dbi-creditagreementexecu






DB1/ 127789195.7  CREDIT AGREEMENT   dated as of March 30, 2022 among  DESIGNER BRANDS INC.,  as the Company,  The Subsidiaries from time to time party hereto as U.S. Subsidiary Borrowers,  DESIGNER BRANDS CANADA INC.  and the other Subsidiaries from time to time party hereto as Canadian Borrowers,  The other LOAN PARTIES from time to time party hereto,   The LENDERS from time to time party hereto,  and  THE HUNTINGTON NATIONAL BANK,  as Administrative Agent  THE HUNTINGTON NATIONAL BANK, BANK OF MONTREAL and BANK OF AMERICA, N.A.,  as Joint Bookrunners & Joint Lead Arrangers  PNC BANK, NATIONAL ASSOCIATION,  as Documentation Agent  EXHIBIT 10.1 





 






DB1/ 127789195.7  TABLE OF CONTENTS  (continued)  i  Page  ARTICLE I. DEFINITIONS ........................................................................................................................ 1 SECTION 1.01 Defined Terms .......................................................................................... 1 SECTION 1.02 Classification of Loans and Borrowings ................................................. 66 SECTION 1.03 Terms Generally ..................................................................................... 66 SECTION 1.04 Accounting Terms; GAAP...................................................................... 67 SECTION 1.05 Rates. ...................................................................................................... 67 SECTION 1.06 Status of Obligations ............................................................................... 68 SECTION 1.07 Exchange Rates ....................................................................................... 68 SECTION 1.08 Divisions ................................................................................................. 68 ARTICLE II. THE CREDITS ..................................................................................................................... 68 SECTION 2.01 Commitments .......................................................................................... 68 SECTION 2.02 Loans and Borrowings ............................................................................ 69 SECTION 2.03 Requests for Borrowings ........................................................................ 70 SECTION 2.04 Protective Advances ............................................................................... 70 SECTION 2.05 Swingline Loans and Overadvances ....................................................... 71 SECTION 2.06 Letters of Credit ...................................................................................... 72 SECTION 2.07 Funding of Borrowings ........................................................................... 80 SECTION 2.08 Interest Elections .................................................................................... 81 SECTION 2.09 Termination and Reduction of Commitments; Increase in  Commitments .......................................................................................... 82 SECTION 2.10 Repayment and Amortization of Loans; Evidence of Debt .................... 84 SECTION 2.11 Prepayment of Loans .............................................................................. 84 SECTION 2.12 Fees ......................................................................................................... 85 SECTION 2.13 Interest .................................................................................................... 86 SECTION 2.14 Conforming Changes; Effect of Benchmark Transition Event ............... 87 SECTION 2.15 Increased Costs; Losses .......................................................................... 89 SECTION 2.16 Illegality; Inability to Determine Rates .................................................. 90 SECTION 2.17 Withholding of Taxes; Gross-Up ............................................................ 90 SECTION 2.18 Payments Generally; Allocation of Proceeds; Sharing of Set-offs ......... 94 SECTION 2.19 Mitigation Obligations; Replacement of Lenders ................................... 96 SECTION 2.20 Defaulting Lenders ................................................................................. 97 SECTION 2.21 Returned Payments ................................................................................. 99 SECTION 2.22 Banking Services and Swap Agreements ............................................... 99 ARTICLE III. REPRESENTATIONS AND WARRANTIES ................................................................. 100 SECTION 3.01 Organization and Qualification; Power and Authority;  Compliance With Laws; Event of Default ............................................ 100 SECTION 3.02 Capitalization; Subsidiaries and Joint Ventures; Investment  Companies ............................................................................................ 100 SECTION 3.03 Validity and Binding Effect .................................................................. 101 SECTION 3.04 No Conflict; Material Agreements; Consents ....................................... 101 SECTION 3.05 Litigation............................................................................................... 101 SECTION 3.06 Financial Statements; No Material Adverse Effect; Beneficial  Ownership Certification ........................................................................ 101 SECTION 3.07 Margin Stock ........................................................................................ 102 SECTION 3.08 Full Disclosure ...................................................................................... 102 SECTION 3.09 Taxes ..................................................................................................... 103 SECTION 3.10 Properties, Patents, Trademarks, Copyrights, Licenses, Etc ................. 103 SECTION 3.11 Insurance ............................................................................................... 103 





 






DB1/ 127789195.7  TABLE OF CONTENTS  (continued)  ii  SECTION 3.12 ERISA Compliance; Canadian Pension Plans ...................................... 104 SECTION 3.13 Environmental Matters ......................................................................... 105 SECTION 3.14 Labor Matters ........................................................................................ 105 SECTION 3.15 Solvency ............................................................................................... 105 SECTION 3.16 Anti-Terrorism Laws, Anti-Corruption Laws and Sanctions ............... 105 SECTION 3.17 EEA Financial Institutions .................................................................... 106 SECTION 3.18 Security Interest in Collateral ............................................................... 106 SECTION 3.19 Credit Card Agreements ....................................................................... 106 SECTION 3.20 Plan Assets; Prohibited Transactions .................................................... 106 ARTICLE IV. CONDITIONS .................................................................................................................. 107 SECTION 4.01 Closing Date ......................................................................................... 107 SECTION 4.02 Each Credit Event ................................................................................. 110 ARTICLE V. AFFIRMATIVE COVENANTS ........................................................................................ 110 SECTION 5.01 Financial Statements; Borrowing Base and Other Information ............ 110 SECTION 5.02 Notices of Material Events and Delivery of Other Reports .................. 113 SECTION 5.03 Preservation of Existence, Etc .............................................................. 115 SECTION 5.04 Payment of Liabilities, Including Taxes, Etc ........................................ 116 SECTION 5.05 Maintenance of Insurance ..................................................................... 116 SECTION 5.06 Maintenance of Properties .................................................................... 116 SECTION 5.07 Inspection Rights; Appraisals ............................................................... 117 SECTION 5.08 Keeping of Records and Books of Account .......................................... 117 SECTION 5.09 Compliance with Laws and Material Contractual Obligations ............. 118 SECTION 5.10 Use of Proceeds .................................................................................... 118 SECTION 5.11 Anti-Terrorism Laws; International Trade Law Compliance ............... 118 SECTION 5.12 Casualty ................................................................................................ 118 SECTION 5.13 [Reserved] ............................................................................................. 119 SECTION 5.14 Additional Collateral; Further Assurances............................................ 119 SECTION 5.15 Environmental Laws ............................................................................. 119 SECTION 5.16 Canadian Pension Plans ........................................................................ 120 SECTION 5.17 Post-Closing Covenants ........................................................................ 120 ARTICLE VI. NEGATIVE COVENANTS ............................................................................................. 120 SECTION 6.01 Indebtedness ......................................................................................... 120 SECTION 6.02 Restricted Payments .............................................................................. 125 SECTION 6.03 Limitations on Restrictive Agreements ................................................ 129 SECTION 6.04 Sale of Equity Interests and Assets ....................................................... 131 SECTION 6.05 Affiliate Transactions ........................................................................... 135 SECTION 6.06 Amendments of Certain Documents; Line of Business ........................ 137 SECTION 6.07 Liens ..................................................................................................... 137 SECTION 6.08 Mergers, Amalgamations, Fundamental Changes, Etc ......................... 137 SECTION 6.09 Sanctions; Anti-Terrorism Laws ........................................................... 139 SECTION 6.10 Restrictions on Certain Subsidiaries ..................................................... 139 SECTION 6.11 Canadian Pension Plans ........................................................................ 139 SECTION 6.12 Consolidated Fixed Charge Coverage Ratio ......................................... 139 ARTICLE VII. EVENTS OF DEFAULT ................................................................................................. 139 ARTICLE VIII. THE ADMINISTRATIVE AGENT .............................................................................. 142 SECTION 8.01 Appointment ......................................................................................... 142 SECTION 8.02 Rights as a Lender ................................................................................ 143 SECTION 8.03 Duties and Obligations.......................................................................... 143 





 






DB1/ 127789195.7  TABLE OF CONTENTS  (continued)  iii  SECTION 8.04 Reliance ................................................................................................ 144 SECTION 8.05 Actions through Sub-Agents ................................................................. 144 SECTION 8.06 Resignation ........................................................................................... 144 SECTION 8.07 Non-Reliance ........................................................................................ 145 SECTION 8.08 Other Agency Titles .............................................................................. 146 SECTION 8.09 Not Partners or Co-Venturers; Administrative Agent as  Representative of the Secured Parties ................................................... 146 SECTION 8.10 Erroneous Payments ............................................................................. 147 SECTION 8.11 No Reliance on Administrative Agent’s Customer Identification  Program................................................................................................. 148 ARTICLE IX. MISCELLANEOUS ......................................................................................................... 148 SECTION 9.01 Notices .................................................................................................. 148 SECTION 9.02 Waivers; Amendments .......................................................................... 151 SECTION 9.03 Expenses; Indemnity; Damage Waiver ................................................. 154 SECTION 9.04 Successors and Assigns ........................................................................ 156 SECTION 9.05 Survival ................................................................................................. 161 SECTION 9.06 Counterparts; Integration; Effectiveness; Electronic Execution ........... 161 SECTION 9.07 Severability ........................................................................................... 161 SECTION 9.08 Right of Setoff ...................................................................................... 161 SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of Process ............... 162 SECTION 9.10 WAIVER OF JURY TRIAL................................................................. 163 SECTION 9.11 Headings ............................................................................................... 163 SECTION 9.12 Confidentiality ...................................................................................... 163 SECTION 9.13 Several Obligations; Nonreliance; Violation of Law ............................ 164 SECTION 9.14 USA PATRIOT Act .............................................................................. 164 SECTION 9.15 Canadian Anti-Money Laundering Legislation .................................... 164 SECTION 9.16 Disclosure ............................................................................................. 165 SECTION 9.17 Appointment for Perfection .................................................................. 165 SECTION 9.18 Interest Rate Limitation ........................................................................ 165 SECTION 9.19 No Advisory or Fiduciary Responsibility ............................................. 165 SECTION 9.20 Reserved ............................................................................................... 166 SECTION 9.21 Obligations of Foreign Subsidiaries ..................................................... 166 SECTION 9.22 Judgment Currency ............................................................................... 166 SECTION 9.23 Waiver of Immunity ............................................................................. 166 SECTION 9.24 Process Agent ....................................................................................... 167 SECTION 9.25 Termination and Release of Collateral ................................................. 167 SECTION 9.26 Publicity ................................................................................................ 167 SECTION 9.27 Acknowledgement and Consent to Bail-In of Affected Financial  Institutions ............................................................................................ 168 SECTION 9.28 Certain ERISA Matters ......................................................................... 168 SECTION 9.29 Acknowledgement Regarding Any Supported QFCs ........................... 169 ARTICLE X. U.S. LOAN GUARANTY ................................................................................................. 170 SECTION 10.01 Guaranty ............................................................................................... 170 SECTION 10.02 Guaranty of Payment ............................................................................ 170 SECTION 10.03 No Discharge or Diminishment of Loan Guaranty ............................... 170 SECTION 10.04 Defenses Waived .................................................................................. 171 SECTION 10.05 Rights of Subrogation ........................................................................... 171 SECTION 10.06 Reinstatement; Stay of Acceleration ..................................................... 171 SECTION 10.07 Information ........................................................................................... 172 SECTION 10.08 [Reserved.] ............................................................................................ 172 





 






DB1/ 127789195.7  TABLE OF CONTENTS  (continued)  iv  SECTION 10.09 [Reserved.] ............................................................................................ 172 SECTION 10.10 Maximum Liability ............................................................................... 172 SECTION 10.11 Contribution .......................................................................................... 172 SECTION 10.12 Liability Cumulative ............................................................................. 173 SECTION 10.13 Keepwell ............................................................................................... 173 SECTION 10.14 Common Enterprise .............................................................................. 173 ARTICLE XI. CANADIAN LOAN GUARANTY .................................................................................. 174 SECTION 11.01 Guaranty ............................................................................................... 174 SECTION 11.02 Guarantee of Payment ........................................................................... 174 SECTION 11.03 No Discharge or Diminishment of Canadian Guaranty ........................ 174 SECTION 11.04 Defenses Waived .................................................................................. 175 SECTION 11.05 Rights of Subrogation ........................................................................... 175 SECTION 11.06 Reinstatement; Stay of Acceleration ..................................................... 176 SECTION 11.07 Information ........................................................................................... 176 SECTION 11.08 Maximum Canadian Liability ............................................................... 176 SECTION 11.09 Contribution .......................................................................................... 176 SECTION 11.10 Liability Cumulative ............................................................................. 177 SECTION 11.11 Common Enterprise .............................................................................. 177 ARTICLE XII. THE BORROWER REPRESENTATIVE ...................................................................... 177 SECTION 12.01 Appointment; Nature of Relationship ................................................... 177 SECTION 12.02 Powers................................................................................................... 178 SECTION 12.03 Employment of Agents ......................................................................... 178 SECTION 12.04 Notices .................................................................................................. 178 SECTION 12.05 Successor Borrower Representative ..................................................... 178 SECTION 12.06 Execution of Loan Documents; Borrowing Base Certificate ............... 178 SECTION 12.07 Reporting .............................................................................................. 178 





 






  TABLE OF CONTENTS  (continued)    v    SCHEDULES:*  Schedule 1.01(a) – Commitment Schedule  Schedule 1.01(b) – Existing Letters of Credit  Schedule 1.01(d) – Immaterial Subsidiaries   Schedule 3.02 – Capitalization; Subsidiaries; Joint Ventures  Schedule 3.10(a) – Real Property  Schedule 3.10(b)  – Intellectual Property  Schedule 3.11 – Insurance  Schedule 3.12  – Canadian Pension Plans  Schedule 3.19 – Credit Card Arrangements  Schedule 5.17 – Post-Closing Covenants  Schedule 6.01 – Existing Indebtedness  Schedule 6.02 – Existing Investments   Schedule 6.03 – Existing Contractual Encumbrances and Restrictions  Schedule 6.05 – Existing Affiliate Transactions  Schedule 6.07 – Existing Liens       EXHIBITS:*    Exhibit A – Form of Assignment and Assumption  Exhibit B – Form of Borrowing Base Certificate  Exhibit C – Form of Borrowing Request  Exhibit D – Form of Compliance Certificate  Exhibit E – Form of Interest Election Request  Exhibit F – Form of Joinder Agreement  Exhibit G-1 – Form of U.S. Tax Certificate (For Foreign Lenders that are not Partnerships for  U.S. Federal Income Tax Purposes)  Exhibit G-2 – Form of U.S. Tax Certificate (For Foreign Participants that are not Partnerships for  U.S. Federal Income Tax Purposes)  Exhibit G-3 – Form of U.S. Tax Certificate (For Foreign Participants that are Partnerships for  U.S. Federal Income Tax Purposes)  Exhibit G-4 – Form of U.S. Tax Certificate (For Foreign Lenders that are Partnerships for U.S.  Federal Income Tax Purposes)        *Schedule 1.01(a) (Commitment Schedule) is filed herewith; all other schedules and exhibits omitted     pursuant to Item 601(a)(5) of Regulation S-K. 





