Exhibit 10.1


 





Execution Version


 


 




Senior
Secured Super Priority


 


Debtor-In-Possession
Credit Agreement


 


dated as of May 29, 2020,


 


among


 


TUESDAY MORNING CORPORATION,

as Holdings,


 


TUESDAY MORNING, INC.,

as Borrower,


 


THE GUARANTORS PARTY HERETO,


 


THE LENDERS PARTY HERETO,


 


JPMORGAN CHASE BANK, N.A.,

as Administrative Agent, Sole Lead Arranger and Sole Bookrunner


 


and


 


WELLS FARGO BANK, N.A.,

as Syndication Agent


 


 














     


     


    

 


TABLE OF CONTENTS


 




	ARTICLE I Definitions	 	 	2	 
	Section 1.01	 	Defined Terms	 	 	2	 
	Section 1.02	 	Terms Generally	 	 	40	 
	Section 1.03	 	Accounting Terms	 	 	41	 
	Section 1.04	 	Rounding	 	 	41	 
	Section 1.05	 	Timing of Payment or Performance	 	 	42	 
	Section 1.06	 	Classification	 	 	42	 
	Section 1.07	 	References to Laws	 	 	42	 
	Section 1.08	 	Interest Rates; LIBOR Notification	 	 	42	 
	Section 1.09	 	Classification of Loans and Borrowings	 	 	43	 
	ARTICLE II The Credits	 	 	43	 
	Section 2.01	 	Revolver Commitments; Roll-Up of Pre-Petition
    Obligations	 	 	43	 
	Section 2.02	 	Loans and Borrowings	 	 	43	 
	Section 2.03	 	Requests for Borrowings and Notices	 	 	44	 
	Section 2.04	 	Letters of Credit	 	 	44	 
	Section 2.05	 	Funding of Borrowings	 	 	48	 
	Section 2.06	 	Interest Elections	 	 	49	 
	Section 2.07	 	Repayment of Loans; Termination of Revolver Commitments	 	 	50	 
	Section 2.08	 	Evidence of Debt	 	 	51	 
	Section 2.09	 	Fees	 	 	51	 
	Section 2.10	 	Interest	 	 	52	 
	Section 2.11	 	Alternate Rate of Interest	 	 	53	 
	Section 2.12	 	Increased Costs	 	 	54	 
	Section 2.13	 	Break Funding Payments	 	 	56	 
	Section 2.14	 	Taxes	 	 	56	 
	Section 2.15	 	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	 	 	60	 
	Section 2.16	 	Mitigation Obligations; Replacement of Lenders	 	 	62	 
	Section 2.17	 	Illegality	 	 	64	 
	Section 2.18	 	Defaulting Lenders	 	 	64	 
	Section 2.19	 	Overadvances	 	 	66	 
	Section 2.20	 	Protective Advances	 	 	66	 
	ARTICLE III Representations and Warranties	 	 	66	 
	Section 3.01	 	Organization; Powers	 	 	66	 
	Section 3.02	 	Authorization	 	 	67	 
	Section 3.03	 	Enforceability	 	 	67	 
	Section 3.04	 	Governmental Approvals	 	 	67	 
	Section 3.05	 	Financial Condition	 	 	68	 
	Section 3.06	 	No Material Adverse Effect	 	 	68	 
	Section 3.07	 	Properties	 	 	68	 




 






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	Section 3.08	 	Capitalization and Subsidiaries	 	 	69	 
	Section 3.09	 	Litigation; Compliance with Laws	 	 	69	 
	Section 3.10	 	Investment Company Act	 	 	69	 
	Section 3.11	 	Use of Proceeds	 	 	69	 
	Section 3.12	 	Federal Reserve Regulations	 	 	70	 
	Section 3.13	 	Tax	 	 	70	 
	Section 3.14	 	Disclosure	 	 	70	 
	Section 3.15	 	Employee Benefit Plans	 	 	71	 
	Section 3.16	 	Environmental Matters	 	 	71	 
	Section 3.17	 	Security Documents	 	 	71	 
	Section 3.18	 	Affiliate Transactions	 	 	71	 
	Section 3.19	 	Labor Matters	 	 	72	 
	Section 3.20	 	Insurance	 	 	72	 
	Section 3.21	 	USA PATRIOT Act and OFAC	 	 	72	 
	Section 3.22	 	EEA Financial Institution	 	 	73	 
	Section 3.23	 	Plan Assets	 	 	73	 
	Section 3.24	 	Accounts	 	 	73	 
	Section 3.25	 	Approved Budget	 	 	73	 
	Section 3.26	 	Material Agreements	 	 	73	 
	Section 3.27	 	Chapter 11 Cases	 	 	73	 
	ARTICLEIV Conditions of Lending	 	 	74	 
	Section 4.01	 	Closing Date	 	 	74	 
	Section 4.02	 	Conditions Precedent to All Credit Extensions	 	 	78	 
	ARTICLEV Affirmative Covenants	 	 	79	 
	Section  5.01	 	Existence; Conduct of Business	 	 	80	 
	Section 5.02	 	Insurance	 	 	80	 
	Section 5.03	 	Taxes	 	 	81	 
	Section 5.04	 	Financial Statements, Reports and Other Information	 	 	81	 
	Section 5.05	 	Notices of Material Events	 	 	85	 
	Section 5.06	 	Compliance with Laws	 	 	86	 
	Section 5.07	 	Maintaining Records; Access to Properties and Inspections	 	 	86	 
	Section 5.08	 	Compliance with Environmental Laws	 	 	87	 
	Section 5.09	 	Further Assurances; Mortgages	 	 	88	 
	Section 5.10	 	Fiscal Year; Accounting	 	 	88	 
	Section 5.11	 	Qualifying DIP RE Facility	 	 	89	 
	Section 5.12	 	Collateral Monitoring and Reporting	 	 	89	 
	Section 5.13	 	Use of Proceeds	 	 	91	 
	Section 5.14	 	Approved Budget	 	 	91	 
	Section 5.15	 	Case Milestones	 	 	93	 
	Section 5.16	 	Material Agreements	 	 	93	 
	Section 5.17	 	Loan Parties’ Advisors	 	 	93	 
	Section 5.18	 	Administrative Agent’s Advisors	 	 	94	 
	Section 5.19	 	Orders	 	 	94	 



 






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	Section 5.20	 	Debtor-In-Possession Obligations	 	 	94	 
	Section 5.21	 	Payment of Obligations	 	 	94	 
	Section 5.22	 	Compliance with Terms of Leaseholds	 	 	94	 
	ARTICLE VI Negative Covenants	 	 	95	 
	Section 6.01	 	Indebtedness	 	 	95	 
	Section 6.02	 	Liens	 	 	97	 
	Section 6.03	 	[Reserved]	 	 	100	 
	Section 6.04	 	Investments, Loans and Advances	 	 	100	 
	Section 6.05	 	Mergers, Consolidations and Dispositions	 	 	101	 
	Section 6.06	 	Dividends and Distributions	 	 	103	 
	Section 6.07	 	Transactions with Affiliates	 	 	103	 
	Section 6.08	 	Business of Holdings, the Borrower and the Subsidiaries	 	 	103	 
	Section 6.09	 	Limitation on Modification of Indebtedness; Modification
    of Certificate of Incorporation, By-Laws and Certain Other Agreements; etc.	 	 	104	 
	Section 6.10	 	Financial Performance Covenants	 	 	105	 
	Section 6.11	 	Use of Proceeds	 	 	105	 
	Section 6.12	 	Orders	 	 	105	 
	Section 6.13	 	Prepayments of Other Debt	 	 	105	 
	Section 6.14	 	Reclamation of Claims	 	 	105	 
	Section 6.15	 	Insolvency Proceeding Claims	 	 	105	 
	Section 6.16	 	Bankruptcy Actions	 	 	106	 
	Section 6.17	 	Subrogation	 	 	106	 
	Section 6.18	 	Modification of Engagement Letters	 	 	106	 
	ARTICLE VII Events of Default	 	 	106	 
	Section 7.01	 	Events of Default	 	 	106	 
	Section 7.02	 	Allocation	 	 	114	 
	ARTICLE VIII The Agents	 	 	116	 
	Section 8.01	 	Appointment, Authority and Duties of the Administrative Agent	 	 	116	 
	Section 8.02	 	Agreements Regarding Collateral and Field Examination Reports	 	 	117	 
	Section 8.03	 	Reliance By the Administrative Agent	 	 	117	 
	Section 8.04	 	Action Upon Default	 	 	117	 
	Section 8.05	 	Payments Received by Defaulting Lender	 	 	117	 
	Section 8.06	 	Limitation on Responsibilities of the Agents	 	 	117	 
	Section 8.07	 	Successor Administrative Agent and Co-Agents	 	 	118	 
	Section 8.08	 	Due Diligence and Non-Reliance	 	 	118	 
	Section 8.09	 	Remittance of Payments and Collections	 	 	118	 
	Section 8.10	 	The Administrative Agent in its Individual Capacity	 	 	119	 
	Section 8.11	 	Administrative Agent Titles	 	 	119	 
	Section 8.12	 	Bank Product Providers	 	 	119	 
	Section 8.13	 	Survival	 	 	119	 




 






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	Section 8.14	 	Withholding Tax	 	 	120	 
	Section 8.15	 	Indemnification	 	 	120	 
	Section 8.16	 	Certain ERISA Matters	 	 	120	 
	Section 8.17	 	Flood Laws	 	 	121	 
	ARTICLE IX Miscellaneous	 	 	121	 
	Section 9.01	 	Notices	 	 	121	 
	Section 9.02	 	Survival of Agreement	 	 	122	 
	Section 9.03	 	Binding Effect	 	 	122	 
	Section 9.04	 	Successors and Assigns	 	 	123	 
	Section 9.05	 	Expenses; Indemnity	 	 	126	 
	Section 9.06	 	Right of Set-off	 	 	127	 
	Section 9.07	 	Applicable Law	 	 	127	 
	Section 9.08	 	Waivers; Amendment	 	 	127	 
	Section 9.09	 	Interest Rate Limitation	 	 	129	 
	Section 9.10	 	Entire Agreement	 	 	129	 
	Section 9.11	 	WAIVER OF JURY TRIAL	 	 	129	 
	Section 9.12	 	Severability	 	 	130	 
	Section 9.13	 	Counterparts	 	 	130	 
	Section 9.14	 	Headings	 	 	130	 
	Section 9.15	 	Jurisdiction; Consent to Service of Process	 	 	130	 
	Section 9.16	 	Confidentiality	 	 	131	 
	Section 9.17	 	Release of Liens and Guarantees	 	 	131	 
	Section 9.18	 	USA PATRIOT Act	 	 	131	 
	Section 9.19	 	Marshalling; Payments Set Aside	 	 	132	 
	Section 9.20	 	Obligations Several; Independent Nature of Lenders’ Rights	 	 	132	 
	Section 9.21	 	Electronic Execution of Assignments	 	 	132	 
	Section 9.22	 	Acknowledgements	 	 	132	 
	Section 9.23	 	Lender Action	 	 	133	 
	Section 9.24	 	Judgment Currency	 	 	133	 
	Section 9.25	 	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	 	 	133	 
	Section 9.26	 	Force Majeure	 	 	134	 
	Section 9.27	 	Conforming Amendments	 	 	134	 
	ARTICLE X Collateral	 	 	134	 
	Section 10.01	 	Grant of Security Interest	 	 	134	 
	Section 10.02	 	Perfection of Security Interest	 	 	135	 
	Section 10.03	 	The Administrative Agent’s and Lenders’ Rights, Duties, and Liabilities	 	 	136	 
	Section 10.04	 	Rights in Respect of Investment Property	 	 	136	 
	Section 10.05	 	Remedies	 	 	137	 
	Section 10.06	 	Administrative Agent’s Appointment as Attorney-in-Fact, etc.	 	 	138	 
	Section 10.07	 	Duty of Administrative Agent	 	 	139	 
	Section 10.08	 	Execution of Financing Statements	 	 	139	 
	Section 10.09	 	Authority of Administrative Agent	 	 	139	 
	Section 10.10	 	Appointment of Co-Collateral Agents	 	 	139	 
	ARTICLE XI Guaranty	 	 	140	 
	Section 11.01	 	Guaranty; Limitation of Liability	 	 	140	 
	Section 11.02	 	Guaranty Absolute	 	 	140	 
	Section 11.03	 	Waivers and Acknowledgments	 	 	141	 
	Section 11.04	 	Subrogation	 	 	142	 
	Section 11.05	 	Continuing Guaranty; Assignments	 	 	142	 



 






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EXHIBITS; SCHEDULES; ANNEX


 


	Exhibit A	 	Form of Assignment and Acceptance
	Exhibit B	 	Form of Administrative Questionnaire
	Exhibit C-1	 	Form of CBFR Borrowing Request
	Exhibit C-2	 	Form of Eurodollar Borrowing Request
	Exhibit D	 	Form of Interest Election Request
	Exhibit E	 	Joinder Agreement
	Exhibit F	 	Form of Compliance Certificate
	Exhibit G-1	 	Form of U.S. Tax Compliance Certificate (Foreign Lenders that are not Partnerships for U.S. Federal Income Tax Purposes)
	Exhibit G-2	 	Form of U.S. Tax Compliance Certificate (Foreign Participants that are not Partnerships for U.S. Federal Income Tax Purposes)
	Exhibit G-3	 	Form of U.S. Tax Compliance Certificate (Foreign Participants that are Partnerships for U.S. Federal Income Tax Purposes)
	Exhibit G-4	 	Form of U.S. Tax Compliance Certificate (Foreign Lenders that are Partnerships for U.S. Federal Income Tax Purposes)
	Exhibit H-1	 	Form of Weekly Borrowing Base Certificate
	Exhibit H-2	 	Form of Monthly Borrowing Base Certificate
	 	 	 
	Schedule 1.01(a)	 	Bank Product Debt
	Schedule 2.01	 	Revolver Commitments
	Schedule 2.04(a)	 	Existing Letters of Credit
	Schedule 3.07	 	Properties and Intellectual Property
	Schedule 3.08	 	Capitalization and Subsidiaries
	Schedule 3.20	 	Insurance
	Schedule 3.26	 	Material Agreements
	Schedule 5.12	 	Deposit, Securities, Commodities and Excluded Accounts
	Schedule 5.15	 	Case Milestones
	Schedule 6.01	 	Indebtedness
	Schedule 6.02	 	Liens
	Schedule 6.04	 	Investments
	Schedule 6.07	 	Transactions with Affiliates
	 	 	 
	ANNEX A	 	Approved Budget




 






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This Senior
Secured Super Priority Debtor-In-Possession Credit Agreement dated as of May 29, 2020 (this “Agreement”),
among TUESDAY MORNING, INC., a Texas corporation (the “Borrower”), each of the Subsidiary Guarantors
(as hereinafter defined), TUESDAY MORNING CORPORATION, a Delaware corporation (“Parent”), TMI HOLDINGS,
INC., a Delaware corporation (“Intermediate Holdings”), the LENDERS party hereto from time to time, JPMORGAN
CHASE BANK, N.A., as administrative agent (in such capacity, the “Administrative Agent”) and WELLS FARGO
BANK, N.A., as syndication agent (in such capacity, the “Syndication Agent”).


 


RECITALS


 


WHEREAS, the Borrower
and the Guarantors each commenced a voluntary case (the “Chapter 11 Cases”) under chapter 11 of title
11 of the United States Code (the “Bankruptcy Code”), and the Chapter 11 Cases are being jointly administered
in the United States Bankruptcy Court for the Northern District of Texas, Dallas Division (the “Court”,
and the date the Chapter 11 Cases are commenced, the “Petition Date”);


 


WHEREAS, from and after
the Petition Date, the Borrower and the Guarantors continue to operate their business and manage their property as debtors and
debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code;


 


WHEREAS, prior to the
Petition Date, the Lenders provided financing to the Borrower pursuant to that certain Credit Agreement, dated as of August 18,
2015 by and among the Borrower, the other Loan Parties from time to time party thereto, JPMorgan Chase Bank, N.A., as Pre-Petition
Agent, the lenders from time to time party thereto (the “Pre-Petition Lenders”), and the other parties
from time to time party thereto (as amended, restated, modified, waived or supplemented through the date hereof, the “Pre-Petition
Credit Agreement”);


 


WHEREAS, as of the
close of business on May 26, 2020, the Pre-Petition Lenders under the Pre-Petition Credit Agreement were owed not less than: (i)
$39,124,251.11 in outstanding principal with respect to Revolver Loans (as such term is defined in the Pre-Petition Credit Agreement)
and (ii) $8,823,452.00 in maximum aggregate amounts available to be drawn under outstanding Letters of Credit (as such term is
defined in the Pre-Petition Credit Agreement), plus interest, fees, costs and expenses and all other Pre-Petition Obligations under
the Pre-Petition Credit Agreement;


 


WHEREAS, the Pre-Petition
Obligations are secured by a security interest in certain existing and after-acquired assets of the 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;


 


WHEREAS, the Borrower
has requested, and, upon the terms and conditions set forth in this Agreement, the Lenders have agreed to make available to the
Borrower, a senior secured, super-priority credit facility of up to $100,000,000 in the aggregate to fund the working capital requirements
of the Borrower and other transactions as more fully set forth in Section 5.13 herein during the pendency of the
Chapter 11 Cases;


 






    1


     


    

 


WHEREAS, each
Loan Party has agreed to secure all of the Secured 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
substantially all of their existing and after-acquired personal and upon the effectiveness of the Qualifying DIP RE Facility,
real property (subject to the limitations and priorities contained in the Loan Documents and the Orders);


 


WHEREAS, each Loan
Party’s business is a mutual and collective enterprise and the Loan Parties believe that the loans and other financial accommodations
to the Borrower under this Agreement will enhance the aggregate borrowing power of the Borrower and facilitate the administration
of the Chapter 11 Cases and their loan relationship with the Administrative Agent and the Lenders, all to the mutual advantage
of the Loan Parties;


 


WHEREAS, each Loan
Party acknowledges that it will receive substantial direct and indirect benefits by reason of the making of loans and other financial
accommodations to the Borrower as provided in this Agreement; and


 


WHEREAS, the Administrative
Agent’s and the Lenders’ willingness to extend financial accommodations to the Borrower as more fully set forth in
this Agreement and the other Loan Documents, is done solely as an accommodation to the Loan Parties and at the Loan Parties’
request and in furtherance of the Loan Parties’ mutual and collective enterprise.


 


NOW THEREFORE, In consideration
of the mutual covenants and agreements herein contained and of the loans, extensions of credit and commitments hereinafter referred
to, the parties hereto agree as follows:


 


ARTICLE I



Definitions


 


Section 1.01       
Defined Terms. As used in this Agreement, the following terms shall have the
meanings specified below:


 


“Account”
shall have the meaning as defined in the UCC, including all rights to payment for goods sold or leased, or for services rendered.


 


“Account
Debtor” shall mean a Person who is obligated under an Account, Chattel Paper or General Intangible.


 


“Acquisition”
shall mean, with respect to any Person, (a) an Investment in, or a purchase of a Controlling interest in, the Equity Interests
of any other Person (whether by merger or consolidation of such Person with any other Person or otherwise) or (b) a purchase
or other acquisition of all or substantially all of the assets or properties of another Person or of any business unit of another
Person (whether by merger or consolidation of such Person with any other Person or otherwise).


 


“Actual
Cash Receipts” shall mean the sum of all cash receipts received by the Loan Parties (excluding any Borrowing under
this Agreement but including all advances made under the Qualifying DIP RE Facility).


 


“Adequate
Protection Liens” has the meaning assigned to the term “Adequate Protection Liens” in the Interim
Order (or the Final Order, when applicable).


 






    2


     


    

 


“Adequate
Protection Superpriority Claims” has the meaning assigned to the term “Adequate Protection Superpriority Claims”
in the Interim Order (or the Final Order, when applicable).


 


“Adjusted
LIBO Rate” shall mean, 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.


 


“Administrative
Agent” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.


 


“Administrative
Questionnaire” shall mean an Administrative Questionnaire in the form of Exhibit B.


 


“Affected
Lender” shall have the meaning assigned to such term in Section 2.17.


 


“Affiliate”
shall mean, when used with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person specified; provided, however, no Agent or
Lender shall be deemed to be an Affiliate of the Borrower or its Subsidiaries with respect to transactions evidenced by any Loan
Document.


 


“Agent
Indemnitees” shall mean each Agent and its officers, directors, employees, Affiliates, agents and attorneys.


 


“Agent
Professionals” shall mean attorneys, accountants, appraisers, auditors, environmental engineers or consultants, and
other professionals and experts retained by the Administrative Agent including, without limitation, Agent’s Advisor.


 


“Agent’s
Advisor” shall mean Berkeley Research Group, LLC.


 


“Agents”
shall mean the Administrative Agent, the Pre-Petition Agent and the Syndication Agent.


 


“Agreement”
shall have the meaning assigned to such term in the introductory paragraph of this Agreement, as the same may from time to time
be amended, modified, supplemented or restated.


 


“Agreement
Currency” has the meaning assigned to such term in Section 9.24.


 


“Anti-Corruption
Laws” shall mean all laws, rules, and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries
from time to time concerning or relating to bribery, corruption, money laundering, any predicate crime to money laundering or any
financial record keeping an reporting requirements related thereto.


 






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“Applicable
Law” shall mean all applicable laws, rules, regulations and binding governmental requirements having the force
and effect of law applicable to the Person in question or any of its property or assets, including all applicable statutory
law, common law and equitable principles, and all provisions of constitutions, treaties, statutes, rules, regulations, orders
and decrees of Governmental Authorities.


 


“Applicable
Margin” shall mean (i) with respect to any CBFR Loan, 2.00% per annum and (ii) with respect to any Eurodollar
Loan, 3.00% per annum.


 


“Appraised
Value” shall mean the appraised orderly liquidation value, net of costs and expenses to be incurred in connection
with any such liquidation, which value is expressed as a percentage of Cost of the Eligible Inventory as set forth in the Loan
Parties’ inventory stock ledgers, which value shall be determined from time to time by the most recent appraisal undertaken
by an independent appraiser engaged by the Administrative Agent.


 


“Approved
Budget” shall mean the budget prepared by the Borrower in the form of Annex A and initially furnished to the Administrative
Agent on the Closing Date and which is approved by, and in form and substance satisfactory to, the Administrative Agent in its
sole discretion, as the same may be updated, modified or supplemented from time to time as provided in Section 5.14.


 


“Assignment
and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an assignee, and accepted by
the Administrative Agent and the Borrower (if the Borrower’s consent is required by this Agreement), in the form of Exhibit A
or such other form as shall be approved by the Administrative Agent.


 


“Automatic
Stay” shall mean the automatic stay provided under Section 362 of the Bankruptcy Code.


 


“Availability”
shall mean as of any applicable date, the amount by which the Line Cap at such time exceeds the sum of (i) the aggregate amount
of Loans and LC Obligations on such date and (ii) the outstanding Pre-Petition Aggregate Revolver Exposure, in each case, on such
date of determination.


 


“Availability
Reserve” shall mean the sum (without duplication of any other reserves or items that are otherwise addressed or excluded
through eligibility criteria (including collection rates or collection percentages)) of (a) the Inventory Reserves; (b) the
Rent and Charges Reserve; (c) the Bank Product Reserve; and (d) such additional reserves not otherwise addressed in clauses (a)
through (c) above, in such amounts and with respect to such matters, as the Administrative Agent in its Permitted
Discretion may elect to establish or modify from time to time; provided, however, until the date occurring 120 days after the Closing
Date, the Administrative Agent shall not establish any new reserves under clauses (a) through (d) above that are not currently
in effect under the Pre-Petition Credit Agreement.


 






    4


     


    

 


Notwithstanding
anything to the contrary in this Agreement, (i) such Availability Reserve shall not be established, if otherwise
permitted hereunder, or changed except upon not less than three (3) Business Days’ (or such shorter period as may
be agreed by the Borrower) prior written notice to the Borrower, which notice shall include a reasonably detailed description
of such applicable Availability Reserve being established or changed (during which period (a) the Administrative Agent
shall, if requested, discuss any such Availability Reserve or change with the Borrower and (b) the Borrower may take
such action as may be required so that the event, condition or matter that is the basis for such Availability Reserve or
change thereto no longer exists or exists in a manner that would result in the establishment of a lower Availability Reserve
or result in a lesser change thereto, in a manner and to the extent reasonably satisfactory to the Administrative Agent), and
(ii) the amount of any Availability Reserve established by the Administrative Agent, and any change in the amount of any
Availability Reserve, shall have a reasonable relationship to the event, condition or other matter that is the basis for such
Availability Reserve or such change. Notwithstanding clause (i) of the preceding sentence, changes to the
Availability Reserve solely for purposes of correcting mathematical or clerical errors (and such other changes as are
otherwise agreed by the Borrower) shall not be subject to such notice period, it being understood that no Default or Event of
Default shall be deemed to result therefrom, if applicable, for a period of three (3) Business Days.


 


“Avoidance
Actions” has the meaning set forth in the Order.


 


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


 


“Bail-In
Legislation” shall mean, 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.


 


“Bank Product”
shall mean any of the following products, services or facilities extended to the Borrower or any Subsidiary by a Lender or any
of its Affiliates: (a) Cash Management Services; (b) commercial credit card and merchant card services; and (c) other
banking products or services as may be requested by the Borrower or any Subsidiary, other than loans or letters of credit.


 


“Bank Product
Debt” shall mean Indebtedness and other obligations (including Cash Management Obligations) of a Loan Party relating
to Bank Products.


 


“Bank Product
Reserve” shall mean the aggregate amount of reserves established by the Administrative Agent from time to time in
its Permitted Discretion in respect of Secured Bank Product Obligations.


 


“Bankruptcy
Code” has the meaning set forth in the recitals to this Agreement


 


“Bankruptcy
Rules” shall mean the Federal Rules of Bankruptcy Procedure, as the same may from time to time be in effect and applicable
to the Chapter 11 Cases.


 


“Benefit
Plan” shall mean 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 and subject to Section 4975 of the Code or (c) any Person whose
assets include (for purposes of the Plan Asset Regulations 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”.


 






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“Beneficial
Ownership Certification” shall mean a certification regarding beneficial ownership as required by the Beneficial
Ownership Regulation.


 


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


 


“Board”
shall mean the Board of Governors of the Federal Reserve System of the United States of America, or any successor thereto.


 


“Borrower”
shall have the meaning assigned to such term in the introductory paragraph of this Agreement.


 


“Borrower
Financial Advisor” shall mean AlixPartners, LLP.


 


“Borrower
Financial Advisor Engagement Letter” shall mean that certain Agreement for Financial Advisory and Consulting Services
dated as of March 18, 2020, between Borrower Financial Advisor and Borrower.


 


“Borrower
Sale Advisor” shall mean, collectively, Miller Buckfire & Co., LLC and its Affiliates.


 


“Borrower
Sale Advisor Engagement Letter” shall mean that certain letter agreement dated as of March 30, 2020 by and among
Borrower, as merchant, and Borrower Sale Advisor, as consultant.


 


“Borrowing”
shall mean a group of Loans of a single Type and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.


 


“Borrowing
Base” shall mean at any time of calculation, the sum of the following as set forth (other than with respect to clause (e))
in the most recently delivered Borrowing Base Certificate:


 


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


 


(b)              
the Cost of Eligible Inventory, multiplied by ninety percent (90%), multiplied by the Appraised Value of such
Inventory; plus


 


(c)              
with respect to any Eligible Letter of Credit, the Cost of the Inventory supported by such Eligible Letter of Credit, multiplied
by ninety percent (90%), multiplied by the Appraised Value of such Inventory; minus


 


(d)              
the Availability Reserve; minus


 


(e)              
the Carve-Out Reserve.


 


“Borrowing
Base Certificate” shall mean a certificate, signed and certified as accurate and complete by a Financial
Officer, in substantially the form of (i) Exhibit H-1, with respect to weekly Borrowing Base Certificates and
(ii) Exhibit H-2, with respect to monthly Borrowing Base Certificates, in each case, or another form which is
acceptable to the Administrative Agent in its sole discretion.


 






    6


     


    

 


“Borrowing
Base Collateral” shall mean Collateral consisting of Eligible Credit Card Receivables, Eligible Letter of Credit
and Eligible Inventory.


 


“Borrowing
Request” shall mean a request by the Borrower for a Borrowing in accordance with Section 2.03.


 


“Budget
Compliance Report” shall have the meaning assigned to such term in Section 5.14(d).


 


“Business
Day” shall mean 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 or other governmental action 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 deposits
in Dollars in the London interbank market.


 


“Capital
Lease Obligations” shall mean the obligations of any 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 or financing leases on a balance sheet of such Person under GAAP, and the amount
of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.


 


“Carve-Out”
has the meaning assigned to the term “Carve-Out” in paragraph 73 of the Interim Order (or Final Order, when applicable).


 


“Carve-Out
Reserve” shall mean the reserve established by the Administrative Agent in its Permitted Discretion in respect of
the Carve-Out, which reserve shall be maintained in an amount not less than $1,000,000, as reduced from time to time to the extent
applied to fund the Carve-Out or professional fee payments.


 


“Case Milestones”
shall mean the covenants set forth on Schedule 5.15.


 


“Cash Collateral”
shall mean cash and any interest or other income earned thereon, or deposit account balances, and, with respect to LC Obligations
only, any other credit support satisfactory to the applicable Issuing Bank, in each case that are delivered to the Administrative
Agent to Cash Collateralize any Obligation.


 


“Cash Collateralize”
shall mean the pledge and deposit with or the delivery of Cash Collateral to the Administrative Agent, as security for the payment
of any Obligation, in an amount equal to the percentage of such outstanding Obligations as is required by the context herein.
“Cash Collateralization” has a correlative meaning.


 


“Cash
Management Obligations” shall mean obligations owed by the Borrower or any Subsidiary in respect of any overdraft
and related liabilities arising from treasury and treasury management services, Cash Management Services, credit cards, “p-cards”
or any automated clearing house transfer of funds.


 






    7


     


    

 


“Cash Management
Order” shall mean the order of the Court entered in the Chapter 11 Cases after the “first day” hearing,
together with all extensions, modifications and amendments thereto, in form and substance satisfactory to the Administrative Agent,
which among other matters authorizes the Loan Parties 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 acceptable to the Administrative Agent in
all material respects.


 


“Cash Management
Services” any services provided from time to time by any Lender or any of its Affiliates (or any Person who at the
time such arrangement was entered into was a Lender or an Affiliate thereof) to the Borrower or any Subsidiary in connection with
operating, collections, payroll, trust, or other depository or disbursement accounts or similar cash management arrangements, including
automated clearinghouse, e-Payables, electronic funds transfer, wire transfer, controlled disbursement, overdraft, depository,
information reporting, lockbox and stop payment services.


 


“Casualty
Event” shall mean any loss, casualty or other insured damage to, or any nationalization, taking under power of eminent
domain or by condemnation or similar proceeding of, any Property of the Borrower or any of its Subsidiaries.


 


“CBFR”
shall mean the prime rate of interest announced from time to time by Chase or its parent (which is not necessarily the lowest rate
charged to any customer), changing when and as said prime rate changes (the “Prime Rate”); provided
that the CBFR shall never be less than 2.0%.


 


“CBFR Borrowing”
shall mean a Borrowing comprised of CBFR Loans.


 


“CBFR Loan”
shall mean any Loan bearing interest at a rate determined by reference to the CBFR in accordance with the provisions of Article II.


 


“Change
in Control” shall mean:


 


(a)              
except as otherwise permitted by Section 6.05(b), the acquisition of record ownership or direct beneficial
ownership by any Person other than Parent of any Equity Interests in Intermediate Holdings, such that after giving effect thereto
Parent shall cease to beneficially own and control 100% of the Equity Interests of Intermediate Holdings, or


 


(b)              
the acquisition of record ownership or direct beneficial ownership by any Person other than Intermediate Holdings of any
Equity Interests in the Borrower, such that after giving effect thereto Intermediate Holdings shall cease to beneficially own and
control 100% of the Equity Interests of the Borrower, or


 


(c)              
the acquisition of beneficial ownership, directly or indirectly, by any Person or group (within the meaning of the Securities
Exchange Act of 1934, as amended, and the rules of the SEC thereunder as in effect on the date hereof), other than any employee
benefit plan and/or Person acting as a trustee, agent or other fiduciary or administrator in respect thereof, of Equity Interests
in Parent representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests
in Parent.


 






    8


     


    

 





“Change
in Law” shall mean (a) the adoption of any law, rule or regulation after the Closing Date, (b) any change
in law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date
or (c) compliance by any Lender (or, for purposes of Section 2.12(b), by any Lending Office of such Lender
or by such Lender’s holding company, if any) with any written request, guideline or directive (whether or not having the
force of law) of any Governmental Authority made or issued after the Closing Date; provided that, notwithstanding anything
herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines,
requirements or directives thereunder or issued in connection therewith or in the implementation thereof, and (y) all requests,
rules, guidelines, requirements 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, issued
or implemented.


 


“Chapter
11 Cases” shall have the meaning assigned to such term in the recitals to this Agreement.



 


“Charges”
shall have the meaning assigned to such term in Section 9.09.


 


“Chattel
Paper” shall have the meaning set forth in Article 9 of the UCC.


 


“Claims”
shall mean all claims, liabilities, obligations, losses, damages, penalties, judgments, proceedings, interests, costs and expenses
of any kind (including remedial response costs, reasonable attorneys’ fees) at any time (including after Full Payment of
the Obligations, resignation or replacement of the Administrative Agent or replacement of any Lender) incurred by any Indemnitee
or asserted against any Indemnitee by any Loan Party or other Person, in any way relating to (a) any Loans, Letters of Credit,
Loan Documents, or the use thereof or transactions relating thereto, (b) any action taken or omitted to be taken by an Indemnitee
in connection with any Loan Documents, (c) the existence or perfection of any Liens, or realization upon any Collateral, (d) exercise
of any rights or remedies under any Loan Documents or Applicable Law, or (e) failure by any Loan Party to perform or observe
any terms of any Loan Document, in each case including all costs and expenses relating to any investigation, litigation, arbitration
or other proceeding (including an Insolvency Proceeding or appellate proceedings), whether or not the applicable Indemnitee is
a party thereto.


 


“Class”,
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Loans
or Protective Advances.


 


“Closing
Date” shall mean the date on which the conditions specified in Section 4.01 are satisfied.


 


“Closing
Fee” shall have the meaning assigned to such term in Section 2.09(e).


 


“Code”
shall mean the Internal Revenue Code of 1986, as amended.


 


“Collateral”
shall have the meaning assigned to such term in Section 10.01.


 


“Commodity
Accounts” shall have the meaning assigned thereto in Article 9 of the UCC.


 






    9


     


    

 





“Compliance
Certificate” shall mean a certificate of a Financial Officer in substantially the form of Exhibit F.


 


“Conforming
Amendment” has the meaning specified in Section 9.27(a).


 


“Contracts”
shall mean all contracts and agreements between any Loan Party and any other person (in each case, whether written or oral, or
third party or intercompany) as the same may be amended, assigned, extended, restated, supplemented, replaced or otherwise modified
from time to time including (i) all rights of any Loan Party to receive moneys due and to become due to it thereunder or in connection
therewith, (ii) all rights of any Loan Party to receive proceeds of any insurance, indemnity, warranty or guaranty with respect
thereto, (iii) all rights of any Loan Party to damages arising thereunder and (iv) all rights of any Loan Party to terminate and
to perform and compel performance of, such Contracts and to exercise all remedies thereunder.


 


“Control”
shall mean 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 ownership of voting securities, by contract or otherwise, and “Controlling”
and “Controlled” shall have meanings correlative thereto.


 


“Control
Agreement” shall mean an agreement that grants the Administrative Agent “control” as defined in the UCC
in effect in the applicable jurisdiction over the applicable Deposit Account, Commodity Account or Securities Account, in form
and substance reasonably satisfactory to the Administrative Agent.


 


“Copyrights”
shall mean, with respect to any Person, all of such Person’s right, title, and interest in and to the following: (a) all
copyrights, rights and interests in copyrights, works protectable by copyright, copyright registrations, and copyright applications;
(b) all renewals of any of the foregoing; (c) all income, royalties, damages, and payments now or hereafter due and/or payable
under any of the foregoing, including, without limitation, damages or payments for past or future infringements for any of the
foregoing; (d) the right to sue for past, present, and future infringements of any of the foregoing; and (e) all rights corresponding
to any of the foregoing throughout the world.


 


“Court”
has the meaning set forth in the recitals to this Agreement.


 


“Cost”
shall mean the lower of cost or market value of Inventory, determined in accordance with the accounting policies used in the preparation
of the Borrower’s audited financial statements (pursuant to which the retail method of accounting is utilized for substantially
all merchandise Inventories), which policies are in effect on the Closing Date. “Cost” does not include inventory capitalization
costs or other non-purchase price charges (such as freight) used in the Borrower’s calculation of cost of goods sold.


 


“Credit
Card Receivables” shall mean each “Account” (as defined in the UCC) and “payment
intangible” (as defined in the UCC) together with all income, payments and proceeds thereof, owed by a major credit or
debit card issuer (including Visa, Mastercard and American Express and such other issuers approved by the Administrative
Agent) to the Borrower or a Subsidiary Guarantor resulting from charges by a customer of the Borrower or a Subsidiary
Guarantor on credit or debit cards issued by such issuer in connection with the sale of goods by the Borrower or a Subsidiary
Guarantor, or services performed by the Borrower or a Subsidiary Guarantor, in each case in the ordinary course of its
business.


 






    10


     


    

 


“Cumulative
Period” shall mean the period from the Petition Date through the most recent week ended.


 


“Customs
Broker Agreement” shall mean an agreement, in form and substance reasonably satisfactory to the Administrative Agent,
among the Borrower, a customs broker or other carrier, and the Administrative Agent, in which the customs broker or other carrier
acknowledges that it has control over and holds the documents evidencing ownership of the subject Inventory for the benefit of
the Administrative Agent and agrees, upon notice from the Administrative Agent, to hold and dispose of the subject Inventory solely
as directed by the Administrative Agent.


 


“Default”
shall mean any event or condition that upon notice, lapse of time or both would constitute an Event of Default.


 


“Default
Rate” shall have the meaning assigned to such term in Section 2.10(c).


 


“Defaulting
Lender” shall mean any Lender that (a) has failed to perform any funding obligations (including its obligation
to fund any portion of participations in Letters of Credit) hereunder, and such failure is not cured within two (2) Business
Days of the date of the funding obligation; (b) has notified the Administrative Agent or the Borrower that such Lender does
not intend to comply with its funding obligations hereunder or generally under other agreements to which it commits to extend credit
or has made a public statement to that effect; (c) has failed, within three (3) Business Days following written request
by the Administrative Agent or the Borrower, to confirm in a manner reasonably satisfactory to the Administrative Agent and the
Borrower that such Lender will comply with its funding obligations hereunder (provided that such Lender shall cease to be
a Defaulting Lender pursuant to this clause (c) upon receipt by the Administrative Agent of such confirmation);
(d) has, or has a direct or indirect parent company that has, become the subject of an Insolvency Proceeding or taken any
action in furtherance thereof, including, in the case of any Lender, the Federal Deposit Insurance Corporation or any other state
or federal regulatory authority acting in such capacity; provided, however, that a Lender shall not be a Defaulting
Lender solely by virtue of a Governmental Authority’s ownership of any equity interest in such Lender or parent company so
long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of the 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 become
the subject of a Bail-in Action.


 


“Deposit
Account” shall have the meaning assigned thereto in Article 9 of the UCC.


 


“DIP RE
Loans” shall have the meaning assigned to such term in the definition of the term “Qualifying DIP RE Facility”.


 


“Documents”
shall have the meaning set forth in Article 9 of the UCC.


 


“Disposition”
shall mean any sale, transfer, lease or other disposition (whether effected pursuant to a Division or otherwise) of assets.
“Dispose” shall have a meaning correlative thereto.


 






    11


     


    

 


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


 


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


 


“Division
Successor” shall mean any Person that, upon the consummation of a Division of a Dividing Person, holds all or any
portion of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation
of such Division. A Dividing Person which retains any of its assets, liabilities and/or obligations after a Division shall be deemed
a Division Successor upon the occurrence of such Division.


 


“Dollars”
or “$” shall mean lawful money of the United States of America.


 


“Dominion
Account” shall mean, a collection account maintained by a Loan Party with the Administrative Agent into which all
funds deposited into the WF Concentration Account of a Loan Party (except for Excluded Accounts and the Operating Account) will
be swept on a daily basis as set forth in this Agreement.


 


“EEA Financial
Institution” shall mean (a) any 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 institution established in an EEA Member Country which is a subsidiary
of an institution described in clauses (a) or (b) of this definition and is subject to consolidated
supervision with its parent.


 


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


 


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


 


“Electronic
System” means any electronic system, including e-mail, e-fax, web portal access for the Borrower and any other Internet
or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent and any of its
Related Parties or any other Person, providing for access to data protected by passcodes or other security system.


 


“Eligible
Assignee” shall mean (i) any Lender, any Affiliate of any Lender and any Related Fund (any two or more Related
Funds being treated as a single Eligible Assignee for all purposes hereof) and (ii) any commercial bank, insurance company,
investment or mutual fund or other entity that is an “accredited investor” (as defined in Regulation D under the
Securities Act) and which extends credit or buys loans.


 






    12


     


    

 


“Eligible
Credit Card Receivables” shall mean, at the time of any determination thereof, each Credit Card Receivable that
satisfies the following criteria at the time of creation and continues to meet the same at the time of such determination:
such Credit Card Receivable (i) has been earned by performance and represents the bona fide amounts due to a Loan
Party from a credit card payment processor and/or credit card issuer, and in each case originated in the ordinary course of
business of such Loan Party, (ii) unless owed by Visa, Mastercard, American Express Company or Discover, is acceptable
to the Administrative Agent in its Permitted Discretion and (iii) in each case, is not ineligible for inclusion in the
calculation of the Borrowing Base pursuant to any of clauses (a) through (k) below.
Without limiting the foregoing, to qualify as an Eligible Credit Card Receivable, a Credit Card Receivable shall indicate no
Person other than a Loan Party as payee or remittance party. In determining the amount to be so included, the face amount of
a Credit Card Receivable shall be reduced by, without duplication, to the extent not reflected in such face amount or
otherwise excluded below, (i) the amount of all accrued and actual discounts, claims, credits or credits pending,
promotional program allowances, price adjustments, finance charges or other allowances (including any amount that a Loan
Party may be obligated to rebate to a customer, a credit card payment processor, or credit card issuer pursuant to the terms
of any agreement or understanding (written or oral)) and (ii) the aggregate amount of all cash received in respect of
such Credit Card Receivable but not yet applied by the Loan Parties to reduce the amount of such Credit Card Receivable. Any
Credit Card Receivables meeting the foregoing criteria shall be deemed Eligible Credit Card Receivables but only as long as
such Credit Card Receivable is not included within any of the following categories, in which case such Credit Card Receivable
shall not constitute an Eligible Credit Card Receivable:


 


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


 


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


 


(c)              
Credit Card Receivables with respect to which a Loan Party does not have good, valid and marketable title, free and clear
of any Lien;


 


(d)              
Credit Card Receivables that are not subject to a first priority security interest in favor of the Administrative Agent
(it being the intent that chargebacks in the ordinary course by such processors shall not be deemed violative of this clause);


 


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


 


(f)               
Credit Card Receivables as to which the processor has the right under certain circumstances to require a Loan Party to repurchase
the Credit Card Receivables from such credit card processor;


 


(g)              
Credit Card Receivables due from an issuer or payment processor of the applicable credit card which is the subject of any
proceeding under the Bankruptcy Code;


 


(h)              
Credit Card Receivables which are not a valid, legally enforceable obligation of the applicable issuer with respect thereto;


 









    13


     


    

 



 


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


 


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


 


(k)              
Credit Card Receivables which the Administrative Agent determines in its Permitted Discretion to be uncertain of collection.


 


“Eligible
In-Transit Inventory” shall mean, as of any date of determination thereof, Inventory:


 


(a)              
for which full payment has been delivered to the seller of such Inventory and evidence of such payment has been received
by the Administrative Agent;


 


(b)              
which has been shipped from (i) a foreign location for receipt by the Borrower or a Subsidiary Guarantor within thirty
(30) days of the date of shipment or (ii) a domestic location for receipt by the Borrower or a Subsidiary Guarantor within
fifteen (15) days of the date of shipment, but, in either case, which has not yet been delivered to the Borrower or a Subsidiary
Guarantor;


 


(c)              
for which (i) the purchase order is in the name of the Borrower or a Subsidiary Guarantor and title has passed to the
Borrower or a Subsidiary Guarantor or (ii) the document of title reflects the Borrower or a Subsidiary Guarantor as consignee
or, if requested by the Administrative Agent after the occurrence and during the continuance of a Default or an Event of Default,
names the Administrative Agent as consignee;


 


(d)              
in the case of any Inventory described in clause (b)(i) above, as to which the Administrative Agent has
received a Customs Broker Agreement;


 


(e)              
which is insured in compliance with Section 5.02 hereof; and


 


(f)               
which does not qualify as Eligible Inventory solely because it (i) is not located in the United States of America (excluding
territories or possessions of the United States) or (ii) is located at a location that is not owned or leased by the Borrower
or a Subsidiary Guarantor, but which otherwise constitutes Eligible Inventory.


