hereto agrees that a final 

judgment in any such action or proceeding shall be conclusive and may be enforced in 

other jurisdictions by suit on the judgment or in any other manner provided by law. 

Nothing in this Agreement shall affect any right that the Administrative Agent, any 

Issuing Bank or any Lender may otherwise have to bring any action or proceeding 

relating to this Agreement or any other Loan Document against any Loan Party or any of 

its properties in the courts of any jurisdiction.

(c) Each Loan Party hereby irrevocably and unconditionally waives, to the fullest 

extent it may legally and effectively do so, any objection that it may now or hereafter 

have to the laying of venue of any suit, action or proceeding arising out of or relating to 

this Agreement or any other Loan Document in any court referred to in paragraph (b) of 

this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent 

permitted by law, the defense of an inconvenient forum to the maintenance of such action 

or proceeding in any such court.

(d) Each party to this Agreement irrevocably consents to service of process in the 

manner provided for notices in Section 9.01. Nothing in this Agreement or any other 

Loan Document will affect the right of any party to this Agreement to serve process in 

any other manner permitted by law.

SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO 

HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY 

APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL 

PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS 

AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS 

CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT 

OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO 

REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS 

REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD 

NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER 

AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE 

BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, 

THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

SECTION 9.11. Headings. Article and Section headings and the Table of 

Contents used herein are for convenience of reference only, are not part of this Agreement and 

shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Issuing 

Banks and the Lenders agrees to maintain the confidentiality of the Information (as defined 

below) with the same degree of care that it uses to protect its own confidential information, but 

in no event less than a commercially reasonable degree of care, except that Information may be 

disclosed (a) to its Related Parties, including accountants, legal counsel and other agents and 

advisors (it being understood that the Persons to whom such disclosure is made will be informed 

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of the confidential nature of such Information and instructed to keep such Information 

confidential), (b) to the extent required or requested by any regulatory authority purporting to 

have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, 

such as the National Association of Insurance Commissioners), (c) to the extent required by 

applicable law or by any subpoena or similar legal process, (d) to any other party to this 

Agreement, (e) in connection with the exercise of any remedies under this Agreement or any 

other Loan Document or any suit, action or proceeding relating to this Agreement or any other 

Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement 

containing confidentiality undertakings substantially similar to those of this Section, to (i) any 

assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or 

obligations under this Agreement or (ii) any actual or prospective counterparty (or its Related 

Parties) to any swap or derivative transaction relating to the Company or any Subsidiary or its 

obligations, (g) on a confidential basis to any rating agency in connection with rating the 

Company or the Subsidiaries or the credit facilities provided for herein, (h) with the consent of 

the Company, or (i) to the extent such Information (i) becomes publicly available other than as a 

result of a breach of this Section or (ii) becomes available to the Administrative Agent, any 

Issuing Bank or any Lender, or any Affiliate of any of the foregoing, on a non-confidential basis 

from a source other than the Borrowers; provided that, in the case of clause (c) above, the party 

disclosing such information shall provide to the Company prior written notice of such disclosure 

to the extent permitted by applicable law (and to the extent commercially feasible under the 

circumstances) and shall cooperate with the Company, at the Company’s sole expense, in 

obtaining a protective order for, or other confidential treatment of, such disclosure, in each case 

at the Company’s sole expense. For the purposes of this Section, “Information” means all 

information received from the Borrowers relating to the Company or any Subsidiary or their 

businesses or the Collateral, other than (i) any such information that is available to the 

Administrative Agent, any Issuing Bank or any Lender, or any Affiliate of any of the foregoing, 

on a non-confidential basis prior to disclosure by the Borrowers and (ii) information pertaining to 

this Agreement routinely provided by arrangers to data service providers, including league table 

providers, that serve the lending industry; provided that, in the case of information received from 

the Borrowers after the Effective Date, such information is clearly identified at the time of 

delivery as confidential.

EACH LENDER ACKNOWLEDGES THAT INFORMATION 

FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL 

NON-PUBLIC INFORMATION CONCERNING THE COMPANY, THE SUBSIDIARIES 

AND ITS OTHER AFFILIATES AND THEIR RESPECTIVE SECURITIES, AND 

CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES 

REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT 

IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN 

ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, 

INCLUDING FEDERAL AND STATE SECURITIES LAWS.

ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND 

AMENDMENTS, FURNISHED BY THE BORROWERS OR THE ADMINISTRATIVE 

AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS 

AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY 

CONTAIN MATERIAL NON-PUBLIC INFORMATION CONCERNING THE 

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COMPANY, THE SUBSIDIARIES AND ITS OTHER AFFILIATES AND THEIR 

RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO 

THE BORROWERS AND THE ADMINISTRATIVE AGENT THAT IT HAS 

IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT 

WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN SUCH MATERIAL 

NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE 

PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE 

SECURITIES LAWS.