 






DB1/ 127789195.7  CREDIT AGREEMENT dated as of March 30, 2022, among DESIGNER BRANDS INC., an Ohio  corporation (the “Company”), each of the U.S. Subsidiary Borrowers from time to time party hereto,  DESIGNER BRANDS CANADA INC., an Ontario corporation, each of the other Canadian Borrowers  from time to time party hereto, the other Loan Parties from time to time party hereto, the Lenders from time  to time party hereto, and THE HUNTINGTON NATIONAL BANK, as Administrative Agent.  WITNESSETH:  The Company has requested that the Lenders provide an asset-based revolving credit facility in an  initial aggregate maximum principal amount not to exceed $550,000,000, and the Lenders have indicated  their willingness to lend, and the Issuing Banks hereunder have indicated their willingness to issue Letters  of Credit, in each case on the terms and conditions set forth herein.  In consideration of the mutual covenants and agreements herein contained, the parties hereto  covenant and agree as follows:  ARTICLE I.  DEFINITIONS  SECTION 1.01 Defined Terms.  As used in this Agreement, the following terms have the meanings  specified below:  “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the  Loans comprising such Borrowing, bear interest at a rate determined by reference to the Alternate Base  Rate.  “Account” means an “Account” as defined in Article 9 of the UCC or the PPSA, as applicable.  “Account Debtor” means any Person that is or may become obligated to any Loan Party under,  with respect to or on account of an Account or Credit Card Account.  “Acquired Indebtedness” means, with respect to any specified Person: (1) Indebtedness of any  other Person existing at the time such other Person is merged, consolidated or amalgamated with or into or  became a Restricted Subsidiary of such specified Person, and (2) Indebtedness secured by a Lien  encumbering any asset acquired by such specified Person.  Acquired Indebtedness will be deemed to have  been Incurred, with respect to clause (1) of the preceding sentence, on the date such Person becomes a  Restricted Subsidiary and, with respect to clause (2) of the preceding sentence, on the date of consummation  of such acquisition of such assets.  “Acquisition” means any transaction, or any series of related transactions, consummated on or after  the date hereof, by which any Loan Party or Restricted Subsidiary (a) acquires any business or division of  a business or all or substantially all of the assets of any Person, whether through the purchase of assets,  merger or otherwise or (b) directly or indirectly acquires (in one transaction or as the most recent transaction  in a series of transactions) at least a majority (in number of votes) of the Equity Interests of a Person which  has ordinary voting power for the election of directors or other similar management personnel of a Person  (other than Equity Interests having such power only by reason of the happening of a contingency) or a  majority of the outstanding Equity Interests of a Person.  “Additional Refinancing Amount” means, in connection with the Incurrence of any Refinancing  Indebtedness, the aggregate principal amount of additional Indebtedness, Disqualified Stock or Preferred  





 






DB1/ 127789195.7 2  Stock Incurred to pay accrued and unpaid interest, premiums (including tender premiums), expenses,  defeasance costs and fees in respect thereof.  “Adjusted Term SOFR” means the sum of: (i) Term SOFR and (ii) 0.1000% (10.00 basis points)  for an Interest Period of one-month’s duration, 0.1500% (15.00 basis points) for an Interest Period of three- months’ duration or 0.2500% (25.00 basis points) for an Interest Period of six-months’ duration; provided,  that, if Adjusted Term SOFR determined as provided above shall ever be less than the Floor, then Adjusted  Term SOFR shall be deemed to be the Floor.  “Administrative Agent” means The Huntington National Bank, in its capacity as administrative  agent hereunder and under the other Loan Documents, and including any of its Affiliates performing any  of the functions of the Administrative Agent at any time, and their successors in such capacity as provided  in Article VIII.  “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the  Administrative Agent.  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial  Institution.  “Affiliate” means, 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  specified Person.  “Affiliated Holders” means, with respect to any specified natural person, (a) such specified natural  person’s parents, spouse, siblings, descendants, step children, step grandchildren, nieces and nephews and  their respective spouses, (b) the estate, legatees and devisees of such specified natural person and each of  the persons referred to in clause (a) of this definition, and (c) any company, partnership, trust or other entity  or investment vehicle created for the benefit of, or Controlled by, such specified natural person or any of  the persons referred to in clause (a) or (b) of this definition or the holdings of which are for the primary  benefit of such specified natural person or any of the persons referred to in clause (a) or (b) of this definition  or created by any such person for the benefit of any charitable organization or for a charitable purpose.  “Affiliate Transaction” has the meaning specified in Section 6.05.  “Agreement” means this Credit Agreement, as amended, restated, supplemented or otherwise  modified from time to time.  “Aggregate Borrowing Base” means, as of any date of determination, an amount equal to (a) the  U.S. Borrowing Base as of such date plus (b) the lesser of (i) the Canadian Sublimit and (ii) the Canadian  Borrowing Base as of such date.  “Aggregate Canadian Revolving Exposure” means, at any time, the aggregate Canadian Revolving  Exposure of all the Lenders at such time.  “Aggregate Commitments” means, at any time, the aggregate Commitments of all Lenders.  “Aggregate Credit Exposure” means, at any time, the aggregate Revolving Exposure of all the  Lenders at such time.  





 






DB1/ 127789195.7 3  “Aggregate U.S. Revolving Exposure” means, at any time, the aggregate U.S. Revolving Exposure  of all the Lenders at such time.  “Alternate Base Rate” means, for any day, a fluctuating interest rate per annum equal to the highest  of: (a) the Prime Rate, (b) the Fed Funds Rate in effect on such day plus 0.50% and (c) Adjusted Term  SOFR plus 1.00% per annum. Each change in the Alternate Base Rate shall automatically and immediately  change the interest rate on any Loans that accrue interest with respect to the Alternate Base Rate, without  notice to the Borrowers, subject to any maximum or minimum interest rate limitation specified by  applicable law.  “AML Legislation” has the meaning specified in Section 9.15.  “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction in which to the  Company or any of its Subsidiaries is located or is doing material business from time to time concerning or  relating to bribery or corruption and includes the Canadian Economic Sanctions and Export Control Laws.  “Anti-Terrorism Laws” means those laws and sanctions relating to terrorism or money laundering,  including Canadian Anti-Money Laundering & Anti-Terrorism Legislation, Executive Order No. 13224,  the USA Patriot Act (Public Law 107-56), the Bank Secrecy Act (Public Law 91-508), the Trading with  the Enemy Act (50 U.S.C. App. Section 1 et. seq.), the International Emergency Economic Powers Act (50  U.S.C. Section 1701 et. seq.), and the sanction regulations promulgated pursuant thereto by the Office of  Foreign Assets Control, as well as laws relating to prevention and detection of money laundering in 18  U.S.C. Sections 1956 and 1957 (as any of the foregoing may from time to time be amended, renewed,  extended or replaced, in each case in any jurisdiction in which any Loan Party or any of its Subsidiaries is  located or is doing material business).  “Applicable Percentage” means, with respect to any Lender, a percentage equal to a fraction the  numerator of which is such Lender’s Commitment and the denominator of which is the Aggregate  Commitments; provided that, if the Commitments have terminated or expired, the Applicable Percentages  shall be determined based upon such Lender’s share of the Aggregate Credit Exposure at that time; provided  further that, in accordance with Section 2.20, so long as any Lender shall be a Defaulting Lender, such  Defaulting Lender’s Commitment shall be disregarded in the calculations in this definition.  “Applicable Rate” means, for any day, with respect to any Loan, the applicable rate per annum set  forth below under the caption “ABR Margin” or “Term SOFR Margin”, as the case may be, based upon the  daily average Availability (the “Average Availability”) for the fiscal quarter of the Company ending on the  most recent Determination Date (as defined below), provided that for the period from the Closing Date  through and including July 30, 2022, the “Applicable Rate” shall be the applicable rate per annum set forth  below in Level II:  Level Average Availability  Term  SOFR  Margin  ABR Margin  





 






DB1/ 127789195.7 4  I ≥ 67% of the Maximum Credit  Amount  1.25% 0.25%  II < 67% of the Maximum  Credit Amount but > 33% of  the Maximum Credit  Amount  1.50% 0.50%  III ≤ 33% of the Maximum  Credit Amount  1.75% 0.75%  For purposes of the foregoing, (a) the Applicable Rate shall be determined as of the end of each  fiscal quarter of the Company (each a “Determination Date”) based upon the Borrowing Base Certificate(s)  delivered with respect to such Determination Date and (b) each change in the Applicable Rate resulting  from a change in the Average Availability shall be effective during the period commencing on and including  the date of delivery to the Administrative Agent of the consolidated financial statements for the most recent  Determination Date and ending on the date immediately preceding the effective date of the next such  change; provided that if the Borrowers shall fail to deliver any Borrowing Base Certificate with respect to  any Determination Date as and when due, at the option of the Administrative Agent or at the request of the  Required Lenders, Average Availability shall be deemed to be in Level III during the period from the  expiration of the time for delivery thereof until the date five (5) days after such Borrowing Base Certificate  is delivered.  If any Borrowing Base Certificate shall prove to have been inaccurate (regardless of whether any  Commitments are in effect or any amounts are outstanding hereunder when such inaccuracy is discovered),  and such inaccuracy shall have resulted in the payment or accrual of any interest at rates lower than those  that would have been paid or accrued for any period, then the applicable Borrowers shall pay to the  Administrative Agent, for distribution to the Lenders or Issuing Banks (or former Lenders or Issuing Banks)  as their interests may appear, the interest that would have accrued and would have been required to be paid  but were not accrued or paid as a result of such inaccuracy.  “Approved Fund” has the meaning assigned to such term in Section 9.04.  “Article II JV” means Article II JV, LLC, a Delaware limited liability company.  “Assignment and Assumption” means an assignment and assumption entered into by a Lender and  an assignee (other than an Ineligible Institution) (with the consent of any party whose consent is required  by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form  approved by the Administrative Agent.  “Availability” means, at any time, an amount equal to the lesser of (a) the Aggregate Commitments  minus the Aggregate Credit Exposure, and (b) the sum of (i) an amount equal to (A) the U.S. Borrowing  Base minus (B) the Aggregate U.S. Revolving Exposure minus (C) the Canadian Over-Usage Amount, plus  (ii) an amount not less than zero but otherwise equal to (A) the lesser of (1) the Canadian Borrowing Base  and (2) the Canadian Sublimit, minus (B) the Aggregate Canadian Revolving Exposure.  





 






DB1/ 127789195.7 5  “Availability Period” means the period from and including the Closing Date through but excluding  the earlier of the Maturity Date and the date of termination of the Commitments.  “Available Commitment” means, at any time, the Aggregate Commitments minus the Aggregate  Credit Exposure (calculated, with respect to any Defaulting Lender, as if such Defaulting Lender had funded  its Applicable Percentage of all outstanding Borrowings).  “Available Tenor” means, as of any date of determination and with respect to the then-current  Benchmark, as applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or  component thereof) that is or may be used for determining the length of an interest period pursuant to this  Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark  (or component thereof) that is or may be used for determining any frequency of making payments of interest  calculated with reference to such Benchmark, in each case, as of such date and not including, for the  avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest  Period” pursuant to Section 2.14.  “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable  Resolution Authority in respect of any liability of an Affected Financial Institution.  “Bail-In Legislation” means (a) 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, regulation or requirement for such EEA Member Country from time to time which is  described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the  United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule  applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms  or other financial institutions or their affiliates (other than through liquidation, administration or other  insolvency proceedings).  “Banking Services” means any financial accommodation or credit extended to a Borrower or other  Loan Party by any Lender or any Affiliate thereof (other than pursuant to this Agreement) including: (a)  commercial credit cards, (b) stored value cards, (c) credit card processing services, (d) debit cards, (e)  purchase cards, (f) cash management, treasury management, administration or related services, including  the automated clearing house processing of electronic fund transfers, (g) controlled disbursement accounts  or services, (h) return items, overdraft and interstate depository network accounts or services, or (i) supply  chain finance services, including, without limitation, any such Banking Services entered into prior to the  Closing Date by a Loan Party with any Person who is a Lender or an Affiliate thereof on the Closing Date.  “Banking Services Obligations” means any and all obligations of the Loan Parties and their  Restricted Subsidiaries, whether absolute or contingent and howsoever and whensoever created, arising,  evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions  therefor) in connection with Banking Services.  “Banking Services/Swap Reserves” means, in respect of a specified Banking Services Obligation  or Swap Agreement Obligation, all reserves, if any, that the Borrower Representative and the applicable  provider of such Banking Services Obligation or Swap Agreement Obligation agree shall be established  with respect thereto, to the extent the Administrative Agent receives a written notice of such Banking  Services Obligations or Swap Agreement Obligations in accordance with Section 2.22 specifying the  amount of such agreed reserves.  “Bankruptcy Code” means title 11 of the United States Code, as amended.  