 


“Eligible
Inventory” shall mean, as of the date of determination thereof, without duplication, (i) Eligible In-Transit
Inventory, and (ii) all items of Inventory of the Borrower or a Subsidiary Guarantor that are finished goods, merchantable
and readily saleable to the public in the ordinary course deemed by the Administrative Agent in its Permitted Discretion to be
eligible for inclusion in the calculation of the Borrowing Base, in each case that, except as otherwise agreed by the Administrative
Agent, complies with each of the representations and warranties respecting Inventory made by the Borrower or a Subsidiary Guarantor
in the Loan Documents, and that is not excluded as ineligible by virtue of one or more of the criteria set forth below. The following
items of Inventory shall not be included in Eligible Inventory:


 






    14


     


    

 


(a)              
Inventory that is not solely owned by the Borrower or a Subsidiary Guarantor or the Borrower or a Subsidiary Guarantor does
not have good and valid title thereto;


 


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


 


(c)              
Inventory (other than Eligible In-Transit Inventory) that is not located in the United States of America (excluding territories
or possessions of the United States);


 


(d)              
Inventory (other than Eligible In-Transit Inventory) that (i) is not located at a location that is owned or leased
by the Borrower or a Subsidiary Guarantor or a “pool point” in the Loan Parties’ distribution network or (ii) is
located at a distribution center or warehouse leased by the Borrower or a Subsidiary Guarantor with Inventory having a value in
excess of $1,000,000 at any such location, except in the case of this clause (ii) to the extent that the Borrower
or a Subsidiary Guarantor has furnished the Administrative Agent with (A) any UCC financing statements or other documents
that the Administrative Agent may determine to be necessary to perfect its security interest in such Inventory at such location
and (B) (x) a Lien Waiver executed by the Person owning any such location on terms reasonably acceptable to the Administrative
Agent or (C) if such location is in a landlord lien-priming state, a Rent and Charges Reserve has been imposed;


 


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


 


(f)              
Inventory that is not subject to a perfected first priority security interest in favor of the Administrative Agent (other
than landlords’ Liens permitted pursuant to clause (d) of Section 6.02 as to which
either a Lien Waiver has been delivered or a Rent and Charges Reserve has been imposed);


 


(g)              
Inventory that consists of samples, labels, bags, packaging, and other similar non-merchandise categories;


 


(h)              
Inventory that is not insured in compliance with the provisions of Section 5.02 hereof;


 


(i)               
Inventory that has been sold but not yet delivered or as to which the Borrower or a Subsidiary Guarantor has accepted a
deposit; or


 


(j)                Inventory
that is subject to any licensing, patent, royalty, trademark, trade name or copyright agreement with any third party from
which the Borrower or any of its Subsidiaries has received notice of a dispute in respect of any such agreement unless the
Administrative Agent is reasonably satisfied that it may sell or otherwise Dispose of such Inventory without
(i) infringing the rights of such third party, (ii) violating any contract with such third party or
(iii) incurring any liability with respect to the payment of royalties other than royalties incurred in connection with
the sale of such Inventory pursuant to the current licensing agreement relating thereto.


 






    15


     


    

 


“Eligible
Letter of Credit” shall mean, as of any date of determination thereof, a Letter of Credit which supports the purchase
of Inventory, (i) which Inventory does not constitute Eligible In-Transit Inventory and for which no documents of title have
then been issued, (ii) which Inventory, when completed, otherwise would constitute Eligible Inventory, (iii) which Letter
of Credit has an expiry within thirty (30) days of the date of initial issuance of such Letter of Credit, and (iv) which
Letter of Credit provides that it may be drawn only after the Inventory is completed and after documents of title have been issued
for such Inventory reflecting the Borrower, a Subsidiary Guarantor or the Administrative Agent as consignee of such Inventory.


 


“Enforcement
Action” shall mean any action to enforce any Obligations or Loan Documents or to exercise any rights or remedies
relating to any Collateral (whether by judicial action, self-help, notification of Account Debtors, exercise of setoff or recoupment,
exercise of any right to vote or act in a Loan Party’s Insolvency Proceeding, or otherwise), in each case solely to the extent
permitted by the Loan Documents.


 


“environment”
shall mean ambient and indoor air, surface water and groundwater (including potable water, navigable water and wetlands), the land
surface or subsurface strata, natural resources such as flora and fauna, the workplace or as otherwise defined in any Environmental
Law.


 


“Environmental
Laws” shall mean all laws (including common law), rules, regulations, codes, ordinances, orders, decrees or judgments,
promulgated or entered into by or with any Governmental Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the generation, management, Release or threatened Release of, or actual or alleged exposure to, any Hazardous
Materials or to occupational health and safety (to the extent relating to the environment or Hazardous Materials).


 


“Equipment”
shall have the meaning set forth in Article 9 of the UCC.


 


“Equity
Interests” of any Person shall mean any and all shares, interests, participations or other equivalents of or interests
in (however designated) equity of such Person, including any preferred stock, any limited or general partnership interest and any
limited liability company membership interest and any and all warrants, rights or options to purchase or other rights to acquire
any of the foregoing, but excluding for the avoidance of doubt any Indebtedness convertible into or exchangeable for any of the
foregoing (until so converted or exchanged).


 


“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended, or any successor statute and the rules and regulations
promulgated thereunder.


 


“ERISA
Affiliate” shall mean 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 (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 (o) of the Code.


 






    16


     


    

 


“ERISA
Event” shall mean (a) any Reportable Event; (b) the existence with respect to any Loan Party, any ERISA
Affiliate or any Plan of a non-exempt Prohibited Transaction; (c) the failure by any Plan to satisfy the minimum funding standards
(within the meaning of Section 412 of the Code or Section 302 of ERISA), applicable to such Plan, whether or not waived;
(d) 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, the failure to make by its due date a required installment under Section 430(j)
of the Code with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan; (e) 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 to appoint a trustee to administer any Plan under Section 4042 of ERISA; (f) the receipt by any Loan Party
or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Loan Party or any ERISA Affiliate of any
notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be,
Insolvent, in Reorganization, or terminated (within the meaning of Section 4041A of ERISA); or (g) the 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 under Section 4201 of ERISA.


 


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


 


“Eurodollar
Borrowing” shall mean a Borrowing comprised of Eurodollar Loans.


 


“Eurodollar
Loan” shall mean any Loan bearing interest at a rate determined by reference to the Adjusted LIBO Rate in accordance
with the provisions of Article II.


 


“Event
of Default” shall have the meaning assigned to such term in Section 7.01.


 


“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended from time to time and any successor statute.


 


“Excluded
Accounts” shall mean any accounts used specifically, solely and exclusively as payroll, trust, tax withholding and
employee benefit accounts, or accounts located outside of the U.S., in each case, maintained by Holdings or any of its Subsidiaries
in the ordinary course of business.


 


“Excluded
Collateral” shall mean, collectively, (a) Excluded Accounts; (b) any governmental licenses or state or local
franchises, charters or authorizations, to the extent security interests in such licenses, franchises, charters or
authorizations are prohibited or restricted thereby, after giving effect to the applicable anti-assignment provisions of the
UCC or other Applicable Law of any applicable jurisdiction; (c) any intent-to-use United States trademark applications for
which an amendment to allege use or statement of use has not been filed under 15 U.S.C. § 1051(c) or 15 U.S.C. §
1051(d), respectively, or if filed, has not been deemed in conformance with 15 U.S.C. § 1051(a) or examined and
accepted, respectively, by the U.S. Patent and Trademark Office; and (d) the Real Property, but only prior to the
effectiveness of the Qualifying DIP RE Facility.


 






    17


     


    

 


“Excluded
Taxes” shall mean, with respect to the Administrative Agent, any Lender, any Issuing Bank or any other recipient
of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) income taxes imposed on (or measured
by) its net income (or franchise taxes imposed in lieu of net income taxes) by any jurisdiction under the laws of which such recipient
is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office
is located or any other jurisdiction as a result of such recipient engaging in a trade or business in such jurisdiction for tax
purposes (other than a trade or business arising from such recipient having executed, delivered, become a party to, performed its
obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant
to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document),
 (b) any branch profits tax or any similar tax that is imposed by any jurisdiction described in clause (a)
above, (c) in the case of a Lender making a Loan to the Borrower, any U.S. federal withholding tax that (x) is in effect
under Applicable Law and would apply to amounts payable hereunder to such Lender at the time such Lender becomes a party to such
Loan to the Borrower (or designates a new Lending Office) except to the extent that such Lender (or its assignor, if any) was entitled,
at the time of designation of a new Lending Office (or assignment), to receive additional amounts from a Loan Party with respect
to any U.S. federal withholding tax pursuant to Section 2.14(a) or Section 2.14(c) or (y) is
attributable to such Lender’s failure to comply with Section 2.14(e) with respect to such Loan unless
such failure to comply with Section 2.14(e) is a result of a change in law after the date such Lender becomes
a party to such Loan to the Borrower (or designates a new Lending Office), (d) any interest, additions to taxes or penalties
with respect to the foregoing and (e) any withholding taxes imposed pursuant to FATCA.


 


“Existing
Letters of Credit” shall mean the letters of credit issued under the Pre-Petition Credit Agreement (including any
banker’s acceptances or other payment obligations arising therefrom) and outstanding as of the Closing Date and set forth
on Schedule 2.04(a).


 


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


 


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


 






    18


     


    

 


“Fee Letter”
shall mean that certain Fee Letter dated the Closing Date by and among the Borrower and the Administrative Agent.


 


“Fees”
shall have the meaning assigned to such term in Section 2.09(c).


 


“Final
Order” shall mean an order of the Court in the Chapter 11 Cases, in form and substance satisfactory to the Administrative
Agent in its sole discretion, authorizing and approving on a final basis, among other things, the borrowings by the Borrower under
this Agreement.


 


“Final
RE Funding” shall have the meaning assigned to such term on Schedule 5.15.


 


“Financial
Officer” of any Person shall mean the Chief Financial Officer, principal accounting officer, Treasurer, Assistant
Treasurer or Controller of such Person.


 


“Fixtures”
shall have the meaning set forth in Article 9 of the UCC.


 


“Flood
Laws” has the meaning given thereto in Section 8.17.


 


“Foreign
Benefit Arrangement” shall mean any employee benefit arrangement mandated by non-U.S. law that is maintained or contributed
to by any Loan Party or any ERISA Affiliate.


 


“Foreign
Lender” shall mean any Lender that is not a U.S. Person.


 


“Foreign
Plan” shall mean each employee benefit plan (within the meaning of Section 3(3) of ERISA, whether or not subject
to ERISA) that is not subject to U.S. law and is maintained or contributed to by any Loan Party or any ERISA Affiliate.


 


“Foreign
Plan Event” shall mean, with respect to any Foreign Benefit Arrangement or Foreign Plan, (a) the failure to
make or, if applicable, accrue in accordance with normal accounting practices, any employer or employee contributions required
by Applicable Law or by the terms of such Foreign Benefit Arrangement or Foreign Plan; (b) the failure to register or loss
of good standing with applicable regulatory authorities of any such Foreign Benefit Arrangement or Foreign Plan required to be
registered; or (c) the failure of any Foreign Benefit Arrangement or Foreign Plan to comply with any material provisions of
Applicable Law and regulations or with the material terms of such Foreign Benefit Arrangement or Foreign Plan.


 


“Foreign
Subsidiary” shall mean any Subsidiary that is incorporated or organized under the laws of any jurisdiction other
than the United States of America, any State thereof or the District of Columbia.


 


“Fronting
Exposure” shall mean a Defaulting Lender’s Pro Rata share of LC Obligations except to the extent allocated
to other Lenders or Cash Collateralized under Section 2.18.


 


“Full-Chain
Liquidation” shall have the meaning set forth on Schedule 5.15.


 






    19


     


    

 


“Full
Payment” shall mean with respect to any of the Secured Obligations, (a) the full cash payment thereof
(other than obligations for taxes, indemnification, charges and other inchoate or contingent or reimbursable liabilities for
which no claim or demand for payment has been made or, in the case of indemnification, no notice has been given (or, in each
case, reasonably satisfactory arrangements have otherwise been made)), including any interest, fees and other charges
accruing during an Insolvency Proceeding (whether or not allowed in such proceeding); and (b) if such Secured
Obligations are LC Obligations or inchoate or contingent in nature (other than inchoate or contingent or reimbursable
obligations for which no claim or demand for payment has been made or, in the case of indemnification, no notice has been
given (or reasonably satisfactory arrangements have otherwise been made)), Cash Collateralization at 105% of the Stated
Amount thereof. No Loans shall be deemed to have been paid in full until all Revolver Commitments related to such Loans have
expired or been terminated.


 


“GAAP”
shall mean generally accepted accounting principles in effect from time to time in the United States.


 


“General
Intangibles” shall mean all “general intangibles” (as such term is defined in the UCC) of the Loan Parties.


 


“Going
Concern Sale” shall have the meaning set forth on Schedule 5.15.


 


“Goods”
shall have the meaning set forth in Article 9 of the UCC.


 


“Governmental
Authority” shall mean any federal, state, local or foreign court or governmental agency, authority, instrumentality
or regulatory or legislative body or any entity or officer exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to any government or any court, in each case whether associated with a state of the United States, the
United States, or a foreign entity or government.


 


“Guarantee”
of or by any Person (the “guarantor”) shall mean 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 obligation; provided that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course of business.


 


“Guaranteed
Obligations” has the meaning assigned to such term in Section 11.01(a).


 


“guarantor”
shall have the meaning assigned to such term in the definition of the term “Guarantee.”


 


“Guarantors”
shall mean, collectively, Parent, Intermediate Holdings, the Subsidiary Guarantors and any other Loan Party (including the Borrower
with respect to any Secured Obligations of another Loan Party).


 






    20


     


    

 


“Hazardous
Materials” shall mean all pollutants, contaminants, wastes, chemicals, materials, substances and constituents of
any nature which are subject to regulation by any Governmental Authority or which would reasonably be likely to give rise to liability
under any Environmental Law, including, without limitation, explosive or radioactive substances or petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated biphenyls or radon gas.


 


“Holdings”
shall mean a collective reference to Parent and Intermediate Holdings, or, if Intermediate Holdings ceases to exist, shall mean
Parent.


 


“IBA”
shall have the meaning assigned to such term in Section 1.08.


 


“Impacted
Interest Period” shall have the meaning assigned to such term in the definition of “LIBO Rate”.


 


“Increased
Letter of Credit Subline” shall have the meaning assigned to such term in the definition of “Letter of Credit
Subline”.


 


“Indebtedness”
of any Person shall mean, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments to the extent the same would appear as a liability
on a balance sheet prepared in accordance with GAAP, (c) all obligations of such Person under conditional sale or other title
retention agreements relating to property or assets purchased by such Person, (d) all obligations of such Person issued or
assumed as the deferred purchase price of property or services (other than current intercompany liabilities (but not any refinancings,
extensions, renewals or replacements thereof) incurred in the ordinary course of business and maturing within three hundred sixty-five
(365) days after the incurrence thereof), to the extent that the same would be required to be shown as a long term liability
on a balance sheet prepared in accordance with GAAP, (e) all Guarantees by such Person of Indebtedness of others, (f) all
Capital Lease Obligations of such Person, (g)  the principal component of all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and (h) the principal component of all obligations of such
Person in respect of bankers’ acceptances. The Indebtedness of any Person shall include the Indebtedness of any partnership
in which such Person is a general partner, other than to the extent that the instrument or agreement evidencing such Indebtedness
expressly limits the liability of such Person in respect thereof. The Indebtedness of the Borrower and the Subsidiaries shall exclude
(i) accrued expenses and accounts and trade payables, (ii) liabilities under vendor agreements to the extent such indebtedness
may be satisfied through non-cash means such as purchase volume earnings credits and (iii) reserves for deferred income taxes.


 


“Indemnified
Taxes” shall mean all Taxes other than Excluded Taxes and Other Taxes.


 


“Indemnitee”
shall have the meaning assigned to such term in Section 9.05(b).


 


“Initial
RE Funding” shall have the meaning assigned to such term on Schedule 5.15.


 






    21


     


    

 


“Insolvency
Proceeding” shall mean any case or proceeding commenced by or against a Person under any state, federal,
provincial, territorial or foreign law for, or any agreement of such Person to, (a) the entry of an order for relief
under the Bankruptcy Code, or any other insolvency, bankruptcy, debtor relief or debt adjustment law; (b) the
appointment of a receiver, interim receiver, monitor, trustee, liquidator, administrator, conservator, custodian or other
similar Person for such Person or any part of its Property, including, in the case of any Lender, the Federal Deposit
Insurance Corporation or any other state or federal regulatory authority acting in such capacity; or (c) an assignment
for the benefit of creditors.


 


“Insolvent”
with respect to any Multiemployer Plan, shall mean the condition that such plan is insolvent within the meaning of Section 4245
of ERISA.


 


“Insurance”
shall mean all insurance policies covering any or all of the Collateral (regardless of whether the Administrative Agent is the
loss payee thereof).


 


“Instruments”
shall have the meaning set forth in Article 9 of the UCC.


 


“Intellectual
Property” shall mean the collective reference to all rights, priorities and privileges relating to intellectual property
arising under United States laws, including the Copyrights, the Patents, the Trademarks, and the Licenses.


 


“Intercreditor
Agreement” shall have the meaning assigned to such term in the definition of the term “Qualifying DIP RE Facility”.


 


“Interest
Election Request” shall mean a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.06.


 


“Interest
Payment Date” shall mean, (a) 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
(3) months’ duration, each day that would have been an Interest Payment Date had successive Interest Periods of three
(3) months’ duration been applicable to such Borrowing and, in addition, the date of any refinancing or conversion of
such Borrowing with or to a Borrowing of a different Type, (b) with respect to any CBFR Loan, the first calendar day of each
calendar month and (c) the Termination Date.


 


“Interest
Period” shall mean, as to any Eurodollar Borrowing, the period commencing on the date of such Borrowing or on the
last day of the immediately preceding Interest Period applicable to such Borrowing, as applicable, and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is 1, 2, 3 or
6 months thereafter, as the Borrower may elect, or the date any Eurodollar Borrowing is converted to a CBFR Borrowing in accordance
with Section 2.06 or repaid or prepaid in accordance with Section 2.07 or Section 2.9;
provided, that 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. Interest shall accrue from and including the first day of an
Interest Period to but excluding the last day of such Interest Period.


 


“Interim
Order” shall mean, collectively, the order of the Court entered in the Chapter 11 Cases after an interim
hearing (assuming satisfaction of the standard prescribed in Section 324 of the Bankruptcy Code and Bankruptcy Rule 4001 and
other Applicable Law), together with all extensions, modifications, and amendments thereto, in form and substance
satisfactory to the Administrative Agent in its sole discretion, which, among other matters but not by way of limitation,
authorizes, on an interim basis, the Loan Parties to execute and perform under the terms of this Agreement and the other Loan
Documents.


 






    22


     


    

 


“Intermediate
Holdings” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.


 


“Interpolated
Rate” shall mean, at any time, for any Interest Period, the rate per annum (rounded to the same number of
decimal places as the LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding
absent manifest error) to be equal to the rate that results from interpolating on a linear basis between (a) the LIBO Screen
Rate for the longest period for which the LIBO Screen Rate is available that is shorter than the Impacted Interest Period; and
(b) the LIBO Screen Rate for the shortest period (for which that LIBO Screen Rate is available) that exceeds the Impacted
Interest Period, in each case, at such time.


 


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


 


“Inventory
Reserves” shall mean, without duplication of any factors considered in the Appraised Value of Inventory and without
duplication of any other Reserves or items that are otherwise addressed or excluded through eligibility criteria, such reserves
as may be established from time to time by the Administrative Agent in the Administrative Agent’s Permitted Discretion with
respect to the determination of the saleability, at retail, of the Eligible Inventory or which reflect such other factors as may
affect the market value of the Eligible Inventory. Without limiting the generality of the foregoing, Inventory Reserves may, in
the Administrative Agent’s Permitted Discretion, include (but are not limited to) reserves based on: (a) obsolescence;
(b) seasonality; (c) Shrink; (d) imbalance; (e) change in Inventory character; (f) change in Inventory
composition; (g) change in Inventory mix; (h) mark-downs (both permanent and point of sale); (i) retail mark-ons
and markups inconsistent with prior period practice and performance, industry standards, current business plans or advertising
calendar and planned advertising events; and (j) out-of-date and/or expired Inventory.


 


“Investment”
shall have the meaning assigned to such term in Section 6.04.


 


“Investment
Property” shall have the meaning set forth in Article 9 of the UCC.


 


“IRS”
shall mean the United States Internal Revenue Service.


 


“Issuing
Bank” shall mean J.P. Morgan or any Affiliate of J.P. Morgan, Bank of America, N.A. or any Affiliate
thereof, Wells Fargo Bank, N.A. or any Affiliate thereof and any other Lender reasonably acceptable to the Borrower and the
Administrative Agent (such consent not to be unreasonably withheld or delayed by either party) who agrees to issue Letters of
Credit, or any replacement issuer appointed pursuant to Section 2.16. References herein to the term
“Issuing Bank” in singular form shall be deemed to refer to Issuing Banks in plural form, as the context shall
require.


 






    23


     


    

 


“Issuing
Bank Fee” shall have the meaning assigned to such term in Section 2.09(c).


 


“Joinder
Agreement” shall mean a Joinder Agreement in substantially the form of Exhibit E.


 


“J.P. Morgan”
shall mean JPMorgan Chase Bank, N.A. and its affiliates.


 


“Judgment
Currency” has the meaning assigned to such term in Section 9.24.


 


“Kick-Out
Date” shall mean the date occurring ninety-five (95) days after the Petition Date, if on each of July 11, 2020, July
18, 2020, and July 25, 2020, Availability is greater than $40,000,000 as of such date.


 


“L/C Disbursements”
shall mean payments or disbursements made by an Issuing Bank pursuant to a Letter of Credit.


 


“LC Application”
shall mean an application by the Borrower to the Issuing Bank for issuance of a Letter of Credit, in form reasonably satisfactory
to the Issuing Bank.


 


“LC Conditions”
shall mean the following conditions necessary for issuance of a Letter of Credit: (a) after giving effect to such issuance,
total LC Obligations do not exceed the Letter of Credit Subline (and the aggregate amount of LC Obligations of the applicable Issuing
Bank shall not exceed the Letter of Credit Subline of such Issuing Bank, unless the applicable Issuing Bank otherwise agrees);
(b) each Letter of Credit shall expire not later than the earlier of (i) 365 days from issuance (or such longer
period as may be agreed between the Issuing Bank and the Borrower) and (ii) the fifth Business Day prior to the Revolver Termination
Date; provided that any Letter of Credit may provide for an automatic renewal thereof for additional periods of up to 365 days
(which in no event shall extend beyond the date referred to in clause (b)(ii), except to the extent Cash Collateralized
at 105% of the Stated Amount thereof or backstopped pursuant to arrangements reasonably acceptable to the relevant Issuing Bank);
(c) the Letter of Credit and payments thereunder are denominated in Dollars; and (d) the form of the proposed Letter
of Credit is satisfactory to the Administrative Agent and the Issuing Bank in their reasonable discretion.


 


“LC Documents”
shall mean all documents, instruments and agreements (including LC Requests and LC Applications) delivered by the Borrower or any
other Person to the Issuing Bank or the Administrative Agent in connection with any Letter of Credit.


 


“LC Obligations”
shall mean the sum (without duplication) of (a) all amounts owing by the Borrower for any drawings under Letters of Credit
(including any bankers’ acceptances or other payment obligations arising therefrom); and (b) the stated amount of all
outstanding Letters of Credit.


 


“LC
Request” shall mean a request for issuance of a Letter of Credit, to be provided by the Borrower to the Issuing
Bank, in form satisfactory to the Issuing Bank.


 






    24


     


    

 


“Lead Arranger”
shall mean J.P. Morgan.


 


“Lender”
shall mean each financial institution listed on Schedule 2.01 (other than any such Person that has ceased to
be a party hereto pursuant to an Assignment and Acceptance in accordance with Section 9.04), as well as any
Person that becomes a “Lender” hereunder in accordance with Section 9.04.


 


“Lender
Party” shall mean the Administrative Agent, each Issuing Bank or any other Lender.


 


“Lending
Office” shall mean, as to any Lender, the applicable branch, office or Affiliate of such Lender designated by such
Lender to make Loans.


 


“Letter
of Credit” shall mean any standby or commercial letter of credit issued by the Issuing Bank for the account of the
Borrower or any of the Borrower’s Subsidiaries, or any indemnity, guarantee, exposure transmittal memorandum or similar form
of credit support issued by the Administrative Agent or the Issuing Bank for the benefit of the Borrower or any of the Borrower’s
Subsidiaries. Letters of Credit may be issued in Dollars.


 


“Letter
of Credit Subline” shall mean $12,500,000. For the avoidance of doubt, the Letter of Credit Subline is part of, and
not in addition to, the Revolver Commitments.


 


“Letter-of-Credit
Rights” shall have the meaning set forth in Article 9 of the UCC.


 


“LIBO Rate”
shall mean, with respect to any Eurodollar Borrowing for any Interest Period, the London interbank offered rate administered by
ICE Benchmark Administration (or any other Person that takes over the administration of such rate for Dollars for a period equal
in length to such Interest Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen that displays
such rate) or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such
screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time
to time as selected by the Administrative Agent in its reasonable discretion; provided further that if the LIBO Screen Rate
as so determined would be less than 2.00%, it shall be deemed to be 2.00% for the purposes of this Agreement (the “LIBO
Screen Rate”) at approximately 11:00 a.m., London time, two (2) business days prior to the commencement
of such Interest Period; provided that, in the event that the LIBO Screen Rate does not appear on such page (or otherwise
on such screen) for such Interest Period (an “Impacted Interest Period”), then the LIBO Rate shall be
the Interpolated Rate.


 


“LIBO Screen
Rate” shall have the meaning assigned to such term in the definition of “LIBO Rate.”


 


“Licenses”
shall mean, with respect to any Person, all of such Person’s right, title, and interest in and to (a) any and all
licensing agreements or similar arrangements in and to its Patents, Copyrights, or Trademarks, (b) all income, royalties,
damages, claims, and payments now or hereafter due or payable under and with respect thereto, including, without limitation,
damages and payments for past and future breaches thereof, and (c) all rights to sue for past, present, and future breaches
thereof.


 






    25


     


    

 


“Lien”
shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, hypothecation, pledge, encumbrance, charge or
security interest in or on 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.


 


“Lien Waiver”
shall mean an agreement, in form reasonably satisfactory to the Administrative Agent, by which (a) for any material Collateral
located on leased premises, the lessor waives or subordinates any Lien it may have on the Collateral, and agrees to permit the
Administrative Agent to enter upon the premises and remove the Collateral or to use the premises to store the Collateral as permitted
hereunder; and (b) for any Collateral held by a warehouseman, processor, shipper, customs broker (including pursuant to a
Customs Broker Agreement) or freight forwarder, such Person waives or subordinates any Lien it may have on the Collateral, agrees
to hold any Documents in its possession relating to the Collateral as agent for the Administrative Agent, and agrees to deliver
the Collateral to the Administrative Agent upon request, in accordance with such agreement.


 


“Line Cap”
shall mean equal to an amount that is the lesser of (a) the aggregate amount of all Revolver Commitments and (b) the
then applicable Borrowing Base.


 


“LLC”
shall mean any Person that is a limited liability company under the laws of its jurisdiction of formation.


 


“Loan Documents”
shall mean, collectively, this Agreement, any promissory notes issued pursuant to this Agreement, any Letter of Credit Applications,
the Security Documents, the Intercreditor Agreement upon the effectiveness thereof, all Approved Budgets, all Budget Compliance
Reports, Borrowing Base Certificates, Compliance Certificates, and all other written matter 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
Lender in connection with this Agreement or the transactions contemplated hereby; provided, however, that the Pre-Petition Loan
Documents shall not be deemed “Loan Documents” hereunder.


 


“Loan Parties”
shall mean, collectively, the Borrower, the Guarantors, and any other Person who becomes a party to this Agreement pursuant to
a Joinder Agreement and their successors and assigns, and the term “Loan Party” shall mean any one of them or all of
them individually, as the context may require.


 


“Loan Guaranty”
shall mean Article XI of this Agreement


 


“Loans”
shall mean the loans and advances made by the Lenders pursuant to Section 2.01, including Protective Advances and any Overadvance
Loan.


 


“Local
Time” shall mean Dallas time.


 


“Margin
Stock” shall mean margin stock within the meaning of Regulations T, U and X, as applicable.


 






    26


     


    

 


“Material
Adverse Effect” shall mean a material adverse change in, or material adverse effect on, (a) the business, operations,
Property, or financial condition of the Loan Parties, taken as a whole, other than any change, event, effect, or occurrence, arising
individually or in the aggregate, solely from (i) events leading up to the commencement of the Chapter 11 Cases, (ii) events that
would reasonably be expected to result from the filing or commencement of the Chapter 11 Cases or the announcement of the filing
of the Chapter 11 Cases, or (iii) the commencement of the Chapter 11 Cases, (a) the ability of the Loan Parties to perform
their obligations under the Loan Documents, taken as a whole, (b) the validity or enforceability of any Loan Document or (c) the
rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders under the Loan Documents.


 


“Material
Agreement” shall mean, any contract or agreement pursuant to which Holdings or its Subsidiaries pays, receives or
incurs liabilities (or could reasonably be expected to pay, receive or incur liabilities during the term thereof) in excess of
$1,000,000 in any twelve consecutive month period and if breached could reasonably be expected to cause a Material Adverse Effect.


 


“Material
Indebtedness” shall mean, collectively, (i) the Qualifying DIP RE Facility and (ii) any Indebtedness (other than
the Loans and Letters of Credit), of any one or more of Holdings and its Subsidiaries in an aggregate principal amount exceeding
$15,000,000.


 


“Maximum
Rate” shall have the meaning assigned to such term in Section 9.09.


 


“Measurement
Period” shall have the meaning assigned to such term in Section 5.14(d).


 


“Moody’s”
shall mean Moody’s Investors Service, Inc.


 


“Mortgage”
shall mean any mortgage, deed of trust or other agreement which conveys or evidences a Lien in favor of the Administrative Agent,
for the benefit of the Administrative and the other Secured Parties, on the Real Property, including any amendment, restatement,
modification or supplement thereto.


 


“Multiemployer
Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which any Loan Party or any
ERISA Affiliate (other than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414)
is making or accruing an obligation to make contributions, or has within any of the preceding six (6) plan years made
or accrued an obligation to make contributions.


 






    27


     


    

 


“Net
Proceeds” shall mean, with respect to any event, (a) the cash proceeds received in respect of such event
including (i) any cash received in respect of any non-cash proceeds (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but
excluding any interest payments), but only as and when received, (ii) in the case of a casualty, insurance proceeds and (iii)
in the case of a condemnation or similar event, condemnation awards and similar payments, minus (b) the sum of (i) all
reasonable fees and out-of-pocket expenses paid to third parties (other than Affiliates) in connection with such event, (ii)
in the case of Disposition of an asset (including pursuant to a casualty or a condemnation or similar proceeding), the amount
of all payments required to be made as a result of such event to repay Indebtedness (other than Loans) secured by such asset
or otherwise subject to mandatory prepayment as a result of such event and (iii) the amount of all taxes paid (or reasonably
estimated to be payable) by any Loan Party and the amount of any reserves established to fund contingent liabilities
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 such event (as determined reasonably and in good faith by a Financial Officer).


 


“Non-Consenting
Lender” shall have the meaning assigned to such term in Section 2.16(c).


 


“NYFRB”
shall mean the Federal Reserve Bank of New York.


 


“NYFRB
Rate” shall mean, 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 (or for any day that is not a Business Day, for the immediately
preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB
Rate” shall mean the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative
Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates
shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.


 


“Obligations”
shall mean for purposes of the Loan Documents, all obligations of every nature of each Loan Party from time to time owed to the
Agents (including former Agents) or the Lenders, under any Loan Document, whether for principal, interest (including interest,
fees and other amounts which, but for the filing of a petition in bankruptcy with respect to such Loan Party, would have accrued
on any such Obligation, whether or not a claim is allowed against such Loan Party for such interest, fees and other amounts in
the related bankruptcy proceeding), LC Obligations, fees, expenses, indemnification or otherwise.


 


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


 


“Operating
Account” shall have the meaning specified in Section 4.01(e).


 


“Order”
shall mean, as applicable, and as the context may require, the Interim Order or the Final Order, whichever is then applicable,
or the Interim Order and the Final Order as the “Orders”.


 


“Other
Facility Change” shall have the meaning specified in Section 9.27(a).


 


“Other
Liabilities” shall mean any obligation on account of (a) any Cash Management Services furnished to any of the
Loan Parties or any of their Subsidiaries and/or (b) any transaction which arises out of any Bank Product entered into with
any Loan Party, as each may be amended from time to time.


 


“Other
Taxes” shall mean any and all present or future stamp, court, intangible, recording, filing, documentary,
excise, property or similar Taxes arising from any payment made hereunder or from the execution, delivery or enforcement of,
or otherwise with respect to, the Loan Documents, and any and all interest and penalties related thereto.


 






    28


     


    

 


“Overadvance”
shall have the meaning assigned to such term in Section 2.19.


 


“Overadvance
Loan” shall mean a CBFR Loan made when an Overadvance exists or is caused by the funding thereof.


 


“Overnight
Bank Funding Rate” shall mean, for any day, the rate comprised of both overnight federal funds and overnight Eurodollar
borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB
as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight
bank funding rate.


 


“Parent”
shall have the meaning assigned to such term in the introductory paragraph of this Agreement.


 


“Parent
Entity” shall mean any of (i) Holdings and (ii) any other Person of which Holdings is a Subsidiary.


 


“Participant”
shall have the meaning assigned to such term in Section 9.04(g).


 


“Participant
Register” shall have the meaning assigned to such term in Section 9.04(g).


 


“Patents”
shall mean, with respect to any Person, all of such Person’s right, title, and interest in and to: (a) any and all patents
and patent applications; (b) all inventions and improvements described and claimed therein; (c) all reissues, divisions, continuations,
renewals, extensions, and continuations-in-part thereof; (d) all income, royalties, damages, claims, and payments now or hereafter
due or payable under and with respect thereto, including, without limitation, damages and payments for past and future infringements
thereof; (e) all rights to sue for past, present, and future infringements thereof; and (f) all rights corresponding to any of
the foregoing throughout the world.


 


“PBGC”
shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar
functions.


 


“Perfection
Certificate” shall mean that certain Perfection Certificate dated as of the Closing Date, executed by each Loan Party
and addressed to the Administrative Agent.


 


“Permitted
Discretion” shall mean a determination made in good faith and in the exercise of reasonable (from the perspective
of a secured asset based lender) business judgment and as it relates to the establishment of reserves or the imposition of exclusionary
criteria shall require that the amount of any such reserve so established or the effect of any adjustment or imposition of exclusionary
criteria be a reasonable quantification (as reasonably determined by the Administrative Agent) of any impact on the incremental
net realizable value of the assets included in the Borrowing Base attributable to such contributing factors.


 






    29


     


    

 


“Permitted
Investments” shall mean:


 


(a)             
direct obligations of the United States of America or any agency thereof or obligations guaranteed by the United States
of America or any agency thereof, in each case with maturities not exceeding two (2) years;


 


(b)              
time deposit accounts, certificates of deposit and money market deposits maturing within one hundred eighty (180) days
of the date of acquisition thereof issued by a bank or trust company that is organized under the laws of the United States of America,
any state thereof or any foreign country recognized by the United States of America having capital, surplus and undivided profits
in excess of $250.0 million and whose long-term debt, or whose parent holding company’s long-term debt, is rated A (or
such similar equivalent rating or higher by at least one (1) nationally recognized statistical rating organization (as defined
in Rule 436 under the Securities Act));


 


(c)              
repurchase obligations with a term of not more than one hundred eighty (180) days for underlying securities of the
types described in clause (a) above entered into with a bank meeting the qualifications described in clause (b)
above;


 


(d)             
commercial paper, maturing not more than one (1) year after the date of acquisition, issued by a corporation organized
and in existence under the laws of the United States of America or any foreign country recognized by the United States of America
with a rating at the time as of which any investment therein is made of P-2 (or higher) according to Moody’s, or A-1 (or
higher) according to S&P;


 


(e)            
securities with maturities of two (2) years or less from the date of acquisition issued or fully guaranteed by any
State, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof,
and rated at least A by S&P or A by Moody’s;


 


(f)               
shares of mutual funds whose investment guidelines restrict 95% of such funds’ investments to those satisfying the
provisions of clauses (a) through (e) above; and


 


(g)              
money market funds that (i) comply with the criteria set forth in Rule 2a-7 under the Investment Company Act of
1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5.0 billion.


 


“Permitted
Refinancing Indebtedness” shall mean any Indebtedness issued in exchange for, or the Net Proceeds of which are
used to extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”), the
Indebtedness being Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided
that (a) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not
exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued
interest and premium thereon, any committed or undrawn amounts and underwriting discounts, fees, commissions and expenses,
associated with such Permitted Refinancing Indebtedness), except as otherwise permitted under Section 6.01,
(b) other than with respect to Indebtedness permitted pursuant to Section 6.01(g), such Permitted
Refinancing Indebtedness has a final maturity date equal to or later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being Refinanced,
(c) if the Indebtedness being Refinanced is by its terms subordinated in right of payment to the Obligations under this
Agreement, such Permitted Refinancing Indebtedness shall be subordinated in right of payment to such Obligations on terms not
materially less favorable to the Lenders as those contained in the documentation governing the Indebtedness being Refinanced,
taken as a whole, (d) no Permitted Refinancing Indebtedness shall have obligors or contingent obligors that were not
obligors or contingent obligors (or that would not have been required to become obligors or contingent obligors) in respect
of the Indebtedness being Refinanced except to the extent otherwise permitted under Section 6.01 or Section 6.04
and (e) if the Indebtedness being Refinanced is (or would have been required to be) secured with any Collateral, such
Permitted Refinancing Indebtedness shall be secured on a junior basis with respect to the Collateral pursuant to an
intercreditor arrangement satisfactory to the Administrative Agent.


 






    30


     


    

 


“Permitted
Variance” shall have the meaning assigned to such term in Section 5.14(b).


 


“Person”
shall mean any natural person, corporation, business trust, joint venture, association, company, partnership, limited liability
company, individual or family trust, or other organization (whether or not a legal entity), or any government or any agency or
political subdivision thereof.


 


“Petition
Date” shall have the meaning assigned to such term in the recitals to this Agreement.


 


“Plan”
shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA
or Section 412 of the Code or Section 302 of ERISA, and in respect of which any Loan Party or any ERISA Affiliate is
(or, if such plan were terminated, would under Section 4062 or Section 4069 of ERISA be deemed to be) an “employer”
as defined in Section 3(5) of ERISA.


 


“Plan/APA
Milestone Date” shall mean the later of (a) the date occurring sixty-five (65) days after the Petition Date and (b)
the Kick-Out Date; provided, however, if the Plan/APA Milestone Date is the Kick-Out Date and Availability is equal to or less
than $40,000,000 on any weekly reporting date thereafter, then the Plan/APA Milestone Date will reset to the earlier to occur of
(x) the date occurring ten (10) days after such weekly reporting date on which Availability is equal to or less than $40,000,000
and (y) the Kick-Out Date.


 


“Plan Asset
Regulations” shall mean 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended
from time to time.


 


“Plan
of Reorganization” shall mean a plan of reorganization in form and substance satisfactory to the Administrative
Agent in all respects and consented to by the Administrative Agent, confirmed by an order (in form and substance satisfactory
to the Administrative Agent in all respects) of the Court under the Chapter 11 Cases (i) containing a provision for Full
Payment of all of the Secured Obligations and the Pre-Petition Obligations on or before the effective date of such plan, (ii)
containing a release in favor of the Administrative Agent, Pre-Petition Agent, the Lenders, and the Pre-Petition Agents, and
each of their respective affiliates, and (iii) containing such other terms as the Administrative Agent may reasonably
require, and such Plan of Reorganization shall be in full force and effect and shall not have been modified, altered,
amended, or otherwise changed or supplemented without the prior written consent of the Administrative Agent and the
Lenders.


 






    31


     


    

 


“Pledged
Collateral” has the meaning given thereto in Section 10.04.


 


“Pre-Petition
Agent” shall mean JPMorgan Chase Bank, N.A., in its capacity as administrative agent under any of the Pre-Petition
Loan Documents.


 


“Pre-Petition
Aggregate Revolver Exposure” shall mean the Indebtedness outstanding under the Pre-Petition Credit Agreement.


 


“Pre-Petition
Credit Agreement” has the meaning specified in the recitals to this Agreement.


 


“Pre-Petition
LC Obligations” shall mean Pre-Petition Obligations in respect of “LC Obligations” under, and as defined
in, the Pre-Petition Credit Agreement and all interest, expenses, fees and other amounts payable in respect thereof under the Pre-Petition
Credit Agreement.


 


“Pre-Petition
Lenders” has the meaning specified in the recitals to this Agreement.


 


“Pre-Petition
Loan Documents” shall mean the “Loan Documents” as defined in the Pre-Petition Credit Agreement.


 


“Pre-Petition
Loans” shall mean the “Revolver Loans” as defined in the Pre-Petition Credit Agreement.


 


“Pre-Petition
Obligations” shall mean “Secured Obligations” as defined in the Pre-Petition Credit Agreement.


 


“primary
obligor” shall have the meaning assigned to such term in the definition of “Guarantee.”


 


“Prime
Rate” shall have the meaning assigned to such term in the definition of “CBFR.”


 


“Pro Rata”
shall mean with respect to any Lender, a percentage (rounded to the ninth decimal place) determined (a) while Revolver Commitments
are outstanding, by dividing the amount of such Lender’s Revolver Commitment by the aggregate amount of all Revolver Commitments;
and (b) at any other time, by dividing the amount of such Lender’s Loans and LC Obligations by the aggregate amount
of all outstanding Loans and LC Obligations.


 


“Proceeds”
shall mean all “proceeds” as such term is defined in Section 9-102(a)(64) of the UCC.


 


“Prohibited
Transaction” shall have the meaning assigned to such term in Section 406 of ERISA and/or Section 4975(c)
of the Code.


 


“Projections”
shall have the meaning assigned to such term in Section 5.04(i).


 






    32


     


    

 


“Property”
shall mean any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible (including
cash, securities, accounts, contract rights and Equity Interests or other ownership interests of any Person), whether now in existence
or owned or hereafter acquired.


 


“Protective
Advances” shall have the meaning assigned to such term in Section 2.20.


 


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


 


“Qualified
Capital Stock” shall mean any Equity Interest of any Person that does not by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable or exercisable) or upon the happening of any event (a) provide
for scheduled payments of dividends in cash (other than at the option of the issuer) prior to the date that is, at the time of
issuance of such Equity Interest, ninety-one (91) days after the Revolver Termination Date, (b) become mandatorily redeemable
at the option of the holder thereof (other than for Qualified Capital Stock or pursuant to customary provisions relating to redemption
upon a change of control or sale of assets) pursuant to a sinking fund obligation or otherwise prior to the date that is, at the
time of issuance of such Equity Interest, ninety-one (91) days after the Revolver Termination Date or (c) become convertible
or exchangeable at the option of the holder thereof for Indebtedness or Equity Interests that are not Qualified Capital Stock;
provided further, that if any such Equity Interest is issued pursuant to a plan for the benefit of the employees, directors,
officers, managers or consultants of Holdings (or any Parent Entity thereof), the Borrower or its Subsidiaries or by any such plan
to such Persons, such Equity Interest shall not be regarded as an Equity Interest not constituting Qualified Capital Stock solely
because it may be required to be repurchased by Holdings (any Parent Entity), the Borrower or its Subsidiaries in order to satisfy
applicable regulatory obligations.


 


“Qualifying
DIP RE Facility” shall mean a secured debtor-in-possession term loan facility (the loans advanced thereunder, the
“DIP RE Loans”) in accordance with the Orders in an aggregate amount up to $25,000,000 on terms and conditions
acceptable to the Administrative Agent; provided that (a) such DIP RE Loans are secured on a first lien basis solely with respect
to the Loan Parties’ real estate collateral and no other property or assets of the Loan Parties, (b) the Lenders be granted
a lien on the real estate collateral subordinate only to the lien securing the DIP RE Loans, and (c) the lien priorities with respect
to the real estate collateral shall be set forth in an intercreditor agreement (the “Intercreditor Agreement”)
providing for, among other things, customary creditors’ rights and remedies, on terms acceptable to the Administrative Agent.


 


“Real Property”
shall have the meaning assigned to such term in Section 3.07.


 


“Refinance”
shall have the meaning assigned to such term in the definition of the term “Permitted Refinancing Indebtedness,” “Refinancing”
and “Refinanced” shall have meanings correlative thereto.


 


“Register”
shall have the meaning assigned to such term in Section 9.04(e).


 


“Regulation
D” shall mean Regulation D of the Board, as in effect from time to time and all official rulings and interpretations
thereunder or thereof.


 






    33


     


    

 



 


“Regulation
T” shall mean Regulation T of the Board, as in effect from time to time and all official rulings and interpretations
thereunder or thereof.


 


“Regulation
U” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations
thereunder or thereof.


 


“Regulation
X” shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations
thereunder or thereof.


 


“Reimbursement
Date” shall have the meaning assigned to such term in Section 2.04(b)(i).


 


“Remedies
Notice Period” has the meaning specified in the Interim Order (or Final Order, when applicable).


 


“Related
Fund” shall mean, with respect to any Lender, any Person (other than a natural person) that is engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities
and is administered, advised or managed by (i) such Lender, (ii) an Affiliate of such Lender or (iii) an entity
or an Affiliate of an entity that administers, advises or manages such Lender.


 


“Related
Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the respective directors,
trustees, officers, employees, agents and advisors of such Person and such Person’s Affiliates.


 


“Release”
shall mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing, depositing, emanating or migrating in, into, onto or through the environment. “Released” shall have a meaning
correlative thereto.


 


“Rent and
Charges Reserve” shall mean the aggregate of (a) all past due rent and other amounts due and owing by a Loan
Party to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight forwarder, broker or other Person who possesses
any Eligible Inventory and could legally assert a Lien on any Inventory; and (b) a reserve at least equal to two months’
rent and other periodic charges that would reasonably be expected to be payable to any such Person, unless it has executed a Lien
Waiver, in each case, excluding any amounts being disputed in good faith; provided, that clause (b) shall only apply
to locations in jurisdictions that are landlord lien priming jurisdictions.


 


“Reorganization”
shall mean, with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.


 


“Reorganization
Plan” shall mean a chapter 11 plan of reorganization of any Loan Party in the Chapter 11 Cases.