SECTION 9.13. Several Obligations; Nonreliance; Violation of Law. The 

respective obligations of the Lenders hereunder are several and not joint and the failure of any 

Lender to make any Loan or perform any of its obligations hereunder shall not relieve any other 

Lender from any of its obligations hereunder. Anything contained in this Agreement to the 

contrary notwithstanding, neither any Issuing Bank nor any Lender shall be obligated to extend 

credit to the Borrowers in violation of applicable law.

SECTION 9.14. USA Patriot Act. Each Lender that is subject to the 

requirements of the Patriot Act hereby notifies the Borrowers and the Loan Guarantors that 

pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record 

information that identifies the Borrowers and the Loan Guarantors, which information includes 

the names and addresses of the Borrowers and the Loan Guarantors and other information that

will allow such Lender to identify the Borrowers and the Loan Guarantors in accordance with the 

Patriot Act.

SECTION 9.15. Appointment for Perfection. Each Lender hereby appoints each 

other Lender as its agent for the purpose of perfecting Liens, for the benefit of the Administrative 

Agent and the Lenders, in assets which, in accordance with Article 9 of the UCC or any other 

applicable law can be perfected by possession. Should any Lender (other than the 

Administrative Agent) obtain possession of any such Collateral, such Lender shall notify the 

Administrative Agent thereof, and, promptly upon the Administrative Agent’s request therefor 

shall deliver such Collateral to the Administrative Agent or otherwise deal with such Collateral 

in accordance with the Administrative Agent’s instructions.

SECTION 9.16. Interest Rate Limitation. Notwithstanding anything herein to the 

contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges 

and other amounts that are treated as interest on such Loan under applicable law (collectively the 

“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be 

contracted for, charged, taken, received or reserved by the Lender holding such Loan in 

accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, 

together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, 

to the extent lawful, the interest and Charges that would have been payable in respect of such 

Loan but were not payable as a result of the operation of this Section shall be cumulated and the 

interest and Charges payable to such Lender in respect of other Loans or periods shall be 

increased (but not above the Maximum Rate therefor) until such cumulated amount, together

with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have 

been received by such Lender.

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SECTION 9.17. No Fiduciary Relationship. Each Loan Party, on behalf of itself 

and its subsidiaries, agrees that in connection with all aspects of the transactions contemplated 

hereby and any communications in connection therewith, the Company, the Subsidiaries and its 

other Affiliates, on the one hand, and the Administrative Agent, the Arrangers, the Syndication 

Agents, the Documentation Agents, the Lenders, the Issuing Banks and their Affiliates, on the 

other hand, will have a business relationship that does not create, by implication or otherwise, 

any fiduciary duty on the part of the Administrative Agent, the Arrangers, the Syndication 

Agents, the Documentation Agents, the Lenders, the Issuing Banks or their Affiliates, and no 

such duty will be deemed to have arisen in connection with any such transactions or 

communications. The Administrative Agent, the Arrangers, the Syndication Agents, the 

Documentation Agents, the Lenders, the Issuing Banks and their Affiliates may be engaged, for 

their own accounts or the accounts of customers, in a broad range of transactions that involve 

interests that differ from those of the Company, the Subsidiaries and its other Affiliates, and 

none of the Administrative Agent, the Arrangers, the Syndication Agents, the Documentation 

Agents, the Lenders, the Issuing Banks or their Affiliates has any obligation to disclose any of 

such interests to the Company, the Subsidiaries or its other Affiliates. To the fullest extent 

permitted by law, each Loan Party hereby waives and releases any claims that it or any of its 

Affiliates may have against the Administrative Agent, the Arrangers, the Syndication Agents, the 

Documentation Agents, the Lenders, the Issuing Banks and their Affiliates with respect to any 

breach or alleged breach of agency or fiduciary duty in connection with any aspect of any 

transaction contemplated hereby.

SECTION 9.18. [Reserved].

SECTION 9.19. Intercreditor Agreement. (a) Each of the Lenders (which term 

shall for the purposes of this Section 9.19 include each Issuing Bank) and the other Lender 

Parties acknowledges that obligations of the Company and the Subsidiary Loan Parties under the 

Term Credit Agreement are secured by Liens on assets of the Company and the Subsidiary Loan 

Parties that constitute Collateral and that the relative Lien priorities and other creditor rights of 

the Lender Parties and the secured parties under the Term Credit Agreement will be set forth in 

the Intercreditor Agreement. Each of the Lenders and the other Lender Parties hereby 

acknowledges that it has received a copy of the Intercreditor Agreement and the Intercreditor 

Acknowledgment. Each of the Lenders and the other Lender Parties hereby irrevocably 

authorizes and directs the Administrative Agent to execute and deliver, in each case on behalf of 

such Lender Party and without any further consent, authorization or other action by such Lender 

Party, the Intercreditor Agreement, the Intercreditor Acknowledgment and any documents 

relating thereto.