 






DB1/ 127789195.7 6  “Bankruptcy Event” means, with respect to any Person, when such Person becomes the subject of  a bankruptcy or insolvency proceeding, or has had a receiver, interim receiver, monitor, conservator,  trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the  reorganization or liquidation of its business, appointed for it, or, in the good faith determination of the  Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or  acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result  solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a  Governmental Authority or instrumentality thereof, unless such ownership interest results in or provides  such Person with immunity from the jurisdiction of courts within the United States or from the enforcement  of judgments or writs of attachment on its assets or permits such Person (or such Governmental Authority  or instrumentality), to reject, repudiate, disavow or disaffirm any contracts or agreements made by such  Person.  “BC/VC” means BC/VC Ventures LLC, a Delaware limited liability company.  “Benchmark” means, initially, the Term SOFR Reference Rate; provided, that if a Benchmark  Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current  Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such  Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.14.   “Benchmark Replacement” means, with respect to any Benchmark Transition Event, the first  alternative set forth in the order below that can be determined by the Administrative Agent for the applicable  Benchmark Replacement Date:  (a) Daily Simple SOFR; or  (b) the sum of: (i) the alternate benchmark rate that has been selected by the Administrative  Agent and the Borrower Representative giving due consideration to (A) any selection or recommendation  of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant  Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark  rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and  (ii) the related Benchmark Replacement Adjustment.  If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than  the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement  and the other Loan Documents.  “Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current  Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating  or determining such spread adjustment, (which may be a positive or negative value or zero) that has been  selected by the Administrative Agent and the Borrower Representative giving due consideration to (a) any  selection or recommendation of a spread adjustment, or method for calculating or determining such spread  adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark  Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention  for determining a spread adjustment, or method for calculating or determining such spread adjustment, for  the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar- denominated syndicated credit facilities.  “Benchmark Replacement Date” means the earliest to occur of the following events with respect  to the then-current Benchmark:  





 






DB1/ 127789195.7 7  (a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later  of (i) the date of the public statement or publication of information referenced therein and (ii) the date on  which the administrator of such Benchmark (or the published component used in the calculation thereof)  permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component  thereof); or  (b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date  on which such Benchmark (or the published component used in the calculation thereof) has been determined  and announced by or on behalf of the administrator of such Benchmark (or such component thereof) or the  regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non- representative or non-compliant with or non-aligned with the International Organization of Securities  Commissions (IOSCO) Principles for Financial Benchmarks; provided, that such non-representativeness,  non-compliance or non-alignment will be determined by reference to the most recent statement or  publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such  component thereof) continues to be provided on such date.  For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred  in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event  or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the  published component used in the calculation thereof).  “Benchmark Transition Event” means the occurrence of one or more of the following events with  respect to the then-current Benchmark:  (a) a public statement or publication of information by or on behalf of the administrator of  such Benchmark (or the published component used in the calculation thereof) announcing that such  administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such  component thereof), permanently or indefinitely; provided, that, at the time of such statement or  publication, there is no successor administrator that will continue to provide any Available Tenor of such  Benchmark (or such component thereof);  (b) a public statement or publication of information by the regulatory supervisor for the  administrator of such Benchmark (or the published component used in the calculation thereof), the Board,  the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for  such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for  such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority  over the administrator for such Benchmark (or such component), which states that the administrator of such  Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such  Benchmark (or such component thereof) permanently or indefinitely; provided, that, at the time of such  statement or publication, there is no successor administrator that will continue to provide any Available  Tenor of such Benchmark (or such component thereof); or  (c) a public statement or publication of information by or on behalf of the administrator of  such Benchmark (or the published component used in the calculation thereof) or the regulatory supervisor  for the administrator of such Benchmark (or such component thereof) announcing that all Available Tenors  of such Benchmark (or such component thereof) are not, or as of a specified future date will not be,  representative or in compliance with or aligned with the International Organization of Securities  Commissions (IOSCO) Principles for Financial Benchmarks.  For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with  respect to any Benchmark if a public statement or publication of information set forth above has occurred  





 






DB1/ 127789195.7 8  with respect to each then-current Available Tenor of such Benchmark (or the published component used in  the calculation thereof).  “Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier  of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public  statement or publication of information of a prospective event, the 90th day prior to the expected date of  such event as of such public statement or publication of information (or if the expected date of such  prospective event is fewer than 90 days after such statement or publication, the date of such statement or  publication).  “Benchmark Unavailability Period” means the period (if any) (a) beginning at the time that a  Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the  then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with  Section 2.14 and (b) ending at the time that a Benchmark Replacement has replaced the then-current  Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14.  “Beneficial Owner” means, with respect to any U.S. Federal withholding Tax, the beneficial owner,  for U.S. Federal income tax purposes, to whom such Tax relates.  “Beneficial Ownership Certification” means a certification regarding beneficial ownership as  required by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.    “BHC Act Affiliate” has the meaning set forth in Section 9.29.  “BIA” means the Bankruptcy and Insolvency Act (Canada), as amended.  “Billing Statement” has the meaning assigned to such term in Section 2.18(g).    “Blocked Person” means any of the following: (a) a Person that is listed in the annex to, or is  otherwise subject to the provisions of, the Executive Order No. 13224; (b) a Person owned or controlled  by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the  provisions of, the Executive Order No. 13224; (c) a Person that is named as a “specially designated  national” on the most current list published by the U.S. Treasury Department Office of Foreign Asset  Control at its official website or any replacement website or other replacement official publication of such  list; or (d) a Person who is affiliated or associated with a Person listed above.  “Board” means the Board of Governors of the Federal Reserve System of the U.S.  “Borrower” or “Borrowers” means, individually or collectively, the U.S. Borrowers and the  Canadian Borrowers.  “Borrower Representative” has the meaning assigned to such term in Section 12.01.    “Borrowing” means (a) Revolving Loans of the same Type, made, converted or continued on the  same date and, in the case of SOFR Rate Loans, as to which a single Interest Period is in effect, (b) a  Swingline Loan, (c) a Protective Advance and (d) an Overadvance.  “Borrowing Base” means, individually and collectively as the context may require, the U.S.  Borrowing Base and the Canadian Borrowing Base.  





 






DB1/ 127789195.7 9  “Borrowing Base Certificate” means a certificate, signed and certified as accurate and complete by  a Financial Officer of the Borrower Representative, in substantially the form of Exhibit B (with such  changes thereto as may be required by the Administrative Agent in its Permitted Discretion from time to  time to reflect the components of and reserves against the Borrowing Base as provided for hereunder) or  another form that is acceptable to the Administrative Agent in its Permitted Discretion.  “Borrowing Base Reporting Date” means twenty-five (25) days after the end of each fiscal month  of the Company (or, if such day is not a Business Day, on the next succeeding Business Day); provided,  however, during any Increased BBC Reporting Period, the Borrowing Base Reporting Date shall mean  Wednesday of each week (or, if such day is not a Business Day, on the next succeeding Business Day).  “Borrowing Request” means a request by the Borrower Representative for a Borrowing in  accordance with Section 2.03, which shall be, in the case of any such written request, in the form of Exhibit  C or any other form approved by the Administrative Agent.  “BRX” means BRX DBI Joint Venture LLC, a Delaware limited liability company.  “Business Day” means any day other than a Saturday, a Sunday, or other day on which the  Administrative Agent is authorized or required to be closed.  “Camuto Entities” means, collectively, Camuto LLC, a Delaware limited liability company and  any Person that is a Subsidiary thereof.  For the avoidance of doubt, each of CCI Operations LLC, an Ohio  limited liability company, Camuto Overseas Holding Subsidiary, LLC, an Ohio limited liability company,  Vincent Camuto LLC, a Connecticut limited liability company, Sole Society Group, Inc., a Delaware  corporation, VCJS LLC, a Connecticut limited liability company, VCS Group LLC, a Delaware limited  liability company, Hot on time LLC, a Connecticut limited liability company, VC Line Building Services  LLC, a Connecticut limited liability company, VC Footwear LLC, a Connecticut limited liability company,  and Article II JV and BC/VC shall constitute a Camuto Entity.  “Canada” means the country of Canada and any province or territory thereof.  “Canadian Anti-Money Laundering & Anti-Terrorism Legislation” means the Criminal Code,  R.S.C. 1985, c. C-46, the Proceeds of Crime Act and the United Nations Act, R.S.C. 1985, c. U-2 or any  similar Canadian legislation, together with all rules, regulations and interpretations thereunder or related  thereto including, without limitation, the Regulations Implementing the United Nations Resolutions on the  Suppression of Terrorism and the United Nations Al-Qaida and Taliban Regulations promulgated under  the United Nations Act.  “Canadian Blocked Person” means any Person that is a “politically exposed foreign person” or  “terrorist group” or similar person whose property or interests in property are blocked or subject to blocking  pursuant to, or as described in, any Canadian Economic Sanctions and Export Control Laws.  “Canadian Borrowers” means, collectively (a) Designer Brands Canada Inc. and (b) each Canadian  Subsidiary of the Company that becomes a party to this Agreement as a “Canadian Borrower” following  the date hereof pursuant to Section 5.14, in each case, until such time as such Canadian Subsidiary is  released from its obligations under the Loan Documents in accordance with this Agreement.  “Canadian Borrowing Base” means  (a) the product of (i) 90% multiplied by (ii) the Eligible Credit Card Accounts of the  Canadian Loan Parties at such time, plus  





 






DB1/ 127789195.7 10  (b) the product of (i) (x) during the Selected Months, 92.5%, and (y) at all other  times, 90% multiplied by (ii) the Net Orderly Liquidation Value percentage identified in the most recent  inventory appraisal ordered and received by the Administrative Agent multiplied by (iii) the Canadian Loan  Parties’ Eligible Inventory (other than Eligible LC Inventory, Eligible In-Transit Inventory, and Eligible  Consigned Inventory) at such time, valued at the lower of average cost or market, determined utilizing the  retail method, as appropriate, or such other method approved in writing by the Administrative Agent at the  request of the Borrower Representative, net of applicable Inventory Reserves, plus  (c) the lesser of (i) the result of the product of (x) 90% multiplied by (y) the Net  Orderly Liquidation Value percentage identified in the most recent inventory appraisal ordered and received  by the Administrative Agent multiplied by (z) the Canadian Loan Parties’ Eligible In-Transit Inventory and  Eligible LC Inventory at such time, valued at the lower of average cost or market, determined utilizing the  retail method, as appropriate, or such other method approved in writing by the Administrative Agent at the  request of the Borrower Representative net of applicable Inventory Reserves, or (ii) 15% of the Canadian  Inventory Availability, plus  (d) the product of (i) 90% multiplied by (ii) the Net Orderly Liquidation Value  percentage identified in the most recent inventory appraisal ordered and received by the Administrative  Agent multiplied by (iii) the Canadian Loan Parties’ Eligible Consigned Inventory at such time, valued at  the lower of average cost or market, determined utilizing the retail method, as appropriate, or such other  method approved in writing by the Administrative Agent at the request of the Borrower Representative, net  of applicable Inventory Reserves; provided, however, the amount added to the Canadian Borrowing Base  pursuant to this clause (d) shall not exceed $1,500,000; minus  (e) applicable Reserves.  Subject to the provisions hereof expressly permitting the Administrative Agent to adjust Reserves, the  Canadian Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base  Certificate delivered to the Administrative Agent pursuant to Section 5.01(e) (or, prior to the first such  delivery, delivered to the Administrative Agent pursuant to Section 4.01(r)).  “Canadian Collateral” means any and all property of any Canadian Loan Party covered by the  Collateral Documents and any and all other property of any Canadian Loan Party, now existing or hereafter  acquired, that may at any time be or become subject to a security interest or Lien in favor of the  Administrative Agent to secure the Canadian Secured Obligations.  “Canadian Defined Benefit Plan” means a Canadian Pension Plan, which contains a “defined  benefit provision,” as defined in subsection 147.1(1) of the ITA.  “Canadian Economic Sanctions and Export Control Laws” means any Canadian laws, regulations  or orders governing transactions in controlled goods or technologies or dealings with countries, entities,  organizations, or individuals subject to economic sanctions and similar measures.  “Canadian Guaranteed Obligation” has the meaning assigned to such term in Section 11.01.  “Canadian Guarantor” means each Restricted Subsidiary of a Canadian Borrower that is listed on  the signature pages hereto as a Canadian Guarantor or that becomes a party hereto as a Canadian Guarantor  pursuant to Section 5.14, in each case, until such Subsidiary’s Canadian Guaranty is released in accordance  herewith.  “Canadian Guaranty” means Article XI of this Agreement.  





 






DB1/ 127789195.7 11  “Canadian Inventory Availability” means the aggregate amount resulting from the calculation of  clause (b), plus clause (c)(i), plus clause (d) of the Canadian Borrowing Base.  “Canadian Loan Parties” means, individually and collectively as the context may require, the  Canadian Borrowers and the Canadian Guarantors.  “Canadian Loans” means, individually and collectively as the context may require, the Canadian  Revolving Loans and the Canadian Swingline Loans.  “Canadian MEPP” means any plan that is a multi-employer pension plan as defined under the  applicable federal or provincial pension standards legislation in Canada.  “Canadian Obligated Party” has the meaning set forth in Section 11.02.  “Canadian Obligations” means all unpaid principal of and accrued and unpaid interest on the  Canadian Loans to the Canadian Borrowers, all accrued and unpaid fees and all expenses, reimbursements  (including pursuant to Section 2.06(a)), indemnities and other obligations of the Canadian Loan Parties to  the Lenders or to any Lender, the Administrative Agent or any indemnified party arising under the Loan  Documents (including guarantee obligations and interest, costs, fees and other amounts accruing during the  pendency of any proceeding under any Insolvency Laws, regardless of whether allowed or allowable in  such proceeding).  “Canadian Overadvance” means any Overadvance made to or for the benefit of a Canadian  Borrower.  “Canadian Over-Usage Amount” means, as of any date of determination, an amount not less than  zero but otherwise equal to the amount (if any) by which the Aggregate Canadian Revolving Exposure on  such date exceeds the Canadian Borrowing Base as of such date.  “Canadian Pension Event” means (a) the whole or partial withdrawal of a Loan Party from a  Canadian Defined Benefit Plan during a plan year where any additional funding obligations of the Loan  Party (other than the remittance of normal cost contributions owing in respect of periods up to the  withdrawal date) would be triggered by such withdrawal; (b) the filing of a notice of intent to terminate in  whole or in part a Canadian Defined Benefit Plan; (c) the treatment by a Governmental Authority of a  Canadian Defined Benefit Plan amendment as a termination or partial termination; or (d) the appointment  of a trustee by a Governmental Authority to administer the termination, in whole or in part, of a Canadian  Defined Benefit Plan.  Notwithstanding anything to the contrary herein, a Canadian Pension Event shall not  include any event that relates to the partial wind-up or termination of solely the defined contribution  component of a Canadian Defined Benefit Plan.  “Canadian Pension Plans” means any plan, program or arrangement that is a pension plan that is  required to be registered under any applicable Canadian federal or provincial pension standard legislation,  whether or not registered under any such laws, which is maintained or contributed to by, or to which there  is or may be an obligation to contribute by, a Loan Party in respect of any Person’s employment in Canada  with such Loan Party, other than any Canadian MEPP or plans established by statute, which shall include,  without limitation, the Canada Pension Plan maintained by the government of Canada and the Quebec  Pension Plan maintained by the Province of Quebec.  “Canadian Protective Advance” means a Protective Advance made to, on behalf of or in respect of  a Canadian Borrower.  