 


“Report”
shall have the meaning assigned to such term in Section 8.02(b).


 






    34 


     


    

 


“Reportable
Event” shall mean any reportable event as defined in Section 4043(c) of ERISA or the regulations issued
thereunder with respect to a Plan (other than a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate
only pursuant to subsection (m) or (o) of Section 414 of the Code), other than those events as to which the
thirty (30)-day notice period referred to in Section 4043(c) of ERISA has been waived.


 


“Required
Lenders” shall mean, at any time, the Lenders holding more than 50% of the aggregate amount of Revolver Commitments
and Loans outstanding at any time; provided, however, the Revolver Commitments and Loans of any Defaulting Lender
shall be excluded from such calculation; provided further, that if the number of Lenders, excluding Defaulting Lenders,
is greater than one (1) Lender (including any Lender’s Affiliates as one (1) Person for this purpose), Required Lenders must
include at least two (2) unaffiliated Lenders.


 


“Responsible
Officer” of any Person shall mean any executive officer or Financial Officer of such Person and any other officer
or similar official thereof responsible for the administration of the obligations of such Person in respect of this Agreement.


 


“Restricted
Payment” shall have the meaning assigned to such term in Section 6.06.


 


“Retained
Pre-Petition Obligations” shall mean Pre-Petition Obligations in an amount equal to $500,000 that will not be repaid
or refinanced pursuant to this Agreement.


 


“Revolver
Commitment” shall mean for any Lender, its obligation to make Loans and to participate in LC Obligations up to the
maximum principal amount shown on Schedule 2.01, as hereafter modified pursuant to an Assignment and Acceptance
to which it is a party. “Revolver Commitments” shall mean the aggregate amount of such commitments of
all Lenders.


 


“Revolver
Termination Date” shall mean November 25, 2020.


 


“Revolving
Facility” shall mean the Revolver Commitments and the Loans made hereunder.


 


“Revolving
Facility Percentage” shall mean, with respect to any Lender, the percentage of the total Revolver Commitments represented
by such Lender’s Revolver Commitment. If the Revolver Commitments have terminated or expired, the Revolving Facility Percentages
shall be determined based upon the Revolver Commitments most recently in effect, giving effect to any assignments pursuant to Section 9.04.


 


“S&P”
shall mean Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business.


 


“Sanctioned
Country” shall mean, at any time, a country, region or territory which is itself the subject or target of any Sanctions
(at the time of this Agreement, Crimea, Cuba, Iran, North Korea, and Syria).


 


“Sanctioned
Person” shall mean, at any time, (a) any Person listed in any Sanctions-related list of designated Persons
maintained by OFAC, the U.S. Department of State, the or by the United Nations Security Council, (b) any Person operating,
organized or resident in a Sanctioned Country, (c) any Person directly or indirectly owned or controlled (individually or
in the aggregate) by any such Person or Persons described in the foregoing clauses (a) or (b), or
(d) any Person otherwise the subject, or target, of any Sanctions.


 






    35 


     


    

 


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


 


“SEC”
shall mean the Securities and Exchange Commission or any successor thereto.


 


“Section
363 Sale” shall mean a sale of all or substantially all of the assets and business of the Loan Parties conducted
pursuant to Section 363 of the Bankruptcy Code.


 


“Secured
Bank Product Obligations” shall mean Bank Product Debt, including, without limitation, the Bank Product Debt set
forth in Schedule 1.01(a) as of the date hereof, owing to a Secured Bank Product Provider, up to the maximum
amount (in the case of any Secured Bank Product Provider other than J.P. Morgan and its Affiliates so long as J.P. Morgan
is the Administrative Agent) reasonably specified by such provider in writing to the Administrative Agent, which amount may be
established or increased (by further written notice to the Administrative Agent from time to time) as long as no Default or Event
of Default exists.


 


“Secured
Bank Product Provider” shall mean (a) J.P. Morgan or any of its Affiliates; and (b) any other Lender
or Affiliate of a Lender that is providing and any Person that was a Lender or an Affiliate or a Lender at the time it provided
a Bank Product (provided such provider delivers written notice to the Administrative Agent, in form and substance reasonably
satisfactory to the Administrative Agent, which has been countersigned by the Borrower to designate such Bank Product as a Secured
Bank Product Obligation, (i) describing the Bank Product and setting forth the maximum amount to be secured by the Collateral
and the methodology to be used in calculating such amount, and (ii) agreeing to be bound by Section 8.12).


 


“Secured
Obligations” shall mean the Obligations and the Secured Bank Product Obligations.


 


“Secured
Parties” shall mean (a) the Administrative Agent, (b) the Lenders, (c) each Issuing Bank, (d) each Secured Bank Product
Provider, to the extent the Secured Bank Product Obligations in respect thereof constitute Secured Obligations, and (e) the successors
and assigns of each of the foregoing.


 


“Securities”
shall have the meaning assigned thereto in Article 8 of the UCC.


 


“Securities
Account” shall have the meaning assigned thereto in Article 8 of the UCC.


 


“Securities
Act” shall mean the Securities Act of 1933.


 






    36 


     


    

 


“Security
Documents” shall mean, collectively, the Orders, this Agreement, the Mortgages and any other agreements, instruments
and documents executed by any Loan Party in connection with this Agreement that are intended to create, perfect or evidence Liens
to secure the Secured Obligations, including, without limitation, all other security agreements, pledge agreements, debentures,
share charges, loan agreements, notes, pledges, powers of attorney, assignments, notices, and any financing statements whether
theretofore, now or hereafter executed by any Loan Party and delivered to the Administrative Agent in connection with this Agreement.


 


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


 


“Specified
Disposition Letter” shall mean that certain Consultant Agreement, dated as of May 6, 2020 by and among the Borrower
and the Specified Liquidation Agent, as amended, supplemented, or modified from time to time with the consent of the Administrative
Agent.


 


“Specified
Liquidation Agent” shall mean, collectively, Great American Group, LLC and its Affiliates.


 


“Specified
Liquidation Agreement” shall mean the Specified Disposition Letter on terms reasonably satisfactory to the Administrative
Agent, and which agreement, together with (x) all material documents relating thereto and (y) all exhibits, annex and schedules
thereto, shall be reasonably satisfactory to the Administrative Agent prior to execution, as further amended, supplemented and
modified with prior written notice to the Administrative Agent.


 


“Specified
Store Closing Sales” shall mean the closure of certain of the Loan Parties’ stores as referenced in the Specified
Disposition Letter conducted by the Specified Liquidation Agent pursuant to the Specified Disposition Letter.


 


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


 


“Status
Calls” shall have the meanings assigned to such term in Section 5.17.


 


“Statutory
Reserve Rate” shall mean 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 percentage (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Federal Reserve Board to which the Administrative Agent is subject
with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency liabilities”
in Regulation D). Such reserve percentage shall include those imposed pursuant to 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 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.


 


“Stock
Rights” shall mean all dividends, instruments or other distributions and any other right or property which the
Loan Parties shall receive or shall become entitled to receive for any reason whatsoever with respect to, in substitution for
or in exchange for any Equity Interest constituting Collateral, any right to receive an Equity Interest and any right to
receive earnings, in which the Loan Parties now have or hereafter acquire any right, issued by an issuer of such Equity
Interest.


 






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“subsidiary”
shall mean, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership,
association or other entity 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, as well as any other corporation,
limited liability company, partnership, association or other entity of which securities or other ownership interests representing
more than 50% of the equity 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, by the parent and/or one or more subsidiaries of
the parent.


 


“Subsidiary”
shall mean any direct or indirect subsidiary of the Borrower or a Loan Party, as applicable.


 


“Subsidiary
Guarantor” shall mean each Loan Party other than Holdings.


 


“Supermajority
Lenders” shall mean the Lenders holding more than 662⁄3% of the aggregate amount of Revolver Commitments and
Loans outstanding at any time; provided, however, that (i) the Revolver Commitments and Loans of any Defaulting
Lender shall be excluded from such calculation and (ii) if the number of Lenders, excluding Defaulting Lenders, is greater
than or equal to three (3) Lenders (including any Lender’s Affiliates as one (1) Person for this purpose), Supermajority
Lenders must include at least three (3) unaffiliated Lenders.


 


“Supporting
Obligations” shall have the meaning set forth in Article 9 of the UCC.


 


“Syndication
Agent” shall have the meaning assigned to such term in the introductory paragraph of this Agreement.


 


“Taxes”
shall mean any and all present or future taxes, levies, imposts, duties (including stamp duties), deductions, charges (including
ad valorem charges), assessments, fees or withholdings imposed by any Governmental Authority and any and all interest and
penalties related thereto.


 


“Termination
Date” shall mean the earliest of (a) Revolver Termination Date, (b) the date of consummation of a sale of all or
substantially all of the Loan Parties’ assets under Section 363 or a plan under Section 1129 of the Bankruptcy Code, (c)
the effective date of a Plan of Reorganization, (d) the date on which the Obligations become due and payable pursuant to this Agreement,
whether by acceleration or otherwise, and (d) the date which the Administrative Agent delivers written notice to the Borrower of
its election, on account of the occurrence of an Event of Default, to accelerate all Obligations hereunder.


 


“Test Period”
shall mean, on any date of determination, the period of four (4) consecutive fiscal quarters (taken as one (1) accounting
period) of the Borrower then most recently ended for which financial statements have been most recently delivered or were required
to be delivered.


 






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“Trademarks”
shall mean, with respect to any Person, all of such Person’s right, title, and interest in and to the following: (a) all
trademarks (including service marks), trade names, trade dress, and trade styles and the registrations and applications for registration
thereof and the goodwill of the business symbolized by the foregoing; (b) all licenses of the foregoing, whether as licensee or
licensor; (c) all renewals of the foregoing; (d) all income, royalties, damages, and payments now or hereafter due or payable with
respect thereto, including, without limitation, damages, claims, and payments for past and future infringements thereof; (e) all
rights to sue for past, present, and future infringements of the foregoing, including the right to settle suits involving claims
and demands for royalties owing; and (f) all rights corresponding to any of the foregoing throughout the world.


 


“Transaction
Costs” shall mean fees and expenses payable or otherwise borne by Holdings, any other Parent Entity, the Borrower
and its Subsidiaries in connection with the Transactions occurring on or about the Closing Date.


 


“Transactions”
shall mean, collectively, the transactions to occur pursuant to the Loan Documents, including the execution and delivery of the
Loan Documents and the initial borrowings hereunder.


 


“Type,”
when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, the term “Rate” shall include the Adjusted LIBO Rate
and the CBFR.


 


“UCC”
shall mean the Uniform Commercial Code as in effect from time to time in the State of New York or in any other state the laws of
which are required to be applied in connection with the issue of perfection of security interests.


 


“Uniform
Customs” shall have the meaning assigned to such term in Section 9.07.


 


“Unused
Line Fee Rate” shall mean 0.50% per annum on the average daily unused Availability, calculated based upon the actual
number of days elapsed over a 360-day year payable monthly in arrears.


 


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


 


“USA PATRIOT
Act” shall mean The Uniting and Strengthening America by Providing Adequate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (Title III of Pub. L. No. 107 56 (signed into law October 26, 2001)).


 


“U.S. Tax
Compliance Certificate” shall have the meaning assigned to such term in Section 2.14(e)(i)(B)(3).


 


“U.S. Trustee”
shall mean the United States Trustee applicable in the Chapter 11 Cases.


 


“WF Concentration
Account” shall mean the Borrower’s Main Concentration Account No.: [REDACTED] held at Wells Fargo Bank, National
Association.


 






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“Weighted
Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained
by dividing: (a) the sum of the product obtained by multiplying (i) the amount of each then remaining installment, sinking
fund, serial maturity or other required payments of principal, including a payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth that will elapse between such date and the making of such payment); by (b) the
outstanding principal amount of such Indebtedness.


 


“Withdrawal
Liability” shall mean 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” shall mean, 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 write-down
and conversion powers are described in the EU Bail-In Legislation Schedule.


 


Section 1.02       
Terms Generally.


 


(a)              
The definitions set forth or referred to in Section 1.01 shall apply equally to both the singular and
plural forms of the terms defined. The words “herein,” “hereto,” “hereof” and “hereunder”
and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular
provision thereof. 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.” All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, the Loan Documents in which the reference appears unless the context
shall otherwise require.


 


(b)              
Except as otherwise expressly provided herein, any reference in this Agreement to any Loan Document or other document, agreement
or instrument (including any by-laws, limited partnership agreement, limited liability company agreement, articles of incorporation,
certificate of limited partnership or certificate of formation, as the case may be) shall mean such Loan Document, agreement or
instrument as amended, restated, amended and restated, supplemented, otherwise modified, replaced, renewed, extended or refinanced
from time to time and any reference in this Agreement to any Person shall include a reference to such Person’s permitted
assigns and successors-in-interest.


 


(c)              
Unless otherwise defined herein, the following terms are used herein as defined in the UCC (and if defined in more than
one Article of the UCC, such terms shall have the meanings given in Article 9 thereof): Account Debtor, Certificated Security,
Chattel Paper, Commodity Account, Documents, Deposit Account, Electronic Chattel Paper, Equipment, Farm Products, General Intangibles,
Goods, Instruments, Inventory, Letter of Credit, Letter-of-Credit Rights, Money, Payment Intangibles, Securities Account, Security,
Supporting Obligations and Tangible Chattel Paper.


 


(d)              
Unless otherwise defined herein, the following terms are used herein as defined in the Approved Budget: Total Cash Receipts,
Total Non-Operating Disbursements, Total Operating Disbursements and Professional Fees.


 






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Section 1.03       
Accounting Terms.


 


(a)              
Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time; provided that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or
in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower 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 further that if an amendment is requested by the Borrower or the Required Lenders,
then the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment of such affected provisions
(without the payment of any amendment or similar fees to the Lenders) to preserve the original intent thereof in light of such
change in GAAP or the application thereof subject to the approval of the Required Lenders (not to be unreasonably withheld, conditioned
or delayed); provided further that 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 Accounting
Standards Codification 825-10-25 (previously referred to as Statement of Financial Accounting Standards 159) (or any other Accounting
Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities
of the Borrower or any Subsidiary at “fair value,” as defined therein and (ii) any treatment of Indebtedness in
respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification
or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner
as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof.


 


(b)              
Notwithstanding anything to the contrary contained in paragraph (a) above or the definition of Capital
Lease Obligations, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for
purposes hereof that they were in existence on the date hereof) that would constitute Capital Lease Obligations on the date hereof
shall be considered Capital Lease Obligations and all calculations and deliverables under this Agreement or any other Loan Document
shall be made in accordance therewith (provided that all financial statements delivered to the Administrative Agent in accordance
with the terms of this Agreement after the date of such accounting change shall contain a schedule showing the adjustments necessary
to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).


 


Section 1.04       
Rounding. Except as otherwise expressly provided herein, any financial ratios
required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component
by the other component, carrying the result to one (1) place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding up if there is no nearest number).


 






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Section 1.05       
Timing of Payment or Performance. When the payment of any obligation or the performance
of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day (other than
as described in the definition of CBFR, NYFRB Rate or Interest Period), the date of such payment or performance shall extend to
the immediately succeeding Business Day and such extension of time shall be reflected in computing interest or fees, as the case
may be.


 


Section 1.06       
Classification. For purposes of determining compliance at any time with Sections
6.01, 6.02, 6.04, 6.05, 6.06, 6.07 and 6.09,
in the event that any Lien, Investment, Indebtedness, Disposition, Restricted Payment, affiliate transaction, contractual restriction
or prepayment of Indebtedness meets the criteria of more than one (1) of the categories of transactions or items permitted pursuant
to any clause of such Sections 6.01, 6.02, 6.04, 6.05, 6.06,
6.07 and 6.09, the Borrower, in its sole discretion, may classify or reclassify such transaction or
item (or portion thereof) and will only be required to include the amount and type of such transaction (or portion thereof) in
any one (1) category.


 


Section 1.07       
References to Laws. Unless otherwise expressly provided herein, references
to any law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting
such law.


 


Section 1.08       
Interest Rates; LIBOR Notification. The interest rate on Eurodollar Loans
is determined by reference to the LIBO Rate, which is derived from the London interbank offered rate. The London interbank offered
rate is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London
interbank market. In July 2017, the U.K. Financial Conduct Authority announced that, after the end of 2021, it would no longer
persuade or compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor
to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the London interbank offered
rate. As a result, it is possible that commencing in 2022, the London interbank offered rate may no longer be available or may
no longer be deemed an appropriate reference rate upon which to determine the interest rate on Eurodollar Loans. In light of this
eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates
to be used in place of the London interbank offered rate. In the event that the London interbank offered rate is no longer available
or in certain other circumstances as set forth in Section 2.11(b) of this Agreement, such Section 2.11(b)
provides a mechanism for determining an alternative rate of interest. The Administrative Agent will notify the Borrower, pursuant
to Section 2.11 in advance of any change to the reference rate upon which the interest rate on Eurodollar Loans is
based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with
respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the
definition of “LIBO Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof,
including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference
rate, as it may or may not be adjusted pursuant to Section 2.11(b), will be similar to, or produce the same value
or economic equivalence of, the Adjusted LIBO Rate or have the same volume or liquidity as did the London interbank offered rate
prior to its discontinuance or unavailability.


 






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Section 1.09        Classification
of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a
“Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar
Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolver Borrowing”) or by
Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar Revolver
Borrowing”).


 


ARTICLE II



The Credits


 


Section 2.01       
Revolver Commitments; Roll-Up of Pre-Petition Obligations. Each Lender agrees,
severally on a Pro Rata basis up to its Revolver Commitment, on the terms set forth herein, to make Loans to the Borrower from
time to time on the Closing Date through the Termination Date. The Loans may be repaid and reborrowed as provided herein. In no
event shall the Lenders have any obligation to honor a request for a Loan if the unpaid balance of Loans and LC Obligations outstanding
at such time (including the requested Loan) would exceed the Line Cap. Notwithstanding anything to the contrary contained herein
or in any other Loan Document, on the Closing Date, (i) 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 Closing Date and all Pre-Petition LC
Obligations shall constitute “LC Obligations” for all purposes of this Agreement and (ii) all Pre-Petition Obligations
constituting “Secured Bank Product Obligations” (as such term is defined in the Pre-Petition Credit Agreement) shall
constitute Secured Obligations under the Loan Documents. The maximum amount of Loans the Lenders are committed to advance
to the Borrower at any time shall be subject to and limited by the terms of the Orders and the Approved Budget.


 


Section 2.02       
Loans and Borrowings.


 


(a)              
All Loans shall be made by the Lenders ratably in accordance with their respective Revolver Commitments. The failure of
any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder.


 


(b)              
Subject to Section 2.11 each Borrowing shall be (i) comprised entirely of CBFR Loans or Eurodollar
Loans as the Borrower may request in accordance herewith and (ii) (x) in the case of Eurodollar Loans, in a minimum amount
of $1,000,000, or an increment of $100,000 in excess thereof or (y) in the case of CBFR Loans, no minimum amount or predetermined
increment shall apply.


 


(c)              
Borrowings of more than one Type may be outstanding at the same time; provided that, without the consent of the Administrative
Agent, there shall not at any time be more than a total of ten (10) Eurodollar Borrowings outstanding.


 


(d)              
Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert
or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Revolver Termination Date.


 






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Section 2.03       
Requests for Borrowings and Notices.


 


(a)               To
request a Borrowing of Loans, the Borrower shall notify the Administrative Agent of such request either by telephone, in
writing (delivered by hand or fax) by delivering a Borrowing Request signed by the Borrower or through Electronic System if
arrangements for doing so have been approved by the Administrative Agent (a) in the case of a Eurodollar Borrowing, not
later than 12:00 p.m., Local Time, three (3) Business Days before the date of the proposed Borrowing or (b) in
the case of a CBFR Borrowing, not later than 12:00 p.m., Local Time, on the date of the proposed Borrowing. Each such
Borrowing Request shall be irrevocable and each such telephonic Borrowing Request shall be confirmed promptly by hand
delivery, fax or a communication through Electronic System to the Administrative Agent of a written Borrowing Request in a
form approved by the Administrative Agent and signed by the Borrower. Each such written or telephonic Borrowing Request shall
specify the following information in compliance with Section 2.02:


 


(i)                
the aggregate amount of the requested Borrowing;


 


(ii)              
the date of such Borrowing, which shall be a Business Day;


 


(iii)            
whether such Borrowing is to be a CBFR Borrowing or a Eurodollar Borrowing; and


 


(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”.


 


(b)              
If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be a CBFR Borrowing. If no Interest
Period is specified with respect to a requested Eurodollar Borrowing, then the Borrower shall be deemed to have selected a Eurodollar
Borrowing with an Interest Period of one (1) 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       
Letters of Credit.


 


(a)              
Issuance of Letters of Credit. At any time on or after the Closing Date, the Issuing Banks shall issue, subject to
Section 2.04(e), Letters of Credit denominated in Dollars totaling up to a maximum amount equal to the Letter of
Credit Subline, in aggregate principal amount from time to time until 30 days prior to the Revolver Termination Date (or until
the Termination Date, if earlier), on the terms set forth herein, including the following:


 


(i)                 The
Borrower acknowledges that the Issuing Bank’s issuance of any Letter of Credit is conditioned upon the Issuing
Bank’s receipt of a LC Application with respect to the requested Letter of Credit, as well as such other instruments
and agreements as the Issuing Bank may customarily require for issuance of a letter of credit of similar type and amount. The
Issuing Bank shall have no obligation to issue any Letter of Credit unless (i) the Issuing Bank receives a LC Request
and LC Application at least 3 Business Days (or shorter period of time as may be agreed by the Administrative Agent and the
applicable Issuing Bank in their reasonable discretion) prior to the requested date of issuance; and (ii) each LC
Condition is satisfied. If, in sufficient time to act, the Issuing Bank receives written notice from Required Lenders that a
LC Condition has not been satisfied, the Issuing Bank shall not issue the requested Letter of Credit. Prior to receipt of any
such notice, the Issuing Bank shall not be deemed to have knowledge of any failure of LC Conditions. In the event that a
reallocation of the Fronting Exposure with respect to LC Obligations of a Defaulting Lender pursuant to Section 2.18(a)
does not fully cover the Fronting Exposure with respect to LC Obligations of such Defaulting Lender and such Defaulting
Lender has not Cash Collateralized its obligations or otherwise made arrangements reasonably satisfactory to the Issuing
Bank, the applicable Issuing Bank may require the Borrower to Cash Collateralize such remaining Fronting Exposure in respect
of each outstanding Letter of Credit and will have no obligation to issue new Letters of Credit, or to extend, renew or amend
existing Letters of Credit to the extent the Fronting Exposure with respect to LC Obligations would exceed the commitments of
the non-Defaulting Lenders, unless such remaining Fronting Exposure with respect to LC Obligations is Cash
Collateralized.


 






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(ii)             
Letters of Credit may be requested by the Borrower to support obligations incurred in the ordinary course of business, to
backstop or replace Existing Letters of Credit through the issuance of new Letters of Credit for the account of the issuers of
such Existing Letters of Credit (including, by “grandfathering” such Existing Letters of Credit in this Agreement which
shall, for the avoidance of doubt, be deemed issued pursuant to this Agreement), for any purpose permitted under this Agreement
and the other Loan Documents or as otherwise approved by the Administrative Agent. The amendment, renewal or extension of any Letter
of Credit shall be treated as the issuance of a new Letter of Credit, except that delivery of a new LC Application may be required
or waived at the discretion of the Issuing Bank.


 


(iii)           
The Borrower assumes all risks of the acts, omissions or misuses of any Letter of Credit by the beneficiary. In connection
with issuance of any Letter of Credit, none of the Administrative Agent, the Issuing Bank or any Lender shall be responsible for
the existence, character, quality, quantity, condition, packing, value or delivery of any goods purported to be represented by
any LC Documents; any differences or variation in the character, quality, quantity, condition, packing, value or delivery of any
goods from that expressed in any LC Documents; the form, validity, sufficiency, accuracy, genuineness or legal effect of any LC
Documents or of any endorsements thereon; the time, place, manner or order in which shipment of goods is made; partial or incomplete
shipment of, or failure to ship, any goods referred to in a Letter of Credit or LC Documents; any deviation from instructions,
delay, default or fraud by any shipper or other Person in connection with any goods, shipment or delivery; any breach of contract
between a shipper or vendor and the Borrower; errors, omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex, telecopy, e-mail, telephone or otherwise; errors in interpretation of technical terms; the
misapplication by a beneficiary of any Letter of Credit or the proceeds thereof; or any consequences arising from causes beyond
the control of the Issuing Bank, the Administrative Agent or any Lender, including any act or omission of a Governmental Authority.
The Issuing Bank shall be fully subrogated to the rights and remedies of each beneficiary whose claims against the Borrower is
discharged with proceeds of any Letter of Credit.


 


(iv)             In
connection with its administration of and enforcement of rights or remedies under any Letters of Credit or LC Documents, the
Issuing Bank shall be entitled to act, and shall be fully protected in acting, upon any certification, documentation or
communication in whatever form believed by the Issuing Bank, in good faith, to be genuine and correct and to have been
signed, sent or made by a proper Person. The Issuing Bank may consult with and employ legal counsel, accountants and other
experts to advise it concerning its obligations, rights and remedies, and shall be entitled to act upon, and shall be fully
protected in any action taken in good faith reliance upon, any advice given by such experts. The Issuing Bank may employ
agents and attorneys-in-fact in connection with any matter relating to Letters of Credit or LC Documents.


 






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(v)              
Notwithstanding anything to the contrary in this Section 2.04(a), the foregoing shall not be construed
to excuse any Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages)
suffered by the Borrower that are caused by such Issuing Bank’s failure to exercise reasonable care when determining whether
drafts and other documents presented under a Letter of Credit comply with the terms thereof, that are the result of gross negligence,
bad faith or willful misconduct on the part of the applicable Issuing Bank.


 


(vi)            
For the avoidance of doubt, (a) no LC Documents shall (i) contain any representations and warranties, covenants
or events of default not set forth in this Agreement and any representations and warranties, covenants and events of default shall
be subject to the same qualifiers, exceptions and exclusions as those set forth in this Agreement or (ii) provide for any
collateral security or Liens and (b) to the extent any of the foregoing provisions are contained therein and not contained
herein, then such provisions shall be rendered null and void and any such qualifiers, exceptions and exclusions contained herein
shall be deemed incorporated therein, mutatis mutandis.


 


(b)              
Reimbursement; Participations.


 


(i)                 If
the Issuing Bank honors any request for payment under a Letter of Credit, the Borrower shall pay to the Issuing Bank, by
1:00 p.m. (Local Time) (or such later time as the Administrative Agent may agree) within one Business Day following
receipt by the Borrower of notice from the relevant Issuing Bank (“Reimbursement Date”), the amount
paid by the Issuing Bank under such Letter of Credit, together with interest at the interest rate for CBFR Loans from the
Reimbursement Date until payment by the Borrower. The obligation of the Borrower to reimburse the Issuing Bank for any
payment made under a Letter of Credit shall be absolute, unconditional, irrevocable and, subject to Section 2.04(a)(v),
shall be paid without regard to any lack of validity or enforceability of any Letter of Credit or the existence of any claim,
setoff, defense or other right that the Borrower may have at any time against the beneficiary. Unless the Borrower notifies
the Administrative Agent that it intends to reimburse the Issuing Bank for a drawing under a Letter of Credit, whether or not
the Borrower submits a Borrowing Request, the Borrower shall be deemed to have requested a Borrowing of CBFR Loans in an
amount necessary to pay all amounts due to the Issuing Bank on any Reimbursement Date and each Lender agrees to fund its Pro
Rata share of such Borrowing whether or not the Revolver Commitments have terminated, an Overadvance exists or is created
thereby, or the conditions in Section 4.02 are satisfied. Upon the issuance of a Letter of Credit, each
Lender shall be deemed to have irrevocably and unconditionally purchased from the Issuing Bank, without recourse or warranty,
an undivided Pro Rata interest and participation in all LC Obligations relating to the Letter of Credit. If the Issuing Bank
makes any payment under a Letter of Credit and the Borrower does not reimburse such payment on the Reimbursement Date, the
Administrative Agent shall promptly notify the Lenders and each Lender shall promptly (within one Business Day) and
unconditionally pay to the Administrative Agent, for the benefit of the Issuing Bank, the Lender’s Pro Rata share of
such payment.


 






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(ii)             
The obligation of each Lender to make payments to the Administrative Agent for the account of the Issuing Bank in connection
with the Issuing Bank’s payment under a Letter of Credit shall be absolute, unconditional and irrevocable, not subject to
any counterclaim, setoff, qualification or exception whatsoever, and shall be made in accordance with this Agreement under all
circumstances, irrespective of: any lack of validity or unenforceability of any Loan Documents; any draft, certificate or other
document presented under a Letter of Credit having been determined to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect; or the existence of any setoff or defense that any Loan Party
may have with respect to any Obligations. The Issuing Bank does not assume any responsibility for any failure or delay in performance
or any breach by the Borrower or other Person of any obligations under any LC Documents. The Issuing Bank does not make to the
Lenders any express or implied warranty, representation or guaranty with respect to the Collateral, LC Documents or any Loan Party.
The Issuing Bank shall not be responsible to any Lender for: any recitals, statements, information, representations or warranties
contained in, or for the execution, validity, genuineness, effectiveness or enforceability of any LC Documents; the validity, genuineness,
enforceability, collectability, value or sufficiency of any Collateral or the perfection of any Lien therein; or the assets, liabilities,
financial condition, results of operations, business, creditworthiness or legal status of any Loan Party.


 


(iii)           
No Issuing Bank shall be liable to any Lender or other Person for any action taken or omitted to be taken in connection
with any LC Documents except as a result of its actual gross negligence, bad faith or willful misconduct. The Issuing Bank shall
not have any liability to any Lender if the Issuing Bank refrains from any action under any Letter of Credit or LC Documents until
it receives written instructions from Required Lenders.


 


(c)              
Cash Collateral. Except as otherwise provided herein, if any LC Obligations, whether or not then due or payable,
shall for any reason be outstanding at any time (a) that an Event of Default has occurred and is continuing, (b) that
Availability is less than zero, (c) after the Termination Date, or (d) within 5 Business Days prior to the Revolver Termination
Date, then the Borrower shall, at the Issuing Bank’s or the Administrative Agent’s request, Cash Collateralize the
stated amount of all outstanding Letters of Credit (at 100% in the case of clause (b), and otherwise at 105%) and
pay to the Issuing Bank the amount of all other LC Obligations. If the Borrower fails to provide any Cash Collateral as required
hereunder, the Administrative Agent may (and shall upon direction of Required Lenders) advance, as Loans, the amount of the Cash
Collateral required (whether or not the Revolver Commitments have terminated, an Overadvance exists or the conditions in Section 4.02
are satisfied).


 


(d)               Provisions
Related to Revolver Commitment Increases with respect to Letters of Credit. If the maturity date in respect of any
tranche of Revolver Commitments occurs prior to the expiration of any Letter of Credit, then (i) if one or more other
tranches of Revolver Commitments in respect of which the maturity date shall not have occurred are then in effect, such
Letters of Credit shall automatically be deemed to have been issued (including for purposes of the obligations of the Lenders
to purchase participations therein and to make Loans and payments in respect thereof pursuant to Section 2.04(b)
under (and ratably participated in by the Lenders pursuant to) the Revolver Commitments in respect of such non-terminating
tranches up to an aggregate amount not to exceed the aggregate principal amount of the unutilized Revolver Commitments
thereunder at such time (it being understood that no partial Stated Amount of any Letter of Credit may be so reallocated))
and (ii) to the extent not reallocated pursuant to immediately preceding clause (i), the Borrower
shall Cash Collateralize any such Letter of Credit in accordance with Section 2.04(c). Commencing with the
maturity date of any tranche of Revolver Commitments, the sublimit for Letters of Credit shall be agreed with the Lenders
under the extended tranches.


 






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(e)              
Resignation or Removal of the Issuing Bank. The Issuing Bank may resign at any time upon at least 30 days’
prior notice to the Administrative Agent and the Borrower. Any Issuing Bank may be replaced at any time by written agreement among
the Borrower, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank. On the effective date of such
resignation or replacement, the Issuing Bank shall have no further obligation to issue, amend, renew, extend or otherwise modify
any Letter of Credit, but shall continue to have all rights and obligations of an Issuing Bank hereunder, including under Sections 2.04,
8.06, and 9.05, relating to any Letter of Credit issued prior to such date. The Administrative Agent
shall promptly appoint a replacement Issuing Bank, which, as long as no Event of Default under Sections 7.01(b)
and (c) has occurred and is continuing, shall be reasonably acceptable to the Borrower.


 


Section 2.05       
Funding of Borrowings.


 


(a)              
Each Lender shall make a Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available
funds by 1:00 p.m., Local 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 the proceeds of such Loans available to the Borrower by promptly crediting
the amounts so received, in like funds, to the Operating Account.


 


(b)              
Unless the Administrative Agent shall have received notice from a Lender prior to the date of the Borrowing Request that
such Lender will not make available to the Administrative Agent such Lender’s share of the 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 upon such assumption, make available to the Borrower a corresponding amount. In such event,
if a Lender has not in fact made its share of the Borrowing available to the Administrative Agent, then the applicable Lender and
the Borrower agrees to pay to the Administrative Agent (provided, that any such payment by the Borrower to the Administrative
Agent is without prejudice to any claim the Borrower may have against such applicable Lender) forthwith on demand (without duplication)
such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater
of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation
or (ii) in the case of the Borrower, the interest rate applicable to CBFR Loans. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.


 






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Section 2.06       
Interest Elections.


 


(a)              
Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar
Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to
convert such Borrowing to 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 Borrower 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 Borrower shall notify the Administrative Agent of such election either
by telephone, in writing (delivered by hand or fax) by delivering an Interest Election Request signed by the Borrower, or through
Electronic System if arrangements for doing so have been approved by the Administrative Agent by the time that a Borrowing Request
would be required under Section 2.03 if the Borrower 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 and each
such telephonic Interest Election Request shall be confirmed promptly (but in any event on the same Business Day) by hand delivery,
fax or Electronic System to the Administrative Agent of a written Interest Election Request in a form approved by the Administrative
Agent and signed by the Borrower.


 


(c)              
Each written or telephonic Interest Election Request (including requests submitted through Electronic System) 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 a CBFR Borrowing or a Eurodollar Borrowing;


 


(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”; and


 


(v)              
following any notice from the Administrative Agent contemplated by clause (e) of this Section 2.06,
as of the date of such Interest Election Request, no event shall have occurred and be continuing or would result from the consummation
of the conversion and/or continuation contemplated thereby that would constitute an Event of Default.


 


(d)              
Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender to which such
Interest Election Request relates of the details thereof and of such Lender’s portion of each resulting Borrowing.


 






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(e)              
If the Borrower fails 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 converted to a CBFR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the written request (including a request through electronic means)
of the Required Lenders, so notifies the Borrower, then, so long as an 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 a CBFR Borrowing at the end of the Interest Period applicable thereto.


 


Section 2.07       
Repayment of Loans; Termination of Revolver Commitments.


 


(a)              
The Borrower shall (i) make, or cause to be made, mandatory payments in respect of the Pre-Petition Obligations and the
Obligations, as applicable, on each Business Day in accordance with the cash management and dominion procedures set forth in Section
5.12 and (ii) have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to prior written
notice not later than 2:00 p.m. (Local time) two Business Days before the date of such prepayment, if applicable, payment of any
break funding expenses under Section 2.13; provided that, in the case of the foregoing clauses (i) and (ii), any such prepayment
shall be applied; first, to the Pre-Petition Obligations then outstanding (other than the Retained Pre-Petition Obligations except
to the extent provided in Section 2.07(h)) in the order and manner provided in the Pre-Petition Credit Agreement and second, to
the Loans.


 


(b)              
Loans shall be due and payable in full on the Revolver Termination Date, unless payment is sooner required hereunder. Loans
may be prepaid from time to time, without penalty or premium.


 


(c)              
In the event and on such occasion that the aggregate outstanding Loans and LC Obligations exceed the Line Cap, the Borrower
shall on the next Business Day prepay first, the Pre-Petition Obligations then outstanding (other than the Retained Pre-Petition
Obligations except to the extent provided in Section 2.07(h)) in the order and manner provided in the Pre-Petition Credit Agreement
and second, the Loans and/or LC Obligations or Cash Collateralize the LC Obligations in an account with the Administrative Agent
pursuant to Section 2.04(c), as applicable, in an aggregate amount equal to such excess.


 


(d)              
The Revolver Commitments shall terminate on the Revolver Termination Date, unless sooner terminated in accordance with this
Agreement.


 


(e)              
In the event and on such occasion that any advance is made to the Borrower or any other Loan Party under the Qualifying
DIP RE Facility, the Borrower shall, on the next Business Day, prepay first, the Pre-Petition Loans then outstanding (other than
the Retained Pre-Petition Obligations except to the extent provided in Section 2.07(h)) in the order and manner provided in the
Pre-Petition Credit Agreement and second, the Loans and/or LC Obligations in an aggregate principal amount equal to such advance.


 






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(f)                Each
prepayment of Borrowings pursuant to this Section 2.07 shall be applied ratably among the parties entitled thereto.
Prepayments pursuant to this Section 2.07(f) shall be accompanied by accrued interest to the extent required by Section
2.10(d)(ii).


 


(g)              
Prepayments permitted or required under this Section 2.07 shall be without premium or penalty, except as required under
Section 2.13.


 


(h)              
The Administrative Agent may apply any payments made or to be applied hereunder in respect of the Pre-Petition Obligations
to the Retained Pre-Petition Obligations in such amount and manner as the Administrative Agent may elect in its sole discretion.


 


Section 2.08       
Evidence of Debt.


 


(a)              
Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the
Borrower 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.


 


(b)              
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 Borrower 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.


 


(c)              
The entries made in the accounts maintained pursuant to paragraph (d) of this Section shall be, absent manifest error, 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 Borrower
to repay the Loans in accordance with the terms of this Agreement; and, provided, further that in the event of any inconsistency
between the Register and any Lender’s records, the recordations in the Register shall govern.


 


(d)              
Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrower 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 times (including after assignment pursuant to Section 9.04) be represented by one or more
promissory notes in such form.


 


Section 2.09       
Fees.


 


(a)              
Administrative Agent Fees. The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Borrower and the Administrative Agent set forth in the Fee Letter.


 


(b)               Unused
Line Fee. The Borrower shall pay to the Administrative Agent, for the Pro Rata benefit of the Lenders (other than any
Defaulting Lender), a fee equal to the Unused Line Fee Rate multiplied by the amount by which the Revolver Commitments (other
than Revolver Commitments of a Defaulting Lender) exceed the average daily balance of outstanding Loans and stated amount of
outstanding Letters of Credit during any fiscal month. Such fee shall be payable in arrears, on the first calendar day of the
immediately following month.


 






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(c)              
LC Facility Fees. The Borrower shall pay (a) to the Administrative Agent, for the Pro Rata benefit of the Lenders,
a fee equal to (i) the Applicable Margin in effect for Eurodollar Loans times the average daily Stated Amount of outstanding
“standby” Letters of Credit and (ii) 50% of such Applicable Margin times the average daily Stated Amount of outstanding
“commercial” Letters of Credit, in each case, which fee shall be payable in arrears, on the first Business Day of each
fiscal quarter; (b) to the applicable Issuing Bank, for its own account, a fronting fee not in excess of 0.125% per annum
of the Stated Amount of each Letter of Credit (“Issuing Bank Fee”), which fee shall be calculated based
upon the actual number of days elapsed over a 360-day year and payable in arrears, on the first calendar day of each fiscal quarter
(it being understood that any Issuing Bank Fee payable to Wells Fargo Bank, N.A., in its capacity as Issuing Bank, will be payable
in arrears, on the first Business Day of each fiscal quarter); and (c) to the applicable Issuing Bank, for its own account,
all customary charges associated with the issuance, registration, amending, negotiating, payment, processing, transfer and administration
of Letters of Credit, which charges shall be paid as and when incurred upon demand.


 


(d)              
Closing Fee. The Borrower agrees to pay on the Closing Date to each Lender party to this Agreement on the Closing
Date, as compensation for the making of such Revolver Commitment, a closing fee (the “Closing Fee”) in
an amount equal to 2.00% of the stated principal amount of such Lender’s Revolver Commitment on the Closing Date and shall
be payable on the initial funding of the Loans under this Agreement.


 


(e)              
Generally. All such fees shall be paid on the dates due, in immediately available Dollars. Once paid, none of these
fees shall be refundable under any circumstances.


 


Section 2.10       
Interest.


 


(a)              
The Loans comprising each CBFR Borrowing shall bear interest at the CBFR plus the Applicable Margin.


 


(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 Margin.


 


(c)              
Notwithstanding the foregoing, if any principal of or interest on any Loan or any Fees or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise or if any Event of Default has occurred
and is continuing, all overdue amounts shall automatically bear interest, after as well as before judgment, at a rate per annum
equal to (i) in the case of overdue principal of, or interest on, any Loan, 2.00% 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, 2.00% plus the rate
applicable to CBFR Loans as provided in paragraph (a) of this Section (in each case, the “Default
Rate”).


 


(d)               Accrued
interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and on the Revolver Termination
Date; provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be
payable on demand, and (ii) in the event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Eurodollar Loan shall be payable on the effective date of such
conversion.


 






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(e)              
All interest hereunder shall be computed on the basis of a year of three hundred sixty (360) days, except that
interest computed by reference to the CBFR at times when the CBFR is based on the Prime Rate shall be computed on the basis of
a year of three hundred sixty-five (365) days (or three hundred sixty-six (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 CBFR,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent
manifest error.


 


Section 2.11       
Alternate Rate of Interest. (a) If prior to the commencement of any Interest
Period for a Eurodollar Borrowing:


 


(i)                
the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable (including because the LIBO Screen Rate
is not available or published on a current basis), for such Interest Period; or


 


(ii)             
the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable,
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
written notice thereof to the Borrower and the Lenders as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (A) 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 converted to or continued as on the last day of the Interest Period applicable
thereto a CBFR Borrowing, and (B) if the Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as
a CBFR Borrowing.


 






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(b)               If
at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that
(i) the circumstances set forth in clause (a)(i) have arisen and such circumstances are unlikely to be
temporary or (ii) the circumstances set forth in clause (a)(i) have not arisen but either (w) the
supervisor for the administrator of the LIBO Screen Rate has made a public statement that the administrator of the LIBO
Screen Rate is insolvent (and there is no successor administrator that will continue publication of the LIBO Screen Rate),
(x) the administrator of the LIBO Screen Rate has made a public statement identifying a specific date after which the
LIBO Screen Rate will permanently or indefinitely cease to be published by it (and there is no successor administrator that
will continue publication of the LIBO Screen Rate), (y) the supervisor for the administrator of the LIBO Screen Rate has
made a public statement identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely cease
to be published or (z) the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having
jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO
Screen Rate may no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower
shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then
prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and
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 (but for the avoidance of doubt, such related changes shall not include a reduction of
the Applicable Margin); provided that, if such alternate rate of interest as so determined would be less than zero, such rate
shall be deemed to be zero for the purposes of this Agreement. Notwithstanding anything to the contrary in Section
9.08, 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 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 such Required
Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause
(b) (but, in the case of the circumstances described in clause (ii)(w), clause (ii)(x) or clause
(ii)(y) of the first sentence of this Section 2.11(b), only to the extent the LIBO 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 Borrowing shall be
ineffective, and (y) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an CBFR
Borrowing.


 


Section 2.12       
Increased Costs.


 


(a)              
If any Change in Law shall:


 


(i)                
impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate)
or Issuing Bank; or


 


(ii)             
subject any Lender Party to any Taxes (other than (A) Indemnified Taxes paid or payable under Section 2.14,
(B) Other Taxes and (C) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations,
or its deposits, reserves, other liabilities or capital attributable thereto; or


 


(iii)           
impose on any Lender or Issuing Bank or the London interbank market any other condition affecting this Agreement or Eurodollar
Loans made by such Lender or any Letter of Credit or participation therein;


 


and the result of any of the
foregoing shall be to increase the cost to such Lender or other Lender Party of making or maintaining any Eurodollar Loan (or
of maintaining its obligation to make any such Loan) or to increase the cost to such Lender or other Lender Party of
participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by
such Lender or other Lender Party (whether of principal, interest or otherwise), then within thirty (30) days of receipt
of a certificate of the type specified in paragraph (d) below the Borrower will pay to such Lender or
other Lender Party, as applicable, such additional amount or amounts as will compensate such Lender or other Lender Party, as
applicable, for such additional costs incurred or reduction suffered.


 






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(b)              
If any Lender or Issuing Bank determines that any Change in Law regarding capital requirements or liquidity requirements
has or would have the effect of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital
of such Lender’s or Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by,
or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below
that which such Lender or such or 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 Issuing Bank’s policies and the policies of
such Lender’s or Issuing Bank’s holding company with respect to capital adequacy and liquidity), then from time to
time within thirty (30) days of receipt of a certificate of the type specified in paragraph (d) below the
Borrower shall pay to such Lender or such Issuing Bank, as applicable, 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)              
Notwithstanding anything herein to the contrary, (i) all requests, rules, guidelines, requirements and directives promulgated
by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or
by United States or foreign regulatory authorities, in each case pursuant to Basel III, and (ii) the Dodd-Frank Wall Street
Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection
therewith or in implementation thereof, shall in each case be deemed to be a Change in Law, regardless of the date enacted, adopted,
issued or implemented.


 


(d)              
A certificate of a Lender or an Issuing Bank setting forth in reasonable detail the calculation of the amount or amounts
necessary to compensate such Lender or Issuing Bank or its holding company, as applicable, as specified in paragraph (a)
or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error; provided
that such certificate from each such Lender or Issuing Bank shall contain a certification to the Borrower that such Lender or Issuing
Bank is generally requiring reimbursement for the relevant amounts from similarly situated borrowers under comparable syndicated
credit facilities. The Borrower shall pay such Lender or Issuing Bank, as applicable, the amount shown as due on any such certificate
within thirty (30) days after receipt thereof.