(b) Each of the Lenders and the other Lender Parties hereby irrevocably (i) 

consents to the treatment of Liens provided for under the Intercreditor Agreement, 

including to the subordination of the Liens on the Term Priority Collateral securing the 

Secured Obligations on the terms set forth in the Intercreditor Agreement, (ii) agrees that, 

upon the execution and delivery thereof, such Lender Party will be bound by the 

provisions of the Intercreditor Agreement, as if it were a signatory thereto and will take 

no actions contrary to the provisions of the Intercreditor Agreement, (iii) agrees that no 

Lender Party shall have any right of action whatsoever against the Administrative Agent 

as a result of any action taken by the Administrative Agent pursuant to this Section 9.19 

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or in accordance with the terms of the Intercreditor Agreement, (iv) authorizes and directs 

the Administrative Agent to carry out the provisions and intent of each such document 

and (v) authorizes and directs the Administrative Agent to take such actions as shall be 

required to release Liens on the Collateral in accordance with the terms of the 

Intercreditor Agreement.

(c) Each of the Lenders and the other Lender Parties hereby irrevocably further 

authorizes and directs the Administrative Agent to execute and deliver, in each case on 

behalf of such Lender Party and without any further consent, authorization or other action 

by such Lender Party, any amendments, supplements or other modifications of the 

Intercreditor Agreement and the Intercreditor Acknowledgment that the Borrowers may 

from time to time request and that are reasonably acceptable to the Administrative Agent 

(i) to give effect to any establishment, incurrence, amendment, extension, renewal, 

refinancing or replacement of any Secured Obligations or the Indebtedness under the 

Term Credit Agreement, (ii) to confirm for any party that the Intercreditor Agreement is 

effective and binding upon the Administrative Agent on behalf of the Lender Parties or 

(iii) to effect any other amendment, supplement or modification permitted by the terms of 

the Intercreditor Agreement.

(d) Each of the Lenders and the other Lender Parties hereby irrevocably further 

authorizes and directs the Administrative Agent to execute and deliver, in each case on 

behalf of such Lender Party and without any further consent, authorization or other action 

by such Lender Party, any amendments, supplements or other modifications of any 

Collateral Document to add or remove any legend that may be required pursuant to the 

Intercreditor Agreement.

(e) The Administrative Agent shall have the benefit of the provisions of Article 

VIII and Section 9.03 with respect to all actions taken by it pursuant to this Section 9.19 

or in accordance with the terms of the Intercreditor Agreement to the full extent thereof.

SECTION 9.20. Acknowledgement and Consent to Bail-In. Notwithstanding 

anything to the contrary in any Loan Document or in any related agreement, arrangement or 

understanding among the parties hereto, each party hereto acknowledges that any liability of any 

party to any other party under or in connection with the Loan Documents may be subject to BailIn Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the 

effect of:

(a) any Bail-In Action in relation to any such liability, including (without 

limitation):

(i) a reduction, in full or in part, in the principal amount, or outstanding 

amount due (including any accrued but unpaid interest) in respect of any such liability;

(ii) a conversion of all, or part of, any such liability into shares or other 

instruments of ownership that may be issued to, or conferred on, it; and;

(iii) a cancellation of any such liability; and

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(b) a variation of any term of any Loan Document to the extent necessary to give 

effect to any Bail-In Action in relation to any such liability.

ARTICLE X

Loan Guarantee

SECTION 10.01. Guarantee. Each Loan Guarantor hereby agrees that it is 

jointly and severally liable for, and absolutely, irrevocably and unconditionally guarantees to the 

Administrative Agent, the Lenders, the Issuing Banks and the other Lender Parties, the prompt 

payment and performance when due, whether at stated maturity, upon acceleration or otherwise, 

and at all times thereafter, of the Secured Obligations and all reasonable costs and expenses, 

including, without limitation, all court costs and attorneys’ and paralegals’ fees and expenses 

paid or incurred by the Administrative Agent, the Issuing Banks and the Lenders in endeavoring 

to collect all or any part of the Secured Obligations from, or in prosecuting any action against, 

any Borrower, any Loan Guarantor or any other guarantor of all or any part of the Secured 

Obligations (such costs and expenses, together with the Secured Obligations, being collectively 

called the “Guaranteed Obligations”); provided, that the guarantee of any Subsidiary Loan Party 

will not apply to any Swap Obligation if and to the extent that it would be unlawful for such 

Subsidiary Loan Party to guarantee such Swap Obligation under the Commodity Exchange Act or 

any rule, regulation or order of the Commodity Futures Trading Commission (or the application or 

official interpretation of any thereof) by virtue of such Subsidiary Loan Party’s failure for any reason 

(and after giving effect to the guarantees by the other Loan Guarantors of the Secured Obligations of 

such Subsidiary Loan Party) to constitute an “eligible contract participant” as defined in the 

Commodity Exchange Act at the time the Guarantee of such Subsidiary Loan Party becomes 

effective with respect to such Swap Obligation. Each Loan Guarantor further agrees that the 

Guaranteed Obligations may be extended or renewed in whole or in part without notice to or 

further assent from it, and that it remains bound upon its guarantee notwithstanding any such 

extension or renewal. All terms of this Loan Guarantee apply to and may be enforced by or on 

behalf of any domestic or foreign branch or Affiliate of any Lender that extended any portion of 

the Guaranteed Obligations.