 






DB1/ 127789195.7 12  “Canadian Revolving Exposure” means, with respect to any Lender at any time, the sum of (a) the  outstanding principal amount of such Lender’s Canadian Revolving Loans and Canadian Swingline  Exposure at such time, plus (b) an amount equal to its Applicable Percentage of the aggregate principal  amount of Canadian Overadvances and Canadian Protective Advances outstanding at such time.  “Canadian Revolving Loan” means a Revolving Loan made by the Lenders to any Canadian  Borrower.  “Canadian Secured Obligations” means all Canadian Obligations together with all (a) Banking  Services Obligations of the Canadian Loan Parties and (b) Swap Agreement Obligations of the Canadian  Loan Parties owing to one or more Qualified Counterparties; provided that Excluded Swap Obligations  with respect to any Loan Party shall not be Canadian Secured Obligations of such Loan Party.  “Canadian Security Agreements” means each of the Canadian Security Agreement, in form and  substance reasonably satisfactory to the Administrative Agent and the Lenders, dated as of the Closing  Date, among the Canadian Loan Parties and the Administrative Agent, and, as the context requires, any  other pledge or security agreement or deed of hypothec entered into, after the Closing Date by any other  Canadian Loan Party (as required by this Agreement or any other Loan Document), as the same may be  amended, restated, supplemented or otherwise modified from time to time.  “Canadian Sublimit” means $55,000,000.  “Canadian Subsidiary” means any Subsidiary of the Company that has been formed or is organized  under the laws of Canada or any province or territory thereof.  “Canadian Swingline Exposure” means, at any time, the aggregate amount of all outstanding  Canadian Swingline Loans at such time. The Canadian Swingline Exposure of any Lender at any time shall  be its Applicable Percentage of the total Canadian Swingline Exposure at such time.  “Canadian Swingline Loan” means a Swingline Loan made to a Canadian Borrower.    “Capital Expenditures” means expenditures made or liabilities incurred for the acquisition of any  fixed assets or improvements (or of any replacements or substitutions thereof or additions thereto) which  have a useful life of more than one year and which, in accordance with GAAP, would be classified as capital  expenditures.  “Cash Collateralize” has the meaning assigned to such term in Section 2.06(j).  Derivatives of such  term have corresponding meanings.   “Cash Equivalents” means: (a) direct obligations of the United States of America or any agency or  instrumentality thereof or obligations backed by the full faith and credit of the United States of America  maturing in twelve (12) months or less from the date of acquisition; (b) commercial paper maturing in one  (1) year or less rated not lower than A-1, by S&P or P-1 by Moody’s on the date of acquisition; (c) demand  deposits, time deposits or certificates of deposit maturing within one year in commercial banks whose  obligations are rated A-1, A or the equivalent or better by S&P on the date of acquisition; (d) money market  or mutual funds whose investments are limited to those types of investments described in clauses (a)-(c)  above; and (e) fully collateralized repurchase agreements with a term of not more than one hundred eighty  (180) days for securities described in clause (a) above and entered into with commercial banks whose  obligations are rated A-1, A or the equivalent or better by S&P on the date of acquisition.  “Casualty” has the meaning assigned to such term in Section 5.12.  





 






DB1/ 127789195.7 13  “CCAA” means the Companies’ Creditors Arrangement Act (Canada), as amended.   “CFC” means each Person that is a “controlled foreign corporation” within the meaning of Section  957(a) of the Code.  “CFC Holdco” means a Domestic Subsidiary owning, directly or indirectly, no material assets other  than equity interests of one or more CFCs.  “Change in Control” means (i) any “person” or “group” (as such terms are used in Sections 13(d)  and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than a  Permitted Holder, shall have acquired beneficial ownership of (within the meaning of Rule 13d-3  promulgated by the SEC under the Exchange Act), directly or indirectly, of more than twenty-five percent  (25%) of the voting Equity Interests of the Company, or (ii) the Company ceases to own, directly or  indirectly, one hundred percent (100%) of the fully diluted Equity Interests of any other Loan Party except  with respect to this clause (ii), in any transaction permitted hereunder.  “Change in Law” means the occurrence, after the date of this Agreement, of any of the following:  (i) the adoption or taking effect of any law, rule, regulation or treaty, (ii) any change in any law, rule,  regulation or treaty or in the administration, interpretation, implementation or application thereof by any  Governmental Authority or (iii) the making or issuance of any request, rule, guideline or directive (whether  or not having the force of law) by any Governmental Authority; provided that notwithstanding anything  herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all  requests, rules, regulations, guidelines, interpretations or directives thereunder or issued in connection  therewith (whether or not having the force of law) and (y) all requests, rules, regulations, guidelines,  interpretations 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 (whether or not having the force of law), 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, promulgated or implemented.  “Charges” has the meaning assigned to such term in Section 9.18.  “CIP Regulations” shall have the meaning set forth in Section 8.11 hereof.  “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the  Loans comprising such Borrowing, are U.S. Revolving Loans or Canadian Revolving Loans.  “Closing Date” means the date on which the conditions specified in Section 4.01 are satisfied (or  waived in accordance with Section 9.02).  “Code” means the Internal Revenue Code of 1986, as amended from time to time.    “Collateral” means any and all property owned, leased or operated by a Person covered by the  Collateral Documents and any and all other property of any Loan Party, now existing or hereafter acquired,  that may at any time be, become or be intended to be, subject to a security interest or Lien in favor of the  Administrative Agent, on behalf of itself and the Lenders and other Secured Parties, to secure the U.S.  Secured Obligations or the Canadian Secured Obligations.  “Collateral Access Agreement” means any landlord waiver or other agreement, in form and  substance satisfactory to the Administrative Agent in its Permitted Discretion, between the Administrative  Agent and any third party (including any bailee, consignee, customs broker, or other similar Person) in  possession of any Collateral or any landlord of any real property where any Collateral is or may be located,  





 






DB1/ 127789195.7 14  as such landlord waiver or other agreement may be amended, restated, supplemented or otherwise modified  from time to time.  “Collateral and Guaranty Requirement” means, at any time, the requirement that:  (a) the Administrative Agent shall have received from the Company and each other Loan Party  either (i) (A) in the case of each U.S. Loan Party, a counterpart of this Agreement and the U.S. Security  Agreement, duly executed and delivered on behalf of such Person or (B) in the case of each Loan Party that  is a Canadian Subsidiary, a counterpart of this Agreement and the Canadian Security Agreement, duly  executed and delivered on behalf of such Person, or (ii) in the case of any Person that becomes a Subsidiary  (other than Excluded Subsidiary) after the date hereof, (A) a Joinder Agreement, duly executed and  delivered on behalf of such Person, and (B) instruments in the form or forms specified in the applicable  Security Agreement under which such Person becomes a party to the applicable Security Agreement, duly  executed and delivered on behalf of such Person, together with such certificates, documents and opinions  with respect to such Subsidiary as may reasonably be requested by the Administrative Agent;  (b) The Administrative Agent shall have received all deposit account control agreements,  securities account control agreements and other Collateral Documents required to be provided to it  hereunder or under the applicable Security Agreement;  (c) all documents and instruments, including UCC financing statements, PPSA registrations  and registrations in respect of deeds of hypothec required by the Collateral Documents or this Agreement  with the priority required by the Collateral Documents shall have been filed, registered or recorded or  delivered to the Administrative Agent for filing, registration or recording; and  (d) each Loan Party shall have obtained all material consents and approvals required in  connection with the execution and delivery of all Collateral Documents to which it is a party and the  performance of its obligations thereunder.  Notwithstanding the foregoing, any Subsidiary formed or acquired after the date hereof and  required to become a Loan Party shall not be required to comply with the foregoing requirements prior to  the time specified in Section 5.14. The foregoing definition shall not require the creation or perfection of  pledges of or security interests in, or legal opinions or other deliverables with respect to, particular assets  of the Loan Parties, or the provision of Guarantees by any Subsidiary, if and for so long as the  Administrative Agent, in consultation with the Company, determines that the cost of creating or perfecting  such pledges or security interests in such assets, or obtaining legal opinions or other deliverables in respect  of such assets, or providing such Guarantees, shall be excessive in view of the benefits to be obtained by  the Lenders therefrom. The Administrative Agent may in its Permitted Discretion grant extensions of time  for the creation and perfection of security interests in, or the delivery of legal opinions or other deliverables  with respect to, particular assets or the provision of any Guarantee by any Subsidiary (including extensions  beyond the Closing Date or in connection with assets acquired, or Subsidiaries formed or acquired, after  the date hereof) where it determines that such action cannot be accomplished without unreasonable effort  or expense by the time or times at which it would otherwise be required to be accomplished by this  Agreement or the Collateral Documents. Notwithstanding the foregoing, no action required to be taken by  any Person to effect compliance by the Administrative Agent and the Lenders with any applicable  Requirement of Law shall be deemed to cause unreasonable effort or expense hereunder.  “Collateral Documents” means, collectively, the Security Agreements, any deposit account control  agreement, any securities account control agreement, and any other agreements, instruments and documents  executed in connection with this Agreement that are intended to create, perfect or evidence Liens to secure  the Obligations, including, without limitation, all other security agreements, pledge agreements, the Loan  





 






DB1/ 127789195.7 15  Guaranty or any joinder or supplement hereto or any other Guarantee of all or any portion of the  Obligations, subordination agreements, pledges, and collateral assignments, whether theretofore, now or  hereafter executed by any Borrower or any other Loan Party and delivered to the Administrative Agent.  “Commercial LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of  all outstanding commercial Letters of Credit plus (b) the aggregate amount of all LC Disbursements relating  to commercial Letters of Credit that have not yet been reimbursed by or on behalf of the Borrowers.  The  Commercial LC Exposure of an Issuing Bank (in its capacity as such) shall be the Commercial LC Exposure  in respect of commercial Letters of Credit issued by such Issuing Bank.  The Commercial LC Exposure of  any Lender at any time shall be its Applicable Percentage of the aggregate Commercial LC Exposure at  such time.  “Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to  make Revolving Loans and to acquire participations in Letters of Credit, Overadvances, Protective  Advances and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate  permitted amount of such Lender’s Revolving Exposure hereunder, as such commitment may be reduced  or increased from time to time pursuant to (a) Section 2.09 and (b) assignments by or to such Lender  pursuant to Section 9.04. The initial amount of each Lender’s Commitment is set forth on the Commitment  Schedule, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its  Commitment, as applicable. The initial aggregate amount of all of the Lenders’ Commitments is  $550,000,000.  “Commitment Schedule” means the Schedule attached hereto as Schedule 1.01(a).    “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as  amended from time to time, and any successor statute.  “Communications” has the meaning assigned to such term in Section 9.01(d).   “Company” has the meaning assigned to such term in the introductory paragraph hereof.   “Company on a Consolidated Basis” means the consolidation of the Company and its Restricted  Subsidiaries in accordance with GAAP.  “Competitor” shall mean any Person that is an operating company and is engaged primarily in the  same or similar business as the Company.  “Compliance Certificate” means a certificate executed by a Financial Officer of the Borrower  Representative in substantially the form of Exhibit D.  “Concentration Account” means (a) with respect to the U.S. Loan Parties, a “Concentration  Account” as defined in the U.S. Security Agreement, and (b) with respect to the Canadian Loan Parties, a  “Concentration Account” as defined in the Canadian Security Agreement.  “Conforming Changes” means, with respect to either the use or administration of Term SOFR or  the use, administration, adoption or implementation of any Benchmark Replacement, any technical,  administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the  definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition  of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”),  timing and frequency of determining rates and making payments of interest, timing of borrowing requests  or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the  





 






DB1/ 127789195.7 16  applicability of Section 2.15 and other technical, administrative or operational matters) that the  Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such  rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially  consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such  market practice is not administratively feasible or if the Administrative Agent determines that no market  practice for the administration of any such rate exists, in such other manner of administration as the  Administrative Agent decides is reasonably necessary in connection with the administration of this  Agreement and the other Loan Documents).  “Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by  net income or capital (however denominated) or that are franchise Taxes or branch profits Taxes.  “Consideration” means with respect to any Permitted Acquisition, the aggregate of (without  duplication) (i) the cash paid by any of the Loan Parties, directly or indirectly, to the seller in connection  therewith, (ii) the Indebtedness incurred or assumed by any of the Loan Parties, whether in favor of the  seller or otherwise and whether fixed or contingent, in connection therewith, (iii) any Guarantee given or  incurred by any Loan Party in connection therewith, and (iv) any other cash or equity consideration given  or obligation incurred by any of the Loan Parties in connection therewith, as each of the foregoing is  recorded by the Loan Parties in accordance with GAAP.  “Consolidated EBITDA” means, for any period of determination, without duplication, consolidated  net income of the Company on a Consolidated Basis, plus (i) the following (to the extent deducted from  such calculation of consolidated net income): (a) depreciation, (b) amortization, (c) non-cash expenses  related to stock based compensation, (d) other non-cash charges, non-cash expenses, or non-cash losses to  net income (provided, however that cash payments made in such period or in any future period in respect  of such non-cash charges, expenses or losses shall be subtracted from consolidated net income in calculating  Consolidated EBITDA), (e) interest expense, (f) income tax expense, (g) restructuring charges or expenses  (including integration costs, restructuring costs and severance costs related to acquisitions and to closure or  consolidation of plants, facilities or locations and any expense related to any reconstruction,  recommissioning or reconfiguration of fixed assets for alternate use) not to exceed $25,000,000 in the  aggregate incurred prior to the date hereof, minus (ii) non-cash credits or non-cash gains (to the extent  included in such calculation of consolidated net income), in each case determined and consolidated for the  Company and its Restricted Subsidiaries in accordance with GAAP; provided that the foregoing shall  exclude the income (or deficit) of any Person (other than a Restricted Subsidiary) in which the Company  or any of its Restricted Subsidiaries has an ownership interest, except to the extent that any such income is  actually received by the Company or such Restricted Subsidiary in the form of dividends or similar  distributions.  “Consolidated Fixed Charge Coverage Ratio” means, for any period of determination with respect  to the Company on a Consolidated Basis, the ratio of (a) Consolidated EBITDA for such period minus the  sum of (i) Unfinanced Capital Expenditures plus (ii) the portion of taxes based on income actually paid in  cash and provisions for cash income taxes, to (b) Consolidated Fixed Charges for such period.  “Consolidated Fixed Charges” means, for any period of determination, the sum of (a) any scheduled  amortization payments paid or payable during such period on all Indebtedness of the Company and its  Restricted Subsidiaries (including the principal component of all obligations in respect of all Finance Lease  Obligations), plus (b) consolidated cash Interest Expense of the Company and its Restricted Subsidiaries  for such period, plus (c) solely for the purposes of calculating the Consolidated Fixed Charge Coverage  Ratio when determining compliance with the Payment Conditions for the making of a Restricted Payment,  the amount of Restricted Payments (if applicable) to be made at such time and Restricted Payments  





 