 


(e)               Promptly
after any Lender or any Issuing Bank has determined that it will make a request for increased compensation pursuant to this Section 2.12,
such Lender or Issuing Bank shall notify the Borrower thereof. Failure or delay on the part of any Lender or 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 Borrower shall not be required to compensate a Lender or an
Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than ninety (90) days prior to
the date that such Lender or Issuing Bank, as applicable, notifies the Borrower of the Change in Law giving rise to such
increased costs 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 reductions is retroactive, then the ninety (90) day
period referred to above shall be extended to include the period of retroactive effect thereof.


 






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Section 2.13       
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, convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered pursuant
hereto 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 pursuant to Section 2.16, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such event (excluding loss of margin). Such loss, cost and
expense to any Lender shall be deemed to be the amount reasonably determined by such Lender to be the excess, if any, of (i) the
amount of interest which 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 exclusive of the Applicable Margin relating 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 which
would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement
of such period, for U.S. Dollar deposits of a comparable amount and period from other banks in the eurodollar market. A certificate
of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any
such certificate within thirty (30) days after receipt thereof.


 


Section 2.14       
Taxes.


 


(a)              
Any and all payments by or on account of any obligation of any Loan Party hereunder shall be made free and clear of and
without deduction or withholding for any Indemnified Taxes or Other Taxes; provided that if a Loan Party or other applicable
withholding agent shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
by any Loan Party shall be increased as necessary so that after making all required deductions (including deductions applicable
to additional sums payable under this Section) the Administrative Agent, any Lender or any Issuing Bank, as applicable, receives
an amount equal to the sum it would have received had no such deductions been made, (ii) the applicable withholding agent
shall make such deductions and (iii) the applicable withholding agent shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with Applicable Law.


 


(b)              
In addition, 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.


 






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(c)               Each
Loan Party shall indemnify the Administrative Agent, each Lender and each Issuing Bank, within ten (10) days after
written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent, such
Lender or such Issuing Bank, as applicable, on or with respect to any payment by or on account of any obligation of such Loan
Party hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto. A certificate as
to the amount of such payment or liability, prepared in good faith and delivered to such Loan Party by a Lender or an Issuing
Bank or by the Administrative Agent on its own behalf, on behalf of another Agent or on behalf of a Lender or an Issuing
Bank, shall be conclusive absent manifest error.


 


(d)              
As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Loan Party to a Governmental Authority,
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.


 


(e)              
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 and the Administrative Agent, at the time or times reasonably requested by the Borrower
or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower 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 or the Administrative Agent, shall deliver such other documentation prescribed by Applicable
Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower 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 (2) sentences, the completion, execution and submission of such documentation
(other than such documentation set forth in Section 2.14(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, in the event that the Borrower is a U.S. Person,


 


(A)            
any Lender that is a U.S. Person shall deliver to the Borrower 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 or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal
backup withholding tax;


 






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(B)             
any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower 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 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 copies of IRS Form W-8BEN or W-8BEN-E 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, IRS Form W-8BEN or 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;


 


(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 G-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 Borrower within the
meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” related to the Borrower as
described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed
copies of IRS Form W-8BEN or W-8BEN-E; or


 


(4)              
to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied
by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of
Exhibit G-2 or Exhibit G-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 (1) 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 G-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 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 or the Administrative
Agent), executed copies 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 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 and the Administrative
Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower 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 or the
Administrative Agent as may be necessary for the Borrower 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 date of this Agreement.


 






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Each Lender agrees
that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update
such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do
so.


 


(f)               
If the Administrative Agent or a Lender determines, in its sole discretion exercised in good faith, that it has received
a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a Loan Party or with respect to which such
Loan Party has paid additional amounts pursuant to this Section 2.14, it shall pay over such refund to such
Loan Party (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 2.14
with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative
Agent or such Lender (including any Taxes imposed with respect to such refund) as is determined by the Administrative Agent
or Lender and in its sole discretion, and without interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided that such Loan Party, upon the request of the Administrative Agent or such Lender,
agrees to repay as soon as reasonably practicable the amount paid over to such Loan Party (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative
Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary
in this paragraph (f), in no event will the indemnified party be required to pay any amount to an indemnifying
party pursuant to this paragraph (f) 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 2.14(f) shall not be construed to require the Administrative Agent
or any Lender to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to
the Loan Parties or any other Person.


 


(g)              
Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any
Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent
for such Taxes and without limiting the obligation of the Loan Parties to do so) and (ii) any Taxes attributable to such Lender’s
failure to comply with the provisions of Section 9.04(c) relating to the maintenance of a Participant Register,
in either 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 (g).


 






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(h)              
For purposes of this Section 2.14 the term “Lender” includes any Issuing Bank.


 


Section 2.15       
Payments Generally; Pro Rata Treatment; Sharing of Set-offs.


 


(a)              
Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal,
interest, fees or reimbursement of L/C Disbursements, or of amounts payable under Section 2.12, 2.13,
or 2.14, or otherwise) prior to 2:00 p.m., Local Time, on the date when due, in immediately available funds,
without condition or deduction for any defense, recoupment, set-off 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 to the applicable account
designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank as expressly
provided herein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. All payments hereunder shall be made in Dollars. Any payment required
to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent
shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating
procedures of the clearing or settlement system used by the Administrative Agent to make such payment.


 


(b)              
Any proceeds of Collateral received by the Administrative Agent not constituting either a specific payment of principal,
interest, fees or other sum payable under the Loan Documents shall be applied ratably:


 


(i)                
first, to permanently reduce the Pre-Petition Obligations then outstanding (if any and other than the Retained Pre-Petition
Obligations except to the extent provided in Section 2.07(h)), in the order and manner provided in the Pre-Petition Credit Agreement;


 


(ii)             
second, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Administrative Agent and
the Issuing Banks from the Borrower (other than in connection with Bank Product Debt),


 


(iii)           
third, to pay any fees or expense reimbursements then due to the Lenders from the Borrower (other than in connection with
Bank Product Debt),


 


(iv)            
fourth, to pay interest due in respect of the Overadvances and Protective Advances,


 


(v)              
fifth, to pay the principal of the Overadvances and Protective Advances,


 


(vi)            
sixth, to pay interest then due and payable on the Loans (other than Overadvances and Protective Advances) ratably,


 






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(vii)         
seventh, to prepay principal on the Loans (other than the Overadvances and Protective Advances) and unreimbursed LC Disbursements,


 


(viii)       
eighth, if an Event of Default has occurred and is continuing, to pay an amount to the Administrative Agent equal to one
hundred five percent (105%) of the aggregate LC Obligations, to be held as Cash Collateral for such Obligations,


 


(ix)            
ninth, to pay any amounts owing with respect to Bank Product Debt, and


 


(x)              
tenth, to the payment of any other Secured Obligation due to the Administrative Agent or any Lender by the Borrower.


 


(c)              
At the election of the Administrative Agent, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable
expenses (including, without limitation, all reimbursement for fees, costs and expenses pursuant to Section 9.03), and other sums
due and payable under the Loan Documents or in respect of the Pre-Petition Obligations, may be paid from the proceeds of Borrowings
made hereunder whether made following a request by the Borrower pursuant to Section 2.03 or a deemed request as provided in Section
2.20 or may be deducted from any deposit account of the Borrower maintained with the Administrative Agent. The Borrower hereby
irrevocably authorize (i) the Administrative Agent to make a Borrowing for the purpose of paying each payment of principal, interest
and fees as it becomes due hereunder or any other amount due under the Loan Documents or in respect of the Pre-Petition Obligations
and agrees that all such amounts charged shall constitute Loans and that all such Borrowings shall be deemed to have been requested
pursuant to Section 2.03 or 2.20, as applicable, and (ii) the Administrative Agent to charge any deposit account of the Borrower
maintained with the Administrative Agent for each payment of principal, interest and fees as it becomes due hereunder or any other
amount due under the Loan Documents or in respect of the Pre-Petition Obligations.


 


(d)               If
(other than (x) any payment obtained by a Lender as consideration for the assignment or sale of a participation in any
of its Loans to any assignee or participant, including any assignee or participation that is a Loan Party or any of its
Affiliates or (y) as otherwise expressly provided elsewhere herein, including, without limitation, as provided in or
contemplated by Section 9.04(f)) 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 or participations in L/C
Disbursements 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 purchase (for cash at face value) participations in the Loans, participations in L/C Disbursements of other Lenders to
the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans and participations in L/C Disbursements; 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 (d) shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement. The 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 the Borrower rights of set-off and counterclaim
with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such
participation.


 






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(e)              
Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due
to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not
make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith
and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as applicable, the amount
due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank,
as applicable, 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 NYFRB Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.


 


(f)               
If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(b), Section
2.05(b) or Section 2.15(e), then the Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy
such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.


 


(g)              
Each borrowing by the Borrower from the Lenders hereunder shall be made pro rata according to the respective Revolving
Facility Percentages of the relevant Lenders.


 


Section 2.16       
Mitigation Obligations; Replacement of Lenders.


 


(a)              
If any Lender requests compensation under Section 2.12, or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.14, then
such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or
to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the reasonable judgment
of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.12
or 2.14, as applicable, in the future and (ii) would not subject such Lender to any material unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender in any material respect. The Borrower hereby agrees to pay
all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.


 






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(b)               If
any Lender requests compensation under Section 2.12, or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.14,
or if any Lender is a Defaulting Lender or becomes an Affected Lender, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, (i) terminate the Revolver Commitments of such Lender and repay
all Obligations of the Borrower owing to such Lender relating to the Loans and participations held by such Lender as of such
termination date or (ii) 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 and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior written consent of the Administrative
Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal
to the outstanding principal of its Loans and participations in L/C Disbursements, 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 Borrower (in the case of all other amounts), (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.12 or payments required to be made pursuant to Section 2.14,
such assignment will result in a reduction in such compensation or payments, (iv) the Borrower shall be liable to such
Lender under Section 2.13 if any Eurodollar Loan owing to such Lender is repaid or purchased other than on
the last day of the Interest Period relating thereto, (v) such assignment shall otherwise comply with Section 9.04
(provided that the Borrower shall be obligated to pay the registration and processing fee referred to therein) and
(vi) until such time as such Revolver Commitments are terminated, obligations are repaid or such assignment is
consummated, the Borrower shall pay all additional amounts (if any) required pursuant to Section 2.12 or Section 2.14,
as the case may be. Nothing in this Section 2.16 shall be deemed to prejudice any rights that the
Borrower, the Administrative Agent or any Lender may have against any replaced Lender. Each Lender hereby grants to the
Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on
behalf of such Lender as assignor, any Assignment and Acceptance necessary to effectuate any assignment of such
Lender’s interests hereunder in the circumstances contemplated by this Section 2.16(b).


 


(c)               If
any Lender (such Lender, a “Non-Consenting Lender”) has failed to consent to a proposed amendment,
waiver, discharge or termination which pursuant to the terms of Section 9.08 requires the consent of all
of the Lenders or all of the Lenders affected and with respect to which the Required Lenders shall have granted their
consent, then the Borrower shall have the right (unless such Non-Consenting Lender grants such consent) to replace such
Non-Consenting Lender by (i) terminating the Revolver Commitments of such Lender and repaying all obligations of the
Borrower owing to such Lender relating to the Loans and participations held by such Lender as of such termination date or
(ii) requiring such Non-Consenting Lender to assign (in accordance with and subject to the restrictions contained in Section 9.04)
all or the affected portion of its Loans and its Revolver Commitments hereunder to one (1) or more assignees, provided
that: (a) all Obligations of the Borrower owing to such Non-Consenting Lender being replaced shall be paid in full to
such Non-Consenting Lender concurrently with such assignment, (b) the replacement Lender shall purchase the foregoing by
paying to such Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid interest thereon,
(c) the Borrower shall be liable to such Lender under Section 2.13 if any Eurodollar Loan owing to
such Lender is repaid or purchased other than on the last day of the Interest Period relating thereto, (d) such
assignment shall otherwise comply with Section 9.04 (provided that the Borrower shall be obligated
to pay the registration and processing fee referred to therein) and (e) the replacement Lender shall grant its consent
with respect to the applicable proposed amendment, waiver, discharge or termination. Each Lender hereby grants to the
Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on
behalf of such Lender as assignor, any Assignment and Acceptance necessary to effectuate any assignment of such
Lender’s interests hereunder in the circumstances contemplated by this Section 2.16(c).


 






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Section 2.17       
Illegality. If any Lender reasonably determines that any Change in Law has
made it unlawful, or that any Governmental Authority has asserted after the Closing Date that it is unlawful, for any Lender or
its applicable Lending Office to make or maintain any Eurodollar Loans, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent (at which time such Lender shall be deemed an “Affected Lender”), any
obligations of such Affected Lender to make or continue Eurodollar Loans or to convert CBFR Borrowings to Eurodollar Borrowings
shall be suspended until such Affected Lender notifies the Administrative Agent and the Borrower that the circumstances giving
rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall upon demand from such Affected Lender
(with a copy to the Administrative Agent), either convert all Eurodollar Borrowings of such Affected Lender to CBFR Borrowings,
either on the last day of the Interest Period therefor, if such Affected Lender may lawfully continue to maintain such Eurodollar
Borrowings to such day, or immediately, if such Affected Lender may not lawfully continue to maintain such Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.


 


Section 2.18       
Defaulting Lenders.


 


(a)              
Reallocation of Pro Rata Share; Amendments. For purposes of determining the Lenders’ obligations to fund or
acquire participations in Loans or Letters of Credit, the Administrative Agent may exclude the Revolver Commitments and Loans of
any Defaulting Lender(s) from the calculation of Pro Rata shares and any Revolver Commitments or Fronting Exposure of any such
Defaulting Lender shall automatically be reallocated among the non-Defaulting Lenders Pro Rata in accordance with their Revolver
Commitments up to an amount such that the Revolver Commitment of each non-Defaulting Lender does not exceed its Revolver Commitments,
so long as the conditions set forth in Section 4.02 are satisfied at the time of such reallocation. A Defaulting
Lender shall have no right to vote on any amendment, waiver or other modification of a Loan Document, except as provided in Section 9.08.


 






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(b)               Payments;
Fees. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of a
Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise, and
including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 9.06),
shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the
payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment
on a Pro Rata basis of any amounts owing by that Defaulting Lender to any applicable Issuing Banks hereunder; third,
if so reasonably determined by the Administrative Agent or reasonably requested by the applicable Issuing Bank to be held as
Cash Collateral at a rate of 100% of the Fronting Exposure of such Defaulting Lender; fourth, to the funding of any
Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as
determined by the Administrative Agent; fifth, if so determined by the Administrative Agent or the Borrower, to be
held in a deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this
Agreement and to Cash Collateralize any Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender; sixth,
to the payment of any amounts owing to the Lenders, the Issuing Banks as a result of any judgment of a court of competent
jurisdiction obtained by any Lender, any Issuing Bank against that Defaulting Lender as a result of that Defaulting
Lender’s breach of its obligations under this Agreement; seventh, to the payment of any amounts owing to the
Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting
Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to
that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such
payment is a payment of the principal amount of any Loans or LC Obligations in respect of which that Defaulting Lender has
not fully funded its appropriate share and (y) such Loans or LC Obligations were made at a time when the conditions set
forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the
Pre-Petition Obligations and the Loans of, and LC Obligations owed to, all non-Defaulting Lenders on a Pro Rata basis prior
to being applied to the payment of any Loans of, or LC Obligations owed to, that Defaulting Lender. Any payments, prepayments
or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender
or to post Cash Collateral pursuant to this Section 2.18(b) shall be deemed paid to and redirected by that
Defaulting Lender, and each Lender irrevocably consents hereto. A Lender shall not be entitled to receive any fees accruing
hereunder during the period in which it is a Defaulting Lender, and the unfunded portion of its Revolver Commitment shall be
disregarded for purposes of calculating the Unused Line Fee Rate under Section 2.09(b). To the extent any
LC Obligations owing to a Defaulting Lender are reallocated to other Lenders, Letter of Credit fees attributable to such LC
Obligations under Section 2.09(c) shall be paid to such other Lenders. The Administrative Agent shall be
paid all Letter of Credit fees attributable to LC Obligations that are not so reallocated.


 


(c)              
Cure. The Borrower, the Administrative Agent and the Issuing Bank may agree in writing that a Lender is no longer
a Defaulting Lender. At such time, Pro Rata shares shall be reallocated without exclusion of such Lender’s Revolver Commitments
and Loans, and all outstanding Loans, LC Obligations and other exposures under the Revolver Commitments shall be reallocated among
the Lenders and settled by the Administrative Agent (with appropriate payments by the reinstated Lender) in accordance with the
readjusted Pro Rata shares. Unless expressly agreed in writing by the Borrower, the Administrative Agent and the Issuing Bank (each
of which shall make such determination, in its sole discretion), no reinstatement of a Defaulting Lender shall constitute a waiver
or release of claims against such Lender. The failure of any Lender to fund a Loan, to make a payment in respect of LC Obligations
or otherwise to perform its obligations hereunder shall not relieve any other Lender of its obligations, and no Lender shall be
responsible for default by another Lender. No reallocation hereunder shall constitute a wavier or release of any claim of any party
hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting
Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.


 






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Section 2.19        Overadvances.
If the aggregate Loans and LC Obligations outstanding exceed the Line Cap (an “Overadvance”) at any
time, the excess amount shall be payable by the Borrower on demand by the Administrative Agent, but all such Loans shall
nevertheless constitute Secured Obligations secured by the Collateral and entitled to all benefits of the Loan Documents. The
Administrative Agent may require the Lenders to honor requests for Overadvance Loans and to forbear from requiring the
Borrower to cure an Overadvance, (a) when no other Event of Default is known to the Administrative Agent, as long as
(i) the Overadvance does not continue for more than 30 consecutive days (and no Overadvance may exist for at least five
consecutive days thereafter before further Overadvance Loans are required from the Lenders), and (ii) the aggregate
amount of all Overadvances and Protective Advances does not exceed 5% of the Borrowing Base and (b) regardless of
whether an Event of Default exists, if the Administrative Agent discovers an Overadvance not previously known by it to exist,
as long as from the date of such discovery the Overadvance (i) is not increased by more than $500,000, and
(ii) does not continue for more than 30 consecutive days. In no event shall Overadvance Loans be required that would
cause the aggregate outstanding Loans and LC Obligations to exceed the aggregate Revolver Commitments. The making of any
Overadvance shall not create nor constitute a Default or Event of Default; it being understood that the making or continuance
of an Overadvance shall not constitute a waiver by the Administrative Agent or the Lenders of the then existing Event of
Default. In no event shall the Borrower or other Loan Party be permitted to require any Overadvance Loan to be
made.


 


Section 2.20       
Protective Advances. The Administrative Agent shall be authorized, in its
discretion, following notice to and consultation with the Borrower, at any time, to make CBFR Loans (“Protective Advances”)
(a) in an aggregate amount, together with the aggregate amount of all Overadvance Loans, not to exceed 5% of the Borrowing
Base, if the Administrative Agent deems such Protective Advances necessary or desirable to preserve and protect the Collateral,
or to enhance the collectability or repayment of the Obligations; or (b) to pay any other amounts chargeable to Loan Parties
under any Loan Documents, including costs, fees and expenses; provided that, the aggregate amount of outstanding Protective
Advances plus the outstanding amount of Loans and LC Obligations shall not exceed the aggregate Revolver Commitments.
Each Lender shall participate in each Protective Advance on a Pro Rata basis. Required Lenders may at any time revoke the Administrative
Agent’s authority to make further Protective Advances under clause (a) by written notice to the Administrative
Agent. Absent such revocation, the Administrative Agent’s determination that funding of a Protective Advance is appropriate
shall be conclusive. The Administrative Agent may use the proceeds of such Protective Advances to (a) protect, insure, maintain
or realize upon any Collateral; or (b) defend or maintain the validity or priority of the Administrative Agent’s Liens
in any Collateral, including any payment of a judgment, insurance premium, warehouse charge, finishing or processing charge, or
landlord claim, or any discharge of a Lien; provided that the Administrative Agent shall use reasonable efforts to notify
the Borrower after paying any such amount or taking any such action and shall not make payment of any item that is being properly
contested.


 


ARTICLE III


 


Representations
and Warranties


 


Each of Holdings (solely
to the extent applicable to it) and each other Loan Party represents and warrants to the Administrative Agent and each of the Lenders
that:


 


Section 3.01        Organization;
Powers. Subject to any restriction arising on account of each Loan Party’s status
as a “debtor” under the Bankruptcy Code and any required approvals of the Court, each of Holdings, the Borrower
and each of the Subsidiaries (a) is a limited partnership, limited liability company or corporation duly organized,
validly existing and in good standing (or, if applicable in a foreign jurisdiction, enjoys the equivalent status under the
laws of any jurisdiction of organization outside the United States) under the laws of the jurisdiction of its organization,
(b) has all requisite power and authority to own its property and assets and to carry on its business as now conducted,
(c) is qualified to do business and in good standing in each jurisdiction where such qualification is required; except
in each case referred to in this Section 3.01 (other than in clause (a) and clause
(b), respectively, with respect to the Borrower), to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.


 






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Section 3.02       
Authorization. Subject to the entry of the Order, the execution, delivery
and performance by Holdings, the Borrower and each of the Subsidiary Guarantors of each of the Loan Documents to which it is a
party, and the borrowings hereunder, the transactions forming a part of the Transactions and the payment of the Transaction Costs
(a) have been duly authorized by all corporate, stockholder, limited partnership or limited liability company action required
to be obtained by Holdings, the Borrower and such Subsidiary Guarantors and (b) other than violations arising as a result of the
commencement of, or otherwise related to, Chapter 11 Cases or where enforcement is stayed as upon commencement of the Chapter 11
Cases or as otherwise excused by the Court, will not (i) violate (A) any provision of (x) law, statute, rule or
regulation applicable to such party, or (y) of the certificate or articles of incorporation or other constitutive documents
or by-laws of Holdings, the Borrower or any such Subsidiary Guarantor, (B) any applicable order of any court or any rule,
regulation or order of any Governmental Authority or (C) any provision of any indenture, certificate of designation for preferred
stock, agreement or other instrument to which Holdings, the Borrower or any such Subsidiary Guarantor is a party or by which any
of them or any of their property is or may be bound, (ii) be in conflict with, result in a breach of or constitute (alone
or with notice or lapse of time or both) a default under, give rise to a right of or result in any cancellation or acceleration
of any right or obligation (including any payment) or to a loss of a material benefit under any such indenture, certificate of
designation for preferred stock, agreement or other instrument, where any such conflict, violation, breach or default referred
to in clause (b)(i)(A)(x), (b)(i)(B), (b)(i)(C) or (b)(ii) of this
Section 3.02, could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,
or (iii) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter
acquired by Holdings, the Borrower or any such Subsidiary Guarantor, other than the Liens created by the Loan Documents, Liens
permitted by Section 6.02 hereof and Liens in respect of Pre-Petition Obligations granted accordance with the
terms of Pre-Petition Credit Agreement, including the Pre-Petition Loan Documents.


 


Section 3.03       
Enforceability. Subject to the entry of the Order, this Agreement has been
duly executed and delivered by Holdings and the Borrower and constitutes, and each other Loan Document when executed and delivered
by each Loan Party that is party thereto will constitute, a legal, valid and binding obligation of such Loan Party enforceable
against each such Loan Party in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, moratorium,
reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) general principles
of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied
covenants of good faith and fair dealing.


 


Section 3.04        Governmental
Approvals. Other than violations arising as a result of the commencement of, or otherwise
related to, the Chapter 11 Cases or where enforcement is stayed as upon commencement of the Chapter 11 Cases or as otherwise
excused by the Court, no action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection
with the Transactions and the payment of the Transaction Costs, except for (a) the filing of Uniform Commercial Code financing
statements, (b) filings with the United States Patent and Trademark Office and the United States Copyright Office and comparable
offices in foreign jurisdictions and equivalent filings in foreign jurisdictions, (c) recordation of the Mortgages, (d) such
as have been made or obtained and are in full force and effect and (e) such actions, consents, approvals, registrations or
filings the failure to be obtained or made which could not reasonably be expected to have a Material Adverse Effect.


 






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Section 3.05       
Financial Condition.


 


(a)              
All financial statements of the Loan Parties that have been or may hereafter be delivered by any Loan Party to the Administrative
Agent and/or the Lenders present fairly, in all material respects, the consolidated financial condition and results of operations
and cash flows of the Borrower and its Subsidiaries as of the date(s) and for the period(s) thereof in accordance with GAAP.


 


(b)              
No Loan Party or any Subsidiary has on the date hereof any material Debt or any material contingent liabilities, off-balance
sheet liabilities or liabilities for Taxes, except as referred to or reflected or provided for in the Approved Budget, the “first
day” orders or the financial statements of the Loan Parties or their Subsidiaries previously delivered to the Lenders.


 


Section 3.06       
No Material Adverse Effect. Since the Petition Date, no event, development,
circumstance or change has occurred that has or would reasonably be expected to have a Material Adverse Effect.


 


Section 3.07       
Properties.


 


(a)              
As of the date of this Agreement, Schedule 3.07 sets forth the address of each parcel of real property that
is owned by any Loan Party and each material parcel of real property that is leased by any Loan Party (collectively, the “Real
Property”). To the knowledge of the Loan Parties, (i) each of such leases and subleases is valid and enforceable
in accordance with its terms and is in full force and effect, (ii) each Loan Party has paid all of its material monetary obligations
(to the extent arising after the Petition Date) with respect to each of its leases and subleases, and (iii) there are no other
material defaults with respect to obligations arising after the Petition Date with respect to any of such leases or subleases,
subject to any applicable cure periods, other than defaults arising solely as a result of, or as otherwise related to, the commencement
of the Chapter 11 Cases and others disclosed to the Administrative Agent on or prior to the Petition Date, provided that the representation
set forth in this sentence shall not apply to where such representation would not be true solely as a result of the commencement
of the Chapter 11 Cases. Each of the Loan Parties and each of its Subsidiaries has good and indefeasible title to, or valid leasehold
interests in, all of its material real and personal property, free of all Liens other than those permitted by Section 6.02.


 


(b)               Each
Loan Party and each Subsidiary owns, or is licensed to use, all material trademarks, tradenames, copyrights, patents and
other Intellectual Property necessary to its business as currently conducted. A correct and complete list of such Trademarks,
Copyrights, Patents, Licenses and other Intellectual Property, as of the date of this Agreement, is set forth on Schedule
3.07. To the knowledge of the Loan Parties or any Subsidiary, the use of such Trademarks, Copyrights, Patents,
Licenses and other Intellectual Property by each Loan Party and each Subsidiary does not infringe in any material respect
upon the rights of any other Person, and each Loan Party’s and each Subsidiary’s rights thereto are not subject
to any licensing agreement or similar arrangement except as set forth on Schedule 3.07.


 






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Section 3.08       
Capitalization and Subsidiaries. Schedule 3.08 sets forth as
of the Closing Date (a) a correct and complete list of the name and relationship to Holdings of each and all of Holding’s
Subsidiaries, (b) a true and complete listing of each class of the authorized Equity Interests of all Loan Parties, all of which
issued Equity Interests are validly issued, outstanding, fully paid and non-assessable, and, other than with respect to Holdings,
owned beneficially and of record by the Persons identified on Schedule 3.08, and (c) the type of entity of each Loan Party. All
of the issued and outstanding Equity Interests owned by any Loan Party have been (to the extent such concepts are relevant with
respect to such ownership interests) duly authorized and issued and are fully paid and non-assessable. There are no outstanding
commitments or other obligations of any Loan Party to issue, and no options, warrants or other rights of any Person to acquire,
any shares of any class of capital stock or other equity interests of such Loan Party. Holdings has no Foreign Subsidiaries.


 


Section 3.09       
Litigation; Compliance with Laws.


 


(a)              
Except the Chapter 11 Cases, there are no actions, suits, investigations or proceedings at law or in equity or by or on
behalf of any Governmental Authority or in arbitration now pending against, or to the knowledge of Holdings or the Borrower threatened
in writing against, Holdings or the Borrower or any of the Subsidiaries or any business, property or rights of any such Person
(i) that involve any Loan Document, the Transactions or the payment of the Transaction Costs or (ii) that would reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect.


 


(b)              
None of Holdings, the Borrower, the Subsidiaries or their respective properties or assets is in violation of any law, rule
or regulation (including any zoning, building, ordinance, code or approval or any building permit, but excluding any Environmental
Laws that are the subject of Section 3.16) or any restriction of record or agreement affecting any owned Real
Property or is in default with respect to any judgment, writ, injunction or decree of any Governmental Authority, where such violation
or default could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect unless non-compliance
therewith is permitted by any applicable Governmental Authority (including any order of the Court) or as a result of the commencement
of the Chapter 11 Cases.


 


Section 3.10       
Investment Company Act. None of Holdings, the Borrower or any Subsidiary is
an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.


 


Section 3.11       
Use of Proceeds. The proceeds of the Loans have been used and will be used,
whether directly or indirectly, as set forth in Section 5.13.


 






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Section 3.12       
Federal Reserve Regulations.


 





(a)              
None of Holdings, the Borrower or any Subsidiary is engaged principally, or as one of its important activities, in the business
of extending credit for the purpose of purchasing or carrying Margin Stock.


 


(b)              
No part of the proceeds of any Loan will be used, whether directly or indirectly, and whether immediately, incidentally
or ultimately, (i) to purchase or carry Margin Stock or to extend credit to others for the purpose of purchasing or carrying
Margin Stock or to refund indebtedness originally incurred for such purpose, or (ii) for any purpose that entails a violation
of, or that is inconsistent with, the provisions of the Regulations of the Board, including Regulation U or Regulation X.


 


Section 3.13       
Tax.


 


(a)              
Each of Holdings, the Borrower and its Subsidiaries has filed or caused to be filed all U.S. federal, state, local
and non-U.S. Tax returns required to have been filed by it that are material to such companies, taken as a whole, and each
such Tax return is true and correct in all material respects;


 


(b)              
Each of Holdings, the Borrower and its Subsidiaries has timely paid or caused to be timely paid all Taxes shown to be due
and payable by it on the returns referred to in clause (a) and all other material Taxes or assessments (except
Taxes for which payment is stayed or excused under the Bankruptcy Code or assessments that are being contested in good faith by
appropriate proceedings in accordance with Section 5.03 and for which Holdings, the Borrower or any of its Subsidiaries
(as the case may be) has set aside on its books adequate reserves (in accordance with GAAP); and


 


(c)              
With respect to each of Holdings, the Borrower and its Subsidiaries, no tax lien has been filed, and, to the knowledge of
the Borrower and its Subsidiaries, no claim is being asserted, with respect to any such Taxes.


 


Section 3.14       
Disclosure.


 


(a)              
The Loan Parties have disclosed to the Lenders all material agreements, instruments and corporate or other restrictions
to which any Loan Party or any Subsidiary is subject, and all other matters known to it, that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect. Neither the Perfection Certificate nor any of the other reports,
financial statements, certificates or other information furnished by or on behalf of any Loan Party or any Subsidiary to the Administrative
Agent or any Lender in connection with the negotiation of this Agreement or any other Loan Document (as modified or supplemented
by other information so furnished) 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 misleading; provided that, with
respect to projected financial information, the Loan Parties represent only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time delivered and, if such projected financial information was delivered prior
to the Closing Date, as of the Closing Date.


 


(b)               As
of the Closing Date, to the best knowledge of the Borrower, the information included in the Beneficial Ownership
Certification provided on or prior to the Closing Date to any Lender in connection with this Agreement is true and correct in
all material respects.


 






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Section 3.15       
Employee Benefit Plans.


 


(a)              
Except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect: (i) each
Loan Party and each ERISA Affiliate is in compliance with the applicable provisions of ERISA and the provisions of the Code relating
to Plans and the regulations and published interpretations thereunder; and (ii) no ERISA Event has occurred or is reasonably
expected to occur; the present value of all accumulated benefit obligations under each Plan (based on those assumptions used for
purposes of Accounting Standards Codification No. 715: Compensation Retirement Benefits) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market value of the assets of such Plan allocable to such
accrued benefits and the present value of all accrued benefit obligations of all underfunded Plans did not, as of the date of the
most recent financial statements reflecting such amounts, exceed the value of the assets of all such underfunded Plans.


 


(b)              
Except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, no Foreign
Plan Event has occurred.


 


Section 3.16       
Environmental Matters. Except as to matters that could not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect: (i) no written notice of violation, request for information,
order, complaint or assertion of penalty has been received by the Borrower or any of the Subsidiaries, and there are no judicial,
administrative or other actions, suits or proceedings pending or, to the knowledge of the Borrower, threatened which allege a violation
of or liability under any Environmental Laws or concerning Hazardous Materials, in each case relating to the Borrower or any of
the Subsidiaries, (ii) the Borrower and the Subsidiaries has all permits necessary for its operations to comply with all applicable
Environmental Laws and is, and during the term of all applicable statutes of limitation, has been, in compliance with the terms
of such permits and with all other applicable Environmental Laws, (iii) no Hazardous Material is located at any property currently
or formerly owned, operated or leased by the Borrower or any of the Subsidiaries in quantities or concentrations that would reasonably
be expected to give rise to any liability or obligation of the Borrower or any of the Subsidiaries under any Environmental Laws,
and no Hazardous Material has been generated by or on behalf of the Borrower or any of the Subsidiaries that has been transported
to or Released at or from any location in a manner that would reasonably be expected to give rise to any liability or obligation
of the Borrower or any of the Subsidiaries, and (iv) there is no agreement to which the Borrower or any of the Subsidiaries
is a party in which the Borrower or any of the Subsidiaries has assumed or undertaken, or retained, responsibility for any known
or reasonably likely liability or obligation arising under or relating to Environmental Laws.


 


Section 3.17       
Security Documents. Subject to the entry of the Interim Order, this
Agreement is effective to create in favor of the Administrative Agent (for the benefit of the Secured Parties) a legal, valid and
enforceable security interest in the Collateral described herein and proceeds thereof.


 


Section 3.18        Affiliate
Transactions. Except as permitted by Section 6.07, there are no existing
agreements, arrangements or transactions between any Loan Party and any of its Affiliates (other than the Borrower or any of
its Subsidiaries).


 






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Section 3.19       
Labor Matters. Except as, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes pending or, to the knowledge
of Holdings or the Borrower, threatened in writing against the Borrower or any of the Subsidiaries; (b) the hours worked and
payments made to employees of the Borrower and the Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other Applicable Law dealing with such matters; (c) all Persons treated as contractors by the Borrower and the Subsidiaries
are properly categorized as such, and not as employees, under Applicable Law; and (d) all payments due from the Borrower or
any of the Subsidiaries or for which any claim may be made against the Borrower or any of the Subsidiaries, 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 Borrower
or such Subsidiary to the extent required by GAAP. Except as, individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect the consummation of the Transactions and the payment of the Transaction Costs will not give rise
to a right of termination or right of renegotiation on the part of any union under any material collective bargaining agreement
to which the Borrower or any of its Subsidiaries (or any predecessor) is a party or by which Holdings, the Borrower or any of its
Subsidiaries (or any predecessor) is bound.


 


Section 3.20       
Insurance. Schedule 3.20 sets forth a true, complete and
correct description of all material insurance maintained by or on behalf of Holdings, the Borrower or the Subsidiaries as of the
Closing Date. Except as, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect,
as of such date, such insurance is in full force and effect.


 


Section 3.21       
USA PATRIOT Act and OFAC.


 


(a)              
To the extent applicable, each Loan Party is in compliance, in all material respects, with the (i) Trading with the
Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle
B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, and (ii) USA PATRIOT
Act. To the knowledge of the Borrower, no part of the proceeds of the Loans will be used, directly or indirectly, for any payments
to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone
else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation
of the United States Foreign Corrupt Practices Act of 1977, as amended.


 


(b)              
At all times following the date of implementation thereof required by Section 5.11, the Borrower has
implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and
their respective directors, officers, employees and agents with Anti-Corruption Laws and Sanctions, and the Borrower, its Subsidiaries
and their respective officers and employees.


 


(c)              
To the knowledge of the Borrower, its directors and agents are in compliance with Anti-Corruption Laws and Sanctions in
all material respects.


 






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(d)              
None of (i) the Borrower, any Subsidiary or any of their respective directors, officers or employees, or (ii) to
the knowledge of the Borrower, any agent of the 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.


 


(e)              
No Borrowing or Letter of Credit, use of proceeds by the Borrower or other transaction contemplated by this Agreement will
violate Anti-Corruption Laws or Sanctions.


 


Section 3.22       
EEA Financial Institution. No Loan Party is an EEA Financial Institution.


 


Section 3.23       
Plan Assets. None of the Borrower or any of its Subsidiaries is an entity deemed to hold “plan assets”
(within the meaning of the Plan Asset Regulations).


 


Section 3.24       
Accounts. As of the Closing Date, all of each Loan Party’s Deposit Accounts, Securities Accounts and
Commodities Accounts (other than Excluded Accounts) are listed on Schedule 5.12, including the name of the institution
where such account is maintained, the account number and description of account.


 


Section 3.25       
Approved Budget. The initial Approved Budget, attached hereto as Annex A, which was delivered to the Administrative
Agent on or prior to the Closing Date, and the then-applicable Approved Budget, was prepared in good faith upon assumptions the
Borrower believed to be reasonable assumptions on the date of delivery of the then-applicable Approved Budget or update thereto.
To the knowledge of the Borrower, no facts exist that (individually or in the aggregate) would result in any material change in
the then-applicable Approved Budget.


 


Section 3.26       
Material Agreements. All Material Agreements to which any Loan Party or any Subsidiary is a party or is bound
as of the date of this Agreement are listed on Schedule 3.26. Except for any defaults or events of default arising solely as a
result of the commencement of the Chapter 11 Cases, any defaults or events of default arising under the Pre-Petition Credit Agreement
to the extent the Pre-Petition Obligations have not been converted to the Obligations in accordance with this Agreement, no Loan
Party nor any Subsidiary is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions
contained in (i) any Material Agreement to which it is a party or (ii) any agreement or instrument evidencing or governing any
Material Indebtedness, in each case, as could not reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect.


 


Section 3.27       
Chapter 11 Cases. 


 


(a)              
The Chapter 11 Cases were commenced on the Petition Date in accordance with Applicable Law and proper notice thereof was
given for (i) the motion seeking approval of the Loan Documents and the Interim Order and Final Order, (ii) the hearing for the
entry of the Interim Order, and (iii) the hearing for the entry of the Final Order.


 


(b)               After
the entry of the Interim Order, and pursuant to and to the extent permitted in the Interim Order and the Final Order, the
Obligations will constitute allowed administrative expense claims in the Chapter 11 Cases having priority over all
administrative expense claims and unsecured claims against the Loan Parties 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 Interim Order or
Final Order, as applicable.


 






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(c)              
After the entry of the Interim Order and pursuant to and to the extent provided in the Interim Order and 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 permitted pursuant to Section 6.02(q) and (iii) to the extent set forth in the Interim
Order or the Final Order.


 


(d)              
The Interim Order (with respect to the period on and after entry of the Interim Order and prior to entry of the Final Order)
or the Final Order (with respect to the period on and after entry of the Final Order), as the case may be, 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 applicable Order.


 


(e)              
Notwithstanding the provisions of Section 362 of the Bankruptcy Code, and subject to the applicable provisions of the Interim
Order or the Final Order, as the case may be, upon the Termination Date (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 and to enforce
the remedies provided for hereunder or under Applicable Law, without further notice, motion or application to, hearing before,
or order from, the Court.


 


ARTICLE IV



Conditions of Lending


 


The Administrative
Agent, the Issuing Bank and the Lenders shall not be required to fund any Loans, or arrange for the issuance of any Letters of
Credit on the Closing Date, until the following conditions are satisfied or waived:


 


Section 4.01       
Closing Date. On the Closing Date:


 


(a)              
The Administrative Agent shall have received a Borrowing Request as required by Section 2.03 (or a Borrowing
Request shall have been deemed given in accordance with the last paragraph of Section 2.03).


 


(b)              
The representations and warranties set forth in Article III hereof shall be true and correct in all material
respects as of such date, with the same effect as though made on and as of such date, except to the extent such representations
and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct
in all material respects as of such earlier date).


 


(c)              
At the time of and immediately after giving effect to the Closing Date and upon the making of any Loans, no Event of Default
or Default shall have occurred and be continuing.


 






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(d)              
The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include
fax or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of
this Agreement.


 


(e)              
Operating Account. The Administrative Agent shall receive a notice setting forth the Borrower’s deposit account
(the “Operating Account”) to which the Lenders are authorized by the Borrower to disburse the proceeds
of any Borrowings requested or authorized pursuant to this Agreement.


 


(f)               
The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i),
(ii), (iii) and (iv) below:


 


(i)                
a copy of the certificate or articles of incorporation, certificate of limited partnership or certificate of formation,
including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State (or other similar
official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such concept or a similar
concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or
other similar official);


 


(ii)             
a certificate of the secretary or assistant secretary or similar officer of each Loan Party dated the Closing Date and certifying:


 


(A)            
that attached thereto is a true and complete copy of the by-laws (or limited partnership agreement, limited liability company
agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing Date,


 


(B)             
that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing
body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance
of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such
resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,


 


(C)             
that the certificate or articles of incorporation, certificate of limited partnership or certificate of formation of such
Loan Party has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i)
above,


 


(D)            
as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered
in connection herewith on behalf of such Loan Party,


 


(E)             
as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party;


 


(iii)           
a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or
similar officer executing the certificate pursuant to clause (ii) above; and


 






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(iv)            
a certificate of a Responsible Officer of Holdings or the Borrower certifying that as of the Closing Date (x) all the representations
and warranties described in Section 4.01(b) are true and correct to the extent set forth therein and (y) that
as of the Closing Date, no Default or Event of Default has occurred and is continuing or would result from any Borrowing to occur
on the date hereof or the application of the proceeds thereof.


 


(g)              
(i) the Administrative Agent shall have received a duly completed and executed Perfection Certificate, together with
all attachments contemplated thereby, (ii) the Administrative Agent shall have received the results of a search of the Uniform
Commercial Code (or equivalent) filings made with respect to the Loan Parties and copies of the financing statements (or similar
documents) disclosed by such search, (iii) the Administrative Agent shall have received evidence reasonably satisfactory to
the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are either permitted by Section 6.02
or have been released (or authorized for release in a manner reasonably satisfactory to the Administrative Agent); and (iv) each
document (including any Uniform Commercial Code financing statement) required by the Security Documents or under law or reasonably
requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent,
for the benefit of itself, the Lenders and the other Secured Parties, a perfected Lien on the Collateral described therein, prior
and superior in right to any other Person (other than with respect to Liens expressly permitted by Section 6.02), shall be in proper
form for filing, registration or recordation.


 


(h)              
Financial Statements and Projections. The Lenders shall have received (i) unaudited interim consolidated financial
statements of Holdings and its Subsidiaries for the fiscal quarter ended December 31, 2019, and such financial statements shall
not, in the reasonable judgment of the Administrative Agent, reflect any material adverse change in the consolidated financial
condition of Holdings and its Subsidiaries, as reflected in the most recent annual financial statements of Holdings delivered to
the Administrative Agent, other than those events or circumstances customarily resulting from the commencement of the Chapter 11
Cases and (ii) satisfactory Projections (including Borrowing Base and Availability forecasts) and Holding’s initial Approved
Budget and monthly DIP forecast, in each case of this clause (ii) other than with respect to the 13-week Approved Budget, from
the Petition Date through the Termination Date, all in form and substance satisfactory to Administrative Agent.


 


(i)                
Closing Availability. After giving effect to all Borrowings to be made on the Closing Date, the issuance of any Letters
of Credit on the Closing Date and the payment of all fees and expenses due hereunder, and except to the extent otherwise contemplated
by the Orders, with all of the Loan Parties’ indebtedness, liabilities, and obligations current so long as permitted to be
paid in accordance with the Approved Budget, the Availability shall not be less than $20,000,000.


 


(j)                 The
Administrative Agent shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to
the extent invoiced at least 3 Business Days prior to the Closing Date, all other amounts due and payable pursuant to the
Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable
and documented (in summary format) out-of-pocket expenses (including reasonable and documented fees, charges and
disbursements of Vinson & Elkins L.L.P. and Agent’s Advisor) required to be reimbursed or paid by the Loan Parties
hereunder or under any other Loan Document.


 






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(k)              
No Material Adverse Effect.


 


(i)                
Since the Petition Date, other than those events or circumstances arising from the commencement of the Chapter 11 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.


 


(ii)             
Except for actions, suits, investigations, proceedings, claims or disputes stayed by Section 362 of the Bankruptcy Code,
no orders, injunctions or pending litigation exists which could reasonably be expected to have a Material Adverse Effect or which
challenges this Agreement, the Loan Documents or the credit facilities contemplated hereunder.


 


(iii)           
Since the Petition Date, there has been no material increase in the liabilities, liquidated or contingent, of the Borrower
and the Subsidiary Guarantors taken as a whole, or material decrease in the assets of the Borrower, the Subsidiary Guarantors taken
as a whole.


 


(iv)            
Other than those resulting from the commencement of the Chapter 11 Cases, since the Petition Date there shall have been
no adverse change in the ability of the Administrative Agent and the Lenders to enforce the Loan Documents and the Obligations
of the Borrower and the Subsidiary Guarantors hereunder.


 


(l)                
To the extent requested by the Administrative Agent not less than ten (10) days prior to the Closing Date, the
Administrative Agent shall have received, at least five (5) days prior to the Closing Date, all documentation and other information
required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations,
including without limitation the USA PATRIOT Act and the Beneficial Ownership Regulation.


 


(m)            
[reserved].


 


(n)              
The Administrative Agent shall have received a Borrowing Base Certificate which calculates the Borrowing Base as of May
23, 2020 on a pro forma basis and giving effect to the transactions contemplated hereby.


 


(o)              
The Administrative Agent (or its counsel) shall have received from each party thereto either (i) a counterpart of the
Fee Letter signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include
fax or other electronic transmission (including a “.pdf” electronic version) of a signed signature page of this Agreement)
that such party has signed a counterpart of the Fee Letter.