SECTION 10.02. Guarantee of Payment. This Loan Guarantee is a Guarantee of 

payment and not of collection. Each Loan Guarantor waives any right to require the 

Administrative Agent, any Issuing Bank, any Lender or any other Lender Party to sue any 

Borrower, any other Loan Guarantor, any other guarantor, or any other Person obligated for all 

or any part of the Guaranteed Obligations (each, an “Obligated Party”), or to enforce its rights 

against any collateral securing all or any part of the Guaranteed Obligations.

SECTION 10.03. No Discharge or Diminishment of Loan Guarantee. (a) Except 

as otherwise provided for herein, the obligations of each Loan Guarantor hereunder are 

unconditional and absolute and not subject to any reduction, limitation, impairment or 

termination for any reason (other than the indefeasible payment in full in cash of the Guaranteed 

Obligations), including: (i) any claim of waiver, release, extension, renewal, settlement, 

surrender, alteration, or compromise of any of the Guaranteed Obligations, by operation of law 

or otherwise; (ii) any change in the corporate existence, structure or ownership of any Borrower 

or any other guarantor of or other Person liable for any of the Guaranteed Obligations; (iii) any 

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insolvency, bankruptcy, reorganization or other similar proceeding affecting any Obligated Party 

or its assets or any resulting release or discharge of any obligation of any Obligated Party; or (iv) 

the existence of any claim, setoff or other right which any Loan Guarantor may have at any time 

against any Obligated Party, the Administrative Agent, any Issuing Bank, any Lender, or any 

other Person, whether in connection herewith or in any unrelated transaction.

(b) The obligations of each Loan Guarantor hereunder are not subject to any 

defense or setoff, counterclaim, recoupment, or termination whatsoever by reason of the 

invalidity, illegality, or unenforceability of any of the Guaranteed Obligations or 

otherwise, or any provision of applicable law or regulation purporting to prohibit 

payment by any Obligated Party, of the Guaranteed Obligations or any part thereof.

(c) Further, the obligations of any Loan Guarantor hereunder are not discharged 

or impaired or otherwise affected by: (i) the failure of the Administrative Agent, any 

Issuing Bank, any Lender or any other Lender Party to assert any claim or demand or to 

enforce any remedy with respect to all or any part of the Guaranteed Obligations; (ii) any 

waiver or modification of or supplement to any provision of any agreement relating to the 

Guaranteed Obligations; (iii) any release, non-perfection or invalidity of any indirect or 

direct security for the obligations of any Borrower for all or any part of the Guaranteed 

Obligations or any obligations of any other guarantor of or other Person liable for any of 

the Guaranteed Obligations; (iv) any action or failure to act by the Administrative Agent, 

any Issuing Bank, any Lender or any other Lender Party with respect to any collateral 

securing any part of the Guaranteed Obligations; or (v) any default, failure or delay, 

willful or otherwise, in the payment or performance of any of the Guaranteed 

Obligations, or any other circumstance, act, omission or delay that might in any manner 

or to any extent vary the risk of such Loan Guarantor or that would otherwise operate as a 

discharge of any Loan Guarantor as a matter of law or equity (other than the indefeasible 

payment in full in cash of the Guaranteed Obligations).

SECTION 10.04. Defenses Waived. To the fullest extent permitted by applicable 

law, each Loan Guarantor hereby waives any defense based on or arising out of any defense of 

any Borrower or any Loan Guarantor or the unenforceability of all or any part of the Guaranteed 

Obligations from any cause, or the cessation from any cause of the liability of any Borrower or 

any Loan Guarantor, other than the indefeasible payment in full in cash of the Guaranteed 

Obligations. Without limiting the generality of the foregoing, each Loan Guarantor irrevocably 

waives acceptance hereof, presentment, demand, protest and, to the fullest extent permitted by 

law, any notice not provided for herein, as well as any requirement that at any time any action be 

taken by any Person against any Obligated Party or any other Person. Each Loan Guarantor 

confirms that it is not a surety under any state law and shall not raise any such law as a defense 

to its obligations hereunder. The Administrative Agent may, at its election, foreclose on any 

Collateral held by it by one or more judicial or nonjudicial sales, accept an assignment of any 

such Collateral in lieu of foreclosure or otherwise act or fail to act with respect to any collateral 

securing all or a part of the Guaranteed Obligations, compromise or adjust any part of the 

Guaranteed Obligations, make any other accommodation with any Obligated Party or exercise 

any other right or remedy available to it against any Obligated Party, without affecting or 

impairing in any way the liability of such Loan Guarantor under this Loan Guarantee except to 

the extent the Guaranteed Obligations have been fully and indefeasibly paid in cash. To the 

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fullest extent permitted by applicable law, each Loan Guarantor waives any defense arising out 

of any such election even though that election may operate, pursuant to applicable law, to impair 

or extinguish any right of reimbursement or subrogation or other right or remedy of any Loan 

Guarantor against any Obligated Party or any security.