DB1/ 127789195.7 17  previously made in cash in reliance on the Payment Conditions during such period, in each case, on a  consolidated basis in accordance with GAAP.   “Contingent Obligations” means, with respect to any Person, any obligation of such Person  guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary  obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly,  including, without limitation, any obligation of such Person, whether or not contingent:  (1) to purchase any such primary obligation or any property constituting direct or  indirect security therefor,  (2) to advance or supply funds:  (a) for the purchase or payment of any such primary obligation; or  (b) to maintain working capital or equity capital of the primary obligor or  otherwise to maintain the net worth or solvency of the primary obligor; or  (3) to purchase property, securities or services primarily for the purpose of assuring  the owner of any such primary obligation of the ability of the primary obligor to make payment of  such primary obligation against loss in respect thereof.  “Control” means the possession, directly or indirectly, of the power to direct or cause the direction  of the management or policies of a Person, whether through the ability to exercise voting power, by contract  or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.  “Covenant Testing Event” means any period (i) commencing at any time when Availability shall  be less than the greater of (x) $41,250,000 and (y) 10% of the Maximum Credit Amount, and (ii) ending  when Availability shall have been greater than or equal to the greater of (x) $41,250,000 and (y) 10% of  the Maximum Credit Amount, in either case, for a period of thirty (30) consecutive days.  “Covered Entity” has the meaning set forth in Section 9.29.  “Covered Party” has the meaning set forth in Section 9.29.  “Credit Card Accounts” means any “payment intangibles,” as defined in the UCC or PPSA,  receivables or other rights to payment of a monetary obligation due to any Loan Party in connection with  purchases of Inventory of such Loan Party in the ordinary course of business from (1) a credit card issuer  or a credit card processor with respect to (a) credit cards issued by Visa, MasterCard, American Express,  Discover, each of their respective Affiliates, and any other credit card issuers that are reasonably acceptable  to the Administrative Agent, (b) private label credit cards of any Loan Party issued under non-recourse  arrangements substantially similar to those in effect on the date hereof or (c) debit cards issued by issuers  or providers that are reasonably acceptable to the Administrative Agent or (2) PayPal, Inc., Stripe, Square,  Venmo, Apple Pay, AfterPay or any other similar “Buy-Now, Pay Later” product, or any other e-commerce  service providers or electronic payment services providers that are reasonably acceptable to the  Administrative Agent, in each case, which have been earned by performance by such Loan Party but not  yet paid to such Loan Party by such credit card issuer, credit card processor, or other service provider.  “Credit Card Agreement” means any agreement between (i) on the one hand, a Loan Party, and (ii)  on the other hand (a) a credit card issuer or a credit card processor (including any credit card processor that  processes purchases of Inventory from a Loan Party through debit cards) or (b) PayPal, Inc., Stripe, Square,  





 






DB1/ 127789195.7 18  Venmo, Apple Pay, AfterPay or any other similar “Buy-Now, Pay Later” product, or any other e-commerce  service providers or electronic payment services providers reasonably acceptable to the Administrative  Agent, in each case, relating to any Credit Card Account included or intended to be included in the  Borrowing Base.  “Credit Card Notifications” means each Credit Card Notification, in form and substance reasonably  satisfactory to the Administrative Agent, executed by one or more Loan Parties and delivered by such Loan  Parties to credit card issuers, credit card processors, or other applicable processors or providers that are  party to any Credit Card Agreement.  “Credit Party” means the Administrative Agent, the Issuing Bank, the Swingline Lender or any  other Lender.  “Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will  include a lookback) being established by the Administrative Agent in accordance with the conventions for  this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple  SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such  convention is not administratively feasible for the Administrative Agent, then the Administrative Agent  may establish another convention in its reasonable discretion.  “Default” means any event or condition which constitutes an Event of Default or which upon notice,  lapse of time or both would, unless cured or waived, become an Event of Default.  “Default Right” has the meaning set forth in Section 9.29.  “Defaulting Lender” means any Lender that (a) has failed, within two Business Days of the date  required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its participations  in Letters of Credit or Swingline Loans or (iii) pay over to any Credit Party any other amount required to  be paid by it hereunder; (b) has notified any Borrower or any Credit Party in writing, or has made a public  statement, to the effect that it does not intend or expect to comply with any of its funding obligations under  this Agreement or generally under other agreements in which it commits to extend credit, (c) has failed,  within three Business Days after request by a Credit Party or any Borrower, in each case, acting in good  faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with  its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations  in then outstanding Letters of Credit and Swingline Loans under this Agreement, provided that such Lender  shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt by such Credit Party and such  Borrower of such certification in form and substance satisfactory to them and the Administrative Agent, or  (d) has become the subject of a Bankruptcy Event or a Bail-In Action.  “Designated Non-cash Consideration” means the Fair Market Value (as determined in good faith  by the Company) of non-cash consideration received by the Company or a Restricted Subsidiary in  connection with a Disposition that is so designated as Designated Non-cash Consideration pursuant to an  officer’s certificate signed by a Financial Officer of the Company, setting forth such valuation, less the  amount of Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash  Consideration.  “Disposition” means with respect to any property, any sale, lease, sublease (as lessor or sublessor)  license, sale and leaseback, assignment, conveyance, transfer, license or other disposition thereof (including  by means of a “plan of division” under the Delaware Limited Liability Company Act or any comparable  transaction under any similar law).  The terms “Dispose” and “Disposed of” shall have correlative  meanings.  





 






DB1/ 127789195.7 19  “Disqualified Institution” means, on any date, (a) any Person designated by the Company as a  “Disqualified Institution” by written notice delivered to the Administrative Agent on or prior to the date  hereof and (b) any other Person that is a Competitor of the Company or any of its Subsidiaries, which  Person has been designated by the Company as a “Disqualified Institution” by written notice to the  Administrative Agent not less than five (5) Business Days prior to such date; provided that “Disqualified  Institutions” shall exclude any Person that the Company has designated as no longer being a “Disqualified  Institution” by written notice delivered to the Administrative Agent from time to time; provided further  that, for the avoidance of doubt, a Competitor shall not include any bona fide debt fund or investment  vehicle that is primarily engaged in making, purchasing, holding or otherwise investing in commercial loans  and similar extensions of credit in the ordinary course of business which is managed, sponsored or advised  by any person controlling, controlled by or under common control with such Competitor or affiliate thereof,  as applicable, and for which no personnel involved with the investment of such Competitor, as applicable,  (1) makes any investment decisions or (2) has access to any information (other than information publicly  available) relating to the Company or any entity that forms a part of the Company’s business (including  Subsidiaries of the Company).  “Disqualified Stock” means any Equity Interests which, by its terms (or by the terms of any security  into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures  (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily  redeemable, pursuant to a sinking fund obligation or otherwise (other than as a result of a change of control  or asset sale), or is redeemable at the option of the holder thereof, in whole or in part (other than as a result  of a change of control or asset sale), in each case at any time on or prior to the date that is 91 days after the  Maturity Date, or (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for  (i) Indebtedness or (ii) any Equity Interests referred to in (a) above, in each case at any time prior to the  date that is 91 days after the Maturity Date; provided, however, that only the portion of such Equity Interests  which so matures or is mandatorily redeemable, is so redeemable at the option of the holder or is so  convertible or exchangeable thereof prior to such date shall be deemed to be Disqualified Stock; provided,  further, however, that if such Equity Interests are issued to any employee or to any plan for the benefit of  employees of the Company or their Subsidiaries or by any such plan to such employees, such Equity  Interests shall not constitute Disqualified Stock solely because it may be required to be repurchased by such  Person in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s  termination, death or disability; provided, further, that any class of Equity Interests of such Person that by  its terms authorizes such Person to satisfy its obligations thereunder by delivery of Equity Interests that are  not Disqualified Stock shall not be deemed to be Disqualified Stock.  “Dollar Amount” means (a) with regard to any calculation denominated in U.S. Dollars, the amount  thereof, and (b) with regard to any calculation denominated in any other currency, the amount of U.S.  Dollars which is equivalent to the amount so expressed in such currency at the Spot Rate on the relevant  date of determination.  “Document” has the meaning assigned to such term in each Security Agreement, as applicable.  “Domestic Subsidiary” means a Subsidiary organized under the laws of a jurisdiction located in the  U.S.  “Dominion Period” means (a) any period during which any Specified Event of Default has occurred  and is continuing or (b) any period (i) commencing at any time when Availability shall be less than the  greater of (x) $55,000,000 and (y) 12.5% of the Maximum Credit Amount, in either case, for a period of  three (3) consecutive Business Days and (ii) ending when Availability shall have been greater than or equal  to the greater of (x) $55,000,000 and (y) 12.5% of the Maximum Credit Amount, in either case, for a period  of thirty (30) consecutive days.  





 






DB1/ 127789195.7 20  “DQ List” has the meaning specified in Section 9.04(e).  “Ebuys” means Ebuys, Inc., a California corporation.  “ECP” means an “eligible contract participant” as defined in Section 1(a)(18) of the Commodity  Exchange Act or any regulations promulgated thereunder and the applicable rules issued by the Commodity  Futures Trading Commission and/or the SEC.  “EEA Financial Institution” means (a) any credit institution or investment firm established in any  EEA Member Country that is subject to the supervision of an EEA Resolution Authority, (b) any entity  established in an EEA Member Country that is a parent of an institution described in clause (a) of this  definition, or (c) any financial institution established in an EEA Member Country that is a subsidiary of an  institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with  its parent.  “EEA Member Country” means any of the member states of the European Union, Iceland,  Liechtenstein, and Norway.  “EEA Resolution Authority” means any public administrative authority or any person entrusted  with public administrative authority of any EEA Member Country (including any delegee) having  responsibility for the resolution of any EEA Financial Institution.  “Electronic Signature” means an electronic sound, symbol, or process attached to, or associated  with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such  contract or record.  “Electronic System” means any electronic system, including email, Syndtrak, e-fax, Intralinks®,  ClearPar® and any other Internet or extranet-based site, whether such electronic system is owned, operated  or hosted by the Administrative Agent and the Issuing Bank and any of its respective Related Parties or any  other Person, providing for access to data protected by passcodes or other security system.  “Eligible Consigned Inventory” means, as of the date of determination thereof, without duplication  of any other Inventory included in the Borrowing Base, Inventory of a Loan Party that is consigned by a  Loan Party to a Person which is not a Loan Party (the “Applicable Consignee”) and, except as otherwise  agreed by the Administrative Agent in its Permitted Discretion, meets each of the following criteria:  (a) prior to the date that any such Inventory is included in the Borrowing Base, the charter,  articles or other constating documents (including any amendments thereto) of the Applicable Consignee  certified by the relevant Governmental Authority of the jurisdiction of organization of such Applicable  Consignee has been provided to the Administrative Agent;  (b) prior to the date that any such Inventory is included in the Borrowing Base, the  Administrative Agent shall have received the results of recent searches of Uniform Commercial Code  filings, PPSA or equivalent filings, and judgment and tax lien searches made with respect to the Applicable  Consignee in the states, provinces, territories or other jurisdictions of formation of such Persons and with  respect to such other locations where the consigned Inventory is located together with copies of the  financing statements (or similar documents) disclosed by such searches;  (c) the Loan Parties shall have delivered notices of the Administrative Agent’s Lien, in form  and substance reasonably satisfactory to the Administrative Agent, to secured creditors of the Applicable  Consignee (if applicable) prior to delivery of such Inventory;  





 






DB1/ 127789195.7 21  (d) the Administrative Agent shall have received evidence that the Loan Parties have filed  proper financing statements in all jurisdictions necessary to perfect a Lien on the consigned Inventory and  such financing statements shall have been assigned to the Administrative Agent pursuant to assignments of  financing statements in form and substance acceptable to the Administrative Agent in its Permitted  Discretion and which have been filed in the proper jurisdictions;  (e) the Loan Parties shall have entered into a consignment agreement with the Applicable  Consignee in form and substance satisfactory to the Administrative Agent in its Permitted Discretion;  (f) for Applicable Consignees with respect to which Inventory in excess of $10,000,000 shall  have been consigned to such Applicable Consignee, the Administrative Agent shall have received Collateral  Access Agreement with the Applicable Consignee in form and substance acceptable to the Administrative  Agent in its Permitted Discretion;   (g) the Applicable Consignee of such Inventory has not (i) applied for, suffered, or consented  to the appointment of any receiver, interim receiver, custodian, trustee, monitor, administrator, sequestrator  or liquidator of its assets, (ii) had possession of all or a material part of its property taken by any receiver,  interim receiver, custodian, trustee, monitor, administrator, sequestrator or liquidator, (iii) filed, or had filed  against it (but only so long as any such involuntary filing has not been stayed or vacated), any request or  petition for liquidation, reorganization, arrangement, adjustment of debts, adjudication as bankrupt,  winding-up, or voluntary or involuntary case under any Insolvency Law, (iv) admitted in writing its  inability, or is generally unable to, pay its debts as they become due, (v) become insolvent or (vi) ceased  operation of its business;  (h) such Inventory and any other Inventory consigned by any Loan Party or their Subsidiaries  to the Applicable Consignee is not subject to a Permitted Consigned Inventory Financing or any other  inventory financing; and  (i) such Inventory satisfies all of the criteria for Eligible Inventory (except the criteria in  clauses (e) (solely with respect to the Applicable Consignee’s interests in such Inventory in its capacity as  consignee), (h), (i), (j), (k), and (l) of the definition of “Eligible Inventory”);  provided that the Administrative Agent may, in its Permitted Discretion, upon five (5) Business Days’ prior  notice to the Borrower Representative exclude any particular Inventory from the definition of “Eligible  Consigned Inventory” in the event that the Administrative Agent determines in its Permitted Discretion any  event has occurred or is reasonably anticipated by the Administrative Agent to arise which may otherwise  adversely impact the ability of the Administrative Agent to realize upon such Inventory.  Notwithstanding  the foregoing, subject to Section 5.17, Inventory which satisfies all of the criteria for “Eligible Consigned  Inventory” may be included in the Borrowing Base regardless of whether the Administrative Agent shall  have received a Collateral Access Agreement with any Applicable Consignee.  “Eligible Credit Card Accounts” means at the time of any determination thereof, each Credit Card  Account of a Loan Party that at the time of creation and continuing to the time of such determination is not  ineligible for inclusion in the calculation of the Borrowing Base pursuant to any of clauses (a) through (p)  below. Without limiting the foregoing, to qualify as an Eligible Credit Card Account, such Credit Card  Account shall indicate no Person other than a Loan Party as payee or remittance party.  In determining the  amount to be so included, the face amount of a Credit Card Account shall be reduced by, without  duplication, to the extent not reflected in such face amount or reflected in a Reserve, (i) the amount of all  accrued and actual fees and charges due to the credit card issuer or credit card processor by any Loan Party,  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  





 