 


(p)               The
Borrower and its Subsidiaries shall have cash on the Borrower’s consolidated balance sheet as of the Petition Date of
no greater than $5,000,000; provided that, as of the Closing Date, such amount shall be subject to the cash management and
dominion provisions set forth in Section 5.12 and applied to the Pre-Petition Obligations as provided in Section 2.07(a).


 






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(q)              
Security Interest. Subject to the Interim Order, the Administrative Agent shall be satisfied that the Loan Documents
and the Interim Order shall be effective to create in favor of the Administrative Agent a legal, valid, first priority, perfected
and enforceable security interest and Lien upon the Collateral, with the priority set forth in the Interim Order and the terms
thereof.


 


(r)               
Approved Budget. Administrative Agent shall have received the Approved Budget.


 


(s)               
Insolvency Matters – Chapter 11 Cases. (i) The Court shall have entered an Interim Order by no later than three
(3) days after the Petition Date; (ii) the Administrative Agent shall have received drafts of the “first day” pleadings
for the Chapter 11 Cases, in each case, in form and substance satisfactory to the Administrative Agent not later than a reasonable
time in advance of the Petition Date for Administrative Agent’s counsel to review and analyze the same; and (iii) 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 have approved and entered all “first day” orders, including, without limitation, the Cash Management Order.


 


(t)                
Appointment of Liquidation Agent. The Borrower shall have appointed the Specified Liquidation Agent upon terms and
conditions acceptable to the Administrative Agent.


 


(u)              
Other Documents. The Administrative Agent shall have received such other customary documents as the Administrative
Agent or its counsel may have reasonably requested prior to the Closing Date.


 


Each Agent and each
Lender, by delivering its signature page to this Agreement and funding a Loan on the Closing Date shall be deemed to have acknowledged
receipt of and consented to and approved each Loan Document and each other document required to be approved by any Agent or Lender,
as applicable, on the Closing Date.


 


Section 4.02       
Conditions Precedent to All Credit Extensions. On the date of each Borrowing
and on the date of each issuance, amendment, extension or renewal of a Letter of Credit:


 


(a)              
the Borrower shall have delivered to the Administrative Agent a customary Borrowing Request, or LC Request as the case may
be certifying as to, among other things, that (i) the Loans will be utilized in accordance with the Approved Budget (as updated
from time to time pursuant to any Budget Compliance Report), (ii) the principal amount of the requested Loans (together with the
outstanding principal amount of all outstanding Loans) does not exceed the Approved Budget (as updated from time to time pursuant
to any Budget Compliance Report), (iii) the Borrower shall apply the proceeds of the Loans only to expenses set forth in the Approved
Budget, and (iv) after giving effect to the requested Borrowing, the total Loans and LC Obligations shall not exceed the Line Cap;


 






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(b)              
Availability on the proposed date of such Borrowing shall be equal to or greater than the amount of such proposed Borrowing
or issuance of Letters of Credit;


 


(c)              
At the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of
such Letter of Credit, as applicable, and the application of the proceeds thereof, (i) no Default or Event of Default shall have
occurred and be continuing (except for (x) any defaults or events of default arising solely as a result of the commencement of
the Chapter 11 Cases and (y) to the extent the Pre-Petition Obligations have not been converted to the Obligations in accordance
with this Agreement, any defaults or events of default under the Pre-Petition Credit Agreement) and (ii) no Protective Advance
shall be outstanding;


 


(d)              
the representations and warranties of each Loan Party set forth in Article III of this Agreement or in
any other Loan Document shall be true and correct in all material respects (without duplication of any materiality qualifier contained
therein) on the date of, and upon giving effect to, such funding or issuance (except for representations and warranties that expressly
relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects
as such earlier date);


 


(e)              
with respect to the issuance of any Letter of Credit, the LC Conditions shall be satisfied;


 


(f)               
(i) The Final Order and the Cash Management Order, in each case, shall have been entered in form and substance acceptable
to the Administrative Agent following the expiration of the Interim Order; (ii) the Interim Order or the Final Order, as applicable,
shall not have been vacated, stayed, reversed, modified, or amended without the Administrative Agent’s consent and shall
otherwise be in full force and effect; and (iii) no motion for reconsideration of the Interim Order or the Final Order, as applicable,
shall have been timely filed by a Loan Party of any of their Subsidiaries; and


 


(g)              
The Borrower shall have paid the balance of all fees and expenses then due and payable under this Agreement.


 


Each request by the Borrower for funding
of a Loan, or issuance of a Letter of Credit (other than the Existing Letters of Credit) shall constitute a representation by the
Borrower that the conditions in clauses (b) through (g) above are satisfied on the date of such
request and on the date of such funding or issuance.


 


ARTICLE V



Affirmative Covenants


 


Each of Parent (solely
as to Sections 5.01, 5.05 and 5.09 as applicable to it) and the Borrower covenants
and agrees with each Lender that so long as any Revolver Commitments or Obligations (other than (i) contingent obligations
as to which no claim or demand for payment has been made, or in the case of indemnification obligations, no notice has been given,
and (ii) Obligations that have been Cash Collateralized, as applicable) are outstanding, the Borrower (and Holdings solely
to the extent applicable to it) will, and the Borrower will cause each of the Subsidiaries to:


 






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Section 5.01       
Existence; Conduct of Business.


 


(a)              
Do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence, except
where the failure to do so would not reasonably be expected to have a Material Adverse Effect, and (b) except to the extent the
failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the rights,
qualifications, permits, franchises, governmental authorizations, Intellectual Property rights, Licenses and permits with respect
to the conduct of its business, and maintain all requisite authority to conduct its business in each jurisdiction in which its
business is conducted; provided that the foregoing provisions shall not prohibit any merger, amalgamation, consolidation, liquidation
or dissolution permitted under Section 6.05.


 


(b)              
Except where the failure to do so would not reasonably be expected to have a Material Adverse Effect, do or cause to be
done all things necessary to (i) lawfully obtain, preserve, renew, extend and keep in full force and effect the permits, franchises,
authorizations, patents, trademarks, service marks, trade names, copyrights, licenses and rights with respect thereto reasonably
necessary to the normal conduct of the business of the Borrower and the Subsidiaries and (ii) at all times maintain and preserve
all property reasonably necessary to the normal conduct of the business of the Borrower and the Subsidiaries and keep such property
in satisfactory repair, working order and condition and from time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto in accordance with prudent industry practice (in each case except as
expressly permitted by this Agreement).


 


Section 5.02        Insurance.
Maintain with financially sound and reputable carriers having a financial strength rating of at least A- by A.M. Best
Company insurance in such amounts (with no greater risk retention) and against such risks (including, without limitation:
loss or damage by fire and loss in transit; theft, burglary, pilferage, larceny, embezzlement, and other criminal activities;
business interruption; and general liability) and such other hazards, as is customarily maintained by companies of
established repute engaged in the same or similar businesses operating in the same or similar locations. Upon the
effectiveness of the Qualifying DIP RE Facility, in the event any Real Property constituting Collateral hereunder is located
in any area that has been designated by the Federal Emergency Management Agency as a “Special Flood Hazard Area”,
such Loan Party shall purchase and maintain flood insurance on such Real Property constituting Collateral hereunder
(including any personal property which is located on such Real Property). The minimum amount of flood insurance required by
this Section shall be in an amount equal to the total replacement cost value of the improvements. All insurance policies
required hereunder shall name the Administrative Agent (for the benefit of the Administrative Agent and the Lenders) as an
additional insured or as lender loss payee, as applicable, and shall contain lender loss payable clauses or mortgagee
clauses, through endorsements in form and substance satisfactory to the Administrative Agent, which provide that: (a) all
proceeds thereunder with respect to any Collateral shall be payable to the Administrative Agent (provided that the
Administrative Agent’s application of such proceeds shall be subject to the Intercreditor Agreement upon the
effectiveness thereof and the applicable Orders); (b) no such insurance shall be affected by any act or neglect of the
insured or owner of the property described in such policy; and (c) such policy and lender loss payable or mortgagee clauses
may be canceled, amended, or terminated only upon at least thirty (30) days (ten (10) days in the case of failure to pay
premiums) prior written notice given to the Administrative Agent. All premiums on any such insurance shall be paid when due
by such Loan Party, and copies of the policies delivered to the Administrative Agent upon Administrative Agent’s
request therefor. If such Loan Party fails to obtain any insurance as required by this Section, the Administrative Agent may
obtain such insurance at the Borrower’s expense. By purchasing such insurance, the Administrative Agent shall not be
deemed to have waived any Default arising from the Loan Party’s failure to maintain such insurance or pay any premiums
therefor. The Borrower will furnish to the Lenders, upon request of the Administrative Agent, information in reasonable
detail as to the insurance so maintained.


 






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Section 5.03       
Taxes. Pay and discharge promptly when due all material Taxes, imposed
upon it or upon its income or profits or in respect of its property, as well as all lawful claims which, if unpaid, might give
rise to a Lien (other than a Lien permitted under Section 6.02) upon such properties or any part thereof except
to the extent not overdue by more than thirty (30) days or, if more than thirty (30) days overdue (a) the validity
or amount thereof shall be contested in good faith by appropriate proceedings, and the Borrower or the affected Subsidiary, as
applicable, shall have set aside on its books reserves in accordance with GAAP with respect thereto and (b) in the case of
a Tax or claim which has or may become a Lien on any of the Collateral, such contest proceedings conclusively operate to stay the
sale of any portion of the Collateral to satisfy such Tax or claim.


 


Section 5.04       
Financial Statements, Reports and Other Information Furnish to the Administrative
Agent (which will promptly furnish such information to the Lenders):


 


(a)              
as soon as available, but in any event in accordance with Applicable Law and not later than ninety (90) days after
the end of each fiscal year (commencing with the fiscal year ending June 30, 2020), a consolidated balance sheet and related statements
of operations, cash flows and owners’ equity showing the financial position of Holdings and its Subsidiaries as of the close
of such fiscal year and the consolidated results of its operations during such year and setting forth in comparative form the corresponding
figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’
equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants
of recognized national standing and accompanied by an opinion of such accountants (which opinion shall be without a “going
concern” or like qualification, other than solely with respect to an upcoming maturity date of Indebtedness or a potential
inability to satisfy a financial covenant, or exception and without any qualification or exception as to the scope of such audit)
to the effect that such consolidated financial statements fairly present, in all material respects, the financial condition and
results of operations of Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP, supporting schedules reconciling
such consolidated balance sheet and related statements of operations and cash flows with the consolidated financial condition and
results of operations of Holdings or the Borrower, as applicable, for the relevant period (it being understood that the delivery
by the Borrower of annual reports on Form 10-K of Holdings and its consolidated Subsidiaries shall satisfy the requirements
of this Section 5.04(a) to the extent such annual reports include the information specified herein);


 






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(b)               as
soon as available, but in any event in accordance with Applicable Law and not later than forty-five (45) days after the
end of each fiscal quarter (commencing with the fiscal quarter ending September 30, 2020), a consolidated balance sheet and
related statements of operations and cash flows showing the financial position of Holdings and its Subsidiaries as of the
close of such fiscal quarter and the consolidated results of its operations during such fiscal quarter and the then-elapsed
portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of
the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements
of operations and cash flows shall be accompanied by customary management’s discussion and analysis and certified by a
Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial
position and results of operations of Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP (subject
to normal year-end audit adjustments and the absence of footnotes), supporting schedules reconciling such consolidated
balance sheet and related statements of operations and cash flows with the consolidated financial position and results of
operations of Holdings or the Borrower, as applicable, for the relevant period (it being understood that the delivery by the
Borrower of quarterly reports on Form 10-Q of Holdings and its consolidated Subsidiaries shall satisfy the requirements
of this Section 5.04(b) to the extent such quarterly reports include the information specified
herein);


 


(c)              
within thirty (30) days after the end of each month (for each of the first two (2) months of each fiscal quarter),
a balance sheet and related statements of operations and cash flows showing the financial position of Holdings and its Subsidiaries
as of the close of such month and the consolidated results of its operations during such month, all of which shall be in reasonable
detail;


 


(d)              
concurrently with any delivery of financial statements under paragraphs (a) or (b) above,
a Compliance Certificate certifying that no Default or Event of Default has occurred or, if such a Default or an Event of Default
has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;


 


(e)              
except to the extent otherwise specified, by Thursday of every calendar week prepared as of the close of business on Saturday
of the previous week, the following all delivered electronically in a text formatted file acceptable to the Administrative Agent:


 


(i)                
schedules detailing the Borrower’s Inventory, in form satisfactory to the Administrative Agent in its Permitted Discretion,
by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement,
or warehouse agreement), by class (raw material, work-in-process and finished goods), by product type, and by quantity on hand,
which Inventory shall be valued in a manner consistent with the audited financial statements of Holdings delivered prior to the
date hereof or market and adjusted for any Reserves as the Administrative Agent has previously indicated in writing to the Borrower
are deemed by the Administrative Agent in its Permitted Discretion to be appropriate,


 


(ii)              a
worksheet of weekly calculations prepared by the Borrower to determine its Credit Card Receivables net of estimated credit
card fees and Eligible Inventory, as represented by week ending stock ledger and arrived domestic in-transit inventory,
reduced by applicable estimated reserves based on the previous month’s ending reserves, each such worksheet detailing
the Accounts and Inventory excluded from Credit Card Receivables and Eligible Inventory and the reason for such exclusion
together with a listing by credit card provider of all outstanding Credit Card Receivables,


 






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(iii)           
concurrently with the delivery of the monthly Borrowing Base Certificate pursuant to Section 5.12(a)(ii), a monthly reconciliation
of the Borrower’s Inventory between (A) the amounts shown in the Borrower’s general ledger and financial statements
and the reports delivered pursuant to clause (ii) above and (B) the amounts and dates shown in the reports delivered pursuant to
clause (ii) above and the monthly Borrowing Base Certificate delivered pursuant to Section 5.12(a)(ii) as of the close of business
on the last Business Day of the previous month,


 


(iv)            
a list of all material amendments to any agreement constituting Material Indebtedness, together with a copy of each such
amendment;


 


(v)              
a reconciliation of the loan balance per the Borrower’s general ledger to the loan balance under this Agreement, and


 


(vi)            
a schedule and aging of the Borrower’s accounts payable, delivered electronically in a text formatted file acceptable
to the Administrative Agent;


 


(f)               
no later than three (3) days prior to the entry of the Final Order and three (3) days prior to confirmation of a Plan of
Reorganization, budget of Holdings and its Subsidiaries for the remaining months of the then current fiscal year, containing, among
other things, a pro forma balance sheet, statement of income and projected borrowing base and statement of cash flows for each
such remaining month of such fiscal year, which budget shall be based on reasonable estimates, information and assumptions that
are reasonable at the time in light of the circumstances then existing, with detail and calculations supporting such assumptions,
in form and substance acceptable to the Administrative Agent;


 


(g)              
promptly upon the Administrative Agent’s reasonable request:


 


(i)                
copies of invoices issued by the Borrower in connection with any Accounts, credit memos, shipping and delivery documents,
and other information related thereto;


 


(ii)             
copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory or Equipment purchased
by any Loan Party;


 


(iii)           
a schedule detailing the balance of all intercompany accounts of the Loan Parties;


 


(iv)            
copies of all income tax returns filed by any Loan Party with the U.S. Internal Revenue Service or with any foreign equivalent
after the Closing Date; and


 


(v)               additional
information relating to the Collateral to the extent available using commercially reasonable efforts, including for the
purposes of updating Collateral valuations and collateral audits and reviews of inventory levels and mix (it being agreed
that the Borrower shall cooperate (and shall cause the Borrower Sale Advisor to cooperate) with Administrative Agent and
Agent’s Advisors in connection with the foregoing, including granting access to information and records);


 






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(h)              
promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements
and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower or any of its Subsidiaries
with the SEC or any securities exchange, or distributed to its stockholders generally, as applicable and all press releases and
other statements made available generally by Holdings or any of its Subsidiaries to the public concerning material developments
in the business of Holdings or any of its Subsidiaries;


 


(i)                
together with each delivery under Section 5.04(a), a copy of the plan and forecast (including a projected
consolidated and consolidating balance sheet, income statement and cash flow statement) of Holdings and its Subsidiaries for each
month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to the Administrative
Agent;


 


(j)                
promptly following a request therefor, (x) such other information regarding the operations, changes in ownership of Equity
Interests, business affairs and financial condition of any Loan Party or any Subsidiary, or compliance with the terms of this Agreement,
as the Administrative Agent or any Lender may reasonably request, and (y) information and documentation reasonably requested by
the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money
laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation;


 


(k)              
together with the delivery of the annual compliance certificate required by Section 5.04(d), deliver
an updated copy of the Perfection Certificate reflecting all changes since the date of the information most recently received pursuant
to this paragraph (k) or Section 5.09(d);


 


(l)                
promptly following reasonable request therefore from the Administrative Agent, copies of (i) any documents described
in Sections 101(f) and/or (j) of ERISA with respect to any Plan, and/or (ii) any notices or documents described in Sections 101(f),
(k) and/or (l) of ERISA requested with respect to any Multiemployer Plan; provided, that if any Loan Party or any ERISA
Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Plan or Multiemployer
Plan, then, upon reasonable request of the Administrative Agent, the Loan Party(ies) and/or the ERISA Affiliate(s) shall promptly
make a request for such documents or notices from such administer or sponsor and the Borrower shall provide copies of such documents
and notices to the Administrative Agent promptly after receipt thereof;


 


(m)            
promptly, from time to time, such other information regarding the operations, business affairs and financial condition of
Holdings, the Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, as in each case the Administrative
Agent may reasonably request (for itself or on behalf of any Lender); and


 






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(n)               documents
required to be delivered pursuant to this Section 5.04 may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which Holdings or the Borrower (or a representative
thereof) posts such documents (or provides a link thereto) at www.tuesdaymorning.com; provided that, other than with
respect to items required to be delivered pursuant to Section 5.04(e) above, Holdings or the Borrower
shall promptly notify (which notice may be by facsimile or electronic mail) the Administrative Agent of the posting of any
such documents at www.tuesdaymorning.com and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents; (ii) on which such documents are delivered by Holdings or the Borrower to the
Administrative Agent for posting on behalf of Holdings and the Borrower on IntraLinks, SyndTrak or another relevant secure
website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); (iii) on which such documents are faxed to the Administrative Agent (or
electronically mailed to an address provided by the Administrative Agent); or (iv) with respect to any item required to
be delivered pursuant to Section 5.04(e) above in respect of information filed by Holdings or its
applicable Parent Entity with any securities exchange or with the SEC or any analogous Governmental Authority or private
regulatory authority with jurisdiction over matters relating to securities (other than Form 10-Q reports and
Form 10-K reports), on which such items have been made available on the SEC website or the website of the relevant
analogous governmental or private regulatory authority.


 


Section 5.05       
Notices of Material Events. Furnish to the Administrative Agent (and the Administrative
Agent shall make available to each Lender) promptly after any a Responsible Officer obtains knowledge (but in any event within
any time period that may be specified below) written notice of the following:


 


(a)              
the occurrence of any Default, Event of Default, or any “Default” or “Event of Default” as defined
in the Pre-Petition Credit Agreement;


 


(b)              
any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority or in arbitration,
against Holdings, the Borrower or any of their Subsidiaries would reasonably be expected to have a Material Adverse Effect;


 


(c)              
the occurrence of any ERISA Event or Foreign Plan Event that, individually or together with all other ERISA Events or Foreign
Plan Events that have occurred, would reasonably be expected to have a Material Adverse Effect;


 


(d)              
the filing of any Lien for unpaid taxes in excess of $1,000,000;


 


(e)              
any change in the Borrower’s chief executive officer or chief financial officer;


 


(f)               
any discharge, resignation or withdrawal of the registered public accounting firm (provided that filing an applicable 8-K
with the SEC shall satisfy any notice requirements under clause (e) above or this clause (f));


 


(g)              
any Casualty Event or the commencement of any action or proceeding that could reasonably be expected to result in a Casualty
Event,


 


(h)              
any change in the information provided in the Beneficial Ownership Certification delivered to such Lender that would result
in a change to the list of beneficial owners identified in such certification;


 






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(i)                
(i) as soon as practicable in advance of filing with the Court or delivering to the Committee appointed in a Chapter 11
Case, if any, or to the U.S. Trustee, as the case may be, the Final Order, all other material proposed orders and pleadings related
to (x) the Chapter 11 Cases (all of which must be in form and substance satisfactory to the Administrative Agent) and (y) the Pre-Petition
Credit Agreement, this Agreement and the credit facilities contemplated thereby, and/or any sale contemplated in accordance with
the Case 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), (ii) substantially simultaneously with the filing with the
Court or delivering to the Committee appointed in any Chapter 11 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 Chapter 11 Cases that may be filed with the Court or delivered to the Committee appointed
in any Chapter 11 Case, if any, or to the U.S. Trustee, and (iii) promptly upon its receipt thereof, each Weekly Statement (as
defined in the Order) and Final Statement (as defined in the Order); and


 


(j)                
any other development specific to Holdings, the Borrower or any of their Subsidiaries that is not a matter of general public
knowledge and that has had, or would reasonably be expected to have, a Material Adverse Effect.


 


Each notice delivered
under this Section shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth the material details
of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.


 


Section 5.06       
Compliance with Laws. (a) Comply with (x) each Applicable Law
applicable to it or its property (including without limitation Environmental Laws), except, in each case, where the failure to
do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect or such compliance
is stayed by the Chapter 11 Cases and (y) the Bankruptcy Code, the Bankruptcy Rules, the Orders, and any other order of the Court
in all material respects, and (z) subject to the foregoing clause (a)(y), perform in all material respects its obligations under
Material Agreements to which it is a party; provided that this Section 5.06
shall not apply to Environmental Laws, which are the subject of Section 5.08, or to laws related to Taxes, which
are the subject of Section 5.03 and (b) following the implementation thereof as required by Section 5.11,
maintain in effect and enforce such policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and
their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions as have been approved
by the Administrative Agent pursuant to Section 5.11.


 


Section 5.07       
Maintaining Records; Access to Properties and Inspections.


 


(a)              
Maintain all financial records in a manner sufficient to permit the preparation of consolidated financial statements in
accordance with GAAP.


 


(b)               Permit
the Administrative Agent, subject (except when an Event of Default exists) to reasonable advance notice to, and reasonable
coordination with, the Borrower and normal business hours, to visit and inspect the properties of the Borrower, at the
Borrower’s expense as provided in clause (c) below, inspect, audit and make extracts from the
Borrower’s corporate, financial or operating records, and discuss with its officers, employees, agents, advisors and
independent accountants (subject to such accountants’ customary policies and procedures) the Borrower business,
financial condition, assets and results of operations (it being understood that a representative of the Borrower is allowed
to be present in any discussions with officers, employees, agent, advisors and independent accountants); provided that
the Administrative Agent shall only be permitted to conduct one field examination and one inventory appraisal with respect to
any Collateral comprising the Borrowing Base from and after the Closing Date; provided further, that if at any time
Availability is less than 25% of the Line Cap, one additional field examination and one additional inventory appraisal will
be permitted, except that if an Event of Default has occurred and is continuing, there shall be no limit on the number of
additional field examinations or inventory appraisals. No such inspection or visit shall unduly interfere with the business
or operations of the Borrower, nor result in any damage to the Property or other Collateral. Neither the Administrative Agent
nor any Lender shall have any duty to the Borrower to make any inspection, nor to share any results of any inspection,
appraisal or report with the Borrower. The Borrower acknowledges that all inspections, appraisals and reports are prepared by
the Administrative Agent and Lenders for their purposes, and the Borrower shall not be entitled to rely upon them.


 






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(c)              
Reimburse the Administrative Agent for all reasonable and documented out-of-pocket (in summary format) costs and expenses
(other than legal fees or costs and expenses which are covered under Section 9.05) of the Administrative Agent
in connection with (i) examinations of the Borrower’s books and records or any other financial or Collateral matters
as the Administrative Agent deems appropriate; and (ii) field examinations and inventory appraisals of Collateral comprising
the Borrowing Base; in each case subject to the limitations on such examinations, audits and appraisals permitted under the preceding
paragraph. Subject to and without limiting the foregoing, the Borrower specifically agrees to pay the Administrative Agent’s
then standard charges for examination activities, including the standard charges of the Administrative Agent’s internal appraisal
group. This Section shall not be construed to limit the Administrative Agent’s right to use third parties for such purposes.


 


Section 5.08       
Compliance with Environmental Laws.


 


(a)              
Comply, and make reasonable efforts to cause all lessees and other Persons occupying its properties to comply, with all
Environmental Laws applicable to its operations and properties; and obtain and renew all authorizations and permits required pursuant
to Environmental Law for its operations and properties, in each case in accordance with Environmental Laws. This clause (a)
shall be deemed not breached by a noncompliance with the foregoing if, upon learning of such noncompliance, the Borrower and any
of its affected Subsidiaries promptly undertake reasonable efforts to eliminate such noncompliance, and such noncompliance and
the elimination thereof, in the aggregate with any other noncompliance with any of the foregoing and the elimination thereof, could
not reasonably be expected to have a Material Adverse Effect.


 


(b)               Except
as could not reasonably be expected to have a Material Adverse Effect, generate, use, treat, store, release, dispose of, and
otherwise manage Hazardous Materials in a manner that would not reasonably be expected to result in a material liability to
the Borrower or any of the Subsidiaries or to materially affect any Real Property; and take reasonable efforts to prevent any
other Person from generating, using, treating, storing, releasing, disposing of, or otherwise managing Hazardous Materials in
a manner that could reasonably be expected to result in a material liability to, or materially affect any Real Property.


 






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Section 5.09       
Further Assurances; Mortgages.


 


(a)              
Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions
(including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens
in stock registries), that may be required under any Applicable Law, or that the Administrative Agent may reasonably request, which
may be required by any Applicable Law or which the Administrative Agent may, from time to time, reasonably request to carry out
the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created
or intended to be created by the Security Documents, all in form and substance reasonably satisfactory to the Administrative Agent
and all at the expense of the Loan Parties.


 


(b)              
If any asset that has an individual fair market value in an amount greater than $1,000,000 (as reasonably estimated by the
Borrower) is acquired by Holdings, the Borrower or any Subsidiary Guarantor after the Closing Date or owned by an entity at the
time it becomes a Subsidiary Guarantor (including, without limitation, as the result of a Division) (in each case other than Excluded
Collateral), cause such asset to be subjected to a Lien securing the Obligations and take, and cause the Subsidiary Guarantors
to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens,
including actions described in paragraph (a) of this Section, all at the expense of the Loan Parties.


 


(c)              
Subject to Applicable Law, cause each of its Subsidiaries formed or acquired after the date of this Agreement, provided
that prior to any such formation or acquisition, such Loan Party shall have received the written consent of the Administrative
Agent to such formation or acquisition, to become a Loan Party, in each case, by executing a Joinder Agreement. Upon execution
and delivery thereof, each such Person (A) shall automatically become a Guarantor as provided in Article XI hereunder, and thereupon
shall have all of the rights, benefits, duties and obligations in such capacity under the Loan Documents and (B) will grant Liens
to the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, in any property of such
Loan Party which constitutes Collateral (in each case to the extent required of any Loan Party pursuant to the Loan Documents to
which such Loan Party is a party).


 


(d)              
(i) Furnish to the Administrative Agent promptly (and in any event within five (5) days) written notice of any
change in (A) any Loan Party’s corporate or organization name, (B) any Loan Party’s organizational form or
(C) any Loan Party’s organizational identification number; provided that neither Holdings nor the Borrower shall
effect or permit any such change unless all filings have been made, or will have been made within any applicable statutory period,
under the UCC or otherwise that are required in order for the Administrative Agent to continue at all times following such change
to have a valid, legal and perfected security interest in all the Collateral to for the benefit of the Secured Parties and (ii) promptly
notify (and in any event within five (5) days) the Administrative Agent if any material portion of the Collateral is damaged
or destroyed.


 


Section 5.10       
Fiscal Year; Accounting. In the case of Holdings and the Borrower, (i) cause
its fiscal year to end on June 30 and (ii) prohibit any change to the accounting policies or reporting practices of
the Loan Parties, except in accordance with GAAP.


 



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Section 5.11          
Qualifying DIP RE Facility.


 


(a)          
Upon and at all times after the closing date of the Qualifying DIP RE Facility, the proceeds of the DIP RE Loans shall be
advanced in accordance with, and in amounts not less than those provided in, the Approved Budget, and the Loan Parties shall keep
and maintain the Qualifying DIP RE Facility in full force and effect and use the proceeds of advances thereunder solely to pay
the Pre-Petition Obligations and the Obligations in accordance with Section 2.07 and otherwise for purposes and in amounts set
forth in the Approved Budget and as permitted by the Qualifying DIP RE Facility, the definitive documentation governing the Qualifying
DIP RE Facility, the Orders and this Section 5.11.


 


(b)          
So long as any portion of the Qualifying DIP RE Facility remains unfunded, immediately upon Availability being $25,000,000
or less, on the next Business Day, the Borrower shall request a funding of any and all such unfunded amounts and upon receipt of
the proceeds of the DIP RE Loans advanced in accordance therewith, immediately prepay the Pre-Petition Obligations and the Obligations
in accordance with Section 2.07.


 


Section 5.12          
Collateral Monitoring and Reporting.


 


(a)          
Borrowing Base Certificates. The Borrower shall deliver to the Administrative Agent (and the Administrative Agent
shall promptly deliver same to the Lenders) (i) weekly Borrowing Base Certificates by Thursday of every calendar week prepared
as of the close of business on Saturday of the previous week which Borrowing Base Certificates shall be in the form attached hereto
as Exhibit H-1 and (ii) monthly Borrowing Certificates by the 15th Business Day of each month prepared as of the close
of business on the last Business Day of the previous month which Borrowing Base Certificates shall be in the form attached hereto
as Exhibit H-2. All calculations of Availability in any Borrowing Base Certificate shall be made by the Borrower and certified
by a Financial Officer, provided that the Administrative Agent may from time to time review and adjust any such calculation
to the extent the calculation is not made in accordance with this Agreement or does not accurately reflect the Availability Reserve.


 


(b)         
Records and Schedules of Accounts. The Borrower shall keep accurate and complete records of its Accounts and Credit
Card Receivables, including all payments and collections thereon, and shall submit to the Administrative Agent sales, collection,
reconciliation and other reports in form satisfactory to the Administrative Agent on a periodic basis (but not more frequently
than at the time of delivery of each Borrowing Base Certificate pursuant to paragraph (a) of this Section 5.12).
The Borrower shall also provide to the Administrative Agent, by Thursday of every calendar week prepared as of the close of business
on Saturday of the previous week, listing by credit card provider of all outstanding Credit Card Receivables.


 






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(c)          Application
of Proceeds; Deficiency. All amounts deposited in the Dominion Account shall be deemed received by the Administrative
Agent in accordance with Section 2.15 and shall, after having been credited to the appropriate Dominion
Account, be applied (and allocated) by Administrative Agent in accordance with Section 2.15. The Administrative
Agent shall require all other cash proceeds of the Collateral, which are not required to be applied to the Pre-Petition
Obligations and the Obligations pursuant to Section 2.07 of this Agreement, to be deposited in the Dominion
Account. No Loan Party shall have any control whatsoever over the Dominion Account. Any such proceeds of the Collateral shall
be applied in the order set forth in Section 2.15 of this Agreement unless a court of competent jurisdiction
shall otherwise direct. The balance, if any, after all of the Secured Obligations have been satisfied, shall be deposited by
the Administrative Agent into such Loan Party’s general operating account with the Administrative Agent. The Loan
Parties shall remain liable, jointly and severally, for any deficiency if the proceeds of any sale or disposition of the
Collateral are insufficient to pay all Secured Obligations, including any attorneys’ fees and other expenses incurred
by Administrative Agent or any other Secured Party to collect such deficiency.


 


(d)          
Administration of Accounts; Control Agreements.


 


(i)             
Schedule 5.12 sets forth all Deposit Accounts, Securities Accounts and Commodities Accounts (including
any Excluded Accounts) maintained by the Loan Parties, including all Dominion Accounts, as of the Closing Date. Each Loan Party
will provide (or will have provided) to the Administrative Agent a Control Agreement (in each case in form and substance reasonably
acceptable to the Administrative Agent), duly executed on behalf of each financial institution or securities intermediary holding
a Deposit Account, Securities Account or Commodities Account, as applicable, of such Loan Party, in each case, other than Excluded
Accounts.


 


(ii)            
Each Loan Party shall cause each bank or other depository institution at which any Deposit Account (excluding for the avoidance
of doubt, the Operating Account) is maintained for the collection of Accounts, sales revenue, payments by any Account Debtor and
other cash receipts, to transfer to the WF Concentration Account by standing wire (or alternative funds transfer method), on a
daily basis, the full amount of the collected and available balance in each such Deposit Account maintained by any Loan Party at
the beginning of each Business Day (other than an amount up to $5,000 that can be kept in each account for overdraft protection).
Only the proceeds of Loans advanced hereunder may be deposited into the Operating Account, and to the extent there are such other
funds on deposit therein, the Borrower shall cause such funds to be transferred immediately to the WF Concentration Account.


 


(iii)            Each
Loan Party shall direct all of its Account Debtors to forward payments directly to the WF Concentration Account. At no time
shall any Loan Party remove any item from the WF Concentration Account without the Administrative Agent’s prior
consent. If any Loan Party should refuse or neglect to notify any Account Debtor to forward payments directly to WF
Concentration Account, the Administrative Agent shall, be entitled to make such notification directly to such Account Debtor.
If notwithstanding the foregoing instructions, any Loan Party receives any proceeds of any Accounts, such Loan Party shall
receive such payments as the Administrative Agent’s trustee, and shall immediately deposit all cash, checks or other
similar payments related to or constituting payments made in respect of Accounts received by it to the WF Concentration
Account. All funds deposited into the WF Concentration Account owned by any Loan Party will be swept on a daily basis into
the Dominion Account. The Administrative Agent shall hold and apply funds received into the Dominion Account as provided by
the terms of Section 2.15.


 






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(iv)          
Neither the Borrower nor any Loan Party shall make any material modifications to the cash management procedures and controls
set forth in this Agreement and otherwise in effect as of the Closing Date without the prior written consent of the Administrative
Agent. Without limiting the foregoing, neither the Borrower nor any Loan Party shall open any Deposit Account, Commodities Account
or Securities Account unless prior written notice has been provided to the Administrative Agent and, if the Administrative Agent
so requires, such account is subject to a Control Agreement in form and substance acceptable to the Administrative Agent prior
to the utilization of such account.


 


Section 5.13          
Use of Proceeds. The proceeds of the Loans and the Letters of Credit
will only be used by the Borrower, in each case, strictly in accordance with the Approved Budget, subject to Permitted Variances,
actual, reasonable and necessary: (a) ordinary course general corporate and working capital purposes; (b) to fund the costs of
administrative of the Chapter 11 Cases, (c) certain fees and expenses of professionals, retained by the Loan Parties, subject to
the Carve-Out, and (d) payment of all reasonably documented (in summary format) accrued and unpaid transaction costs, fees and
expenses with respect to this Agreement, including fees and expenses of professional advisors to the Lenders and the Administrative
Agent.


 


Section 5.14          
Approved Budget.


 


(a)          
The use of Loans and other extensions of credit by the Loan Parties under this Agreement and the other Loan Documents shall
be limited in accordance with the Approved Budget (subject to variances permitted under this Section 5.14) and the
terms hereof. The initial Approved Budget shall depict, on a weekly basis, cash receipts, expenses, and disbursements, net cash
flows, inventory receipts, sales and costs of sales at stores being closed and proposed to be closed, Total Cash Receipts, Total
Operating Disbursements, Total Non-Operating Disbursements, Professional Fees, the projected Borrowing Base, Availability and the
other items set forth therein, for the first thirteen (13) week period from the Closing Date and such initial Approved Budget shall
be approved by, and in form and substance satisfactory to, the Administrative Agent in its Permitted Discretion (it being acknowledged
and agreed that the initial Approved Budget attached hereto as Annex A is approved by and satisfactory to the Administrative Agent).
The Approved Budget shall be updated, modified or supplemented by the Borrower with the written consent of the Administrative Agent,
and upon the request of the Administrative Agent from time to time, but in any event the Approved Budget shall be updated by the
Borrower not less than one time in each three (3) consecutive week period, and each such updated, modified or supplemented budget
shall be approved in writing (including by email) by, and shall be in form and substance satisfactory to, the Administrative Agent
in its sole discretion and no such updated, modified or supplemented budget shall be effective until so approved and once so approved
shall be deemed an Approved Budget; provided, however, that in the event the Administrative Agent, on the one hand, and the Borrower,
on the other hand, cannot agree as to an updated, modified or supplemented budget, such disagreement shall give rise to an Event
of Default once the period covered by the prior Approved Budget has terminated. Each Approved Budget delivered to the Administrative
Agent shall be accompanied by such supporting documentation as reasonably requested by the Administrative Agent. Each Approved
Budget shall be prepared in good faith based upon assumptions which the Borrower believe to be reasonable.


 






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(b)          
The Loan Parties covenant and agree that (i) the actual amount of Actual Cash Receipts for the period commencing on the
Petition Date and ending on the applicable date of determination (but in no case shall such period be less than four (4) weeks),
shall not be less than eighty-five percent (85%) of the amount projected in the “Total Cash Receipts” line item of
the Approved Budget for such period; (ii) the actual amount of “Total Operating Disbursements” for any Measurement
Period, shall not be more than one hundred and fifteen percent (115%) of the amount projected in the “Total Operating Disbursements”
line item of the Approved Budget for such Measurement Period; (iii) the actual amount of “Total Non-Operating Disbursements”
for any Measurement Period, shall not be more than one hundred and ten percent (110%) of the amount projected in the “Total
Non-Operating Disbursements” line item of the Approved Budget for such Measurement Period; and (iv) the actual amount of
“Professional Fees” for any Measurement Period, shall not be more than one hundred and ten percent (110%) of the amount
projected in the “Professional Fees” line item of the Approved Budget for such Measurement Period (provided that nothing
herein shall operate as a limitation on the amount of professional fees that may be incurred by the Loan Parties); provided, that
in all circumstances, savings in any one Measurement Period may be carried over for use in the subsequent Measurement Periods but
such carry-over amount shall be reduced to $0 upon the approval of a new Approved Budget (each, a “Permitted Variance”).


 


(c)          
Administrative Agent and the Lenders (i) may assume that the Loan Parties will comply with the Approved Budget, (ii) shall
have no duty to monitor such compliance and (iii) shall not be obligated to pay (directly or indirectly from the Collateral) any
unpaid expenses incurred or authorized to be incurred pursuant to any Approved Budget. The line items in the Approved Budget for
payment of interest, expenses and other amounts to the Administrative Agent and the Lenders are estimates only, and the Loan Parties
remain obligated to pay any and all Obligations in accordance with the terms of the Loan Documents and the applicable Order regardless
of whether such amounts exceed such estimates. Nothing in any Approved Budget (including any estimates of a loan balance in excess
of borrowing base restrictions) shall constitute an amendment or other modification of any Loan Document or any of the borrowing
base restrictions or other lending limits set forth therein.


 


(d)         
Not later than 3:00 p.m. (Central time) on the Tuesday of each week commencing on June 16, 2020, the Loan Parties shall
furnish to the Administrative Agent a weekly report (the “Budget Compliance Report”) that sets forth
as of the preceding Saturday of each such week, for the prior week and on a cumulative basis from the Petition Date through the
fourth (4th) full week after the Petition Date and then on a rolling four (4) week basis at all times thereafter (each such period
referred to herein as a “Measurement Period”), the actual results for the following line items set forth
in the Approved Budget: (i) “Total Cash Receipts”; (ii) “Total Operating Disbursements”; (iii) “Total
Non-Operating Disbursements”; and (iv) “Professional Fees”, all in a form, and shall contain supporting information,
reasonably satisfactory to the Administrative Agent in its sole discretion.


 


(e)          
For all purposes of this Section 5.14, for any periods after those reflected in the Approved Budged, all amounts
shall be based on the monthly DIP forecast delivered pursuant to Section 4.01(h), modified in a manner reasonably
satisfactory to Administrative Agent to be on a weekly basis.


 






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Section 5.15          
Case Milestones. The Loan Parties shall comply with each of the covenants contained on Schedule 5.15
upon the terms and at the times provided for therein.


 


Section 5.16          
Material Agreements. The Borrower shall, and shall cause its Subsidiaries, subject to the Bankruptcy Code
and applicable orders of the Court, (a) to, perform and observe in all material respects all the terms and provisions of each Material
Agreement to be performed or observed by it; and (b) to use commercially reasonable efforts to maintain each such Material Agreement
in full force and effect, enforce each such Material Agreement in accordance with its terms, take all such action to such end as
may be from time to time requested by the Administrative Agent and, upon reasonable request of the Administrative Agent, make to
each other party to each such Material Agreement such demands and requests for information and reports or for action as any Loan
Party or any of its Subsidiaries is entitled to make under such Material Agreement, and cause each of its Subsidiaries to do so.


 


Section 5.17          
Loan Parties’ Advisors. The Loan Parties shall continue to retain (a) the Borrower Financial Advisor,
(b) the Borrower Sale Advisor (to the extent the applicable liquidation is not complete), and (c) the Specified Liquidation Agent
and shall retain such additional advisors as may be reasonably requested by the Administrative Agent and on terms and conditions
reasonably satisfactory to Administrative Agent. The Loan Parties and their representatives will fully cooperate with any such
advisors and consultants (including the Borrower Financial Advisor, the Borrower Sale Advisor and the Specified Liquidation Agent)
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 Borrower Sale Advisor regarding
any and all matters related to the Loan Parties and their Affiliates, including, without limitation, all financial reports and
projections developed, reviewed or verified by the Borrower Sale Advisor and all additional information, reports and statements
reasonably requested by the Administrative Agent, and (ii) authorize and direct each the Borrower Sale Advisor and the Specified
Liquidation Agent, in each case, to provide the Administrative Agent (or their respective agents or advisors) with copies of reports
and other information or materials prepared or reviewed by the Borrower Sale Advisor or the Specified Liquidation Agent, as applicable,
as the Administrative Agent may reasonably request (in each case, subject to protection as necessary in respect of bona fide attorney-client
privilege). On June 5, 2020 and on each Friday thereafter, cause the Borrower Sale Advisor, the Borrower Financial Advisor and
each of their respective representatives to be available for conference calls during normal business hours (“Status
Calls”) for the purpose of providing the Administrative Agent and the advisors assisting the Administrative Agent
with an update on the status and progress of any restructuring and/or sale diligence, negotiations and documentation, accompanied,
in each case, by a written summary of such update which may, in the Administrative Agent’s sole discretion, be provided to
the Lenders. In addition to the foregoing, the Loan Parties agree that Status Calls shall be conducted (i) promptly following a
request by the Administrative Agent and (ii) at least once per week. Notwithstanding anything to the contrary contained in this
Section 5.17, none of the Loan Parties 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 or any Lender (or their respective representatives
or contractors) 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.


 






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Section 5.18          
Administrative Agent’s 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 Agent’s Advisors to provide advice, analysis
and reporting for the benefit of the Administrative Agent and the Lenders. The Loan Parties shall pay all documented fees and
expenses of each Agent’s Advisor and all such fees and expenses shall constitute Obligations and be secured by the Collateral.
The Loan Parties and their advisors (including the Borrower Financial Advisor and the Borrower Sale Advisor) shall grant access
to, and make commercially reasonable efforts to cooperate in all respects with, the Administrative Agent, the Lenders, the Agent’s
Advisors, and any other representatives of the foregoing and provide all information that such parties may request in a timely
manner.


 


Section 5.19          
Orders. Notwithstanding anything herein to the contrary, no portion or proceeds of the Loans or Letters of
Credit or the Collateral, and no disbursements set forth in the Approved Budget, shall be used for the payments or purposes which
would violate the terms of paragraphs 58, 75 and 78 of the Order, and the corresponding paragraphs of the Final Order.


 


Section 5.20          
Debtor-In-Possession Obligations. Comply in a timely manner with its obligations and responsibilities as a
debtor-in-possession under the Bankruptcy Code, the Bankruptcy Rules, and any other order of the Court.


 


Section 5.21          
Payment of Obligations. Subject to the Orders and the terms thereof, pay or discharge all Material Indebtedness
and all other material liabilities and obligations, including Taxes, incurred after the Petition Date (but for the avoidance of
doubt, Taxes incurred before the Petition Date which are required to be paid in accordance with the Orders or any other order of
the Court shall be permitted to be paid), before the same shall become delinquent or in default (after giving effect to any applicable
cure periods), but subject to the Approved Budget (and the Permitted Variances provided for therein with respect to amounts included
in the Total Operating Disbursements for any period), except where either (a)(i) the validity or amount thereof is being contested
in good faith by appropriate proceedings, and (ii) such Loan Party or Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP, or (b) such liabilities would not result in aggregate liabilities in excess of $1,000,000
and none of the Collateral would become subject to forfeiture or loss as a result of the contest; provided, however, that each
Loan Party will, and will cause each Subsidiary to, remit withholding taxes and other payroll taxes to appropriate Governmental
Authorities as and when claimed to be due, notwithstanding the foregoing exceptions.


 


Section 5.22         
Compliance with Terms of Leaseholds. Except for (a) leases with respect to the Specified Store Closing Sales,
(b) as otherwise expressly permitted hereunder or under any applicable order of the Court, (c) where the failure to do so, either
individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, or (d) with respect to obligations
arising prior to the Closing Date under Leases of real property to which any Loan Party or any of its Subsidiaries is a party,
make, all payments and otherwise perform all material obligations in respect of all such Leases, keep such Leases in full force
and effect and not allow such Leases to lapse or be terminated or any rights to renew such Leases to be forfeited or cancelled,
notify the Administrative Agent of any material default by any party with respect to such leases and cooperate with the Administrative
Agent in all respects to cure any such default, and cause each of its Subsidiaries to do so.