SECTION 10.05. Rights of Subrogation. No Loan Guarantor will assert any 

right, claim or cause of action, including, without limitation, a claim of subrogation, contribution 

or indemnification that it has against any Obligated Party, or any Collateral, until the Loan 

Parties and the Loan Guarantors have fully performed all their obligations to the Administrative 

Agent, the Issuing Banks, the Lenders and the other Lender Parties.

SECTION 10.06. Reinstatement; Stay of Acceleration. If at any time any 

payment of any portion of the Guaranteed Obligations is rescinded or must otherwise be restored 

or returned upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise, 

each Loan Guarantor’s obligations under this Loan Guarantee with respect to that payment shall 

be reinstated at such time as though the payment had not been made and whether or not the 

Administrative Agent, the Issuing Banks, the Lenders or the other Lender Parties are in 

possession of this Loan Guarantee. If acceleration of the time for payment of any of the 

Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization of any 

Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement 

relating to the Guaranteed Obligations shall nonetheless be payable by the Loan Guarantors 

forthwith on demand by the Administrative Agent.

SECTION 10.07. Information. Each Loan Guarantor assumes all responsibility 

for being and keeping itself informed of the Borrowers’ financial condition and assets, and of all 

other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the 

nature, scope and extent of the risks that each Loan Guarantor assumes and incurs under this 

Loan Guarantee, and agrees that none of the Administrative Agent, any Issuing Bank or any 

Lender shall have any duty to advise any Loan Guarantor of information known to it regarding 

those circumstances or risks.

SECTION 10.08. Taxes. The provisions of Section 2.17 shall apply mutatis

mutandis to all payments by the Loan Guarantors of the Guaranteed Obligations.

SECTION 10.09. Maximum Liability. The provisions of this Loan Guarantee are 

severable, and in any action or proceeding involving any state corporate law, or any state, federal 

or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors 

generally, if the obligations of any Loan Guarantor under this Loan Guarantee would otherwise 

be held or determined to be avoidable, invalid or unenforceable on account of the amount of such 

Loan Guarantor’s liability under this Loan Guarantee, then, notwithstanding any other provision 

of this Loan Guarantee to the contrary, the amount of such liability shall, without any further 

action by the Loan Guarantors or the Lenders, be automatically limited and reduced to the 

highest amount that is valid and enforceable as determined in such action or proceeding (such 

highest amount determined hereunder being the relevant Loan Guarantor’s “Maximum 

Liability”). This Section with respect to the Maximum Liability of each Loan Guarantor is 

intended solely to preserve the rights of the Lenders to the maximum extent not subject to 

avoidance under applicable law, and no Loan Guarantor nor any other Person or entity shall have 

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any right or claim under this Section with respect to such Maximum Liability, except to the 

extent necessary so that the obligations of any Loan Guarantor hereunder shall not be rendered 

voidable under applicable law. Each Loan Guarantor agrees that the Guaranteed Obligations may 

at any time and from time to time exceed the Maximum Liability of each Loan Guarantor 

without impairing this Loan Guarantee or affecting the rights and remedies of the Lenders 

hereunder; provided that nothing in this sentence shall be construed to increase any Loan 

Guarantor’s obligations hereunder beyond its Maximum Liability.

SECTION 10.10. Contribution. In the event any Loan Guarantor (a “Paying 

Guarantor”) shall make any payment or payments under this Loan Guarantee or shall suffer any 

loss as a result of any realization upon any collateral granted by it to secure its obligations under 

this Loan Guarantee, each other Loan Guarantor (each a “Non-Paying Guarantor”) shall 

contribute to such Paying Guarantor an amount equal to such Non-Paying Guarantor’s 

Applicable Share of such payment or payments made, or losses suffered, by such Paying 

Guarantor. For purposes of this Section, each Non-Paying Guarantor’s “Applicable Share” with 

respect to any such payment or loss by a Paying Guarantor shall be determined as of the date on 

which such payment or loss was made by reference to the ratio of (a) such Non-Paying 

Guarantor’s Maximum Liability as of such date (without giving effect to any right to receive, or 

obligation to make, any contribution hereunder) or, if such Non-Paying Guarantor’s Maximum 

Liability has not been determined, the aggregate amount of all monies received by such NonPaying Guarantor from the Borrowers after the Effective Date (whether by loan, capital infusion 

or by other means) to (b) the aggregate Maximum Liability of all Loan Guarantors hereunder 

(including such Paying Guarantor) as of such date (without giving effect to any right to receive, 

or obligation to make, any contribution hereunder), or to the extent that a Maximum Liability has 

not been determined for any Loan Guarantor, the aggregate amount of all monies received by 

such Loan Guarantors from the Borrowers after the Effective Date (whether by loan, capital 

infusion or by other means). Nothing in this provision shall affect any Loan Guarantor’s several 

liability for the entire amount of the Guaranteed Obligations (up to such Loan Guarantor’s 

Maximum Liability). Each of the Loan Guarantors covenants and agrees that its right to receive 

any contribution under this Loan Guarantee from a Non-Paying Guarantor shall be subordinate 

and junior in right of payment to the payment in full in cash of the Guaranteed Obligations. This 

provision is for the benefit of the Administrative Agent, the Issuing Banks, the Lenders and the 

Loan Guarantors and may be enforced by any one, or more, or all of them in accordance with the 

terms hereof.