DB1/ 127789195.7 22  customer, a credit card issuer or credit card processor pursuant to the terms of any agreement or  understanding), and (ii) the aggregate amount of all cash received in respect of such Credit Card Account  but not yet applied by the Loan Parties to reduce the amount of such Credit Card Account. Any Credit Card  Account included within any of the following categories shall not constitute an Eligible Credit Card  Account:  (a) which is not earned or does not represent the bona fide amount due to a Loan Party from a  credit card processor, a credit card issuer, debit card issuer or other applicable service provider that  originated in the ordinary course of business of the applicable Loan Party;  (b) which is not owned by a Loan Party or to which a Loan Party does not have good title;  (c) in which the payee of such Credit Card Account is a Person other than a Loan Party;  (d) which does not constitute an “Account” (as defined in the UCC or the PPSA) or a “payment  intangible” (as defined in the UCC or the PPSA);  (e) which has been outstanding for more than five (5) Business Days from the date of sale;  (f) with respect to which the applicable credit card issuer, credit card processor, debit card  issuer or other applicable service provider has (i) applied for, suffered, or consented to the appointment of  any receiver, interim receiver, custodian, trustee, monitor, administrator, sequestrator or liquidator of its  assets, (ii) has had possession of all or a material part of its property taken by any receiver, interim receiver,  custodian, trustee, monitor, administrator, sequestrator or liquidator, (iii) filed, or had filed against it (but  only so long as any such involuntary filing has not been stayed or vacated), any request or petition for  liquidation, reorganization, arrangement, adjustment of debts, adjudication as bankrupt, winding-up, or  voluntary or involuntary case under any Insolvency Law, (iv) has admitted in writing its inability, or is  generally unable to, pay its debts as they become due, (v) become insolvent or (vi) ceased operation of its  business;  (g) which is not a valid, legally enforceable obligation of the applicable credit card issuer or  credit card processor or debit card issuer or other applicable service provider with respect thereto;  (h) which is not subject to a duly perfected first priority security interest in favor of the  Administrative Agent (for the benefit of the Secured Parties) (other than Permitted Liens set forth in  clauses (2)(a), (3), (22), (25) and (28)(i) of the definition thereof to the extent such Permitted Liens arise  under and have priority by operation of law);  (i) which is subject to any Lien, other than (i) a Lien in favor of the Administrative Agent (for  the benefit of the Secured Parties), (ii) any Permitted Liens contemplated by the applicable processor  agreements and for which appropriate Reserves (as determined by the Administrative Agent in its Permitted  Discretion) have been established, and (iii) Liens in respect of Prior Claims that are unregistered and secure  amounts that are not yet due and payable;  (j) with respect to which (i) any covenant has been breached in any material respect or (ii) any  representation or warranty is not true in all material respects, in each case of (i) and (ii) to the extent  contained in this Agreement or the applicable Security Agreement; provided that each such representation  and warranty shall be true and correct in all respects to the extent already qualified by a materiality standard;  (k) to the extent not reflected in a Reserve, which is subject to risk of set-off, recoupment, non- collection or not being processed due to unpaid and/or accrued credit card processor fee balances, to the  





 






DB1/ 127789195.7 23  extent of the lesser of the balance of the applicable Credit Card Account or the unpaid credit card processor  fees;  (l) which is 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;  (m) which the Administrative Agent, after consultation with the Borrower Representative, in  its Permitted Discretion to be uncertain of collection;  (n) which represents a deposit or partial payment in connection with the purchase of Inventory  of such Loan Party;  (o) which is not subject to a Credit Card Notification (subject to Section 5.17); or  (p) which does not meet such other eligibility criteria for Credit Card Accounts as the  Administrative Agent in its Permitted Discretion may determine from time to time; provided, however, that  the Administrative Agent shall not add any additional eligibility criteria (or amend any then-existing  eligibility criteria to make the same more restrictive) without giving at least five (5) Business Days’ prior  notice to the Borrower Representative; provided further that, if after the delivery of such notice the  Borrower Representative notifies the Administrative Agent that it desires to discuss the changes described  therein, then the Administrative Agent will discuss such changes with the Borrower Representative,  provided that nothing in this proviso shall obligate the Administrative Agent to eliminate, reduce, or delay  any such changes.  “Eligible In-Transit Inventory” means, as of the date of determination thereof, without duplication,  Inventory of a Loan Party that, except as otherwise agreed by the Administrative Agent in its Permitted  Discretion, meets each of the following criteria:  (a) the Administrative Agent shall have received (1) a true and correct copy of the master bill  of lading and, if requested by the Administrative Agent, other shipping documents for such Inventory and  (2) evidence of satisfactory marine cargo and casualty insurance naming the Administrative Agent as lender  loss payee and otherwise covering such risks as the Administrative Agent may reasonably request,  (b) the Administrative Agent shall have received (1) reasonable confirmation that one of the  Loan Parties (or at the request of the Administrative Agent, the Administrative Agent) is named as  consignee on the bill of lading or sea waybill, (2) a reasonably acceptable agreement has been executed  with such Loan Party’s customs broker, freight forwarder, consolidator or carrier, as applicable, in which  each of the customs broker, freight forwarder, consolidator or carrier, as applicable, agrees that it holds the  bill of lading or sea waybill as agent for the Administrative Agent and has agreed to follow the instructions  of the Administrative Agent in respect of the Inventory (a “Customs Broker/Carrier Agreement”), and (3)  if so requested by the Administrative Agent, an acceptable waiver letter from the seller of any such goods  disclaiming any stoppage in transit rights and lien rights as against the applicable goods and Loan Parties,  (c) the common carrier is not an Affiliate of the applicable vendor or supplier,  (d) the customs broker is not an Affiliate of any Loan Party,  (e) such Inventory has not been in-transit for more than 75 days from the date such Inventory  first became Eligible Inventory (without regard to clause (g) of the definition of “Eligible Inventory”), and  





 






DB1/ 127789195.7 24  (f) such Inventory satisfies all of the criteria for Eligible Inventory (except the criteria in  clause (g) of the definition of “Eligible Inventory”);  provided that the Administrative Agent may, in its Permitted Discretion, exclude any particular Inventory  from the definition of “Eligible In-Transit Inventory” in the event that the Administrative Agent determines  that such Inventory is subject to any Person’s right of reclamation, repudiation, stoppage in transit or any  event has occurred or is reasonably anticipated by the Administrative Agent to arise which may otherwise  adversely impact the ability of the Administrative Agent to realize upon such Inventory.   Notwithstanding the foregoing, subject to Section 5.17, Inventory that is in-transit from a foreign location  as of the Closing Date that does not satisfy all of the criteria for “Eligible In-Transit Inventory” may be  included in the Borrowing Base for a period of one hundred and twenty (120) days after the Closing Date;  provided, however, nothing herein shall be deemed to limit the Administrative Agent’s right to impose  Reserves with respect to such Inventory in accordance with the terms of this Agreement, whether before or  after the expiration of such one hundred and twenty (120) day period.  “Eligible Inventory” means, as of the date of determination thereof, without duplication, items of  Inventory of a Loan Party that are finished goods inventory, merchantable and readily saleable in the  ordinary course of such Loan Party’s business (provided that, for the avoidance of doubt, “saleable in the  ordinary course of a Loan Party’s business” shall include, without limitation, clearance and bulk inventory  sales in the ordinary course), in each case that is not excluded as ineligible by virtue of one or more of the  criteria set forth below. Eligible Inventory shall not include any Inventory:  (a) which is not subject to a first priority perfected Lien in favor of the Administrative Agent  (for the benefit of the Secured Parties) (other than Permitted Liens set forth in clauses (2), (3) and (22) of  the definition thereof to the extent such Liens arise under and have priority by operation of law) and, in the  case of any Inventory located in any province or territory of Canada, with respect to which the  Administrative Agent has not received a perfection opinion satisfactory to the Administrative Agent;  (b) which is subject to any Lien other than (i) a Lien in favor of the Administrative Agent (for  the benefit of the Secured Parties), (ii) a Permitted Lien arising by operation of law which does not have  priority over the Lien in favor of the Administrative Agent (for the benefit of the Secured Parties) unless  the Administrative Agent shall have implemented a Reserve in respect thereof, and (iii) Liens in respect of  Prior Claims that are unregistered and secure amounts that are not yet due and payable;  (c) which is unmerchantable, defective, used, unfit for sale, unacceptable due to age, type,  category and/or quantity or with respect to which a liquidation value could not be obtained (such as special  order Inventory, samples, Inventory located at corporate offices, and other Inventory which is not of the  type usually sold in the ordinary course of the Loan Parties’ business);  (d) with respect to which any covenant, representation or warranty contained in this Agreement  or in any Security Agreement has been breached in any material respect or is not true in any material respect  (or with respect to any representation or warranty that is already qualified by materiality, such  representation and warranty is untrue) and which does not conform in all material respects to all standards  imposed by any Governmental Authority;  (e) in which any Person other than such Loan Party shall (i) have any direct or indirect  ownership, interest or title or (ii) be indicated on any purchase order or invoice with respect to such  Inventory as having or purporting to have an interest therein;  





 






DB1/ 127789195.7 25  (f) which is not finished goods or which constitutes packaging and shipping material,  manufacturing supplies, samples, prototypes, displays or display items, bill-and-hold or ship-in-place  goods, goods that are returned to the vendor or marked for return to the vendor, repossessed goods, defective  or damaged goods, goods held on consignment, or goods which are not of a type held for sale in the ordinary  course of business (for the avoidance of doubt, sales in the ordinary course of business includes clearance  sales and bulk inventory sales in the ordinary course);  (g) which (i) is not located in the U.S. or, solely in the case of Inventory of a Canadian Loan  Party, Canada, or (ii) is In-Transit Inventory;  (h) which is located at any location that is not (i) an operating retail store location, (ii) a  temporary locations under the control of a Loan Party, (iii) a distribution center owned or leased by a Loan  Party or (iv) a third party warehouse or otherwise in the possession of a bailee that has been disclosed to  the Administrative Agent, in each case, other than (x) Inventory in transit between any of the foregoing  locations, and (y) Eligible In-Transit Inventory;  (i) which is located in any location leased by such Loan Party (other than any retail store of  such Loan Party that is not located in a Landlord Lien State) unless, subject to Section 5.17, (i) the lessor  has delivered to the Administrative Agent a Collateral Access Agreement or (ii) a Rent Reserve has been  established by the Administrative Agent in its Permitted Discretion;  (j) which is (A) located in any third party warehouse or is in the possession of a bailee (other  than a third party processor) unless, subject to Section 5.17, (i) such warehouseman or bailee has delivered  to the Administrative Agent a Collateral Access Agreement and such other documentation as the  Administrative Agent may require or (ii) an appropriate Reserve has been established by the Administrative  Agent in its Permitted Discretion;  (k) which is being processed offsite at a third party location or outside processor, or is in-transit  to or from such third party location or outside processor unless, subject to Section 5.17, (i) such third party  processor has delivered to the Administrative Agent a Collateral Access Agreement and such other  documentation as the Administrative Agent may require or (ii) an appropriate Reserve has been established  by the Administrative Agent in its Permitted Discretion;  (l) other than with respect to Eligible Consigned Inventory, which is the subject of a  consignment by such Loan Party as consignor;  (m) which contains or bears any Intellectual Property rights licensed to such Loan Party unless  the Administrative Agent is satisfied that it may sell or otherwise Dispose of such Inventory without  (i) infringing the rights of such licensor, (ii) violating any contract with such licensor, or (iii) incurring any  liability with respect to payment of royalties other than royalties incurred pursuant to sale of such Inventory  under the current licensing agreement;  (n) which is not reflected in a current perpetual inventory report of such Loan Party (unless  such Inventory is reflected in a report to the Administrative Agent as “in transit” Inventory or Eligible LC  Inventory);  (o) for which reclamation rights have been asserted by the seller;  (p) which does not meet such other eligibility criteria for Inventory as the Administrative  Agent in its Permitted Discretion may determine from time to time; provided, however, that the  Administrative Agent shall not add any additional eligibility criteria (or amend any then-existing eligibility  





 






DB1/ 127789195.7 26  criteria to make the same more restrictive) without giving at least five (5) Business Days’ prior notice to  the Borrower Representative; provided further that, if after the delivery of such notice the Borrower  Representative notifies the Administrative Agent that it desires to discuss the changes described therein,  then the Administrative Agent will discuss such changes with the Borrower Representative, provided that  nothing in this proviso shall obligate the Administrative Agent to eliminate, reduce, or delay any such  changes;   (q) which has been designated or demanded to be returned to or retained by the applicable  vendor or which has been recognized as damaged or off quality by the applicable Loan Party; or  (r) Inventory acquired in a Permitted Acquisition or which is not of the type usually sold in  the ordinary course of the Loan Parties’ business (for the avoidance of doubt, sales in the ordinary course  of business includes clearance sales and bulk inventory sales in the ordinary course), unless and until the  Administrative Agent has completed or received (i) an appraisal of such Inventory from an appraiser  reasonable acceptable to the Administrative Agent and establishes an advance rate and Reserves (if  applicable) therefor, and otherwise agrees that such Inventory shall be deemed Eligible Inventory, and (ii)  upon the reasonable request of the Administrative Agent, a commercial field examination, all of the results  of the foregoing to be reasonably satisfactory to the Administrative Agent;  “Eligible LC Inventory” means, at any time, the value of the undrawn face amount of issued  commercial Letters of Credit acceptable to the Administrative Agent in its Permitted Discretion that  (a) supports the purchase price of Inventory in-transit that would be Eligible In-Transit Inventory but for  the fact that the Loan Parties have not paid for such Inventory and (b) has an expiry within 90 days after  the date of initial issuance of such commercial Letter of Credit, which value shall be subject to reduction  based on eligibility criteria with respect to any such Inventory.  “Eligible Trade Accounts” means, those Accounts created by the U.S. Loan Parties in the ordinary  course of business, that arise out of the sale of goods on a wholesale basis, that comply with each of the  representations and warranties in all material respects respecting Eligible Trade Accounts made by the U.S.  Loan Parties under the Loan Documents, and that are not excluded as ineligible by virtue of one or more of  the criteria set forth below; provided, however, that such criteria may be revised from time to time by the  Administrative Agent in its Permitted Discretion to address the results of any Collateral monitoring or any  field examination performed by the Administrative Agent or any consultant from time to time; provided  further, however, that the Administrative Agent shall not add any additional eligibility criteria (or amend  any then-existing eligibility criteria to make the same more restrictive) without giving at least five (5)  Business Days’ prior notice to the Borrower Representative; provided further that, if after the delivery of  such notice the Borrower Representative notifies the Administrative Agent that it desires to discuss the  changes described therein, then the Administrative Agent will discuss such changes with the Borrower  Representative, provided that nothing in this proviso shall obligate the Administrative Agent to eliminate,  reduce, or delay any such changes.  In determining the amount to be included, Eligible Trade Accounts  shall be calculated net of customer deposits and unapplied cash remitted to a U.S. Loan Party.  Without  limiting the Administrative Agent’s Permitted Discretion provided herein, “Eligible Trade Accounts” shall  not include any Account:  (a) which is not subject to a duly perfected first priority security interest in favor of  the Administrative Agent (for the benefit of the Secured Parties) (other than Permitted Liens set  forth in clauses (2)(a), (3), (22), (25) and (28)(i) of the definition thereof to the extent such  Permitted Liens arise under and have priority by operation of law);  (b) which is subject to any Lien, other than (i) a Lien in favor of the Administrative  Agent (for the benefit of the Secured Parties), and (ii) any Permitted Liens for which appropriate  





 