 






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ARTICLE VI


 


Negative Covenants


 


Each of Holdings (solely
as to Section 6.08(a)) and the other Loan Parties covenants and agrees with each Lender that, so long as any
Revolver Commitments or Obligations (other than (i) contingent obligations as to which no claim or demand for payment has
been made, or, in the case of indemnification obligations, no notice has been given, and (ii) Obligations that have been Cash
Collateralized, as applicable) are outstanding, the Loan Parties will not and will not permit any of its Subsidiaries to (and Holdings
as to Section 6.08(a), will not):


 


Section 6.01          
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:


 


(a)           
Indebtedness of any Loan Party under the Loan Documents;


 


(b)           
the Secured Obligations and the Pre-Petition Obligations;


 


(c)           
Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for
the benefit of) any Person providing workers’ compensation, securing unemployment insurance and other social security laws
or regulation, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance
or other similar obligations to the Borrower or any Subsidiary Guarantor;


 


(d)           
Indebtedness of the Borrower to any Subsidiary Guarantor and of any Subsidiary Guarantor to the Borrower or any other Subsidiary
Guarantor;


 


(e)          
Indebtedness in respect of bids, trade contracts (other than for debt for borrowed money), leases (other than Capital Lease
Obligations), statutory obligations, surety, stay, customs and appeal bonds, performance, performance and completion and return
of money bonds, government contracts, financial assurances and completion guarantees and similar obligations, in each case provided
in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary
course of business (including Indebtedness in respect of letters of credit, bank guarantees or similar instruments in lieu of such
items to support the issuance thereof);


 


(f)           
Cash Management Obligations and other Indebtedness in respect of netting services, overdraft protection and similar arrangements,
in each case, in connection with cash management and deposit accounts;


 


(g)           Capital
Lease Obligations, mortgage financings and purchase money Indebtedness (including any industrial revenue bond, industrial
development bond and similar financings) incurred by the Borrower or any Subsidiary Guarantor prior to or within two hundred
seventy (270) days after the acquisition, lease, repair or improvement of the respective asset in order to finance such
acquisition, lease, repair or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate
outstanding principal amount that at the time of, and after giving effect to, the incurrence thereof would not exceed
$15 million for the Test Period most recently ended on or prior to the date of determination for which financial
statements are available;


 






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(h)          
Indebtedness in respect of the Qualifying DIP RE Facility in accordance with the Orders; provided that Indebtedness under
the Qualifying DIP RE Facility is pursuant to documentation, and subject to the Intercreditor Agreement, in each case, approved
by Administrative Agent in its reasonable discretion and in accordance with the Approved Budget;


 


(i)            
Guarantees (i) by the Loan Parties of the Indebtedness described in Section 6.01(h), or (ii) by
the Borrower or any Loan Party of any Indebtedness of any other Loan Party permitted to be incurred under this Agreement; provided
that no Guarantee by Holdings or any of its Subsidiaries of Indebtedness described in Section 6.01(h) shall
be permitted unless Holdings or the applicable Subsidiaries, as the case may be, shall have also provided a Guarantee of the Obligations
under the Loan Documents on substantially the terms set forth in the applicable Guarantee of such Indebtedness or on terms acceptable
to the Administrative Agent;


 


(j)           
Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in
supply arrangements, in each case, in the ordinary course of business, in each case, in accordance with the Approved Budget;


 


(k)          
Indebtedness existing on the Closing Date and set forth on Schedule 6.01 and any Permitted Refinancing
Indebtedness incurred to Refinance such Indebtedness;


 


(l)           
Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of
Credit;


 


(m)        
Indebtedness incurred by the Borrower and any Subsidiary Guarantor representing deferred compensation to directors, officers,
employees, members of management and consultants of Holdings, any Parent Entity, the Borrower or any Subsidiary Guarantor in the
ordinary course of business, in each case, in accordance with the Approved Budget;


 


(n)         
Indebtedness in respect of (x) letters of credit, bankers’ acceptances supporting trade payables, warehouse receipts
or similar facilities entered into in the ordinary course of business or (y) any Letter of Credit issued in favor of any Issuing
Bank to support any Defaulting Lender’s participation in Letters of Credit issued hereunder;


 


(o)         
Indebtedness arising out of the creation of any Lien (other than for Liens securing debt for borrowed money) permitted under
Section 6.02;


 


(p)          
Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary Guarantor
to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services;


 


(q)          
unfunded pension fund and other employee benefit plan obligations and liabilities incurred in the ordinary course of business
to the extent that they are permitted to remain unfunded under Applicable Law;


 


(r)          
all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent
interest on Indebtedness described in paragraphs (a) through (q) above.


 






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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 the Administrative
Agent and the Lenders.


 


Section 6.02         
Liens. Create, incur, assume or permit to exist any Lien on any property or
assets (including Equity Interests, evidences of Indebtedness or other securities of any Person) at the time owned by it or on
any income or revenues or rights in respect of any thereof, except:


 


(a)          
Liens on property or assets of the Borrower and any Subsidiary Guarantor existing on the Closing Date and set forth on Schedule 6.02
and any refinancing, modification, replacement, renewal or extension thereof; provided, that the Lien does not extend to
any additional property other than after-acquired property that is affixed to or incorporated in the property covered by such Lien
and the proceeds and products thereof;


 


(b)          
any Lien (i) created under the Loan Documents and (ii) on cash or deposits granted in favor of any Issuing Bank
hereunder to cash collateralize any Defaulting Lender’s participation in Letters of Credit issued under this Agreement, as
applicable;


 


(c)          
Liens for Taxes, assessments or other governmental charges or levies which are not overdue by more than thirty (30) days
or, if more than thirty (30) days overdue, which are being contested in accordance with Section 5.03;


 


(d)          
landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction
or other like Liens arising in the ordinary course of business and securing obligations that are not overdue by more than thirty
(30) days or, if more than thirty (30) days overdue, (i) which are being contested in accordance with Section 5.03
or (ii) with respect to which the failure to make payment could not reasonably be expected to have a Material Adverse Effect;


 


(e)           
(i) subject to the Order, pledges and deposits made (including to support obligations in respect of letters of credit,
bank guarantees or similar instruments to secure) in the ordinary course of business in compliance with the Federal Employers Liability
Act or any other workers’ compensation, unemployment insurance and other social security laws or regulations and deposits
securing premiums or liability to insurance carriers under insurance or self-insurance arrangements in respect of such obligations
or otherwise as permitted in Section 6.01(c) and (ii) pledges and deposits securing liability for reimbursement
or indemnification obligations of (including to support obligations in respect of letters of credit, bank guarantees or similar
instruments for the benefit of) insurance carriers in respect of property, casualty or liability insurance to the Borrower or any
Subsidiary provided by such insurance carriers;


 


(f)            (i) deposits
to secure the performance of bids, trade contracts (other than for debt for borrowed money), leases (other than Capital Lease
Obligations), statutory obligations, surety, stay, customs and appeal bonds, performance, performance and completion and
return of money bonds, government contracts, financial assurances and completion and similar obligations and similar
obligations, including those incurred to secure health, safety and environmental obligations in the ordinary course of
business and (ii) obligations in respect of letters of credit or bank guarantees that have been posted to support
payment of the items set forth in clause (i) of this Section 6.02(f);


 






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(g)         
zoning restrictions, easements, trackage rights, leases (other than Capital Lease Obligations), licenses, special assessments,
rights-of-way, restrictions on use of Real Property and other similar encumbrances incurred in the ordinary course of business
that, in the aggregate, do not interfere in any material respect with the ordinary conduct of the business of the Borrower or any
Subsidiary;


 


(h)          
Liens securing Capital Lease Obligations, mortgage financings, and purchase money Indebtedness or improvements thereto hereafter
acquired, leased, repaired or improved by the Borrower or any Subsidiary Guarantor (including the interests of vendors and lessors
under conditional sale and title retention agreements); provided that (i) such security interests secure Indebtedness
permitted by Section 6.01(g) (including any Permitted Refinancing Indebtedness in respect thereof), (ii) such
security interests are created, and the Indebtedness secured thereby is incurred, within two hundred seventy (270) days after
such acquisition, lease, completion of construction or repair or improvement (except in the case of any Permitted Refinancing Indebtedness),
(iii) the Indebtedness secured thereby does not exceed the cost of such equipment or other property or improvements at the
time of such acquisition or construction, including transaction costs (including any fees, costs or expenses or prepaid interest
or similar items) incurred by the Borrower or any Subsidiary Guarantor in connection with such acquisition or construction or material
repair or improvement or financing thereof and (iv) such security interests do not apply to any other property or assets of
the Borrower or any Subsidiary Guarantor (other than to the proceeds and products of and the accessions to such equipment or other
property or improvements but not to other parts of the property to which any such improvements are made); provided, that
individual financings otherwise permitted to be secured hereunder provided by one Person (or its affiliates) may be cross collateralized
to other such financings provided by such Person (or its affiliates);


 


(i)           
Liens securing judgments that do not constitute an Event of Default under Section 7.01(j);


 


(j)           
any interest or title of a lessor, sublessor, licensor or sublicensee under any leases, subleases, licenses or sublicenses
entered into by the Borrower or any Subsidiary in the ordinary course of business;


 


(k)          
Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not
given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower or
any Subsidiary Guarantor to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business
of the Borrower or any Subsidiary Guarantor, (iii) relating to purchase orders and other agreements entered into with customers
of the Borrower or any Subsidiary Guarantor in the ordinary course of business, (iv) attaching to commodity trading or other
brokerage accounts incurred in the ordinary course of business and (v) encumbering reasonable customary initial deposits and
margin deposits;


 






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(l)            
Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off
or similar rights as to Deposit Accounts, Securities Accounts, or Commodities Accounts or other funds or investments maintained
with depository institutions or securities intermediaries arising in the ordinary course of business;


 


(m)         
 (i) leases, subleases, licenses or sublicenses of property in the ordinary course of business or (ii) rights
reserved to or vested in any Person by the terms of any lease, license, franchise, grant or permit held by the Borrower or any
Subsidiary Guarantor or by a statutory provision to terminate any such lease, license, franchise, grant or permit or to require
periodic payments as a condition to the continuance thereof;


 


(n)          
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;


 


(o)          
Liens consisting of an agreement to dispose of any property in a transaction permitted under Section 6.05;


 


(p)          
Liens arising from precautionary UCC financing statements (or similar filings under other Applicable Law) regarding operating
leases or consignment or bailee arrangements;


 


(q)          
Liens, solely with respect to the Loan Parties’ real estate, securing Indebtedness permitted under Section 6.01(h);
provided that any such Liens are granted pursuant to documentation, and subject to the Intercreditor Agreement, in each case, approved
by Administrative Agent and in accordance with the Approved Budget;


 


(r)           
Liens of the Administrative Agent and the Pre-Petition Agent granted by the Orders or created pursuant to any Loan Document
or Pre-Petition Loan Document;


 


(s)          
Liens (i) arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered
into by the Borrower or any Subsidiary Guarantor in the ordinary course of business and (ii) arising by operation of law under
Article 2 of the UCC;


 


(t)           
Liens securing the Pre-Petition Obligations;


 


(u)         
Liens on insurance policies and the proceeds thereof securing the financing of Indebtedness permitted pursuant to Section
6.01(j)(i);


 


(v)          
the Adequate Protection Liens and Adequate Protection Superpriority Claims;


 


(w)         
(i) Liens in favor of the Administrative Agent for the benefit of the Secured Parties securing Cash Management Obligations
permitted by Section 6.01 and (ii) Liens in favor of the Administrative Agent for the benefit of the Secured
Parties securing Secured Bank Product Obligations permitted by Section 6.01;


 


(x)           
Liens, encumbrances and other matters disclosed as exceptions in Schedule B, or insured over by, title insurance policies;
and


 






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(y)         
Other title and survey exceptions as Administrative Agent has approved or may approve in writing in Administrative Agent’s
reasonable discretion which Permitted Encumbrances in the aggregate to done materially and adversely affect the value or use of
the property.


 


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 Borrowing
Base Collateral, other than those permitted under clauses (d), (q) and (v) above, and (ii) Liens permitted under this Section
6.02 other than the Liens permitted under clause (q) above (solely to the extent set forth in the Orders) shall at all
times be junior and subordinate to the Liens under the Loan Documents and the applicable Order securing the Obligations. The prohibition
provided for in this Section 6.02 specifically includes any effort by any Loan Party, any official committee in any
Chapter 11 Case or any other party in interest in the Chapter 11 Cases, as applicable, to prime or create pari passu to any claims,
Liens or interests of (x) the Administrative Agent and the Lenders or (y) for so long as the Pre-Petition Obligations have not
been paid in full, the Pre-Petition Agent and the Pre-Petition Lenders, any Lien, in each case, other than as set forth in the
applicable Orders and irrespective of whether such claims, Liens or interests may be “adequately protected.”


 


Section 6.03          
[Reserved]. 


 


Section 6.04          
Investments, Loans and Advances. Purchase, hold or acquire any Equity Interests,
evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations
of, another Person or make any Acquisition (each, an “Investment”), except:


 


(a)          
the Transactions;


 


(b)          
Investments among the Borrower and Subsidiary Guarantors in accordance with the Approved Budget; provided, that, in each
case, if any such Investment is in the form of Indebtedness of a Loan Party, such Investment shall be subordinated to the Secured
Obligations on terms reasonably satisfactory to the Administrative Agent;


 


(c)          
Permitted Investments;


 


(d)          
Investments arising out of the receipt by the Borrower or any Subsidiary of promissory notes and other non-cash consideration
for Dispositions permitted under Section 6.05;


 


(e)          
accounts receivable, notes receivable, security deposits and prepayments arising and trade credit granted in the ordinary
course of business and any Investments received in satisfaction or partial satisfaction thereof from financially troubled account
debtors and other credits to suppliers made in the ordinary course of business;


 


(f)           
Investments in existence on the date hereof and described in Schedule 6.04;


 


(g)          
Investments resulting from pledges and deposits permitted by Section 6.02(b)(ii), (e) and
(f);


 


(h)          Guarantees
(i) permitted by Sections 6.01(i) and (ii) of leases (other than Capital Lease Obligations) or
of other obligations not constituting Indebtedness, in each case in the ordinary course of business;


 






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(i)           
Investments received in connection with the bankruptcy or reorganization of any Person, or settlement of obligations of,
or other disputes with or judgments against, or foreclosure or deed in lieu of foreclosure with respect to any Lien held as security
for an obligation, in each case in the ordinary course of business;


 


(j)            
Investments consisting of Liens permitted under Section 6.02;


 


(k)         
Investments in the ordinary course of business consisting of (i) endorsements for collection or deposit or (ii) customary
trade arrangements with customers, in accordance with the Approved Budget; or


 


(l)           
Investments made in the ordinary course of business in connection with obtaining, maintaining or renewing client and customer
contracts and loans or advances made to, and guarantees with respect to obligations of, distributors, suppliers, licensors and
licensees in the ordinary course of business, in each case, in accordance with the Approved Budget.


 


Section 6.05          
Mergers, Consolidations and Dispositions. Merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in
a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity
Interests of any Subsidiary of the Borrower (including pursuant to any Division), except that this Section 6.05 shall
not prohibit:


 


(a)         
(i) the Disposition of inventory and equipment in the ordinary course of business by the Borrower or any Subsidiary,
(ii) the Disposition of surplus, obsolete, used or worn out property, whether now owned or hereafter acquired, in the ordinary
course of business by the Borrower or any Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course
of business by the Borrower or any Subsidiary or (iv) Dispositions of cash and Permitted Investments, in each case in the
ordinary course of business and in accordance with the Approved Budget;


 


(b)           if
at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing,
(i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of
such transaction and which owns no assets, (B) Intermediate Holdings or (C) a Subsidiary of the Borrower) into the
Borrower in a transaction in which the Borrower is the surviving or resulting entity or the surviving or resulting Person
expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (for the
avoidance of doubt, the Borrower shall not be permitted to consummate a Division), (ii) the merger or consolidation of
any Subsidiary with or into any other Subsidiary; provided that in any such merger or consolidation involving any
Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving or resulting Person or such transaction shall be an
Investment permitted by Section 6.04, (iii) the liquidation or dissolution of any Subsidiary (other
than the Borrower) or change in form of entity of any Subsidiary if the Borrower determines in good faith that such
liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the
Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate
Holdings) or;


 






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(c)          
the Specified Store Closing Sales;


 


(d)          
Dispositions of receivables in the ordinary course of business (i) not as part of an accounts receivables financing
transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;


 


(e)          
licensing and cross-licensing arrangements involving any technology or other Intellectual Property of the Borrower or any
Subsidiary Guarantor in the ordinary course of business;


 


(f)           
the issuance of Qualified Capital Stock by the Borrower to Intermediate Holdings;


 


(g)          
sales of Equity Interests of any Subsidiary of the Borrower; provided that the purchaser shall be the Borrower or
another Subsidiary Guarantor;


 


(h)          
Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the
Net Proceeds therefor;


 


(i)           
Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property rights
which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower
and the Subsidiaries;


 


(j)           
Dispositions of the Real Property and related assets in the ordinary course of business in connection with relocation activities
for directors, officers, employees, members of management, or consultants of the Borrower and the Subsidiaries;


 


(k)          
the expiration of any option agreement in respect of real or personal property;


 


(l)           
any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which
is to effect a Disposition otherwise permitted under this Section 6.05; or


 


(m)         
Dispositions in connection with the outsourcing of services in the ordinary course of business.


 






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Section 6.06          Dividends
and Distributions. Declare or pay, directly or indirectly, any dividend or make any other
distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with
respect to any Equity Interests of the Borrower (other than dividends and distributions on such Equity Interests payable
solely by the issuance of additional Equity Interests of the Borrower) or directly or indirectly redeem, purchase, retire or
otherwise acquire for value any Equity Interests of the Borrower or set aside any amount for any such purpose (other than
through the issuance of additional Equity Interests of the Person redeeming, purchasing, retiring or acquiring such shares)
(a “Restricted Payment”); provided, however, that the Borrower may make
Restricted Payments as shall be necessary to allow Holdings (or any Parent Entity) (i) to pay operating expenses in the
ordinary course of business and other corporate overhead, legal, accounting and other professional fees and expenses
(including, without limitation, those owing to third parties plus any customary indemnification claims made by directors,
officers, employees, members of management and consultants of Holdings (or any Parent Entity) attributable to the ownership
or operations of Holdings, the Borrower and the Subsidiaries), and (ii) to pay franchise or similar taxes and other fees and
expenses required in connection with the maintenance of its existence and its ownership of the Borrower and in order to
permit Holdings to make payments (other than cash interest payments) which would otherwise be permitted to be paid by the
Borrower under Section 6.07(b), in each case, in accordance with the Approved Budget.


 


Section 6.07          
Transactions with Affiliates. No Loan Party will, nor will it permit
any Subsidiary to enter into, renew, extend or be a party to any transaction of any kind with any Affiliate of any Loan Party,
whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to the Loan
Parties or such Subsidiary as would be obtainable by the Loan Parties or such Subsidiary at the time in a comparable arm’s
length transaction with a Person other than an Affiliate, provided that the foregoing restriction shall not apply to (a) a transaction
between or among any Loan Parties, (b) a transaction between or among any Subsidiaries that are not Loan Parties, (c) Investments
permitted under Section 6.04, (d) transactions, arrangements, reimbursements and indemnities permitted between or
among such parties under this Agreement, (e) the payment of reasonable fees and costs to directors, and compensation and employee
benefit arrangements paid to, and indemnities provided for the benefit of, directors, officers and employees of the Loan Parties
or any of their Subsidiaries in accordance with the Approved Budget, (f) the Borrower and its Subsidiaries may provide cash management
and corporate overhead services to the Subsidiaries of the Borrower, or (g) those transactions existing as of the date hereof and
set forth on Schedule 6.07.


 


Section 6.08          
Business of Holdings, the Borrower and the Subsidiaries. Notwithstanding any
other provisions hereof, engage at any time in any business or business activity other than:


 


(a)          
in the case of Holdings, (i) ownership and acquisition of Equity Interests in Intermediate Holdings or the Borrower,
as applicable, together with activities directly related thereto, (ii) performance of its obligations under and in connection
with the Loan Documents and the other agreements contemplated hereby and thereby, (iii) actions incidental to the consummation
of the Transactions (including the payment of Transaction Costs), (iv) the incurrence of and performance of its obligations
related to Indebtedness and Guarantees incurred by Holdings after the Closing Date and that are related to the other activities
referred to in, or otherwise permitted by, this Section 6.08(a), (v) actions required by law to maintain
its existence, (vi) the payment of taxes and other customary obligations, (vii) the issuance of Equity Interests, (viii) any
transaction permitted in this Article VI (including guaranteeing Indebtedness or obligations of the Borrower
and its Subsidiaries) and (I) activities incidental to its maintenance and continuance and to the foregoing activities, or


 


(b)          
in the case of the Borrower and any Subsidiary, any business or business activity conducted by any of them on the Closing
Date and any business or business activities incidental or related thereto, or any business or activity that is reasonably similar
thereto or a reasonable extension, development or expansion thereof or ancillary thereto.


 






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Notwithstanding anything to the contrary
contained in herein, Holdings shall not sell, dispose of, grant a Lien on or otherwise transfer its Equity Interests in Intermediate
Holdings or the Borrower, as applicable (other than (i) Liens created by the Security Documents, or (ii) Liens arising by
operation of law that would be permitted under Section 6.02).


 


Section 6.09          
Limitation on Modification of Indebtedness; Modification of Certificate of Incorporation, By-Laws and Certain
Other Agreements; etc. 


 


(a)          
Amend or modify in any manner materially adverse to the Lenders, or grant any waiver or release under or terminate in any
manner (if such granting or termination shall be materially adverse to the Lenders), (i) the articles or certificate of incorporation
or by-laws or limited liability company operating agreement of Holdings, the Borrower or any of the Subsidiary Guarantors or (ii)
any documents relating to any Material Indebtedness (provided that immaterial amendments of an administrative, mechanical, ministerial
or technical nature may be made so long as contemporaneous notice thereof is given to the Administrative Agent), other than with
the prior written consent of the Administrative Agent; or


 


(b)         
Permit the Borrower or any Subsidiary to enter into any agreement or instrument that by its terms restricts (i) the
payment of dividends or distributions or the making of cash advances to (or the repayment of cash advances from) the Borrower or
any Subsidiary or (ii) the granting of Liens on Collateral pursuant to the Security Documents, in each case other than those
arising under any Loan Document, except, in each case, restrictions existing by reason of:


 


(i)             
restrictions imposed by Applicable Law;


 


(ii)            
contractual encumbrances or restrictions relating to the Qualifying DIP RE Facility subject to the Intercreditor Agreement
upon the effectiveness thereof;


 


(iii)          
customary provisions contained in leases, subleases, licenses or sublicenses of Intellectual Property and other similar
agreements entered into in the ordinary course of business;


 


(iv)           
customary provisions restricting subletting or assignment of any lease governing a leasehold interest;


 


(v)            
customary provisions restricting assignment of any agreement entered into in the ordinary course of business;


 


(vi)          
customary restrictions and conditions contained in any agreement relating to any Disposition permitted under Section 6.05
pending the consummation of such Disposition;


 


(vii)         
customary restrictions and conditions contained in the document relating to any Lien, so long as (A) such Lien is
permitted under Section 6.02 and such restrictions or conditions relate only to the specific asset subject
to such Lien and the proceeds and products thereof, and (B) such restrictions and conditions are not created for the purpose
of avoiding the restrictions imposed by this Section 6.09;


 






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(viii)       
customary net worth provisions contained in the Real Property leases entered into by Subsidiaries of the Borrower, so long
as the Borrower has determined in good faith that such net worth provisions could not reasonably be expected to impair the ability
of the Borrower and its Subsidiaries to meet their ongoing obligations.


 


Section 6.10           
Financial Performance Covenants. The Loan Parties shall maintain at all times Availability in an amount not
less than $20,000,000.


 


Section 6.11          
Use of Proceeds. The Borrower will not request any Borrowing or Letter
of Credit, and the Borrower shall not use, and shall procure that Holdings, its Subsidiaries and its or their respective directors,
officers, employees and agents shall not use directly or indirectly, the proceeds of any Borrowing or Letter of Credit (a) in furtherance
of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person
in violation of any Anti-Corruption Laws or any Sanctions, (b) for the purpose of funding, financing or facilitating any activities,
business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (c) in any manner that would result
in the violation of any Sanctions applicable to any party hereto.


 


Section 6.12         
Orders. Notwithstanding anything to the contrary herein, no Loan Party shall use any portion or proceeds of
the Loans or the Collateral, or disbursements set forth in the Approved Budget, for payments or purposes that would violate the
terms of paragraphs 58, 75 and 78 of the Order, and the corresponding paragraphs of the Final Order.


 


Section 6.13          
Prepayments of Other Debt. Other than pursuant to an order of the Court and in accordance with the Approved
Budget, directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or
other amount payable in respect of any Indebtedness prior to its scheduled maturity, other than (i) the Obligations, the Pre-Petition
Obligations and the Qualifying DIP RE Facility or (ii) any payments in respect of accrued payroll and related expenses as of the
commencement of the Chapter 11 Cases in accordance with the Approved Budget.


 


Section 6.14         
Reclamation of Claims. No Loan Party shall enter into any agreement to return any of its Inventory to any
of its creditors for application against any pre-petition Indebtedness, pre-petition trade payables or other pre-petition claims
under Section 546(c) of the Bankruptcy Code or allow any creditor to take any setoff or recoupment against any of its pre-petition
Indebtedness, pre-petition trade payables or other pre-petition claims based upon any such return pursuant to Section 553(b)(1)
of the Bankruptcy Code or otherwise if, after giving effect to any such agreement, setoff or recoupment, the aggregate amount applied
to pre-petition Indebtedness, pre-petition trade payables and other pre-petition claims subject to all such agreements, setoffs
and recoupments since the Petition Date would exceed $1,000,000.


 


Section 6.15          Insolvency
Proceeding Claims. No Loan Party shall incur, create, assume, suffer to exist or permit any other superpriority
administrative claim which is pari passu with or senior to the claim of the Administrative Agent or the Lenders against the
Loan Parties, except Liens permitted hereunder securing the Qualifying DIP RE Facility as set forth in the applicable
Order.


 






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Section 6.16          
Bankruptcy Actions. No Loan Party shall seek, consent to, or permit to exist, without the prior written consent
of the Administrative Agent, any order granting authority to take any action that is prohibited by the terms of this Agreement,
the Orders or the other Loan Documents or refrain from taking any action that is required to be taken by the terms of this Agreement,
the Orders or any of the other Loan Documents.


 


Section 6.17          
Subrogation. No Loan Party shall assert any right of subrogation or contribution against any other Loan Party.


 


Section 6.18         
Modification of Engagement Letters. The Loan Parties shall not amend, supplement or modify, or permit the
amendment, the supplementing or modification of, any provision of the Borrower Sale Advisor Engagement Letter or the Borrower Financial
Advisor Engagement Letter, in each case, in any manner that is adverse in any material respect to the interest of the Administrative
Agent or the Lenders without the consent of the Administrative Agent.


 


ARTICLE VII



Events of Default


 


Section 7.01          
Events of Default. In case of the happening of any of the following events
(each, an “Event of Default”):


 


(a)          
any representation, warranty or certification made or deemed made by or on behalf of any Loan Party or any Subsidiary in,
or in connection with, this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder
or 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 hereof or thereof or waiver hereunder or thereunder
(including, without limitation, any Budget Compliance Report, Borrowing Base Certificate or Compliance Certificate), shall prove
to have been false or misleading in any material respect when made or deemed made;


 


(b)          
default shall be made in the payment of 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 by acceleration thereof or otherwise;


 


(c)          
default shall be made in the payment of any interest on any Loan or in the payment of any Fee or any other amount (other
than an amount referred to in paragraph (b) above) due under any Loan Document, when and as the same shall become
due and payable;


 


(d)         
default shall be made in the due observance or performance by Holdings, the Borrower or any of the Subsidiaries of any covenant,
condition or agreement contained in Sections 5.01, 5.04, 5.05, 5.06,
5.07, 5.13, 5.15, 5.16, 5.17, 5.18, 5.19,
5.20, 5.21 or in Article VI;


 






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(e)           default
shall be made in the (i) failure to deliver a Borrowing Base Certificate required to be delivered pursuant to Section 5.12(a)
or (ii) due observance or performance by Holdings, the Borrower or any of the Subsidiaries of any covenant, condition or
agreement contained in any Loan Document (other than those specified in paragraphs (b), (c)
and (d) above) and such failure shall continue unremedied for a period of 10 days after the earlier of a
Responsible Officer’s knowledge of such breach or notice thereof from the Administrative Agent if such breach relates
to terms or provisions of any other Section of this Agreement;


 


(f)          
except for defaults occasioned by the filing of the Chapter 11 Cases or entry into this Agreement or resulting from obligations
with respect to which the Bankruptcy Code prohibits any Loan Party or any Subsidiary from complying or permits any Loan Party or
Subsidiary not to comply (i) any event or condition occurs that (A) results in any Material Indebtedness becoming due
prior to its scheduled maturity or (B) enables or permits (with all applicable grace periods having expired) the holder or
holders any Material Indebtedness or any trustee or agent on its or their behalf to cause any such Material Indebtedness become
due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity, (ii) Holdings,
the Borrower or any Loan Party fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) and such payment is not made within any applicable grace period in respect of any Material Indebtedness (including
undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement);


 


(g)          
there shall have occurred a Change in Control;


 


(h)          
[reserved];


 


(i)           
if the Loan Parties fail to comply in any material respect with the terms of the Specified Liquidation Agreement for the
Specified Store Closing Sales or the Specified Liquidation Agreement shall be amended or modified in a manner which is materially
adverse to the Lenders without the Administrative Agent’s consent;


 


(j)           
there is entered against Holdings, the Borrower or any Subsidiary one (1) or more final judgments or orders for the payment
of money aggregating in excess of $1.0 million (to the extent not covered by third-party insurance as to which the insurer
has been notified of such judgment and does not deny coverage), which judgments are not subject to the Automatic Stay for a period
of twenty (20) consecutive days, or any action shall be legally taken by a judgment creditor to levy upon assets or properties
of Holdings, the Borrower or any Subsidiary to enforce any such judgment;


 


(k)          
(i) an ERISA Event and/or a Foreign Plan Event shall have occurred, (ii) a trustee shall be appointed by a United
States district court to administer any Plan(s) or (iii) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and
such Person does not have reasonable grounds for contesting such Withdrawal Liability or is not contesting such Withdrawal Liability
in a timely and appropriate manner; and in each case in clauses (i) through (iii) above,
such event or condition, together with all other such events or conditions, if any, could reasonably be expected to have a Material
Adverse Effect;


 






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(l)            (i) any
Loan Document or any material provision of any Loan Document shall for any reason cease to be, or shall be asserted in
writing by Holdings, the Borrower or any Subsidiary not to be, a legal, valid and binding obligation of any party thereto,
(ii) except as permitted by the terms of any Security Document or any Security Document (as defined in the Pre-Petition
Credit Agreement), (A) any Security Document or any Security Document (as defined in the Pre-Petition Credit Agreement) shall
for any reason fail to create a valid security interest in any Collateral (as defined herein and in the Pre-Petition Credit
Agreement) purported to be covered thereby, or (B) the Orders, any Security Document or any Security Document (as defined in
the Pre-Petition Credit Agreement) shall for any reason (other than pursuant to the terms thereof) cease to create a valid
and perfected or recorded Lien on and security interest in any portion of the Collateral (as defined herein and in the
Pre-Petition Credit Agreement) purported to be covered thereby, or such Lien or other security interest shall cease to have
the status and priority provided in the Orders or (iii) the Loan Guaranty or the Loan Guaranty (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 Guaranty or the Loan Guaranty (as defined in the Pre-Petition Credit
Agreement), or any Subsidiary Guarantor shall deny that it has any further liability under the Loan Guaranty or the Loan
Guaranty (as defined in the Pre-Petition Credit Agreement) to which it is a party, or shall give notice to such effect;


 


(m)         
upon the effectiveness thereof, the provisions of the Intercreditor Agreement 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, any agent with respect to the Qualifying
DIP RE Facility, or any lender thereunder, or any Affiliate of any of the foregoing shall have commenced a suit or an action, including
any motion or adversary proceeding in the Chapter 11 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;


 


(n)          
if there occurs any uninsured loss of any portion of the Collateral with a market or book value in excess of $2,000,000;


 


(o)          
the failure of the Loan Parties to obtain the Final Order from the Court not later than thirty (30) days after the date
of entry of the Interim Order;


 


(p)         
the Loan Parties shall fail to meet timely any Case Milestone, deliver timely any report or information, or meet timely
any other deadline under the Interim Order or the Final Order;


 


(q)          
the occurrence of any of the following in the Chapter 11 Cases:


 


(i)              the
bringing of a motion, taking of any action or the filing of any plan of reorganization or disclosure statement attendant
thereto by any of the Loan Parties or any Subsidiary, or any Person claiming by or through any Loan Party or any Subsidiary,
in the Chapter 11 Cases: (A) to obtain additional financing under Section 364(c) or Section 364(d) of the Bankruptcy Code not
otherwise permitted pursuant to this Agreement; (B) to grant any Lien other than Liens permitted pursuant to Section
6.02 upon or affecting any Collateral; (C) except as provided in the Interim Order or Final Order, as the case may
be, to use Cash Collateral of the Administrative Agent and the other Secured Parties or Pre-Petition Agent and Pre-Petition
Lenders under Section 363(c) of the Bankruptcy Code without the prior written consent of the Administrative Agent; or (D) any
other action or actions materially adverse to (x) the Administrative Agent and Lenders, as a whole, or Pre-Petition Agent and
Pre-Petition Lenders, as a whole, or their rights and remedies hereunder, under any other Loan Documents, or their interest
in the Collateral or (y) Pre-Petition Agent and Pre-Petition Lenders, as a whole, or their rights under the Pre-Petition
Credit Agreement or the other Pre-Petition Loan Documents or their interest in the Collateral (as defined in the Pre-Petition
Credit Agreement);


 






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(ii)            
(A) the filing of any plan of reorganization, sale order or disclosure statement attendant thereto, or any direct or indirect
amendment to such plan, sale order or disclosure statement, by a Loan Party that does not propose to indefeasibly repay in full
in cash the Secured Obligations or by any other Person to which the Administrative Agent and the Required Lenders do not consent,
or any of the Loan Parties or their Subsidiaries shall seek, support or fail to contest in good faith the filing or confirmation
of any such plan or entry of any such order, (B) the entry of any order terminating any Loan Party’s exclusive right to file
a plan of reorganization, or (C) the expiration of any Loan Party’s exclusive right to file a plan of reorganization;


 


(iii)           
the entry of an order in any of the Chapter 11 Cases confirming a plan of reorganization that (A) is not reasonably acceptable
to the Administrative Agent, or (B) does not contain a provision for termination of the Commitments and indefeasible repayment
in full in cash of all of the Secured Obligations and the Pre-Petition Obligations on or before the effective date of such plan
or plans;


 


(iv)           
(A) the entry of an order amending, supplementing, staying, vacating or otherwise modifying the Loan Documents or the Interim
Order or the Final Order without the written consent of the Administrative Agent or the filing of a motion by the Loan Parties
or its Affiliates for reconsideration with respect to the Interim Order or the Final Order, or the Interim Order or the Final Order
shall otherwise not be in full force and effect without the prior written consent of the Administrative Agent and the Required
Lenders in their sole discretion, or (B) any Loan Party or any Subsidiary shall fail to comply with the Orders in any material
respect; or


 


(v)            
the payment of, or application for authority to pay, any pre-petition claim without Required Lenders’ prior written
consent unless in accordance with the Approved Budget or pursuant to an Order of the Court; or


 


(vi)           
the allowance of any claim or claims under Section 506(c) of the Bankruptcy Code or otherwise 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 Pre-Petition Credit Agreement); or


 


(vii)           (A)
the appointment of an interim or permanent trustee in the Chapter 11 Cases or the appointment of a trustee receiver or an
examiner in the Chapter 11 Cases with expanded powers to operate or manage the financial affairs, the business, or
reorganization of the Loan Parties; or (B) the sale without the Required Lender’s consent of all or substantially all
of the Loan Parties’ assets either through a sale under Section 363, through a confirmed plan of reorganization in the
Chapter 11 Cases or otherwise that does not result in payment in full in cash of all of the Secured Obligations and all
Pre-Petition Obligations at the closing of such sale or initial payment of the purchase price or effectiveness of such plan,
as applicable; or


 






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(viii)        
entry of an order for the dismissal or conversion to Chapter 7 of any Loan Party’s bankruptcy case; the appointment
of a bankruptcy trustee, examiner or other fiduciary with decision making authority except with the express written consent of
the Administrative Agent; the granting of any other superpriority administrative expense claim (other than Liens permitted hereunder
securing the Qualifying DIP RE Facility) or the entry of an order granting relief from the Automatic Stay (if not in favor of the
Administrative Agent) except with the express written consent of the Administrative Agent; any Loan Party shall attempt to vacate
or modify the Interim Order or the Final Order over the objection of the Administrative Agent; or any Loan Party shall institute
any proceeding or investigation or support same by any other person who seeks to challenge the status and/or validity of the liens
of the Administrative Agent (as security for the Lenders; or


 


(ix)           
any Loan Party shall file a motion seeking, or the Court shall enter an order granting, relief from or modifying the Automatic
Stay involving assets with an aggregate value in excess of $75,000 (A) to allow any creditor (other than the Administrative Agent)
to execute upon or enforce a Lien on any Collateral not approved by the Administrative Agent, (B) approving any settlement or other
stipulation not approved by the Administrative Agent with any secured creditor of any Loan Party providing for payments as adequate
protection or otherwise to such secured creditor, (C) with respect to any Lien on or the granting of any Lien on any Collateral
not approved by the Administrative Agent to any federal, state or local environmental or regulatory agency or authority, which
in either case involves a claim that would have a Material Adverse Effect on the Loan Parties or their estates (taken as a whole)
or more or (D) to permit other actions that would have a Material Adverse Effect on the Loan Parties or their estates (taken as
a whole); or


 


(x)            
the commencement of a suit or an action (but not including a motion for standing to commence a suit or an action) against
either the Administrative Agent or any Lender or Pre-Petition Agent or any Pre-Petition Lender and, as to any suit or action brought
by any Person other than a Loan Party or a Subsidiary, officer or employee of a Loan Party, the continuation thereof without dismissal
for thirty (30) days after service thereof on either the Administrative Agent or such Lender or Pre-Petition Agent or any Pre-Petition
Lender, that asserts or seeks by or on behalf of a Loan Party, any state or federal environmental protection or health and safety
agency, any official committee in any Chapter 11 Case or any other party in interest in any of the Chapter 11 Cases, a claim or
any legal or equitable remedy that would (x) have the effect of invalidating, subordinating or challenging any or all of the Secured
Obligations or Liens of the Administrative Agent or any Lender under the Loan Documents or the Pre-Petition Obligations or Liens
of the Pre-Petition Agent or Pre-Petition Lenders under the Pre-Petition Loan Documents to any other claim, or (y) have a Material
Adverse Effect on the rights and remedies of the Administrative Agent or any Lender or Pre-Petition Agent or any Pre-Petition Lender
under any Loan Document or the Pre-Petition Agent or Pre-Petition Lenders under the Pre-Petition Loan Documents or the collectability
of all or any portion of the Secured Obligations or the Pre-Petition Obligations; or


 






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(xi)           
the entry of an order in the Chapter 11 Cases avoiding or permitting recovery of any portion of the payments made on account
of the Secured Obligations or the Pre-Petition Obligations owing under the Pre-Petition Loan Documents; or


 


(xii)          
the failure of any Loan Party to perform any of its material obligations under, or the occurrence of an event of default
under or as defined in, the Interim Order, the Final Order or any order of the Court approving any Plan of Reorganization, a Section
363 Sale, or to perform in any material respect its material obligations under any order of the Court approving bidding procedures;
or


 


(xiii)         
other than Liens permitted hereunder securing the Qualifying DIP RE Facility, the existence of any claims or charges, or
the entry of any order of the Court authorizing any claims or charges, other than in respect of this Agreement and the other Loan
Documents, or as otherwise permitted under the applicable Loan Documents or permitted under the Orders, entitled to superpriority
administrative expense claim status in any Chapter 11 Case pursuant to Section 364(c)(1) of the Bankruptcy Code pari passu with
or senior to the claims of the Administrative Agent and the Secured Parties under this Agreement and the other Loan Documents,
or there shall arise or be granted by the Court (A) 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 (B) any Lien on the 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 the Loan Documents or in the Orders then in effect (but only in the event specifically consented to by the Administrative Agent),
whichever is in effect; or


 


(xiv)         
the Orders shall cease to create a valid and perfected Lien on the Collateral or to be in full force and effect, shall have
been reversed, modified, amended, stayed, vacated, or subject to stay pending appeal, in the case of modification or amendment,
without prior written consent of Administrative Agent; or


 


(xv)          
an order in the Chapter 11 Cases shall be entered (A) charging any of the Collateral under Section 506(c) of the Bankruptcy
Code against the Administrative Agent and the Secured Parties or (B) limiting the extension under Section 552(b) of the Bankruptcy
Code of the Liens of the Pre-Petition Agent on the Collateral to any proceeds, products, offspring, or profits of the Collateral
acquired by any Loan Party after the Petition Date, or the commencement of other actions that is materially adverse to Administrative
Agent, the Secured Parties or their respective rights and remedies under the Loan Documents in any of the Chapter 11 Cases or inconsistent
with any of the Loan Documents; or


 


(xvi)         
if the Final Order does not include a waiver, in form and substance satisfactory to the Administrative Agent, of (A) the
right to surcharge the Collateral under Section 506(c) of the Bankruptcy Code and (B) any ability to limit the extension under
Section 552(b) of the Bankruptcy Code of the Liens of the Pre-Petition Agent on the Collateral to any proceeds, products, offspring,
or profits of the Collateral acquired by any Loan Party after the Petition Date; or


 


(xvii)        
an order of the Court shall be entered denying or terminating use of Cash Collateral by the Loan Parties; or


 






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(xviii)       
an order materially adversely impacting the rights and interests of the Administrative Agent and the Lenders, as determined
by the Administrative Agent in its Permitted Discretion, shall have been entered by the Court; or


 


(xix)         
any Loan Party shall challenge, support or encourage a challenge of any payments made to the Administrative Agent or any
Lender with respect to the Secured Obligations or the Pre-Petition Agent or the Pre-Petition Lenders with respect to the Pre-Petition
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 the Court approving) adequate protection to any Pre-Petition Agent or the Pre-Petition Lenders
that is inconsistent with the Order; or


 


(xx)          
other than the Specified Store Closing Sales, any Loan Party or any person on behalf of any Loan Party shall file any motion
seeking authority to consummate a sale of assets of the Loan Parties or the Collateral to the extent having a value in excess of
$2,000,000 outside the ordinary course of business and not otherwise permitted hereunder and without the Administrative Agent’s
consent; or


 


(xxi)         
any Loan Party shall make any payment (whether by way of adequate protection or otherwise) of principal or interest or otherwise
on account of any pre-petition Indebtedness or payables other than payments (A) in respect of accrued payroll and related expenses
as of the commencement of the Chapter 11 Cases, (B) in respect of certain creditors as may be reasonably acceptable to the Administrative
Agent and (C) permitted under this Agreement, in each case, to the extent authorized or required by one or more “first day”
or “second day” orders or any of the Orders (or other orders with the consent of the Administrative Agent) and consistent
with the Approved Budget; or


 


(xxii)         
if, unless otherwise approved by the Administrative Agent, an order of the Court shall be entered providing for a change
of venue with respect to any of the Chapter 11 Cases and such order shall not be reversed or vacated within ten (10) days; or


 


(xxiii)       
any Loan Party or any Subsidiary thereof shall file any motion or other request with the Court seeking (A) to grant or impose,
under Section 364 of the Bankruptcy Code or otherwise, liens or security interests in any DIP Collateral (as defined in the Orders),
whether senior, equal or subordinate to the Administrative Agent’s liens and security interests (other than Liens permitted
hereunder securing the Qualifying DIP RE Facility); or (B) to modify or affect any of the rights of the Administrative Agent or
the Lenders under the Orders or the Loan Documents and related documents by any plan of reorganization confirmed in the Chapter
11 Cases or subsequent order entered in the Chapter 11 Cases; or


 


(xxiv)        
[reserved]; or


 


(xxv)        
any Loan Party or any Subsidiary thereof shall take any action in support of any matter set forth in this clause (q) or
any other Person shall do so and such application is not contested in good faith by the Loan Parties and the relief requested is
granted in an order that is not stayed pending appeal;


 






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then, and in every such event, and at
any time thereafter during the continuance of such event, subject to the Orders and upon the effectiveness thereof, the
Intercreditor Agreement and the terms thereof and notwithstanding the provisions of Section 362 of the Bankruptcy Code and
without notice, application or motion, hearing before, or order of the Court, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take any or all of the following actions, at the same or
different times: (i) terminate the Revolver Commitments, whereupon the Revolver Commitments shall terminate immediately, but
without affecting the Administrative Agent’s Liens or the Secured Obligations, (ii) declare the Loans then outstanding
to be due and payable in whole (or in part, but ratably as among the Classes of Loans and the Loans of each Class at the time
outstanding, in which case any principal not so declared to be due and payable may thereafter be declared to be due and
payable), whereupon 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 Borrower 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 expressly waived by the Borrower,
anything contained herein or in any other Loan Document to the contrary notwithstanding, (iii) require the Loan Parties
to Cash Collateralize LC Obligations at 105% of the Stated Amount thereof, and, if the Loan Parties fail promptly to deposit
such Cash Collateral, the Administrative Agent may (and shall upon the direction of Required Lenders) advance the required
Cash Collateral as Loans (whether or not an Overadvance exists or is created thereby, or the conditions in Section 4.02
are satisfied), (iv) declare that the application of the Carve-Out has occurred through the delivery of a Carve-Out Trigger
Notice (as defined in the Orders) to the Borrower, (v) subject to the Remedies Notice Period, 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 upon the
effectiveness thereof) on terms and conditions acceptable to the Administrative Agent pursuant to Section 363, Section 365
and other applicable provisions of the Bankruptcy Code (and, without limiting the foregoing, direct any Loan Party to assume
and assign any lease or executory contract included in the Collateral (subject to the Intercreditor Agreement upon the
effectiveness thereof) to the Administrative Agent’s designees in accordance with and subject to Section 365 of the
Bankruptcy Code); and/or (vi) subject to the Remedies Notice Period, (A) exercise on behalf of itself and the Secured Parties
all rights and remedies available to it and the Secured Parties under the Loan Documents or Applicable Law or (B) take any
and all actions described in the Orders, including, without limitation, those actions specified in the Orders 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 Secured Parties, as set forth in this Agreement, the applicable
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.