SECTION 10.11. Liability Cumulative. The liability of each Loan Party as a 

Loan Guarantor under this Article X is in addition to and shall be cumulative with all other 

liabilities of each Loan Party to the Administrative Agent, the Issuing Banks and the Lenders 

under this Agreement and the other Loan Documents to which such Loan Party is a party or in 

respect of any obligations or liabilities of the other Loan Parties, without any limitation as to 

amount, unless the instrument or agreement evidencing or creating such other liability 

specifically provides to the contrary.

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ARTICLE XI

The Borrower Representative

SECTION 11.01. Appointment; Nature of Relationship. The Company is hereby 

appointed by each of the Borrowers as its contractual representative (herein referred to as the 

“Borrower Representative”) hereunder and under each other Loan Document, and each of the 

Borrowers irrevocably authorizes the Borrower Representative to act as the contractual 

representative of such Borrower with the rights and duties expressly set forth herein and in the 

other Loan Documents. The Borrower Representative agrees to act as such contractual 

representative upon the express conditions contained in this Article XI. Additionally, the 

Borrowers hereby appoint the Borrower Representative as their agent to receive all of the 

proceeds of the Loans in the Funding Account(s), at which time the Borrower Representative 

shall promptly disburse such Loans to the appropriate Borrower. The Administrative Agent, the 

Issuing Banks and the Lenders, and their respective Related Parties, shall not be liable to the 

Borrower Representative or any Borrower for any action taken or omitted to be taken by the 

Borrower Representative or the Borrowers pursuant to this Section.

SECTION 11.02. Powers. The Borrower Representative shall have and may 

exercise such powers under the Loan Documents as are specifically delegated to the Borrower 

Representative by the terms of each thereof, together with such powers as are reasonably 

incidental thereto. The Borrower Representative shall have no implied duties to the Borrowers, 

or any obligation to the Lenders to take any action thereunder except any action specifically 

provided by the Loan Documents to be taken by the Borrower Representative.

SECTION 11.03. Employment of Agents. The Borrower Representative may 

execute any of its duties as the Borrower Representative hereunder and under any other Loan 

Document by or through authorized officers.

SECTION 11.04. Notices. Each Borrower shall immediately notify the 

Borrower Representative of the occurrence of any Default hereunder referring to this Agreement 

describing such Default and stating that such notice is a “notice of default.” In the event that the 

Borrower Representative receives such a notice, the Borrower Representative shall give prompt 

notice thereof to the Administrative Agent and the Lenders. Any notice provided to the 

Borrower Representative hereunder shall constitute notice to each Borrower on the date received 

by the Borrower Representative.

SECTION 11.05. Successor Borrower Representative. Upon the prior written 

consent of the Administrative Agent, the Borrower Representative may resign at any time, such 

resignation to be effective upon the appointment of a successor Borrower Representative. The

Administrative Agent shall give prompt written notice of such resignation to the Lenders.

SECTION 11.06. Execution of Loan Documents; Borrowing Base Certificate.

The Borrowers hereby empower and authorize the Borrower Representative, on behalf of the 

Borrowers, to execute and deliver to the Administrative Agent and the Lenders the Loan 

Documents and all related agreements, certificates, documents, or instruments as shall be 

necessary or appropriate to effect the purposes of the Loan Documents, including, without 

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limitation, the Borrowing Base Certificates and the Compliance Certificates. Each Borrower 

agrees that any action taken by the Borrower Representative or the Borrowers in accordance with 

the terms of this Agreement or the other Loan Documents, and the exercise by the Borrower 

Representative of its powers set forth therein or herein, together with such other powers that are 

reasonably incidental thereto, shall be binding upon all of the Borrowers.

SECTION 11.07. Reporting. Each Borrower hereby agrees that such Borrower 

shall furnish promptly after each fiscal month to the Borrower Representative any certificate or 

report requested by the Borrower Representative, on which the Borrower Representative shall 

rely to prepare the Borrowing Base Certificates and Compliance Certificates required pursuant to 

the provisions of this Agreement.

SECTION 11.08. Acknowledgement Regarding Any Supported QFCs. To the 

extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap 

Agreement or any other agreement or instrument that is a QFC (such support, “QFC Credit 

Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as 

follows with respect to the resolution power of the Federal Deposit Insurance Corporation under 

the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and 

Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. 

Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with 

the provisions below applicable notwithstanding that the Loan Documents and any Supported 

QFC may in fact be stated to be governed by the laws of the State of New York and/or of the 

United States or any other state of the United States):

(a) In the event a Covered Entity that is party to a Supported QFC (each, a 

“Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution 

Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support 

(and any interest and obligation in or under such Supported QFC and such QFC Credit 

Support, and any rights in property securing such Supported QFC or such QFC Credit 

Support) from such Covered Party will be effective to the same extent as the transfer 

would be effective under the U.S. Special Resolution Regime if the Supported QFC and 

such QFC Credit Support (and any such interest, obligation and rights in property) were 

governed by the laws of the United States or a state of the United States. In the event a 

Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a 

proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan 

Documents that might otherwise apply to such Supported QFC or any QFC Credit 

Support that may be exercised against such Covered Party are permitted to be exercised 

to no greater extent than such Default Rights could be exercised under the U.S. Special 

Resolution Regime if the Supported QFC and the Loan Documents were governed by the 

laws of the United States or a state of the United States. Without limitation of the 

foregoing, it is understood and agreed that rights and remedies of the parties with respect 

to a Defaulting Lender shall in no event affect the rights of any Covered Party with 

respect to a Supported QFC or any QFC Credit Support. 

(b) As used in this Section 11.08, the following terms have the following 

meanings:

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“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.

“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).

“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.

“QFC” has the meaning assigned to the term “qualified financial contract” in, and 

shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

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Schedule 5.19

Required Milestones

The Loan Parties shall use their reasonable best efforts to pursue and implement the 

Restructuring Transactions as defined in, and in accordance with, the RSA, and shall achieve the 

following milestones:

(a) on or before the earlier to occur of (i) the date the Court approves the Term 

Loan Facility and (ii) September 11, 2020, the Court shall have entered the Final Order;

(b) on or prior to seven (7) days after the date that the Court shall have entered 

the Final Order, the Term Credit Agreement shall have become effective and the 

Borrowers shall have prepaid all Borrowings hereunder with a portion of the proceeds of 

the Term Loan Facility in accordance with Section 2.11(c) hereof and cash on hand and 

shall have reduced the outstanding Loan balance to zero;

(c) on or before fifty (50) days after the Petition Date, the Court shall have 

entered an order extending the lease assumption/rejection period such that the lease 

assumption/rejection period shall be two hundred and ten (210) days from the Petition 

Date;

(d) on or before sixty (60) days after the Petition Date, the Court shall have 

entered an order approving a disclosure statement filed by the Loan Parties with respect 

to an Acceptable Plan; 

(e) on or before seventy (70) days after the Petition Date, the Loan Parties shall 

have commenced solicitation of an Acceptable Plan; 

(f) on or before one hundred and ten (110) days after the Petition Date, the Court 

shall have entered the Confirmation Order; and

(g) on or before the date that is one hundred and thirty (130) days after the 

Petition Date (or such later date as may be agreed to the Administrative Agent in its sole 

discretion), the Loan Parties shall have caused the Acceptable Plan to become effective 

and emerged from the Cases;

provided that the deadlines set forth in clauses (d) through (g) above shall be automatically 

extended in the event that (and for so long as) (i) no Revolving Loans, Protective Advances or 

Overadvances are outstanding and (ii) the Loan Parties cash collateralized (x) all outstanding 

Letters of Credit and unpaid LC Disbursements in an amount equal to 103% of the aggregate 

undrawn face amount of all outstanding Letters of Credit and (y) all other outstanding Secured 

Obligations in a manner and in amounts satisfactory to the holders of such Secured Obligations.

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Annex 5: Required Milestones

The Debtors shall use their reasonable best efforts to pursue and implement the Restructuring 

Transactions as defined in, and in accordance with, the RSA, and shall achieve the following 

milestones:

(h) on or before the earlier of (i) the date the Court approves the DIP Term Loan 

Facility and (ii) September 11, 2020, the Court shall have entered the Final Order;

(i) on or prior to seven (7) days after the date that the Court shall have entered the 

Final Order, the DIP Term Credit Agreement shall have become effective and the 

Debtors shall have prepaid all Borrowings (as defined in the DIP ABL Agreement) 

hereunder with a portion of the proceeds of the DIP Term Loan Facility in accordance 

with Section 2.11(c) of the DIP ABL Agreement and cash on hand and shall have 

reduced the outstanding Loan (as defined in the DIP ABL Agreement) balance to zero;

(j) on or before fifty (50) days after the Petition Date, the Court shall have 

entered an order extending the lease assumption/rejection period such that the lease 

assumption/rejection period shall be two hundred and ten (210) days from the Petition 

Date;

(k) on or before sixty (60) days after the Petition Date, the Court shall have 

entered an order approving a disclosure statement filed by the Debtors with respect to an

Acceptable Plan (as defined in the DIP ABL Agreement);

(l) on or before seventy (70) days after the Petition Date, the Debtors shall have 

commenced solicitation of an Acceptable Plan; 

(m) on or before one hundred and ten (110) days after the Petition Date, the 

Court shall have entered the Confirmation Order (as defined in the DIP ABL 

Agreement); and

(n) on or before the date that is one hundred and thirty (130) days after the 

Petition Date (or such later date as may be agreed to the DIP ABL Agent in its sole 

discretion), the Debtors shall have caused the Acceptable Plan to become effective and 

emerged from the Cases;

provided that the deadlines set forth in clauses (d) through (g) above shall be automatically 

extended in the event that (and for so long as) (i) no Revolving Loans, Protective Advances or 

Overadvances (each as defined in the DIP ABL Agreement) are outstanding and (ii) the Debtors

cash collateralized (x) all outstanding Letters of Credit and unpaid LC Disbursements (each as 

defined in the DIP ABL Agreement) in an amount equal to 103% of the aggregate undrawn face 

amount of all outstanding Letters of Credit and (y) all other outstanding DIP ABL Obligations in 

a manner and in amounts satisfactory to the holders of such DIP ABL Obligations.