DB1/ 127789195.7 27  Reserves (as determined by the Administrative Agent in its Permitted Discretion) have been  established;  (c) with respect to which (i) for all Account Debtors is unpaid more than one hundred  twenty (120) days after the date of the original invoice therefor or more than sixty (60) days after  the original due date, whichever is earlier, or (ii) which has been written off the books of a U.S.  Loan Party or otherwise designated as uncollectible;  (d) which is owing by an Account Debtor for which more than 50% of the Accounts  owing from such Account Debtor and its Affiliates to the U.S. Loan Parties are ineligible;  (e) with respect to which any covenant, representation, or warranty contained in any  Loan Document has been breached or is not true in any material respect;  (f) which (i) does not arise from the sale of goods or performance of services in the  ordinary course of business, (ii) is not evidenced by an invoice or other documentation satisfactory  to the Administrative Agent in its Permitted Discretion which has been sent to the Account Debtor,  (iii) represents a progress billing, (iv) is contingent upon a U.S. Loan Party’s completion of any  further performance, (v) represents a sale on a bill-and-hold, guaranteed sale, sale-and-return, sale  on approval, consignment, cash-on-delivery or any other repurchase or return basis, or (vi) relates  to payment of interest;  (g) for which the goods giving rise to such Account have not been shipped to the  Account Debtor or if such Account was invoiced more than once;  (h) with respect to which any check or other instrument of payment has been returned  uncollected for any reason;  (i) which is owed by an Account Debtor which has (i) applied for, suffered, or  consented to the appointment of any receiver, interim receiver, monitor, custodian, trustee, or  liquidator of its assets, (ii) has had possession of all or a material part of its property taken by any  receiver, interim receiver, monitor, custodian, trustee or liquidator, (iii) filed, or had filed against  it, any request or petition for liquidation, reorganization, arrangement, adjustment of debts,  adjudication as bankrupt, winding-up, or voluntary or involuntary case under any state, provincial  or federal bankruptcy laws, (iv) has admitted in writing its inability, or is generally unable to, pay  its debts as they become due, (v) become insolvent, or (vi) ceased operation of its business;  (j) which is owed by any Account Debtor which has sold all or a substantially all of  its assets;  (k) which is owed by an Account Debtor which (i) does not maintain its chief  executive office in the U.S. or Canada or (ii) is not organized under applicable law of the U.S., any  state of the U.S., Canada, or any province of Canada, unless, in each case, such Account is insured  by credit insurance satisfactory to the Administrative Agent in its Permitted Discretion;  (l) which is owed in any currency other than Dollars;  (m) which is owed by any Federal, state, provincial or local government (or any  department, agency, public corporation, or instrumentality thereof) unless (i) no Default or Event  of Default has occurred that is continuing and the aggregate amount of such Accounts outstanding  does not exceed $5,000,000, (ii) such Account is backed by a letter of credit acceptable to the  Administrative Agent in its Permitted Discretion which is in the possession of the Administrative  





 






DB1/ 127789195.7 28  Agent, or (iii) (a) with respect to the government of the U.S., or any department, agency, public  corporation, or instrumentality thereof, unless the Federal Assignment of Claims Act of 1940, as  amended (31 U.S.C. § 3727 et seq. and 41 U.S.C. § 15 et seq.) and any other steps necessary to  perfect the Lien of the Administrative Agent in such Account have been complied with to the  Administrative Agent’s satisfaction, or (b) with respect to the government of Canada or any  department, agency, public corporation or instrumentality thereof, unless the Financial  Administration Act (Canada), as amended, and any other steps necessary to perfect the Lien of the  Administrative Agent in such Account, have been complied with to the Administrative Agent’s  satisfaction;  (n) which is owed by any Affiliate, employee, officer, director, agent or stockholder  of any U.S. Loan Party;  (o) which, for any Account Debtor, the aggregate amount of Accounts owed from such  Account Debtor exceeds 20% of all Eligible Trade Accounts, to the extent of such excess; provided  that such percentage shall be 35% for each of Dillard’s, Inc. and Nordstrom, Inc.  (p) which is owed by an Account Debtor or any Affiliate of such Account Debtor to  which any Loan Party is indebted to the extent of such indebtedness, or is subject to any security,  deposit, progress payment, retainage or other similar advance made by or for the benefit of an  Account Debtor;  (q) which is subject to any counterclaim, deduction, defense, setoff or dispute (a  “contra”); provided, however, that unless the Account Debtor has asserted any such contra, if the  amount of the account exceeds the amount of the contra, such excess shall be considered for  eligibility if such excess is not otherwise excluded by this definition of Eligible Trade Accounts;  (r) which is evidenced by any promissory note, chattel paper, or instrument;  (s) which is owed by an Account Debtor located in any jurisdiction which requires  filing of a “Notice of Business Activities Report” or other similar report in order to permit the U.S.  Loan Parties to seek judicial enforcement in such jurisdiction of payment of such Account, unless  the U.S. Loan Parties have filed such report or qualified to do business in such jurisdiction;  (t) with respect to which a U.S. Loan Party has made any agreement with the Account  Debtor for any reduction thereof, other than discounts and adjustments given in the ordinary course  of business, or any Account which was partially paid and a U.S. Loan Party created a new  receivable for the unpaid portion of such Account;   (u) which does not comply in all material respects with the requirements of all  applicable laws and regulations, whether Federal, state, provincial or local;  (v) which is for goods that have been sold under a purchase order or pursuant to the  terms of a contract or other agreement or understanding (written or oral) that indicates or purports  that any Person other than a U.S. Loan Party has or has had an ownership interest in such goods,  or which indicates any party other than a U.S. Loan Party as payee or remittance party;   (w) which was created on cash on delivery terms;   (x) which constitute Credit Card Accounts; or  





 






DB1/ 127789195.7 29  (y) which the Administrative Agent determines may not be paid by reason of the  Account Debtor’s inability to pay or which does not meet such other eligibility criteria for Eligible  Trade Accounts as the Administrative Agent in its Permitted Discretion may determine from time  to time; provided, however, that the Administrative Agent shall not add any additional eligibility  criteria (or amend any then-existing eligibility criteria to make the same more restrictive) without  giving at least five (5) Business Days’ prior notice to the Borrower Representative; provided further  that, if after the delivery of such notice the Borrower Representative notifies the Administrative  Agent that it desires to discuss the changes described therein, then the Administrative Agent will  discuss such changes with the Borrower Representative, provided that nothing in this proviso shall  obligate the Administrative Agent to eliminate, reduce, or delay any such changes.  Notwithstanding the foregoing, an Account shall not be included as Eligible Trade Accounts in the  U.S. Borrowing Base (x) to the extent such Account is factored or securitized pursuant to a Permitted  Wholesale A/R Financing or (y) until such time as a commercial finance examination has been completed  with respect to such Account.  In the event that an Account which was previously an Eligible Trade Account  ceases to be an Eligible Trade Account hereunder, the Borrower Representative shall notify the  Administrative Agent thereof within five (5) Business Days.  In determining the amount of an Eligible  Trade Account, the stated amount of an Account may, in the Administrative Agent’s Permitted Discretion,  be reduced by, without duplication, to the extent not reflected in such stated amount, (i) the amount of all  accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price  adjustments, finance charges or other allowances (including any amount that a U.S. Loan Party may be  obligated to rebate to an Account Debtor pursuant to the terms of any written or oral agreement or  understanding) and (ii) the aggregate amount of all cash received in respect of such Account but not yet  applied by the U.S. Loan Parties to reduce the amount of such Account.  “Environment” shall mean any surface water, groundwater, drinking water supply, land surface or  subsurface strata or ambient air.  “Environmental Laws” means all laws, rules, regulations, codes, ordinances, and all binding orders,  decrees, judgments, injunctions, notices or agreements passed, adopted, issued, promulgated or entered into  by any Governmental Authority, relating to protection of the environment, preservation or reclamation of  natural resources, the management, Release or threatened Release of any Hazardous Material or to health  and safety matters to the extent related to exposure to Hazardous Materials.  “Environmental Liability” means (i) any obligation or responsibility of any Loan Party or any  Restricted Subsidiary to comply with the terms of any order, decree, injunction, claim, notice or obligation  of an agreement; or (ii) any obligation or responsibility of any Loan Party or any Restricted Subsidiary for  damages, costs of environmental investigations or remediation, fines, or penalties of any Loan Party or any  Restricted Subsidiary, either of which is resulting from or based upon (a) a violation of any Environmental  Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous  Materials, (c) any exposure to any Hazardous Materials resulting in physical injury or property damage or  a claim of such injury or property damage, (d) the Release or threatened Release of any Hazardous Materials  into the environment, or (e) any contract, agreement or other consensual arrangement pursuant to which  liability is assumed by or imposed upon any Loan Party or any Restricted Subsidiary with respect to the  foregoing clauses (i) or (ii).  “Equity Interests” means shares of capital stock, partnership interests, membership interests in a  limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and  any warrants, options or other rights entitling the holder thereof to purchase or acquire any of the foregoing  (but excluding any debt security that is convertible into, or exchangeable for, Equity Interests).  





 






DB1/ 127789195.7 30  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to  time.  “ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with a  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 of  the Code.  “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the  regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day notice period  is waived); (b) the failure to satisfy the “minimum funding standard” (as defined in Section 412 of the Code  or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or  Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to  any Plan; (d) the incurrence by any Loan Party or any ERISA Affiliate of any liability under Title IV of  ERISA with respect to the termination or partial termination of any Plan; (e) the receipt by any Loan Party  or any ERISA Affiliate from the PBGC of any notice relating to an intention to terminate any Plan or Plans  or to appoint a trustee to administer any Plan; (f) the incurrence by any Loan Party or any ERISA Affiliate  of any liability with respect to the withdrawal or partial withdrawal of any Loan Party or any ERISA  Affiliate from any Multiemployer Plan; (g) 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 upon any Loan Party or any ERISA Affiliate of Withdrawal Liability or a  determination that a Multiemployer Plan is, or is expected to be, insolvent (within the meaning of Title IV  of ERISA), in “at‐risk” status (as defined in Section 303(i) of ERISA or Section 430(i) of the Code) or in  “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA);  (h) the failure to timely make a contribution required to be made with respect to any Plan or Multiemployer  Plan; or (i) the conditions for imposition of a lien under Section 303(k) of ERISA shall have been met with  respect to any Plan.  “Erroneous Payment” shall have the meaning set forth in Section 8.10.  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the  Loan Market Association (or any successor person), as in effect from time to time.  “European Union” means the region comprised of member states of the European Union pursuant  to the Treaty of Rome of March 25, 1957, as amended by the Single European Act 1986 and the Maastricht  Treaty (signed February 7, 1992), as amended from time to time.  “Event of Default” has the meaning assigned to such term in Article VII.  “Excluded Asset” has the meaning assigned to such term in the applicable Security Agreement.  “Excluded Domestic Subsidiary” means, collectively, (i) Article II JV, (ii) BC/VC, (iii) IPCo JV,  (iv) Camuto Overseas Holding Subsidiary LLC, an Ohio limited liability company, and any other CFC  Holdco, (v) any Domestic Subsidiary that is a direct or indirect Subsidiary of a CFC, and (vi) any other  Domestic Subsidiary of any Loan Party formed or otherwise acquired after the date hereof if the execution  of a Joinder Agreement and the Guarantee of the U.S. Obligations (or, if applicable, a pledge of 100% of  such Subsidiary’s issued and outstanding shares of Equity Interests entitled to vote) would cause material  adverse tax consequences to any Loan Party or any Affiliate of a Loan Party (pursuant to Section 956 of  the Code and the United States Income Tax Regulations promulgated thereunder, or otherwise) in the  reasonable, good-faith determination of the Company, in consultation with the Administrative Agent.  





 






DB1/ 127789195.7 31  “Excluded Subsidiary” means each (a) Immaterial Subsidiary, (b) Unrestricted Subsidiary,  (c) Excluded Domestic Subsidiary (other than, with respect to the Canadian Obligations, any CFC Holdco  that owns equity interests of one or more Canadian Subsidiaries), (d) Foreign Subsidiary (other than  Canadian Subsidiaries with respect to the Canadian Obligations), (e) Subsidiary that is not a Wholly Owned  Subsidiary, (f) Special Purpose Receivables Subsidiary, (g) Subsidiary that is prohibited by applicable law,  rule or regulation or by any contractual obligation (if, with respect to any such contractual obligations, such  contractual obligations were existing on the date hereof or existing at the time of acquisition thereof after  the date hereof), in each case from guaranteeing the U.S. Obligations or Canadian Obligations, as  applicable, or that would require governmental (including regulatory) consent, approval, license or  authorization to provide a guarantee unless such consent, approval, license or authorization has been  received, (h) any other Subsidiary if in the reasonable good faith determination of the Company, in  consultation with the Administrative Agent, a guarantee by such Subsidiary would result in materially  adverse tax consequences to the Company or any of its Subsidiaries and (i) any other Subsidiary with  respect to which, in the reasonable judgment of the Administrative Agent (confirmed in writing by notice  to the Company), the cost or other consequences of becoming a Guarantor shall be excessive in view of the  benefits to be obtained by the Lenders therefrom.  “Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to  the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a  security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the  Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission  (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any  reason to constitute an ECP at the time the Guarantee of such Guarantor or the grant of such security interest  becomes or would become effective with respect to such Swap Obligation. If a Swap Obligation arises  under a master agreement governing more than one swap, such exclusion shall apply only to the portion of  such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or  becomes illegal.  “Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or  required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by  net income or capital (however denominated), franchise Taxes, and branch profits Taxes, in each case,  (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office  or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or  any political subdivision thereof) or (ii) that are Other Connection Taxes; (b) in the case of a Lender, U.S.  federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect  to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such  Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by  the Borrowers under Section 2.19(b)) or (ii) such Lender changes its lending office, except in each case to  the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to such  Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately  before it changed its lending office; (c) Taxes attributable to such Recipient’s failure to comply with Section  2.17(f); (d) any U.S. Federal withholding Taxes imposed under FATCA; and (e) any Canadian federal  withholding Taxes imposed on the payment as a result of having been made to a Recipient that, at the time  of making such payment, (i) is a person with which a Loan Party does not deal at arm’s length (for the  purposes of the ITA), or (ii) is a “specified shareholder” (as defined in subsection 18(5) of the ITA) of a  Loan Party or does not deal at arm’s length (for the purposes of the ITA) with such a “specified shareholder”  (other than where the non-arm’s length relationship arises, or where the Recipient is a “specified  shareholder” or does not deal at arm’s length with a “specified shareholder”, in connection with or as a  result of the Recipient having become a party to, received or perfected a security interest under or received  or enforced any rights under, a Loan Document).  