 


The Automatic Stay shall terminate,
and the Administrative Agent may exercise rights and remedies in accordance with the Loan Documents and Applicable Law,
including a Full-Chain Liquidation. Notwithstanding the foregoing, the Lenders shall not be obligated to provide any Loans at
any time a default or an Event of Default has occurred.


 






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The Administrative Agent
(together with its agents, representatives and designees) is hereby granted an irrevocable, non-exclusive license or other right
to use, license or sub-license (without payment of royalty or other compensation to any Person) any or all Intellectual Property
of the Loan Parties, computer hardware and software, trade secrets, brochures, customer lists, promotional and advertising materials,
labels, packaging materials and other property, in advertising for sale, marketing, selling, collecting, completing manufacture
of, or otherwise exercising any rights or remedies with respect to, any Collateral, in each case, after the occurrence and during
the continuance of an Event of Default, subject to the rights, remedies and priorities under the Orders and upon the effectiveness
thereof, the Intercreditor Agreement. The Administrative Agent (together with its agents, representatives and designees) is hereby
granted a non-exclusive right to have access to, and a rent-free right to use, any and all owned or leased locations (including,
without limitation, warehouse locations, distribution centers and Store locations) for the purpose of arranging for and effecting
the sale or disposition of Collateral, subject to the Intercreditor Agreement upon the effectiveness thereof, including the production,
completion, packaging and other preparation of such Collateral for sale or disposition, and to engage in bulk sales of Collateral,
which rights shall be subject to the Orders and the Intercreditor Agreement upon the effectiveness thereof. It is further understood
and agreed that the Administrative Agent and its representatives (and persons employed on their behalf) may continue to operate,
service, maintain, process and sell the Collateral, subject to the Orders and the Intercreditor Agreement upon the effectiveness
thereof. Upon the occurrence and the continuance of an Event of Default and the exercise by the Administrative Agent or Lenders
of their rights and remedies under this Agreement and the other Loan Documents, the Loan Parties shall assist the Administrative
Agent and Lenders in effecting a sale or other disposition of the Collateral upon such terms as are reasonably acceptable to the
Administrative Agent, subject to the Orders and the Intercreditor Agreement upon the effectiveness thereof.


 


Section 7.02       
Allocation. Notwithstanding anything herein to the contrary, upon the occurrence
and during the continuance of an Event of Default, monies to be applied to the Secured Obligations, whether arising from payments
by the Loan Parties, realization on Collateral, setoff or otherwise, shall be allocated as follows:


 


(a)              
first, to payment of that portion of the Obligations (excluding the Other Liabilities) constituting fees, indemnities,
expenses (including extraordinary expenses) and other amounts, owing to the Administrative Agent or the Issuing Bank, in its capacity
as such;


 


(b)              
second, to payment of that portion of the Obligations (excluding the Other Liabilities) constituting indemnities,
expenses, and other amounts (other than principal, interest and fees) payable to the Lenders, ratably among them in proportion
to the amounts described in this clause second payable to them;


 






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(c)              
third, to the extent not previously reimbursed by the Borrower, to payment to the Lenders of that portion of the
Obligations constituting principal and accrued and unpaid interest on any permitted Overadvances, ratably among the Lenders in
proportion to the amounts


 


described in this clause third
payable to them;


 


(d)              
fourth, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans, LC Obligations
and other Obligations, and fees (including Letter of Credit Fees), ratably among the Lenders and the Issuing Bank in proportion
to the respective amounts described in this clause fourth payable to them;


 


(e)              
fifth, to payment of that portion of the Obligations constituting unpaid principal of the Loans and LC Obligations,
ratably among the Lenders and the Issuing Bank in proportion to the respective amounts described in this clause fifth
held by them;


 


(f)               
sixth, to the Administrative Agent for the account of the Issuing Bank, to Cash Collateralize LC Obligations at 105%
of the Stated Amount thereof;


 


(g)              
seventh, to payment of that portion of the Obligations arising from Cash Management Services to the extent secured
under the Security Documents, ratably among the Secured Parties in proportion to the respective amounts described in this clause
seventh held by them;


 


(h)              
eighth, to payment of all other Obligations arising from Bank Products to the extent secured under the Security Documents,
ratably among the Secured Parties in proportion to the respective amounts described in this clause eighth held by
them; and


 


(i)                
last, the balance, if any, after all of the Obligations have been paid in full, to the Loan Parties or as otherwise
required by Law.


 


Amounts shall be applied
to each category of Secured Obligations set forth above until Full Payment thereof and then to the next category. If amounts are
insufficient to satisfy a category, they shall be applied on a pro rata basis among the Secured Obligations in the category.
Amounts distributed with respect to any Secured Bank Product Obligations shall be the lesser of the maximum Secured Bank Product
Obligations last reported to the Administrative Agent or the actual Secured Bank Product Obligations as calculated by the methodology
reported to the Administrative Agent for determining the amount due. The Administrative Agent shall have no obligation to calculate
the amount to be distributed with respect to any Secured Bank Product Obligations, and may request a reasonably detailed calculation
of such amount from the applicable Secured Party. If a Secured Party fails to deliver such calculation within five days following
request by the Administrative Agent, the Administrative Agent may assume the amount to be distributed is zero. The allocations
set forth in this Section 7.02 are solely to determine the rights and priorities of the Administrative Agent
and the Secured Parties as among themselves, and may, except as set forth in the next sentence, be changed by agreement among them
without the consent of any Loan Party. It is understood and agreed that (i) no Secured Bank Product Obligations shall be paid
pursuant to this Section ahead of any other Obligations and (ii) no Cash Collateralization of LC Obligations shall be paid
prior to any fees, interest or amounts due to the Issuing Bank or the Administrative Agent, in each case, unless consented to by
the Borrower. If any monies remain after distribution to all of the categories above, such monies shall be returned to the Borrower.


 






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ARTICLE VIII


 


The Agents


 


Section 8.01       
Appointment, Authority and Duties of the Administrative Agent.


 


(a)              
Appointment and Authority. Each Secured Party hereby irrevocably appoints and designates J.P. Morgan as the
Administrative Agent under all Loan Documents and J.P. Morgan hereby accepts such appointments. The Administrative Agent may,
and each Secured Party authorizes the Administrative Agent to, enter into all Loan Documents to which the Administrative Agent
is intended to be a party and accept all Security Documents, for the benefit of Secured Parties. Each Secured Party agrees that
any action taken by the Administrative Agent or Required Lenders in accordance with the provisions of the Loan Documents, and the
exercise by the Administrative Agent or Required Lenders of any rights or remedies set forth therein, together with all other powers
reasonably incidental thereto, shall be authorized by and binding upon all Secured Parties. Without limiting the generality of
the foregoing, the Administrative Agent shall have the sole and exclusive authority to (a) act as the disbursing and collecting
agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents; (b) execute
and deliver as the Administrative Agent each Loan Document, including any intercreditor or subordination agreement, and accept
delivery of each Loan Document from any Loan Party or other Person; (c) act as collateral agent for Secured Parties for purposes
of perfecting and administering Liens under the Loan Documents, and for all other purposes stated therein; (d) manage, supervise
or otherwise deal with Collateral; and (e) take any Enforcement Action or otherwise exercise any rights or remedies with respect
to any Collateral under the Loan Documents, Applicable Law or otherwise. No Secured Party shall have any right individually to
take any Enforcement Action or otherwise exercise any rights or remedies with respect to any Collateral under the Loan Documents,
Applicable Law or otherwise. The duties of the Administrative Agent shall be ministerial and administrative in nature, and the
Administrative Agent shall not have a fiduciary relationship with any Secured Party, Participant or other Person, by reason of
any Loan Document or any transaction relating thereto. The Administrative Agent alone shall be authorized to determine whether
any Accounts, Credit Card Receivables or Inventory constitute Eligible Credit Card Receivables, Eligible Inventory or Eligible
In-Transit Inventory, whether to impose or release any Availability Reserve, or whether any conditions to funding or to issuance
of a Letter of Credit have been satisfied, which determinations and judgments, if exercised in good faith, shall exonerate the
Administrative Agent from liability to any Lender or other Person for any error in judgment.


 


(b)              
Duties. The Administrative Agent shall not have any duties except those expressly set forth in the Loan Documents.
The conferral upon the Administrative Agent of any right shall not imply a duty to exercise such right, unless instructed to do
so by Required Lenders in accordance with this Agreement.


 


(c)              
Agent Professionals. The Administrative Agent may perform its duties through agents and employees. The Administrative
Agent may consult with and employ Agent Professionals, and shall be entitled to act upon, and shall be fully protected in any action
taken in good faith reliance upon, any advice given by an Agent Professional.


 


(d)               Instructions
of Required Lenders. The rights and remedies conferred upon the Administrative Agent under the Loan Documents may be
exercised without the necessity of joinder of any other party, unless required by Applicable Law. The Administrative Agent
may request instructions from Required Lenders or other Secured Parties with respect to any act (including the failure to
act) in connection with any Loan Documents, and may seek assurances to its satisfaction from Secured Parties of their
indemnification obligations against all Claims that could be incurred by the Administrative Agent in connection with any act.
The Administrative Agent shall be entitled to refrain from any act until it has received such instructions or assurances, and
the Administrative Agent shall not incur liability to any Lender by reason of so refraining. Instructions of Required Lenders
shall be binding upon all Secured Parties, and no Secured Party shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or refraining from acting in accordance with the
instructions of Required Lenders. Notwithstanding the foregoing, instructions by and consent of specific Lenders or Secured
Parties shall be required to the extent provided in Section 9.08(b). In no event shall the Administrative
Agent be required to take any action that, in its opinion, is contrary to Applicable Law or any Loan Documents or could
subject any Agent Indemnitee to personal liability.


 






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Section 8.02       
Agreements Regarding Collateral and Field Examination Reports.


 


(a)              
Possession of Collateral. The Administrative Agent and Secured Parties appoint each Lender as agent (for the benefit
of Secured Parties) for the purpose of perfecting Liens in any Collateral held or controlled by such Lender, to the extent such
Liens are perfected by possession or control. If any Lender obtains possession or control of any Collateral, it shall notify the
Administrative Agent thereof and, promptly upon the Administrative Agent’s request, deliver such Collateral to the Administrative
Agent or otherwise deal with it in accordance with the Administrative Agent’s instructions.


 


(b)              
Reports. The Administrative Agent shall promptly forward to each Lender, when complete, copies of any field audit,
examination or appraisal report prepared by or for the Administrative Agent with respect to any Loan Party or Collateral (“Report”).
Each Lender agrees (i) that neither J.P. Morgan nor the Administrative Agent makes any representation or warranty as
to the accuracy or completeness of any Report, and shall not be liable for any information contained in or omitted from any Report;
(ii) that the Reports are not intended to be comprehensive audits or examinations, and that the Administrative Agent or any
other Person performing any audit or examination will inspect only specific information regarding the Collateral and will rely
significantly upon the Borrower’s books and records as well as upon representations of the Borrower’s officers and
employees; and (iii) to keep all Reports confidential in accordance with Section 9.16 and not to distribute
or use any Report in any manner other than administration of the Loans and other Obligations. Each Lender shall indemnify and hold
harmless the Administrative Agent and any other Person preparing a Report from any action such Lender may take as a result of or
any conclusion it may draw from any Report, as well as from any Claims arising as a direct or indirect result of the Administrative
Agent furnishing a Report to such Lender.


 


Section 8.03        Reliance
By the Administrative Agent. The Administrative Agent shall be entitled to rely, and
shall not incur any liability in relying, upon any certification, notice or other communication (including those by
telephone, telex, telegram, telecopy or e-mail) believed by it to be genuine and correct and to have been signed, sent or
made by the proper Person, and upon the advice and statements of Agent Professionals. The Administrative Agent shall have a
reasonable and practicable amount of time to act upon any instruction, notice or other communication under any Loan Document,
and shall not be liable for any such delay in acting.


 


Section 8.04       
Action Upon Default. The Administrative Agent shall not be deemed to have
knowledge of any Default or Event of Default, or of any failure to satisfy any conditions in Article IV, unless
it has received written notice from the Borrower or Required Lenders specifying the occurrence and nature thereof. If any Lender
acquires knowledge of a Default, Event of Default or failure of such conditions, it shall promptly notify the Administrative Agent
and the other Lenders thereof in writing. Each Secured Party agrees that, except with the written consent of the Required Lenders,
it will not take any Enforcement Action, accelerate Obligations, or exercise any right that it might otherwise have under Applicable
Law to credit bid at foreclosure sales, UCC sales or other similar dispositions of Collateral or to assert any rights relating
to any Collateral.


 


Section 8.05       
Payments Received by Defaulting Lender. If a Defaulting Lender obtains a payment
or reduction of any Obligation, it shall immediately turn over the amount thereof to the Administrative Agent for application under
Section 2.18 and it shall provide a written statement to the Administrative Agent describing the Obligation
affected by such payment or reduction. No Lender shall set off against any Dominion Account without the prior consent of the Administrative
Agent.


 


Section 8.06       
Limitation on Responsibilities of the Agents. The Administrative Agent shall
not be liable to any Secured Party for any action taken or omitted to be taken under the Loan Documents, except for losses to the
extent caused by the Administrative Agent’s gross negligence or willful misconduct. The Agents do not assume any responsibility
for any failure or delay in performance or any breach by any Loan Party, Lender or other Secured Party of any obligations under
the Loan Documents. The Agents do not make any express or implied representation, warranty or guarantee to Secured Parties with
respect to any Secured Obligations, Collateral, Loan Documents or Loan Party. No Agent Indemnitee shall be responsible to Secured
Parties for any recitals, statements, information, representations or warranties contained in any Loan Documents; the execution,
validity, genuineness, effectiveness or enforceability of any Loan Documents; the genuineness, enforceability, collectability,
value, sufficiency, location or existence of any Collateral, or the validity, extent, perfection or priority of any Lien therein;
the validity, enforceability or collectability of any Secured Obligations; or the assets, liabilities, financial condition, results
of operations, business, creditworthiness or legal status of any Loan Party or Account Debtor. No Agent Indemnitee shall have any
obligation to any Secured Party to ascertain or inquire into the existence of any Default or Event of Default, the observance by
any Loan Party of any terms of the Loan Documents, or the satisfaction of any conditions precedent contained in any Loan Documents.


 






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Section 8.07       
Successor Administrative Agent and Co-Agents.


 


(a)               Resignation;
Successor Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving at least 30 days written notice thereof to Lenders and
the Borrower. Upon receipt of such notice, Required Lenders shall have the right, in consultation with (and with the consent
of) the Borrower, to appoint a successor Administrative Agent which shall be (i) a Lender or an Affiliate of a Lender;
or (ii) a commercial bank that is organized under the laws of the United States or any state or district thereof, has a
combined capital surplus of at least $1,000,000,000 and (provided no Event of Default exists under Sections 7.01(b) (with
respect to the Borrower only)) is subject to the approval of the Borrower. If no successor agent is appointed prior to the
date that is 30 days from the effective date of the resignation of the Administrative Agent, then the Administrative
Agent may appoint a successor agent from among the Lenders or, if no Lender accepts such role, the Administrative Agent may
appoint Required Lenders as successor Administrative Agent. Upon acceptance by a successor Administrative Agent of an
appointment to serve as the Administrative Agent hereunder, or upon appointment of Required Lenders as successor
Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the powers
and duties of the retiring Administrative Agent without further act, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder but shall continue to have the benefits of the indemnification set forth
in Section 8.15. Notwithstanding any Administrative Agent’s resignation, the provisions of this Section 8.07
shall continue in effect for its benefit with respect to any actions taken or omitted to be taken by it while the
Administrative Agent. Any successor to J.P. Morgan by merger or acquisition of stock or this loan shall continue to be
the Administrative Agent hereunder without further act on the part of the parties hereto, unless such successor resigns as
provided above.


 


(b)              
Separate Collateral Administrative Agent. The parties acknowledge that upon the effectiveness of the Qualifying DIP
RE Facility, the collateral agent thereunder may be acting as collateral agent for the Administrative Agent and the Lenders with
respect to the Real Property and, to such extent, the Administrative Agent shall appoint such collateral agent to act in such capacity.
Secured Parties shall execute and deliver such documents as the Administrative Agent deems appropriate to vest any rights or remedies
in such agent.


 


Section 8.08       
Due Diligence and Non-Reliance. Each Lender acknowledges and agrees that it
has, independently and without reliance upon the Agents or any other Lenders, and based upon such documents, information and analyses
as it has deemed appropriate, made its own credit analysis of each Loan Party and its own decision to enter into this Agreement
and to fund Loans and participate in LC Obligations hereunder. Each Secured Party has made such inquiries as it feels necessary
concerning the Loan Documents, Collateral and Loan Parties. Each Secured Party acknowledges and agrees that the other Secured Parties
have made no representations or warranties concerning any Loan Party, any Collateral or the legality, validity, sufficiency or
enforceability of any Loan Documents or Secured Obligations. Each Secured Party will, independently and without reliance upon any
other Secured Party, and based upon such financial statements, documents and information as it deems appropriate at the time, continue
to make and rely upon its own credit decisions in making Loans and participating in LC Obligations, and in taking or refraining
from any action under any Loan Documents. Except for notices, reports and other information expressly required to be furnished
to or expressly requested by a Lender, the Administrative Agent shall have no duty or responsibility to provide any Secured Party
with any notices, reports or certificates furnished to the Administrative Agent by any Loan Party or any credit or other information
concerning the affairs, financial condition, business or properties of any Loan Party (or any of its Affiliates) which may come
into possession of the Agents and their respective Affiliates.


 


Section 8.09       
Remittance of Payments and Collections.


 


(a)               Remittances
Generally. All payments by any Lender to the Administrative Agent shall be made by the time and on the day set forth in
this Agreement, in immediately available funds. If no time for payment is specified, payment shall be made by Lender not
later than 2:00 p.m. (Local Time) on such day. Payment by the Administrative Agent to any Secured Party shall be made by
wire transfer, in the type of funds received by the Administrative Agent. Any such payment shall be subject to the
Administrative Agent’s right of offset for any amounts due from such payee under the Loan Documents.


 






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(b)              
Failure to Pay. If any Secured Party fails to pay any amount when due by it to the Administrative Agent pursuant
to the terms hereof, such amount shall bear interest from the due date until paid at the rate determined by the Administrative
Agent as customary in the banking industry for interbank compensation. In no event shall Borrower be entitled to receive credit
for any interest paid by a Secured Party to the Administrative Agent, nor shall any Defaulting Lender be entitled to interest on
any amounts held by the Administrative Agent pursuant to Section 2.18.


 


(c)              
Recovery of Payments. If the Administrative Agent pays any amount to a Secured Party in the expectation that a related
payment will be received by the Administrative Agent from a Loan Party and such related payment is not received, then the Administrative
Agent may recover such amount from each Secured Party that received it. If the Administrative Agent determines at any time that
an amount received under any Loan Document must be returned to a Loan Party or paid to any other Person pursuant to Applicable
Law or otherwise, then, notwithstanding any other term of any Loan Document, the Administrative Agent shall not be required to
distribute such amount to any Lender. If any amounts received and applied by the Administrative Agent to any Secured Obligations
are later required to be returned by the Administrative Agent pursuant to Applicable Law, each Lender shall pay to the Administrative
Agent, on demand, such Lender’s Pro Rata share of the amounts required to be returned.


 


Section 8.10       
The Administrative Agent in its Individual Capacity. As a Lender, J.P. Morgan
shall have the same rights and remedies under the other Loan Documents as any other Lender, and the terms “Lenders,”
“Required Lenders” or any similar term shall include J.P. Morgan in its capacity as a Lender. J.P. Morgan
and its Affiliates may accept deposits from, lend money to, provide Bank Products to, act as financial or other advisor to, and
generally engage in any kind of business with, Loan Parties and their Affiliates, as if J.P. Morgan were not the Administrative
Agent hereunder, without any duty to account therefor to the Lenders. In their individual capacities, J.P. Morgan and its
Affiliates may receive information regarding Loan Parties, their Affiliates and their Account Debtors (including information subject
to confidentiality obligations), and each Secured Party agrees that J.P. Morgan and its Affiliates shall be under no obligation
to provide such information to any Secured Party, if acquired in such individual capacity.


 


Section 8.11       
Administrative Agent Titles. Each Lender, other than J.P. Morgan, that
is designated (on the cover page of this Agreement or otherwise) by J.P. Morgan as an “Agent” or “Arranger”
of any type shall not have any right, power, responsibility or duty under any Loan Documents other than those applicable to all
Lenders in their capacity as such, and shall in no event be deemed to have any fiduciary relationship with any other Lender.


 


Section 8.12        Bank
Product Providers. Each Secured Bank Product Provider, by delivery of a notice to the
Administrative Agent of a Bank Product, agrees to be bound by this Article VIII. Each Secured Bank Product
Provider shall indemnify and hold harmless the Agent Indemnitees, to the extent not reimbursed by Loan Parties, against all
Claims that may be incurred by or asserted against any Agent Indemnitee in connection with such provider’s Secured Bank
Product Obligations.


 


Section 8.13       
Survival. This Article VIII shall survive Full Payment
of the Obligations. Other than Sections 8.01, 8.04 and 8.07, this Article VIII
does not confer any rights or benefits upon Borrower or any other Person. As between Borrower and Administrative Agent, any action
that Administrative Agent may take under any Loan Documents or with respect to any Obligations shall be conclusively presumed to
have been authorized and directed by Secured Parties.


 






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Section 8.14       
Withholding Tax. To the extent required by any Applicable Law, the Administrative
Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding
the provisions of Section 2.15, each Lender shall indemnify and hold harmless the Administrative Agent against,
within 10 days after written demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses
(including fees, charges and disbursements of any counsel 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 any Lender for any reason (including, without limitation, 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 Section 8.14.
The agreements in this Section 8.14 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 Revolver Commitments and the repayment, satisfaction
or discharge of all other Obligations. For the avoidance of doubt, for purposes of this Section 8.14, the term
“Lender” includes any Issuing Bank.


 


Section 8.15        Indemnification.
The Lenders agree to indemnify each Agent and Lead Arranger in its capacity as such (to the extent not reimbursed by Holdings
or the Borrower and without limiting the obligation of Holdings or the Borrower to do so), each in an amount equal to its
pro rata share (based on its Revolver Commitments hereunder (or if such Revolver Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of its applicable outstanding Loans or participations in L/C
Disbursements, as applicable)) thereof, from and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or
after the payment of the Loans) be imposed on, incurred by or asserted against such Agent or Lead Arranger in any way
relating to or arising out of, the Revolver Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or
omitted by such Agent or Lead Arranger under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from such Agent’s or Lead Arranger’s gross negligence or willful misconduct. The
agreements in this Section 8.15 shall survive the payment of the Loans and all other amounts payable
hereunder.


 


Section 8.16       
Certain ERISA Matters.


 


(a)              
Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) 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 not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party,
that at least one of the following is and will be true:


 


(i)                
such Lender is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit
Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the
Letters of Credit, the Commitments or this Agreement,


 


(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 Commitments and this Agreement,


 






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(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 Commitments and this Agreement, (C) the
entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the 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 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.


 


(b)               In
addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true
with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause
(iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as
of the date such Person became a Lender party hereto, to, and (y) 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
not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that the Administrative Agent
is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (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 hereto or thereto).


 


Section 8.17       
Flood Laws. The Administrative Agent 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 applicable electronic platform (or otherwise distribute to each
Lender in the syndicate) documents that it receives in connection with the Flood Laws. However, the Administrative Agent reminds
each Lender and Participant in the facility that, pursuant to the Flood Laws, each federally regulated Lender (whether acting as
a Lender or Participant in the facility) is responsible for assuring its own compliance with the flood insurance requirements.


 


ARTICLE IX



Miscellaneous


 


Section 9.01       
Notices.


 


(a)              
Notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by fax or other electronic transmission, (including by “.pdf”
or “.tif”) pursuant to the terms of this Agreement, as follows:


 


(i)                
if to any Loan Party, to Tuesday Morning, Inc., 6250 LBJ Freeway, Dallas, Texas 75240, Attention: Stacie Shirley, Telecopier:
(972) 934-7231, Electronic Address: sshirley@tuesdaymorning.com, with a copy to Tuesday Morning, Inc., 6250 LBJ Freeway, Dallas,
Texas 75240, Attention: Steven R. Becker, Electronic Address: sbecker@tuesdaymorning.com, with a copy to Haynes and Boone LLP,
2323 Victory Ave. Suite 700, Dallas, Texas 75219, Attention: Ian Peck, Electronic Address: ian.peck@haynesboone.com;


 






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(ii)             
if to the Administrative Agent, to JPMorgan Chase Bank, N.A., 2200 Ross Avenue, 9th Floor, TX1-2921, Dallas, TX 75201,
Attention: Jon Eckhouse, Telecopier: (214) 965-2594, Electronic Address: jon.eckhouse@jpmorgan, with a copy to Vinson &
Elkins L.L.P., 2001 Ross Avenue, Suite 3900, Dallas, TX 75201, Attention: Christopher Dawe, Electronic Address: cdawe@velaw.com;


 


(iii)           
if to an Issuing Bank, to it at the address, fax number or electronic address set forth separately in writing; or


 


(iv)            
if to a Lender, to it at the address, fax number or electronic address set forth on Schedule 2.01 or
in the Assignment and Acceptance pursuant to which such Lender becomes a party hereto.


 


(b)              
Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant
to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II
unless otherwise agreed by the Administrative Agent and the applicable Lender. Each of the Administrative Agent and the Borrower
may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant
to procedures approved by it; provided, further, that approval of such procedures may be limited to particular notices
or communications.


 


(c)              
All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt if delivered by hand or overnight courier service, sent by fax or (to the extent
permitted by paragraph (b) above) electronic means or on the date five (5) Business Days after dispatch
by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided
in this Section 9.01 or in accordance with the latest unrevoked direction from such party given in accordance
with this Section 9.01.


 


(d)              
Any party hereto may change its address or fax number for notices and other communications hereunder by notice to the other
parties hereto.


 


Section 9.02       
Survival of Agreement. All representations and warranties made by the Loan
Parties herein and in the other Loan Documents shall be considered to have been relied upon by the Lenders and each Issuing Bank
and shall survive the making of the Loans, the execution and delivery of the Loan Documents and the issuance of the Letters of
Credit, and shall continue in full force and effect until the Revolver Termination Date. Without prejudice to the survival of any
other agreements contained herein, obligations for taxes, costs, indemnifications, reimbursements, damages and other contingent
liabilities contained herein (including pursuant to Sections 2.12, 2.14 and 9.05)
shall survive the payment in full of the principal and interest hereunder, the expiration of the Letters of Credit, and the termination
of the Revolver Commitments or this Agreement, limited in the manner set forth herein.


 


Section 9.03       
Binding Effect. This Agreement shall become effective when it shall have been
executed by Holdings, the Borrower and the Administrative Agent and when the Administrative Agent shall have received copies hereof
which, 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 Holdings, the Borrower, each Issuing Bank, the Administrative Agent and each Lender and their respective permitted
successors and assigns.


 






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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) except as otherwise permitted by Section 6.05 the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the 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 9.04.
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 9.04),
and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents, the Issuing Banks and the
Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.


 


(b)              
Subject to the conditions set forth in clause (ii) below, any Lender may assign to one (1) or more Eligible
Assignees (other than to any natural person) all or a portion of its rights and obligations under this Agreement (including all
or a portion of its Revolver Commitments and the Loans at the time owing to it) (provided, however, that pro rata
assignments shall not be required and each assignment shall be of a uniform, and not varying, percentage of all rights and obligations
under and in respect of any applicable Loan and any related Revolver Commitment) with the prior written consent (such consent not
to be unreasonably withheld or delayed) of:


 


(i)                
the Borrower, provided that no consent of the Borrower shall be required (i) if an Event of Default has occurred
and is continuing and (ii) if such assignment is to a Lender, an Affiliate of a Lender or a Related Fund in respect of a Lender;


 


(ii)             
the Administrative Agent, provided that no consent of the Administrative Agent shall be required if such assignment
is to a Lender, an Affiliate of a Lender or a Related Fund in respect of a Lender; and


 


(iii)           
the Issuing Bank, provided that no consent of the Issuing Bank shall be required unless such assignment increases
the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding).


 


(c)              
Assignments shall be subject to the following additional conditions:


 


(i)                
except in the case of an assignment to a Lender, an affiliate of a Lender or Related Fund or an assignment of the entire
remaining amount of the assigning Lender’s Revolver Commitments or Loans, the amount of the Revolver Commitments or Loans
of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Administrative Agent) shall not be less than $5.0 million, unless each of the Borrower
and the Administrative Agent otherwise consent, provided that such amounts shall be aggregated in respect of each Lender
and its Affiliates or Related Funds, if any;


 


(ii)             
the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance together
with a processing and recordation fee of $3,500; and


 


(iii)           
the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire
and all applicable tax forms.


 






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(d)              
Subject to acceptance and recording thereof pursuant to clause (f) below and subject to clause
(k) below, from and after the effective date specified in each Assignment and Acceptance the Eligible Assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, 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 Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance 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 2.12, 2.13, 2.14 and 9.05
as well as any Fees accrued for its account and not yet paid). Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this Section 9.04 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 9.04.


 


(e)              
The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its
offices a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the Revolver Commitments of, and principal amount (and stated interest) of the Loans and the LC Obligations
owing to, each Lender or Issuing Bank, as applicable, pursuant to the terms hereof from time to time (the “Register”).
The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent, the Issuing
Bank and the Lenders may 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
Borrower, the Issuing Bank and any Lender (with respect to any entry related to such Lender’s Loans), at any reasonable time
and from time to time upon reasonable prior notice.


 


(f)               
Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an Eligible Assignee
(subject to clause (f)), the Eligible Assignee’s completed Administrative Questionnaire (unless the Eligible
Assignee shall already be a Lender hereunder) and any applicable tax forms, and any written consent to such assignment required
by clause (i) above, the Administrative Agent shall accept such Assignment and Acceptance and record the information
contained therein in the Register. No assignment, whether or not evidenced by a promissory note, shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in this clause (f).


 


(g)               Any
Lender may, without the consent of the Borrower, the Issuing Bank or the Administrative Agent, sell participations to one (1)
or more banks or other entities (a “Participant”) in all or a portion of such Lender’s rights
and obligations under this Agreement (including all or a portion of its Revolver Commitments 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 Borrower, the
Administrative Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other
Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement and the other Loan
Documents; provided that such agreement may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver that requires the consent of each Lender directly affected thereby pursuant to Section 9.04(a)(i) or clauses (i)
through (vi) of the first proviso to Section 9.08(b). Subject to paragraph (h)
of this Section 9.04, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.12, 2.13
and 2.14 (subject to the requirements and limitations with respect thereto it being understood that the
documentation required under Section 2.14(e) 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 9.04.
To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.06 as
though it were a Lender, provided such Participant shall be subject to Section 2.15(d) as though it
were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the
Borrower, maintain a register on which it enters 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 the Loan Documents (the
“Participant Register”); provided that no Lender shall have any obligation to disclose all
or any portion of the Participant Register to any Person (including the identity of any Participant or any information
relating to a Participant’s interest in any Revolver Commitments, Loans, Letters of Credit or its other obligations
under any Loan Document) except to the extent that such disclosure is necessary to establish that such Revolver Commitment,
Loan, Letter of Credit 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.


 






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(h)              
A Participant shall not be entitled to receive any greater payment under Section 2.12, 2.13
or 2.14 than the applicable Lender would have been entitled to receive with respect to the participation sold to
such Participant, except to the extent such entitlement to receive a greater payment results from a change in Applicable Law that
occurs after the Participant acquired the participation. A Participant shall not be entitled to the benefits of Section 2.14
to the extent such Participant fails to comply with Section 2.14(e) as though it were a Lender (it being understood
that the documentation required under Section 2.14(e) shall be delivered to the participating Lender).


 


(i)                
Any Lender may at any time, without the consent of or notice to the Administrative Agent or the Borrower, pledge or assign
a security interest in all or any portion of its rights under this Agreement (other than to a natural person) to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section 9.04
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 (including any Eligible
Assignee) for such Lender as a party hereto.


 


(j)                
The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes
to facilitate transactions of the type described in paragraph (d) above.


 


(k)              
If any assignment or participation under this Section 9.04 is made (or attempted to be made) to the extent
the Borrower’s consent is required under the terms of this Section 9.04, to any other Person without the
Borrower’s consent, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, (A) terminate the Revolver Commitments of such Lender and repay all obligations of the Borrower owing to such Lender
relating to the Loans and participations held by such Lender or participant as of such termination date (in the case of any participation
in any Loan, to be applied to such participation), or (B) require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in this Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (i) such Lender shall have received payment of an amount equal to the
lesser of par or the amount such Lender paid for such Loans and participations in L/C Disbursements, 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 Borrower (in the case of all other amounts), (ii) the Borrower shall be liable to such Lender
under Section 2.13 if any Eurodollar Loan owing to such Lender is repaid or purchased other than on the last
day of the Interest Period relating thereto, and (iii) such assignment shall otherwise comply with this Section 9.04
(provided that no registration and processing fee referred to in this Section 9.04 shall be owing in
connection with any assignment pursuant to this paragraph). Each Lender hereby grants to the Administrative Agent an irrevocable
power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of such Lender, as assignor, any
Assignment and Acceptance necessary to effectuate any assignment of such Lender’s interests hereunder to an assignee as contemplated
hereby in the circumstances contemplated by this Section 9.04(k). Nothing in this Section 9.04(k)
shall be deemed to prejudice any rights or remedies the Borrower may otherwise have at law or equity.


 


(l)                
If the Borrower wishes to replace all of the Loans or Revolver Commitments with ones having different terms, it shall have
the option, with the consent of the Administrative Agent and subject to at least three (3) Business Days’ advance notice
to the Lenders, instead of prepaying the Loans or reducing or terminating the Revolver Commitments to be replaced to (i) require
the Lenders to assign the Loans or Revolver Commitments to the Administrative Agent or its designees and (ii) amend the terms
thereof in accordance with Section 9.08. Pursuant to any such assignment, all Loans or Revolver Commitments
to be replaced shall be purchased at par (allocated among the Lenders in the same manner as would be required if such Loans were
being optionally prepaid or such Revolver Commitments were being optionally reduced or terminated by the Borrower), accompanied
by payment of any accrued interest and fees thereon and any amounts owing pursuant to Section 9.05(b). By receiving
such purchase price, the Lenders shall automatically be deemed to have assigned the Loans or Revolver Commitments pursuant to the
terms of the form of Assignment and Acceptance attached hereto as Exhibit A, and accordingly no other action by such Lenders shall
be required in connection therewith. The provisions of this paragraph (l) are intended to facilitate the maintenance
of the perfection and priority of existing security interests in the Collateral during any such replacement.


 






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Section 9.05       
Expenses; Indemnity.


 


(a)              
The Borrower agrees to pay within thirty (30) days of demand thereof (together with backup documentation supporting
such request) (i) all reasonable and documented (in summary format) expenses (including Other Taxes) incurred by the Agents
and Lead Arranger in connection with the preparation of this Agreement and the other Loan Documents, or by the Agents and Lead
Arranger in connection with the syndication of the Revolver Commitments or the administration of this Agreement (including expenses
incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable
prior approval of the Borrower and the reasonable and documented (in summary format) fees, disbursements and charges for no more
than one (1) outside counsel and, if necessary one (1) local counsel in each material jurisdiction where Collateral is
located for such Persons, taken as a whole) or in connection with the administration of this Agreement and any amendments, modifications
or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated) and (ii) all
reasonable and documented (in summary format) expenses incurred by the Agents or Lead Arranger or any Lender in connection with
the enforcement or protection of their rights in connection with this Agreement and the other Loan Documents, in connection with
the Loans made or the Letters of Credit issued hereunder (but limited, in the case of legal fees and expenses, to the actual reasonable
and documented (in summary format) fees, charges and disbursements of Vinson & Elkins, L.L.P., counsel for the Agents and the
Lead Arranger, and, if reasonably necessary (x) the reasonable and documented (in summary format) fees, charges and disbursements
of one (1) local counsel per relevant local jurisdiction and (y) in the case of an actual or potential conflict of interest,
the reasonable and documented (in summary format) fees, charges and disbursements of one (1) additional counsel to all affected
Persons, taken as a whole).


 


(b)               The
Borrower agrees to indemnify, on a joint and several basis, the Administrative Agent, the Lead Arranger, each Issuing Bank,
each Lender and each of their respective Affiliates, successors and assigns and the directors, trustees, officers, employees,
advisors, controlling Persons and agents of each of the foregoing (each such Person being called an
“Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and reasonable and documented (in summary format) costs and related expenses (including reasonable and
documented (in summary format) documented fees, charges and disbursements of Vinson & Elkins, L.L.P. and, if necessary,
one (1) local counsel in each relevant local jurisdiction to the Agents or Lead Arranger, taken as a whole, in each
relevant jurisdiction, in the case of an actual or potential conflict of interest, and one (1) additional counsel to all
affected Indemnitees, taken as a whole) incurred by or asserted against any Indemnitee arising out of, relating to, or as a
result of (i) the execution or delivery of this Agreement or any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder
or the consummation of the Transactions (including the payment of the Transaction Costs) and the other transactions
contemplated hereby, (ii) the use of the proceeds of the Loans or the use of any Letter of Credit or (iii) any
claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not 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, liabilities or costs or related expenses (x) are determined by a judgment of a court of competent
jurisdiction to have resulted by reason of the gross negligence, bad faith or willful misconduct of, or material breach by,
such Indemnitee, (y) arise out of any claim, litigation, investigation or proceeding brought by such Indemnitee (or its
Related Parties) against another Indemnitee (or its Related Parties) (other than any claim, litigation, investigation or
proceeding brought by or against the Administrative Agent, acting in its capacity as Administrative Agent) that does not
involve any act or omission of the Borrower or any of its Subsidiaries and arises out of disputes among the Lenders and/or
their transferees. The Borrower shall not be liable for any settlement of any proceeding referred to in this Section 9.05
effected without the Borrower’s written consent (such consent not to be unreasonably withheld or delayed); provided, however,
that the Borrower shall indemnify the Indemnitees from and against any loss or liability by reason of such settlement if the
Borrower was offered the right to assume the defense of such proceeding and did not assume such defense or such proceeding
was settled with the written consent of the Borrower, subject to, in each case, the Borrower’s right in this Section 9.05 to
claim an exemption from such indemnity obligations. The Borrower shall indemnify the Indemnitees from and against any final
judgment for the plaintiff in any proceeding referred to in this Section 9.05, subject to the
Borrower’s right in this Section 9.05 to claim an exemption from such indemnity obligations. The
Borrower shall not, without the prior written consent of any Indemnitee, effect any settlement of any pending or threatened
proceeding in respect of which such Indemnitee is a party and indemnity could have been sought hereunder by such Indemnitee
unless such settlement (i) includes an unconditional release of such Indemnitee (and its Related Parties) from all
liability or claims that are the subject matter of such proceeding and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any Indemnitee (or its Related Parties). To the extent
permitted by Applicable Law, each party hereto hereby waives for itself (and, in the case of the Borrower, for each other
Loan Party) any claim against any Loan Party, any Lender, any Administrative Agent, any Lender Party, any Lead Arranger, and
their respective affiliates, directors, employees, attorneys, agents or sub-agents, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is
based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result
of, or in any way related to, this Agreement or any Loan Document or any agreement or instrument contemplated hereby or
thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the
proceeds thereof or any act or omission or event occurring in connection therewith, and each party hereto (and in the case of
the Borrower on behalf of each other Loan Party) hereby waive, release and agree not to sue upon any such claim or any such
damages, whether or not accrued and whether or not known or suspected to exist in its favor; provided that nothing
contained in this sentence shall limit the Borrower’s indemnity obligations to the extent such special, indirect,
consequential or punitive damages are included in any third party claim in connection with which such indemnified Person is
entitled to indemnification hereunder. The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Obligations, the termination of the Revolver Commitments, the expiration of
any Letters of Credit, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Administrative Agent, any Issuing Bank or any Lender. All amounts
due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable
documentation with respect to any reimbursement, indemnification or other amount requested.


 






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(c)              
Except as expressly provided in Section 9.05(a) with respect to Other Taxes, which shall not be duplicative
with any amounts paid pursuant to Section 2.14, this Section 9.05 shall not apply to Taxes
other than Taxes arising from a non-Tax claim.


 


(d)              
Notwithstanding the foregoing paragraphs in this Section 9.05, if it is found by a final, non-appealable judgment
of a court of competent jurisdiction in any such action, proceeding or investigation that any loss, claim, damage, liability or
cost or related expense of any Indemnitee has resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee
(or any of its Related Parties) or a material breach of the Loan Documents by such Indemnitee (or any of its Related Parties),
such Indemnitee will repay such portion of the reimbursed amounts previously paid to such Indemnitee under this Section 9.05
that is attributable to expenses incurred in relation to the set or omission of such Indemnitee which is the subject of such finding.


 


Section 9.06       
Right of Set-off. If an Event of Default shall have occurred and be continuing,
upon the written consent of the Administrative Agent or the Required Lenders, each Lender and each Issuing Bank is hereby authorized
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 indebtedness at any time owing by such Lender or such
Issuing Bank to or for the credit or the account of Holdings, the Borrower or any Subsidiary Guarantor (and such Lender or Issuing
Bank will provide prompt notice to such Loan Party) against any of and all the obligations of Holdings or the Borrower now or hereafter
existing under this Agreement or any other Loan Document held by such Lender or such Issuing Bank, irrespective of whether or not
such Lender or such Issuing Bank shall have made any demand under this Agreement or such other Loan Document and although the obligations
may be unmatured. The rights of each Lender and each Issuing Bank under this Section 9.06 are in addition to
other rights and remedies (including other rights of set-off) that such Lender or such Issuing Bank may have. 


 


Section 9.07       
Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN LETTERS
OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES
DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE DATE SUCH LETTER OF CREDIT WAS ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE
(THE “UNIFORM CUSTOMS”) AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE
OF NEW YORK.


 


Section 9.08       
Waivers; Amendment.


 


(a)               No
failure or delay of the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or
under any 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, each Issuing Bank
and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any
departure by Holdings, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall
be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice or demand on Holdings, the Borrower or any other Loan Party
in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.


 


(b)              
Subject to Section 2.11(b), neither this Agreement nor any other Loan Document nor any provision hereof or
thereof may be waived, amended or modified except (A) in the case of this Agreement, pursuant to an agreement or agreements
in writing entered into by Holdings, the Borrower and the Required Lenders and (B) in the case of any other Loan Document,
pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent and consented
to by the Required Lenders; provided, however, that no such agreement shall:


 






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(i)                
decrease or forgive the principal amount of, or extend the final maturity date of, or decrease the rate of interest on,
any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the Revolver Termination Date,
without the prior written consent of each Lender directly and adversely affected thereby; provided, that (x) consent
of Required Lenders shall not be required for any waiver, amendment or modification contemplated by this clause (i),
and (y) that waiver or reduction of a post-default increase in interest shall be effective with the consent of the Required Lenders
(and shall not require the consent of each directly and adversely affected Lender),


 


(ii)             
increase the Revolver Commitment of any Lender,


 


(iii)           
extend the Revolver Commitment of any Lender or decrease the Unused Line Fee Rate or Issuing Bank Fees without the prior
written consent of such Lender or Issuing Bank, as applicable (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default, mandatory prepayments or of a mandatory reduction in the aggregate Revolver
Commitments shall not constitute an increase or extension of maturity); provided, that consent of Required Lenders shall
not be required for any waiver, amendment or modification contemplated by this clause (iii),


 


(iv)            
except to the extent necessary to give effect to the express intentions of this Agreement (including Section 9.04),
which, in respect of any amendment or modification to effect such express intentions, shall be effective with the consent of the
Required Lenders, amend or modify any provision of Section 2.15 of this Agreement in a manner that would by
its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender,


 


(v)              
amend or modify the provisions of Section 7.02, Sections 9.08(a), (b)
or (c) or reduce the voting percentage set forth in the definition of “Required Lenders” or “Supermajority
Lenders,” without the prior written consent of each Lender directly and adversely affected thereby (it being understood that
any additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on
substantially the same basis as the Loans and Revolver Commitments are included on the Closing Date),


 


(vi)            
(x) release all or substantially all the Collateral (it being understood that a transaction permitted under Section 6.05
shall not constitute a release of all or substantially all of the Collateral), or release all or substantially all of the value
of the Guarantees (except as otherwise permitted herein (including in connection with a transaction permitted under Section 6.05)
or in the other Loan Documents) under the Security Documents, unless, in the case of a Subsidiary Guarantor, all or substantially
all the Equity Interests of such Subsidiary Guarantor is sold or otherwise disposed of in a transaction permitted by this Agreement,
without the prior written consent of each Lender or (y) subordinate the Liens of the Administrative Agent under the Security
Documents with respect to Collateral at that time included in the Borrowing Base and/or all or substantially all of the Collateral
(other than, in respect of the Real Property in accordance with the Intercreditor Agreement upon the effectiveness thereof) or
subordinate the Obligations hereunder, without the prior written consent of each Lender,


 


(vii)         
without the prior written consent of the Supermajority Lenders, change the definition of the terms “Availability”,
or “Borrowing Base” or any component definition used therein (including, without limitation, the definitions of “Eligible
Credit Card Receivables,” “Eligible Inventory,” and “Eligible In-Transit Inventory”) if, as a result
thereof, the amounts available to be borrowed by the Borrower would be increased; provided that the foregoing shall not
limit the discretion of the Administrative Agent to change, establish or eliminate any Availability Reserve or to add Accounts
and Inventory to the Borrowing Base as provided herein, or


 


(viii)        without
the prior written consent of the Supermajority Lenders, increase the percentages and advance rates set forth in the term
“Borrowing Base” or add any new classes of eligible assets thereto, provided, further, that no such
agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or Issuing Bank hereunder
without the prior written consent of the Administrative Agent and Issuing Bank acting as such at the effective date of such
agreement. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08
and any consent by any Lender pursuant to this Section 9.08 shall bind any successor or assignee of such
Lender. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove
any amendment, waiver or consent hereunder, except that (x) the Revolver Commitments of such Lender may not be increased
or extended without the consent of such Lender and (y) the principal and accrued and unpaid interest of such
Lender’s Loans shall not be reduced or forgiven without the consent of such Lender.