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Annex 6: Global Settlement 

Subject Agreement

1 Rent Deferral 

Motion 

Upon entry of the Final Order, the Motion of Debtors for Entry of Order 

(I) Extending Time for Performance of Obligations Arising Under 

Unexpired Nonresidential Real Property Leases, and (II) Granting 

Related Relief [Docket No. 158] shall be deemed withdrawn and the 

Debtors shall pay all rent for August 2020 and September 2020 owing to 

landlords promptly following entry of the Final Order but not later than 

September 18, 2020; provided that for any rejected real property lease, the 

Debtors shall only be required to pay rent owing to landlords for the 

period prior to the effective date of such rejection.

2 Stub Rent Upon entry of the Final Order, all unpaid rent owing to landlords 

associated with the time period of July 23, 2020 through July 31, 2020 

shall be paid concurrently with the payment of deferred rent for 

August 2020 and September 2020; provided that for any rejected real 

property lease, the Debtors shall only be required to pay rent owing to 

landlords for the period through the effective date of such rejection.

3 Critical 

Vendor 

Payments 

Pursuant to the Final Order (I) Authorizing the Debtors to Pay Certain 

Prepetition Claims of (A) Lien Claimants, (B) 503(b)(9) Claimants, 

(C) Foreign Vendors, and (D) Critical Vendors, (II) Confirming 

Administrative Expense Priority of Outstanding Orders, and 

(III) Granting Related Relief [Docket No. 449] (the “Critical Vendor 

Order”), the Debtors are authorized to pay up to $40 million on account of 

Foreign Vendor Claims and $10 million on account of Critical Vendor 

Claims as set forth in the Critical Vendor Order. The Debtors will use 

commercially reasonable efforts to spend at least 70% of the amounts set 

forth for payment under the Critical Vendor Order (generally, “Trade 

Payments”) with respect to Critical Vendor Claims and Foreign Vendor 

Claims; provided that the size and terms of the relief granted shall not 

change from what was set forth in the Critical Vendor Order. The Debtors 

will use commercially reasonable efforts to condition any Trade Payments 

upon the applicable vendor’s agreement to (a) provide trade terms at least 

as favorable as the most favorable trade terms provided by such vendor to 

the Debtors during the six-month period ending February 29, 2020 

(“Customary Terms”), which Customary Terms shall be utilized for at 

least 6 months after the Effective Date of the Plan; and (b) vote in favor of 

the Settlement Plan, provided that the Settlement Plan is consistent with 

the terms of this Global Settlement. 

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4 Creation of

GUC Trust

The Plan shall be revised to provide that on the Effective Date thereof, a 

trust shall be funded solely for the benefit of general unsecured claims 

(the “GUC Trust”), which GUC Trust shall be funded with (i) $6.5 

million; and (ii) 100% of the first $1 million and 50% of the next $4 

million of any proceeds from the Visa/MasterCard litigation transferred 

GUC Trust upon receipt, with proceeds in excess of $5 million (and 50% 

of proceeds between $1 million and $5 million) retained by the 

Reorganized Debtors; provided that the proceeds of the Visa/MasterCard 

litigation that are transferred to the GUC Trust will be transferred net of 

any costs to achieve such proceeds. The Plan shall further be revised to 

provide that any deficiency claims held by the Prepetition Secured Parties 

will be waived as to the GUC Trust assets and will not receive a 

distribution from the GUC Trust. 

5 Waiver of 

Chapter 5 

Claims

The Plan shall be revised to provide that all chapter 5 causes of action, 

including preference claims, held by the Debtors against vendors, service 

providers, landlords, and non-insider employees shall be released upon the 

Effective Date of the Plan. 

6 Final Order 

Modifications

The revisions made to the Final Order include an agreement by the DIP 

Lenders and the Prepetition Secured Parties to marshal away from 

unencumbered assets (including Avoidance Action Proceeds) among other 

modifications agreed upon by the Creditors’ Committee and the 

Prepetition Secured Parties and DIP Lenders as set forth in the Final 

Order.

7 Plan 

Modification

The Plan shall be modified to incorporate the terms of the Global 

Settlement in a manner acceptable to the Debtors and the Creditors’ 

Committee and the Plan shall not be withdrawn or modified in a manner 

adverse to the Creditors’ Committee or the terms of the Global Settlement 

without the Creditors’ Committee consent. 

8 Plan Support The Creditors’ Committee agrees to support the Settlement Plan to the 

extent consistent with the terms of the Global Settlement.

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