 






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(c)              
Without the consent of the Agents or Lead Arranger or Lender or Issuing Bank, the Loan Parties and the Administrative Agent
may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification
or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection,
expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit
of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the
Secured Parties, in any property or so that the security interests therein comply with Applicable Law.


 


(d)               Notwithstanding
anything to the contrary contained in this Section 9.08 or any Loan Document, (i) the Borrower and
the Administrative Agent may, without the input or consent of any other Lender, effect amendments to this Agreement and the
other Loan Documents as may be necessary in the reasonable opinion of the Borrower and the Administrative Agent to effect the
provisions of Sections 2.18 or 9.04(f), (ii) if the Administrative Agent and the
Borrower have jointly identified an obvious error or any error or omission of a technical nature, in each case, in any
provision of the Loan Documents, then the Administrative Agent and the Borrower shall be permitted to amend such provision
and (iii) guarantees, collateral security documents and related documents executed by Holdings or Subsidiaries in
connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be amended,
supplemented or waived without the consent of any Lender if such amendment, supplement or waiver is delivered in order to
(x) comply with local law or advice of local counsel, (y) cure ambiguities, omissions, mistakes or defects or
(z) cause such guarantee, collateral security document or other document to be consistent with this Agreement and the
other Loan Documents.


 


Section 9.09       
Interest Rate Limitation. Notwithstanding anything herein to the contrary,
if at any time the applicable interest rate on any Loan or participation in any L/C Disbursement, together with all fees and charges
that are treated as interest under Applicable Law (collectively, the “Charges”), as provided for herein
or in any other document executed in connection herewith, or otherwise contracted for, charged, received, taken or reserved by
any Lender or any Issuing Bank shall exceed the maximum lawful rate (the “Maximum Rate”) that may be
contracted for, charged, taken, received or reserved by such Lender in accordance with Applicable Law, the rate of interest payable
hereunder, together with all Charges payable to such Lender or such Issuing Bank shall be limited to the Maximum Rate, provided
that such excess amount shall be paid to such Lender or such Issuing Bank on subsequent payment dates to the extent not exceeding
the legal limitation.


 


Section 9.10       
Entire Agreement. This Agreement and the other Loan Documents constitute the
entire contract between the parties relative to the subject matter hereof. Any previous agreement among or representations from
the parties or their Affiliates with respect to the subject matter hereof is superseded by this Agreement and the other Loan Documents.
Notwithstanding the foregoing, the Fee Letter shall survive the execution and delivery of this Agreement and remain in full force
and effect. Nothing in this Agreement or in the other Loan Documents, expressed or implied, is intended to confer upon any party
other than the parties hereto and thereto, and their respective successors and assigns permitted hereunder, any rights, remedies,
obligations or liabilities under or by reason of this Agreement or the other Loan Documents.


 


Section 9.11        WAIVER
OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS
BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN
ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS
AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER
WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES
ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION
9.11 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO
THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.


 






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Section 9.12       
Severability. In the event any one (1) or more of the provisions contained
in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.


 


Section 9.13       
Counterparts. This Agreement may be executed in two (2) or more counterparts,
each of which shall constitute an original but all of which, when taken together, shall constitute but one (1) contract, and
shall become effective as provided in Section 9.03. Delivery of an executed counterpart to this Agreement by
facsimile transmission or other electronic transmission (including by “.pdf” or “.tif”) shall be as effective
as delivery of a manually signed original.


 


Section 9.14       
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 are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.


 


Section 9.15       
Jurisdiction; Consent to Service of Process.


 


(a)               Each
of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive
jurisdiction of any New York State court or federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the other Loan
Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law. Nothing in this Agreement shall affect any right that any Lender, the Administrative Agent
or any Issuing Bank may otherwise have to bring any action or proceeding relating to this Agreement or the other Loan
Documents against Holdings, the Borrower or any Loan Party or their properties in the courts of any jurisdiction.


 


(b)              
Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which 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 the other Loan Documents in any New York State or federal court. 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.


 


(c)              
Each of the parties hereto agrees that service of all process in any such proceeding in any such court may be made by registered
or certified mail, return receipt requested at its address provided in Section 9.01 agrees that service as so
provided in is sufficient to confer personal jurisdiction over the applicable credit party in any such proceeding in any such court,
and otherwise constitutes effective and binding service in every respect; and agrees that agents and lenders retain the right to
serve process in any other manner permitted by law or to bring proceedings against any credit party in the courts of any other
jurisdiction.


 






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Section 9.16        Confidentiality.
Each of the Lenders, each Issuing Bank and each of the Agents agrees that it shall maintain in confidence any information
relating to Holdings, the Borrower and the other Loan Parties furnished to it by or on behalf of Holdings, the Borrower or
the other Loan Parties (other than information that (a) has become generally available to the public other than as a
result of a disclosure by any such party, (b) was already in possession on a non-confidential basis for a person not
known to the recipient to be bound by confidentiality obligations to Parent or any Subsidiary thereof or has been
independently developed by such Lender, such Issuing Bank or such Agent without violating this Section 9.16 or
relying on any such information, (c) was available to such Lender, such Issuing Bank or such Agent from a third party
having, to such Person’s knowledge, no obligations of confidentiality to Holdings, the Borrower or any other Loan
Party) and shall not reveal the same other than to its directors, trustees, officers, employees and advisors with a need to
know or to any Person that approves or administers the Loans on behalf of such Lender (so long as each such Person shall have
been instructed to keep the same confidential in accordance with this Section 9.16 and such Lender, such
Issuing Bank and such Agent shall be responsible for its Affiliates’ compliance with this Section 9.16
except to the extent such Affiliate shall sign a written confidentiality agreement in favor of the Borrower), except:
(i) to the extent necessary to comply with law or any legal process or the requirements of any Governmental Authority,
self-regulatory authorities (including the National Association of Insurance Commissioners) or of any securities exchange on
which securities of the disclosing party or any affiliate of the disclosing party are listed or traded (in which case such
Lender, such Issuing Bank or such Agent will promptly notify the Borrower, in advance, to the extent permitted by Applicable
Law or the rules governing the process requiring such disclosure (except with respect to any routine or ordinary course audit
or examination conducted by bank accountants or any governmental bank regulatory authority exercising examination or
regulatory authority) and shall use its commercially reasonable efforts to ensure that any such information so disclosed is
accorded confidential treatment), (ii) as part of the reporting or review procedures to, or examinations by,
Governmental Authorities or self-regulatory authorities, including the National Association of Insurance Commissioners or the
National Association of Securities Dealers, Inc., (iii) to its parent companies, affiliates, auditors, assignees,
transferees and participants (so long as each such Person shall have been instructed to keep the same confidential in
accordance with provisions not less restrictive than this Section 9.16 and such Lender, such Issuing Bank
and such Agent shall be responsible for its Affiliates’ compliance with this Section 9.16),
(iv) in order to enforce its rights under any Loan Document in a legal proceeding (in which case it shall use
commercially reasonable efforts to ensure that any such information so disclosed is accorded confidential treatment),
(v) to any pledgee under Section 9.04(d) or any other existing or prospective assignee of, or
existing or prospective Participant in, any of its rights under this Agreement (so long as such Person shall have been
instructed to keep the same confidential in accordance with this Section 9.16 or other provisions at least
as restrictive as this Section 9.16), and (vi) with the consent of the Borrower. In addition, each
Agent and each Lender may disclose the existence of this Agreement and the information about this Agreement to market data
collectors, similar services providers to the lending industry, and service providers to the Agents and the Lenders in
connection with the administration and management of this Agreement and the other Loan Documents to which a Lender Party is a
party.


 


Section 9.17       
Release of Liens and Guarantees. In the event that any Loan Party conveys,
sells, assigns, transfers or otherwise disposes of any assets or all or any portion of any of the Equity Interests or assets of
any Subsidiary Guarantor to a Person that is not (and is not required to become) a Loan Party in each case in a transaction expressly
permitted Section 6.05, the Administrative Agent shall promptly (and the Lenders hereby authorize the Administrative
Agent to) take such action and execute any such documents as may be reasonably requested by Holdings or the Borrower and at the
Borrower’s expense to release any Liens created by any Loan Document in respect of such Equity Interests or assets, and,
in the case of a disposition of the Equity Interests of any Subsidiary Guarantor in a transaction expressly permitted by Section 6.05,
terminate such Subsidiary Guarantor’s obligations under its Guarantee. Any representation, warranty or covenant contained
in any Loan Document relating to any such Equity Interests, asset or subsidiary of Holdings shall no longer be deemed to be made
once such Equity Interests or asset is so conveyed, sold, leased, assigned, transferred or disposed of. 


 


Section 9.18       
USA PATRIOT Act. Each Lender hereby notifies the Loan Parties that pursuant
to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other information that will allow such Lender to identify the
Borrower in accordance with the USA PATRIOT Act.


 






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Section 9.19        Marshalling;
Payments Set Aside. Neither any Agent nor any Lender shall be under any obligation to
marshal any assets in favor of any Loan Party or any other Person or against or in payment of any or all of the Obligations.
To the extent that any Loan Party makes a payment or payments to the Administrative Agent or the Lenders (or to the
Administrative Agent, on behalf of the Lenders), or any Agent or the Lenders enforce any security interests or exercise their
rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, any other state or federal law, common law or any equitable cause,
then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens,
rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment
or payments had not been made or such enforcement or setoff had not occurred.


 


Section 9.20       
Obligations Several; Independent Nature of Lenders’ Rights. The obligations
of Lenders hereunder are several and no Lender shall be responsible for the obligations or Revolver Commitment of any other Lender
hereunder. Nothing contained herein or in any other Loan Document, and no action taken by Lenders pursuant hereto or thereto, shall
be deemed to constitute Lenders as a partnership, an association, a joint venture or any other kind of entity. The amounts payable
at any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall be entitled to protect and
enforce its rights arising out hereof and it shall not be necessary for any other Lender to be joined as an additional party in
any proceeding for such purpose.


 


Section 9.21       
Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any assignment agreement shall be deemed to include electronic signatures
or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided
for in any Applicable Law, including the Federal Electronic Signatures in 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 9.22       
Acknowledgements. Each of Loan Party hereby acknowledges and agrees that
(a) no fiduciary, advisory or agency relationship between the Loan Parties and the Lender Parties is intended to be or has
been created in respect of any of the transactions contemplated by this Agreement or the other Loan Documents, irrespective of
whether the Lender Parties have advised or are advising the Loan Parties on other matters, and the relationship between the Lender
Parties, on the one hand, and the Loan Parties, on the other hand, in connection herewith and therewith is solely that of creditor
and debtor, (b) the Lender Parties, on the one hand, and the Loan Parties, on the other hand, have an arm’s length
business relationship that does not directly or indirectly give rise to, nor do the Loan Parties rely on, any fiduciary duty to
the Loan Parties or their affiliates on the part of the Lender Parties, (c) the Loan Parties are capable of evaluating and
understanding, and the Loan Parties understand and accept, the terms, risks and conditions of the transactions contemplated by
this Agreement and the other Loan Documents, (d) the Loan Parties have been advised that the Lender Parties are engaged in
a broad range of transactions that may involve interests that differ from the Loan Parties’ interests and that the Lender
Parties have no obligation to disclose such interests and transactions to the Loan Parties, (e) the Loan Parties have consulted
their own legal, accounting, regulatory and tax advisors to the extent the Loan Parties have deemed appropriate in the negotiation,
execution and delivery of this Agreement and the other Loan Documents, (f) each Lender Party has been, is, and will be acting
solely as a principal and, except as otherwise expressly agreed in writing by it and the relevant parties, has not been, is not,
and will not be acting as an advisor, agent or fiduciary for the Loan Parties, any of their affiliates or any other Person, (g) none
of the Lender Parties has any obligation to the Loan Parties or their affiliates with respect to the transactions contemplated
by this Agreement or the other Loan Documents except those obligations expressly set forth herein or therein or in any other express
writing executed and delivered by such Lender Party and the Loan Parties or any such affiliate and (h) no joint venture is
created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the
Lender Parties or among the Loan Parties and the Lender Parties.


 






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Section 9.23       
Lender Action. Notwithstanding anything to the contrary contained herein or
in any other Loan Document, (i) the authority to enforce rights and remedies hereunder and under the other Security Documents
against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with
such enforcement shall be instituted and maintained exclusively by, the Administrative Agent for the benefit of the Lenders and
the Issuing Bank, (ii) no Secured Party shall have any right individually to realize upon any of the Collateral under any
Security Document or to enforce the Guarantee, it being understood and agreed that all powers, rights and remedies under the Security
Documents may be exercised solely by the Administrative Agent for the benefit of the Secured Parties in accordance with the terms
thereof and (iii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public
or private sale, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale
and the Administrative Agent, as agent for and representative of the Lenders (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 in 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 at such sale.


 


Section 9.24       
Judgment Currency. If, for the purposes of obtaining judgment in any court,
it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange
used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency
with such other currency on the Business Day preceding that on which final judgment is given. The obligation of the Borrower in
respect of any such sum due from it to the Administrative Agent or any Lender hereunder or under the other Loan Documents shall,
notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum
is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”),
be discharged only to the extent that on the Business Day following receipt by the Administrative Agent or such Lender, as the
case may be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent or such Lender, as the case may
be, may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount
of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent or any Lender from the Borrower
in the Agreement Currency, the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent or such Lender, as the case may be, against such loss. If the amount of the Agreement Currency so purchased
is greater than the sum originally due to the Administrative Agent or any Lender in such currency, the Administrative Agent or
such Lender, as the case may be, agrees to return the amount of any excess to the Borrower (or to any other Person who may be entitled
thereto under Applicable Law).


 


Section 9.25        Acknowledgement
and Consent to Bail-In of EEA Financial Institutions(a). Notwithstanding anything to the contrary in any Loan Document or
in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any
liability of any EEA Financial Institution arising under any Loan Document 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
which 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


 






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(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.


 


Section 9.26       
Force Majeure. In no event shall the Administrative Agent be responsible or liable for any failure or delay
in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control,
including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear
or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software
and hardware) services, it being understood that the Administrative Agent shall use reasonable best efforts which are consistent
with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.


 


Section 9.27       
Conforming Amendments.


 


(a)              
Upon effectiveness of the Qualifying DIP RE Facility, subject to Section 9.02(b), any change to this Agreement
which is more restrictive on the Loan Parties or more beneficial to the Lenders, material or otherwise, that the Administrative
Agent determines in its Permitted Discretion is necessary or appropriate to conform this Agreement to the terms of the Qualifying
DIP RE Facility (an “Other Facility Change”) shall modify the terms of this Agreement pursuant to an
amendment (a “Conforming Amendment”) to this Agreement, and, as appropriate, the other Loan Documents,
executed by the Loan Parties and the Administrative Agent.


 


(b)              
Each of the parties hereto hereby agrees that, upon the effectiveness of any Conforming Amendment, this Agreement and the
other Loan Documents, as applicable, will be amended to the extent necessary or appropriate to reflect the existence and terms
of the Other Facility Changes evidenced thereby.


 


ARTICLE X


 


Collateral


 


Section 10.01   
Grant of Security Interest. As security for all Secured Obligations, each Loan Party hereby collaterally assigns
and grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing first priority (subject to the Carve-Out
and as otherwise set forth in the Order and the Intercreditor Agreement upon the effectiveness thereof) security interest in all
property and assets of such Loan Party, whether now owned or existing or hereafter acquired or arising, regardless of where located,
including property subject to avoided liens, real and personal, tangible and intangible, including:


 


(a)              
all Accounts;


 


(b)              
all Chattel Paper;


 


(c)              
all Copyrights, Patents, Trademarks and Licenses;


 


(d)              
all Documents;


 


(e)              
all Equipment;


 


(f)               
all Fixtures;


 


(g)              
all General Intangibles;


 


(h)              
all Goods;


 


(i)                
all Instruments;


 






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(j)                
all Inventory;


 


(k)              
all Investment Property;


 


(l)                
all cash or cash equivalents;


 


(m)            
all letters of credit, Letter-of-Credit Rights and Supporting Obligations;


 


(n)              
all Deposit Accounts with any bank or other financial institution;


 


(o)              
all Commodity Accounts;


 


(p)              
all Equity Interests;


 


(q)              
all Securities Accounts; and


 


(r)               
all accessions to, substitutions for and replacements, proceeds (including Stock Rights), insurance proceeds and products
of the foregoing, together with all books and records, customer lists, credit files, computer files, programs, printouts and other
computer materials and records related thereto and any General Intangibles at any time evidencing or relating to any of the foregoing;
and


 


(s)               
all other personal property of such Loan Party, including, subject to entry of the Final Order, proceeds from any Avoidance
Actions (but not the actions thereunder).


 


All of the foregoing,
together with (x) the “Collateral” as defined in the Orders, and (y) upon the effectiveness of the Qualifying DIP RE
Facility, all presently owned or after-acquired Real Property and improvements thereon and leases on Real Property, is herein collectively
referred to as the “Collateral”; provided that the Collateral shall in no event include the Excluded
Collateral. It being understood that “Collateral” hereunder shall include all such “Collateral” irrespective
of whether any such property was excluded from “Collateral” (as defined in the Pre-Petition Credit Agreement) pursuant
to the Pre-Petition Loan Documents.


 


Section 10.02   
Perfection of Security Interest.


 


(a)              
Notwithstanding the perfection of any security interest granted hereunder pursuant to the Orders, to the fullest extent
permitted by Applicable Law, the Administrative Agent may file or authorize the filing of one or more financing statements or Mortgages
disclosing the Liens under this Agreement on the Collateral.


 






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(b)              
In the event that a motion for dismissal from any of the Chapter 11 Cases is filed with respect to any Subsidiary and Equity
Interests of such Subsidiary are owned by a Loan Party, and to the extent the capital stock of such Subsidiary is in certificated
form, such Loan Party shall promptly deliver upon request by the Administrative Agent, subject to the Intercreditor Agreement upon
the effectiveness thereof, all certificates or instruments at any time representing or evidencing such capital stock in such Subsidiary
to the Administrative Agent, and shall be in suitable form for transfer by delivery, or shall be accompanied by instruments of
transfer or assignment, duly executed in blank, all in form and substance sufficient to transfer such instruments to the Administrative
Agent (or otherwise reasonably satisfactory to the Administrative Agent). Subject to the Intercreditor Agreement upon the effectiveness
thereof, the Administrative Agent shall have the right, at any time, after the occurrence and during the continuance of an Event
of Default, to transfer to or to register in the name of the Administrative Agent or its nominee any capital stock in such wholly-owned
Subsidiary.


 


Section 10.03   
The Administrative Agent’s and Lenders’ Rights, Duties, and Liabilities. The Loan Parties assume
all responsibility and liability arising from or relating to the use, sale, or other disposition of the Collateral. The Secured
Obligations shall not be affected by any failure of the Secured Parties to take any steps to perfect the Liens under this Agreement
or to collect or realize upon the Collateral, nor shall loss of or damage to the Collateral release any Loan Party from any of
the Secured Obligations. Nothing in this Agreement shall be interpreted as giving the Administrative Agent responsibility for or
any duty concerning the validity, perfection, priority or enforceability of the Liens granted hereunder or giving the Administrative
Agent any obligation to take any action to procure or maintain such validity, perfection, priority or enforceability, including,
without limitation, any duty to file any financing statements, amendments, continuation statements, Mortgages or other documents
to perfect or maintain the perfection of the security interest granted hereunder.


 


Section 10.04    Rights
in Respect of Investment Property. Subject to any order of the Court (including the Order) and the Intercreditor
Agreement upon the effectiveness thereof, after the occurrence and during the continuance of an Event of Default (i) the
Administrative Agent at the direction of the Required Lenders may, upon written notice to the relevant Loan Party, transfer
or register in the name of the Administrative Agent or any of its nominees, for the benefit of the Secured Parties, any or
all of the Collateral consisting of all of the issued and outstanding Equity Interests of the Loan Parties now owned or
hereafter acquired, Investment Property, the proceeds thereof (in cash or otherwise), and all liens, security, rights,
remedies and claims of any Loan Party with respect thereto (as used in this Section 10.04 collectively, the
“Pledged Collateral”) held by the Administrative Agent hereunder, and the Administrative Agent or
its nominee may thereafter, after written notice to the applicable Loan Party, exercise all voting and corporate rights at
any meeting of any corporation, partnership, or other business entity issuing any of the Pledged Collateral and any and all
rights of conversion, exchange, subscription, or any other rights, privileges, or options pertaining to any of the Pledged
Collateral as if it were the absolute owner thereof, including the right to exchange at its Permitted Discretion any and all
of the Pledged Collateral upon the merger, amalgamation, consolidation, reorganization, recapitalization, or other
readjustment of any corporation, partnership, or other business entity issuing any of such Pledged Collateral or upon the
exercise by any such issuer or the Administrative Agent of any right, privilege or option pertaining to any of the Pledged
Collateral, and in connection therewith, to deposit and deliver any and all of the Pledged Collateral with any committee,
depositary, transfer agent, registrar or other designated agency upon such terms and conditions as it may determine, all
without liability except to account for property actually received by it, but the Administrative Agent shall have no duty to
exercise any of the aforesaid rights, privileges or options, and the Administrative Agent shall not be responsible for any
failure to do so or delay in so doing, (ii) to the extent permitted under Applicable Law, after the Administrative
Agent’s giving of the notice specified in clause (i) of this Section 10.04, all rights of any Loan Party
to exercise the voting and other consensual rights which it would otherwise be entitled to exercise and to receive the
dividends, interest and other distributions which it would otherwise be authorized to receive and retain thereunder shall be
suspended until such Event of Default shall no longer exist, and all such rights shall, until such Event of Default shall no
longer exist, thereupon become vested in the Administrative Agent which shall thereupon have the sole right to exercise such
voting and other consensual rights and to receive and hold as Pledged Collateral such dividends, interest, and other
distributions (provided that any such Pledged Collateral the Administrative Agent shall collect shall promptly be returned to
each applicable Loan Party after such Event of Default is cured or waived to the extent such Pledged Collateral was not
applied to repay the Secured Obligations), and (iii) each Loan Party shall promptly execute and deliver (or cause to be
executed and delivered) to the Administrative Agent all such proxies and other instruments that the Administrative Agent or a
Lender may reasonably request for the purpose of enabling the Administrative Agent to exercise the voting and other rights
which it is entitled to exercise pursuant to this Section 10.04 and to receive the dividends, interest, and
other distributions which it is entitled to receive and retain pursuant to this Section 10.04.


 






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Section 10.05   
Remedies.


 


(a)               Each
Loan Party recognizes that the Administrative Agent may be unable to effect a public sale of any or all of the Collateral
that constitutes securities to be sold by reason of certain prohibitions contained in the laws of any jurisdiction outside
the United States or in applicable federal, provincial, territorial or state securities laws but may be compelled to resort
to one or more private sales thereof to a restricted group of purchasers who will be obliged to agree, among other things, to
acquire such Collateral to be sold for their own account for investment and not with a view to the distribution or resale
thereof. Each Loan Party acknowledges and agrees that any such private sale may result in prices and other terms less
favorable to the seller than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such
private sale shall, to the extent permitted by law, be deemed to have been made in a commercially reasonable manner. Unless
required by Applicable Law, the Administrative Agent shall not be under any obligation to delay a sale of any of such
Collateral to be sold for the period of time necessary to permit the issuer of such securities to register such securities
under the laws of any jurisdiction outside the United States or under any applicable federal, provincial, territorial or
state securities laws, even if such issuer would agree to do so. Each Loan Party further agrees to do or cause to be done, to
the extent that such Loan Party may do so under Applicable Law, all such other acts and things as the Administrative Agent
may reasonably request to make such sales or resales of any portion or all of such Collateral or other property to be sold
valid and binding and in compliance with any and all Applicable Laws at the Loan Parties’ expense. Each Loan Party
further agrees that a breach of any of the covenants contained in this Section 10.05(a) will cause
irreparable injury to the Secured Parties for which there is no adequate remedy at law and, as a consequence, agrees that
each covenant contained in this Section 10.05(a) shall be specifically enforceable against such Loan
Party, and each Loan Party hereby waives and agrees, to the fullest extent permitted by law, not to assert as a defense
against an action for specific performance of such covenants that (i) such Loan Party’s failure to perform such
covenants will not cause irreparable injury to the Secured Parties or (ii) the Secured Parties have an adequate remedy at law
in respect of such breach.


 


(b)               Subject
to the terms of the Order, if an Event of Default has occurred and is continuing, the Administrative Agent shall have for the
benefit of the Secured Parties, in addition to all other rights of the Secured Parties, the rights and remedies of a secured
party under the UCC, and without limiting the generality of the foregoing, the Administrative Agent shall be empowered and
entitled to: (i) take possession of, foreclose on and/or request a receiver of the Collateral and keep it on any Loan
Party’s premises at any time, at no cost to the Secured Parties, or remove any part of it to such other place or places
as the Administrative Agent may desire, or the Loan Parties shall, upon the Administrative Agent’s or the Required
Lender’s demand, at the Loan Parties’ cost, assemble the Collateral and make it available to the Administrative
Agent at a place reasonably convenient to the Administrative Agent; (ii) exercise of set-off rights on Cash Collateral or
deposits (other than, for the avoidance of doubt, with respect to Excluded Accounts); (iii) sell and deliver any Collateral
at public or private sales, for cash, upon credit or otherwise, at such prices and upon such terms as the Administrative
Agent deems advisable, in its sole discretion, and may postpone or adjourn any sale of the Collateral by an announcement at
the time and place of sale or of such postponed or adjourned sale; (iv) hold, lease, develop, manage, operate, control and
otherwise use the Collateral upon such terms and conditions as may be reasonable under the circumstances (making such
repairs, alterations, additions and improvements and taking other actions, from time to time, as may be reasonably necessary
or desirable), exercise all such rights and powers of each Loan Party with respect to the Collateral, whether in the name of
such Loan Party or otherwise, including without limitation the right to make, cancel, enforce or modify leases, obtain and
evict tenants, and demand, sue for, collect and receive all rents, in each case, in accordance with the standards applicable
to the Administrative Agent under the Loan Documents, and (v) take any other reasonable actions, as may be reasonably
necessary or desirable, in connection with the Collateral (including preparing for the disposition thereof), and all actual,
reasonable, out-of-pocket fees and expenses incurred in connection therewith shall be borne by the Loan Parties. Promptly
following written demand from the Administrative Agent following an occurrence and during the continuance of an Event of
Default, the applicable Loan Party shall direct the grantor or licensor of, or the contracting party to, any property
agreement with respect to any property to recognize and accept the Administrative Agent, for the benefit of and on behalf of
the Secured Parties, as the party to such agreement for any and all purposes as fully as it would recognize and accept such
Loan Party and the performance of such Loan Party thereunder and, in such event, without further notice or demand and at such
Loan Party’s sole cost and expense, the Administrative Agent, for the benefit of and on behalf of the Secured Parties,
may exercise all rights of such Loan Party arising under such agreements. Without in any way requiring notice to be given in
the following manner, each Loan Party agrees that any notice by the Administrative Agent of sale, disposition or other
intended action hereunder or in connection herewith, whether required by the UCC or otherwise, shall constitute reasonable
notice to such Loan Party if such notice is mailed by registered or certified mail, return receipt requested, postage
prepaid, or is delivered personally against receipt, at least five (5) Business Days prior to such action to the Loan
Parties’ address specified in or pursuant to Section 9.01. If any Collateral is sold on terms other
than payment in full at the time of sale, no credit shall be given against the Secured Obligations until the Administrative
Agent or the Lenders receive payment, and if the buyer defaults in payment, the Administrative Agent may resell the
Collateral. In the event the Administrative Agent seeks to take possession of all or any portion of the Collateral by
judicial process, each Loan Party irrevocably waives (to the extent permitted by Applicable Law): (A) the posting of any
bond, surety or security with respect thereto which might otherwise be required; (B) any demand for possession prior to the
commencement of any suit or action to recover the Collateral; and (C) any requirement that the Administrative Agent retain
possession and not dispose of any Collateral until after trial or final judgment. Each Loan Party agrees that the
Administrative Agent has no obligation to preserve rights to the Collateral or marshal any Collateral for the benefit of any
Person. The Administrative Agent is hereby granted a license or other right to use, without charge, each Loan Party’s
labels, patents, copyrights, name, trade secrets, trade names, trademarks and advertising matter, or any similar property, in
completing production of, advertising or selling any Collateral, and each such Loan Party’s rights under all licenses
and all franchise agreements shall inure to the Administrative Agent’s benefit for such purpose. The Administrative
Agent will return any excess to the applicable Loan Party and the Loan Parties shall remain liable for any deficiency.


 






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Section 10.06   
Administrative Agent’s Appointment as Attorney-in-Fact, etc..


 


(a)              
Each Loan Party hereby irrevocably constitutes and appoints the Administrative Agent and any officer or agent thereof, with
full power of substitution, as its true and lawful attorney-in-fact with full irrevocable (until the Termination Date) power and
authority in the place and stead of such Loan Party and in the name of such Loan Party or in its own name, for the purpose of carrying
out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing,
each Loan Party hereby gives the Administrative Agent the power and right, on behalf of such Loan Party, without notice to or assent
by such Loan Party, to do any or all of the following:


 


(i)         in
the name of such Loan Party or its own name, or otherwise, take possession of and endorse and collect any checks, drafts,
notes, acceptances or other instruments for the payment of moneys due under any Account or Contract or with respect to any
other Collateral and file any claim or take any other action or proceeding in any court of law or equity or otherwise deemed
reasonably appropriate by the Administrative Agent for the purpose of collecting any and all such moneys due under any
Account or Contract or with respect to any other Collateral whenever payable;


 


(ii)        
pay or discharge Taxes and Liens levied or placed on or threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of the premiums therefor and the costs thereof;


 


(iii)        
execute, in connection with any sale provided for in this Agreement, any endorsements, assignments or other instruments
of conveyance or transfer with respect to the Collateral; and


 


(iv)        
(1) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to
become due thereunder directly to the Administrative Agent or as the Administrative Agent shall direct; (2) ask or demand for,
collect, and receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time
in respect of or arising out of any Collateral; (3) sign and endorse any invoices, freight or express bills, bills of lading, storage
or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of
the Collateral; (4) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction
to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (5) defend any suit,
action or proceeding brought against such Loan Party with respect to any Collateral; (6) settle, compromise or adjust any such
suit, action or proceeding and, in connection therewith, give such discharges or releases as the Administrative Agent may deem
reasonably appropriate; and (7) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with
any of the Collateral as fully and completely as though the Administrative Agent were the absolute owner thereof for all purposes,
and do, at the Administrative Agent’s option and such Loan Party’s expense, at any time, or from time to time, all
acts and things which the Administrative Agent deems reasonably necessary to protect, preserve or realize upon the Collateral and
the Secured Parties’ security interests therein and to effect the intent of this Agreement, all as fully and effectively
as such Loan Party might do.


 


Anything in this Section
10.06 to the contrary notwithstanding, the Administrative Agent agrees that it will not exercise any rights under the power
of attorney provided for in this Section 10.06 unless an Event of Default shall have occurred and be continuing.


 


(b)              
If an Event of Default has occurred and is continuing and if any Loan Party fails to perform or comply with any of its agreements
contained herein, the Administrative Agent, at its option, but without any obligation so to do, may perform or comply, or otherwise
cause performance or compliance, with such agreement; provided, however, if a Default has occurred and is continuing, and if any
Loan Party fails to perform or comply with any of its agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause performance or compliance.


 






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(c)              
Each Loan Party hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof. All powers,
authorizations and agencies contained in this Agreement are coupled with an interest and are irrevocable until the Termination
Date.


 


Section 10.07   
Duty of Administrative Agent. The Administrative Agent’s sole duty with respect to the custody, safekeeping
and physical preservation of the Collateral in its possession, under Section 9-207 of the UCC or otherwise, shall be to deal
with it in the same manner as the Administrative Agent deals with similar property for its own account. Neither the Administrative
Agent, nor any other Secured Party nor any of their respective officers, directors, partners, employees, agents, attorneys and
other advisors, attorneys-in-fact or affiliates shall be liable for failure to demand, collect or realize upon any of the Collateral
or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of
any Loan Party or any other person or to take any other action whatsoever with regard to the Collateral or any part thereof. The
powers conferred on the Secured Parties hereunder are solely to protect the Secured Parties’ interests in the Collateral
and shall not impose any duty upon any Secured Party to exercise any such powers. The Secured Parties shall be accountable only
for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their officers,
directors, partners, employees, agents, attorneys and other advisors, attorneys-in-fact or affiliates shall be responsible to any
Loan Party for any act or failure to act hereunder, except from their own gross negligence or willful misconduct or breach of a
duty owed to such Loan Party.


 


Section 10.08   
Execution of Financing Statements. Each Loan Party acknowledges that pursuant to Section 9-509(b) of
the UCC and any other Applicable Law, each Loan Party authorizes the Administrative Agent to file or record financing or continuation
statements, and amendments thereto, and other filing or recording documents or instruments with respect to the Collateral, in such
form and in such offices as the Administrative Agent reasonably determines appropriate to perfect or maintain the perfection of
the security interests of the Administrative Agent under this Agreement. Each Loan Party agrees that such financing statements
may describe the collateral in the same manner as described in the Security Documents or as “all assets” or “all
personal property,” whether now owned or hereafter existing or acquired, words of similar effect or such other description
as the Administrative Agent, in its sole judgment, reasonably determines is necessary or advisable. A photographic or other reproduction
of this Agreement shall be sufficient as a financing statement or other filing or recording document or instrument for filing or
recording in any jurisdiction.


 


Section 10.09   
Authority of Administrative Agent. Each Loan Party acknowledges that the rights and responsibilities of the
Administrative Agent under this Agreement with respect to any action taken by the Administrative Agent or the exercise or non-exercise
by the Administrative Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting
or arising out of this Agreement shall, as between the Administrative Agent and the other Secured Parties, be governed by this
Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Administrative
Agent and the Loan Parties, the Administrative Agent shall be conclusively presumed to be acting as agent for the Secured Parties
with full and valid authority so to act or refrain from acting, and no Loan Party shall be under any obligation, or entitlement,
to make any inquiry respecting such authority.


 


Section 10.10    Appointment
of Co-Collateral Agents. At any time or from time to time, in order to comply with any Applicable Law, the Administrative
Agent may appoint another bank or trust company or one of more other persons, either to act as co-agent or agents on behalf
of the Secured Parties with such power and authority as may be reasonably necessary for the effectual operation of the
provisions hereof and which may be specified in the instrument of appointment (which may, in the discretion of the
Administrative Agent, include provisions for indemnification and similar protections of such co-agent or separate agent).


 






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ARTICLE XI



Guaranty


 


Section 11.01   
Guaranty; Limitation of Liability.


 


(a)              
Each Guarantor, jointly and severally, hereby absolutely, unconditionally and irrevocably guarantees the performance and
punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or
otherwise, of all Secured Obligations of each other Loan Party now or hereafter existing under or in respect of the Loan Documents,
whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract
causes of action, costs, expenses or otherwise (such Secured Obligations being the “Guaranteed Obligations”),
and agrees to pay any and all reasonable out-of-pocket expenses (including reasonable out-of-pocket fees and expenses of counsel
to the extent reimbursable pursuant to Section 9.05 but excluding allocated costs of in-house counsel) incurred by
the Administrative Agent in enforcing any rights under this Guaranty or any other Loan Document. Without limiting the generality
of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations
and would be owed by any other Loan Party to the Administrative Agent or any Lender under or in respect of the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization, winding-up or similar
proceeding involving such other Loan Party.


 


(b)              
Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made
to the Administrative Agent or any Lender under this Guaranty, such Guarantor will contribute, to the maximum extent permitted
by law, such amounts to each other Guarantor so as to maximize the aggregate amount paid to the Administrative Agent and the Lenders
under or in respect of the Loan Documents.


 


Section 11.02    Guaranty
Absolute. Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of
the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Administrative Agent or any Lender with respect thereto. The Secured Obligations of each
Guarantor under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other Secured Obligations
of any other Loan Party under or in respect of the Loan Documents, and a separate action or actions may be brought and
prosecuted against each Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the
Borrower or any other Loan Party or whether the Borrower or any other Loan Party is joined in any such action or actions. The
liability of each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each
Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of
the following:


 


(a)              
any lack of validity or enforceability of any provision under this Agreement, any Loan Document or any agreement or instrument
relating thereto;


 


(b)              
any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations
or any other Secured Obligations of any other Loan Party under or in respect of the Loan Documents, or any other amendment or waiver
of or any consent to departure from any Loan Document, including any increase in the Guaranteed Obligations resulting from the
extension of additional credit to any Loan Party or otherwise;


 


(c)              
any taking, exchange, release or non-perfection of any Collateral, or any taking, release or amendment or waiver of, or
consent to departure from, any other guaranty, for all or any of the Guaranteed Obligations;


 


(d)              
any manner of application of Collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner
of sale or other disposition of any Collateral for all or any of the Guaranteed Obligations or any other Secured Obligations of
any Loan Party under the Loan Documents or any other assets of any Loan Party;


 






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(e)              
any change, restructuring or termination of the corporate structure or existence of any Loan Party;


 


(f)               
any failure of the Administrative Agent or any Lender to disclose to any Loan Party any information relating to the business,
condition (financial or otherwise), operations, performance, properties or prospects of any other Loan Party now or hereafter known
to the Administrative Agent or such Lender, as the case may be (each Guarantor waiving any duty on the part of the Administrative
Agent and the Lenders to disclose such information);


 


(g)              
the failure of any other Person to execute or deliver this Guaranty or the release or reduction of liability of any Guarantor
or surety with respect to the Guaranteed Obligations; or


 


(h)              
any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by the
Administrative Agent or any Lender that might otherwise constitute a defense available to, or a discharge of, any Loan Party or
any other guarantor or surety, in its capacity as a guarantor or surety (other than payment or performance).


 


This Guaranty shall continue to be effective
or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise
be returned by the Administrative Agent or any Lender or any other Person, for whatever reason, all as though such payment had
not been made.


 


Section 11.03   
Waivers and Acknowledgments.


 


(a)              
Each Guarantor hereby unconditionally and irrevocably waives (to the extent permitted by Applicable Law) any right to revoke
this Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing
now or in the future.


 


(b)              
Each Guarantor hereby unconditionally and irrevocably waives (to the extent permitted by Applicable Law) (i) any defense
arising by reason of any claim or defense based upon an election of remedies by the Administrative Agent or any Lender that in
any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution
or indemnification rights of such Guarantor or other rights of such Guarantor to proceed against any of the other Loan Parties,
any other guarantor or any other Person or any Collateral and (ii) any defense based on any right of set-off or counterclaim against
or in respect of the Secured Obligations of such Guarantor hereunder.


 


(c)              
Each Guarantor acknowledges that the Administrative Agent may, to the extent permitted by Applicable Law and the Order,
without notice to or demand upon such Guarantor and without affecting the liability of such Guarantor under this Guaranty, foreclose
under any Loan Document by non-judicial sale, and each Guarantor hereby waives (to the extent permitted by Applicable Law) any
defense to the recovery by the Administrative Agent and the Lenders against such Guarantor of any deficiency after such non-judicial
sale and any defense or benefits that may be afforded by Applicable Law.


 


(d)              
Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of the Administrative Agent or any Lender
to disclose to such Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Loan Party or any of its Subsidiaries now or hereafter known by the Administrative
Agent or such Lender, as the case may be.


 


(e)              
Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in Section 9.08 and this Section 11.03
are knowingly made in contemplation of such benefits.


 






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Section 11.04    Subrogation.
Each Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the Borrower or any other Loan Party that arise from the existence, payment, performance or enforcement of
such Guarantor’s Obligations under or in respect of this Guaranty or any other Loan Document, including any right of
subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy
of the Administrative Agent or any Lender against the Borrower or any other Loan Party, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including the right to take or receive from the Borrower or
any other Loan Party, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or
security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations (other than inchoate
indemnity obligations and similar obligations that survive the termination of this Agreement) and all other amounts payable
under this Guaranty (other than inchoate indemnity obligations and similar obligations that survive the termination of this
Agreement) shall have been paid in full in cash and the Commitments shall have expired or been terminated. If any amount
shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the later of (a) the
payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty (other than inchoate
indemnity obligations and similar obligations that survive the termination of this Agreement) and (b) the Termination Date,
such amount shall be received and held in trust for the benefit of the Administrative Agent and the Lenders, shall be
segregated from other property and funds of such Guarantor and shall forthwith be paid or delivered to the Administrative
Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of the Loan Documents, or to be held as Collateral for any Guaranteed Obligations or other amounts payable under
this Guaranty thereafter arising. If (i) any Guarantor shall make payment to the Administrative Agent of all or any part of
the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under this Guaranty (other
than inchoate indemnity obligations and similar obligations that survive the termination of this Agreement) shall have been
paid in full in cash and (iii) the Termination Date shall have occurred, the Administrative Agent and the Lenders will, at
such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and
without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the
Guaranteed Obligations resulting from such payment made by such Guarantor pursuant to this Guaranty.


 


Section 11.05   
Continuing Guaranty; Assignments. This Guaranty is a continuing guaranty and shall (a) remain in full force
and effect until the payment in full in cash of the Guaranteed Obligations (other than inchoate indemnity obligations and similar
obligations that survive the termination of this Agreement) and all other amounts payable under this Guaranty (other than inchoate
indemnity obligations and similar obligations that survive the termination of this Agreement) and the termination or expiration
of all Commitments, (b) be binding upon each Guarantor, its successors and assigns and (c) inure to the benefit of and be enforceable
by the Administrative Agent and the Lenders and their respective successors, transferees and assigns. Without limiting the generality
of clause (c) of the immediately preceding sentence, any Eligible Assignee that has been assigned or transferred all or any
portion of a Lender’s Loans, Commitments or rights and obligations under this Agreement in accordance with Section
9.04, shall thereupon become vested with all the benefits granted to such transferring Lender under this Guaranty. No Guarantor
shall have the right to assign its rights hereunder or any interest herein or delegate any of its duties, liabilities or obligations
hereunder or under any other Loan Document without the prior written consent of the Required Lenders, except as otherwise permitted
hereby.


 


[Signature Pages Follow]


 






    142


     


    

 






 


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 written above.


 


	BORROWER:	TUESDAY MORNING,
                                         INC.
	 	 
	 	By:	/s/ Steven
                              R. Becker
	 	Name:	Steven R. Becker
	 	Title:	Chief Executive Officer and President



 





	GUARANTORS:	TUESDAY
                                         MORNING CORPORATION



 


		By:	/s/
                                         Steven R. Becker



		Name:	Steven
                                         R. Becker



		Title:	Chief
                                         Executive Officer and President



 


	 	TMI HOLDINGS, INC.




 


		By:	/s/
                                         Steven R. Becker



		Name:	Steven
                                         R. Becker



	 	Title:	Chief Executive Officer and
    President




 


	 	FRIDAY MORNING, LLC
	 	By:Tuesday Morning, Inc.,
    as Sole Member
	 	
	 	By:	/s/
    Steven R. Becker
	 	Name:	Steven R. Becker
	 	Title:	Chief Executive Officer and President





 


	 	DAYS OF THE WEEK, INC.
	 	 
	 	By:	/s/
    Steven R. Becker
	 	Name:	Steven R. Becker
	 	Title:	Chief Executive Officer




 


	 	NIGHTS OF THE WEEK, INC.
	 	 
	 	By:	/s/
    Steven R. Becker
	 	Name:	Steven R. Becker
	 	Title:	Chief Executive Officer




 


	 	TUESDAY MORNING PARTNERS,
    LTD.
	 	By:Days of the Week, Inc.,
    as General Partner
	 	 
	 	By:	/s/
    Steven R. Becker
	 	Name:	Steven R. Becker
	 	Title:	Chief Executive Officer  




 


[Signature
Page to DIP ABL Credit Agreement – Tuesday Morning] 


 






     


     


    

 





	 	JPMORGAN CHASE BANK, N.A.,
	 	as Administrative Agent, an
                                         Issuing Bank, and a Lender
	 	 	 
		By:	/s/
                                         Jon Eckhouse

                                                                                

                                                                                

	 	 	Name:	Jon Eckhouse
	 	 	Title:	Authorized Officer



 


[Signature Page to DIP ABL Credit
Agreement – Tuesday Morning]


 









     


     


    

 


	 	WELLS FARGO BANK, N.A.,
	 	as a Lender and as Syndication
    Agent
	 	 
	 	By:	/s/
    Jai Alexander
	 	 	Name:	Jai Alexander
	 	 	Title:	Director







 


[Signature
Page to DIP ABL Credit Agreement – Tuesday Morning] 


 



     


     


    







 


	 	BANK OF AMERICA, N.A.,
	 	as a Lender
	 	 
	 	By:	/s/
    Andrew Cerussi
	 	 	Name:	Andrew Cerussi
	 	 	Title:	Senior Vice President




 


 [Signature
Page to DIP ABL Credit Agreement – Tuesday Morning]