 






DB1/ 127789195.7 32  “Existing Credit Agreement” means that certain Credit Agreement, dated as of August 7, 2020, by  and among the Company, certain Subsidiaries of the Company, PNC Bank, National Association, as  administrative agent, and a syndicate of lenders, as amended.  “Existing Letters of Credit” means each of the letters of credit described on Schedule 1.01(b).  “Factoring Agreements” means receivables purchase or factoring agreements entered into by one  or more Camuto Entities and The CIT Group/Commercial Services, Inc. or other factor, as such agreements  may be amended, modified, supplemented, restated or replaced from time to time; provided that, other than  pursuant to an unsecured guaranty by the Company or any of its Subsidiaries of the obligations of one or  more Camuto Entities thereunder, none of the Company or any Restricted Subsidiary thereof (other than  any Camuto Entity) shall become party to any such agreement pursuant to any such agreement, amendment,  modification, supplement, restatement or replacement.  “Fair Market Value” means, with respect to any asset or property, the price which could be  negotiated in an arm’s-length transaction, for cash, between a willing seller and a willing and able buyer,  with neither party being compelled to buy or sell.  “Fall Selected Months” means a period of two (2) consecutive fiscal months occurring prior to or  during the fall selling season of each fiscal year of the Company, which period shall be selected by the  Company upon forty-five (45) days prior written notice to the Administrative Agent and shall commence  on the first day of a fiscal month of the Company.  “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any  amended or successor version that is substantively comparable and not materially more onerous to comply  with), any current or future regulations or official interpretations thereof, any agreements entered into  pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules or practices  adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental  Authorities entered into in connection with the implementation of the foregoing.  “Fed Funds Rate” means the rate per annum (rounded upwards, if necessary, to the nearest one  hundredth of one percent (1/100 of 1%)) equal to the weighted average of the rates on overnight federal  funds transactions with members of the Federal Reserve System on any day, as published by the Federal  Reserve Bank of New York on the Business Day next succeeding such day; provided, however, that: (a) if  the day for which such rate is to be determined is not a Business Day, the Fed Funds Rate for such day shall  be such a rate on such transactions on the immediately preceding Business Day as so published on the next  succeeding Business Day and (b) if the Fed Funds Rate shall be less than zero, such rate shall be deemed  to be zero for purposes of this Agreement.  “Fee Letter” means that certain fee letter, dated as of February 23, 2022, executed by the Company  and the Administrative Agent.  “Finance Lease” means, with respect to any Person, any lease of any real or personal property by  such Person as lessee that, in conformity with GAAP, is accounted for as a finance lease on the balance  sheet of such Person.  “Finance Lease Obligations” means, with respect to any Person and a Finance Lease, the amount  of the obligation of such Person as the lessee under such Finance Lease which would, in accordance with  GAAP, appear as a liability on a balance sheet of such Person.  





 






DB1/ 127789195.7 33  “Financial Officer” means with respect to the Company, its President, Chief Executive Officer,  Chief Financial Officer, Treasurer or Controller, or other duly elected officer of the Borrower  Representative reasonably acceptable to the Administrative Agent.  “Floor” means a per annum rate of interest equal to 0.00%  “Foreign Benefit Event” means, with respect to any Foreign Plan, (a) the existence of unfunded  liabilities in excess of the amount permitted under any applicable Law, or in excess of the amount that  would be permitted under any applicable Requirements of Law absent a waiver from a Governmental  Authority, (b) the failure to make the required contributions, under any applicable Requirement of Law, on  or before the date such contributions are due, except where the failure to do so would not reasonably be  expected to result in a material liability or is due to an administrative error that is corrected, (c) the receipt  of a notice by a Governmental Authority relating to the intention to terminate any such Foreign Plan or to  appoint a trustee or similar official to terminate any such Foreign Plan, or alleging the insolvency of any  such Foreign Plan, (d) the incurrence of any additional liability by any Borrower, any Restricted Subsidiary  of a Borrower or any Loan Party under applicable Requirements of Law on account of the complete or  partial termination of such Foreign Plan or the complete or partial withdrawal of any participating employer  therein or (e) the occurrence of any transaction that is prohibited under any applicable Requirements of  Law and that would reasonably be expected to result in the incurrence of any material liability by any  Borrower or any Restricted Subsidiary of a Borrower.  “Foreign Lender” means (a) if a Borrower is a U.S. Person, a Lender, with respect to such  Borrower, that is not a U.S. Person, and (b) if a Borrower is not a U.S. Person, a Lender, with respect to  such Borrower, that is resident or organized under the laws of a jurisdiction other than that in which such  Borrower is resident for tax purposes.  “Foreign Plan” means any plan established under the law of a jurisdiction other than the United  States or Canada (or a state, province, territory or local government thereof) primarily for employees or  former employees outside the United States of America and Canada, that is established, maintained or  contributed to by a Borrower or any of its Restricted Subsidiaries or Affiliates and which provides pension,  retirement or savings benefits through a trust or other funding vehicle, other than any state social security  arrangements.  “Foreign Subsidiary” means any Subsidiary which is not a Domestic Subsidiary.    “Funding Accounts” means the deposit account(s) of the Borrowers to which the Administrative  Agent or the Swingline Lender is authorized by the Borrowers (or by the Borrower Representative on their  behalf) to transfer the proceeds of any Borrowings requested or authorized pursuant to this Agreement.  “GAAP” means accounting principles generally accepted in the U.S., consistently applied.  “Governmental Authority” means the government of the United States of America, Canada, any  other nation or any political subdivision thereof, whether provincial, territorial, state or local, and any  agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive,  legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government  (including any supra-national body exercising such powers or functions, such as the European Union or the  European Central Bank).  “Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise,  of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other  obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and  





 






DB1/ 127789195.7 34  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 (i) warranties or  indemnities made in trade contracts, asset sale agreements, acquisition agreements, commitment letters,  engagement letters and brokerage and deposit agreements in the ordinary course of business, and warranties  and indemnities to lenders in any documents evidencing Indebtedness permitted pursuant to Section 6.01  with respect to the guarantor, (ii) any indemnities made in connection with liability of a Person’s directors,  officers and employees in their capacities as such as permitted by applicable law, (iii) any contingent  liability arising from the endorsement of negotiable or other instruments for deposit or collection in the  ordinary course of business, and (iv) any continuing liability of the Company or its Subsidiaries as a lessee  under a lease after such lease has been assigned or subleased by such Person.  “Guaranteed Obligations” means U.S. Guaranteed Obligations or Canadian Guaranteed  Obligations, as the context requires.  “Guarantors” means all U.S. Guarantors and Canadian Guarantors.  “Hazardous Material” means: (a) any substance, material, or waste that is included within the  definitions of “hazardous substances,” “hazardous materials,” “hazardous waste,” “toxic substances,”  “toxic materials,” “toxic waste,” or words of similar import in any Environmental Law; (b) those substances  listed as hazardous substances by the United States Department of Transportation (or any successor agency)  (49 C.F.R. 172.101 and amendments thereto) or by the Environmental Protection Agency (or any successor  agency) (40 C.F.R. Part 302 and amendments thereto); and (c) any substance, material, or waste that is  (i) petroleum, petroleum derivative or fraction, or a petroleum by-product, (ii) asbestos or asbestos- containing material, (iii) polychlorinated biphenyls, (iv) ozone depleting substances, (v) radon gas, or (vi) a  pesticide, herbicide, or other substance regulated under the Federal Insecticide, Fungicide and Rodentide  Act (“FIFRA”), 7 U.S.C. §136 et seq.  “Huntington” means The Huntington National Bank, a national banking association, in its  individual capacity, and its successors.  “Immaterial Subsidiary” shall mean any Subsidiary (other than a Borrower) designated by the  Borrower Representative to the Administrative Agent as an “Immaterial Subsidiary” and that meets each  of the following criteria as of the last day of the most recent fiscal quarter for which financial statements  have been delivered to the Administrative Agent pursuant to Sections 5.01(a) or (b): (a) such Subsidiary  and its Subsidiaries accounted for less than (x) 2.5% of Total Assets at such date and (y) 2.5% of the  consolidated revenues of the Company and its Subsidiaries for the most recent four fiscal quarter period  ending on such date, and (b) all Immaterial Subsidiaries and their respective Subsidiaries accounted for less  than (x) 5.0% of Total Assets at such date and (y) 5.0% of the consolidated revenues of the Company and  its Subsidiaries for the most recent four fiscal quarter period ending on such date.  Each Immaterial  Subsidiary as of the date hereof shall be set forth in Schedule 1.01(d), and the Borrower Representative  shall update such Schedule from time to time after the date hereof as necessary to reflect all Immaterial  Subsidiaries at such time (the selection of Subsidiaries to be added to or removed from such Schedule to be  made as the Borrowers may determine).  





 






DB1/ 127789195.7 35  “Increased BBC Reporting Period” means (a) any period during which any Event of Default has  occurred and is continuing or (b) any period (i) commencing at any time when Availability shall be less  than the greater of (x) $55,000,000 and (y) 12.5% of the Maximum Credit Amount, in either case, for a  period of three (3) consecutive Business Days and (ii) ending when Availability shall have been greater  than or equal to the greater of (x) $55,000,000 and (y) 12.5% of the Maximum Credit Amount, in either  case, for a period of thirty (30) consecutive days.  “Increased Financial Reporting Period” means any period (i) commencing at any time when  Availability shall be less than the greater of (x) $68,750,000 and (y) 15% of the Maximum Credit Amount,  in either case, for a period of three (3) consecutive Business Days and (ii) ending when Availability shall  have been greater than or equal to the greater of (x) $68,750,000 and (y) 15% of the Maximum Credit  Amount, in either case, for a period of thirty (30) consecutive days.  “Incur” means issue, assume, guarantee, incur or otherwise be or become liable for; provided,  however, that any Indebtedness or Equity Interests of a Person existing at the time such person becomes a  Subsidiary (whether by merger, amalgamation, consolidation, acquisition or otherwise) shall be deemed to  be Incurred by such Person at the time it becomes a Subsidiary. “Incurred” and “Incurrence” shall have like  meanings.  “Indebtedness” means, with respect to any Person:  (1) the principal amount of any indebtedness of such Person, whether or not contingent, (a) in  respect of borrowed money, (b) evidenced by bonds, notes, debentures or similar instruments or letters of  credit, bankers’ acceptances, or similar facilities (or, without duplication, reimbursement agreements in  respect thereof), (c) representing the deferred and unpaid purchase price of any property (except any such  balance that constitutes (i) a trade payable or similar obligation to a trade creditor Incurred in the ordinary  course of business, (ii) any earn-out obligations until such obligation becomes a liability on the balance  sheet of such Person in accordance with GAAP, (iii) obligations accounted for as an operating lease in  conformity with GAAP, and (iv) liabilities accrued in the ordinary course of business), (d) in respect of  Finance Lease Obligations; and (e) all monetary obligations that qualify as indebtedness on the balance  sheet of such Person in accordance with GAAP under any receivables factoring, receivable sales or similar  transactions and all attributable indebtedness calculated in accordance with GAAP under any synthetic  lease, tax ownership/operating lease, off-balance sheet financing or similar financing;  (2) to the extent not otherwise included, any obligation of such Person to be liable for, or to  pay, as obligor, guarantor or otherwise, the obligations referred to in clause (1) of another Person (other  than by endorsement of negotiable instruments for collection in the ordinary course of business); and  (3) to the extent not otherwise included, Indebtedness of another Person secured by a Lien on  any asset owned by such Person (whether or not such Indebtedness is assumed by such Person); provided,  however, that the amount of such Indebtedness will be the lesser of:  (a) the Fair Market Value (as  determined in good faith by the Company) of such asset at such date of determination, and (b) the amount  of such Indebtedness of such other Person;  provided, however, that, notwithstanding the foregoing, Indebtedness shall be deemed not to  include (1) Contingent Obligations incurred in the ordinary course of business and not in respect of  borrowed money; (2) deferred or prepaid revenues; (3) purchase price holdbacks in respect of a portion of  the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller;  (4) trade and other ordinary course payables and accrued expenses arising in the ordinary course of  business; (5) in the case of the Company and the Subsidiaries, (x) all intercompany Indebtedness solely  among the Company and the Restricted Subsidiaries having a term not exceeding 364 days (inclusive of  





 






DB1/ 127789195.7 36  any roll-over or extensions of terms) and made in the ordinary course of business and (y) intercompany  liabilities in connection with cash management, tax and accounting operations of the Company and the  Subsidiaries; and (6) any Swap Agreement Obligations; provided that such agreements are entered into for  bona fide hedging purposes of the Company and the Subsidiaries (as determined in good faith by the board  of directors or senior management of the Company, whether or not accounted for as a hedge in accordance  with GAAP) and, in the case of any foreign exchange contract, currency swap agreement, futures contract,  option contract or other similar agreement, such agreements are related to business transactions of the  Company and the Subsidiaries entered into in the ordinary course of business and, in the case of any interest  rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap  agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement or other  similar agreement or arrangement, such agreements substantially correspond in terms of notional amount,  duration and interest rates, as applicable, to Indebtedness of the Company or the Subsidiaries Incurred  without violation of this Agreement.  Notwithstanding anything in this Agreement to the contrary, Indebtedness shall not include, and  shall be calculated without giving effect to, the effects of Financial Accounting Standards Board  Accounting Standards Codification 815 (or any other Accounting Standards Codification or Financial  Accounting Standards having a similar result or effect or any successor thereto) to the extent such effects  would otherwise increase or decrease an amount of Indebtedness for any purpose under this Agreement as  a result of accounting for any embedded derivatives created by the terms of such Indebtedness; and any  such amounts that would have constituted Indebtedness under this Agreement but for the application of this  sentence shall not be deemed an Incurrence of Indebtedness under this Agreement.  “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to  any payment made by, or on account of any obligation of any Loan Party under any Loan Document and  (b) to the extent not otherwise described in subsection (a), Other Taxes.  “Indemnitee” has the meaning assigned to such term in Section 9.03(b).    “Independent Financial Advisor” means an accounting, appraisal or investment banking firm or  consultant, in each case of nationally recognized standing, that is, in the good faith determination of the  Company, qualified to perform the task for which it has been engaged.  “Ineligible Institution” has the meaning assigned to such term in Section 9.04(b).    “Information” has the meaning assigned to such term in Section 9.12.  “Insolvency Laws” means each of the Bankruptcy Code, the BIA, the CCAA, the Winding-Up and  Restructuring Act (Canada), in each case as amended, and any other applicable state, provincial, territorial  or federal bankruptcy laws, each as now and hereafter in effect, any successors to such statutes and any  other applicable insolvency or other similar law of any jurisdiction, including any corporate law of any  jurisdiction permitting a debtor to obtain a stay or a compromise of the claims of its creditors against it and  including any rules and regulations pursuant thereto.  “Intellectual Property” means all present and future: trade secrets, know-how and other proprietary  information; trademarks, trademark applications, internet domain names, service marks, trade dress, trade  names, business names, designs, logos, slogans (and all translations, adaptations, derivations and  combinations of the foregoing) indicia and other source and/or business identifiers, and all registrations or  applications for registrations which have heretofore been or may hereafter be issued thereon throughout the  world; copyrights and copyright applications (including copyrights for computer programs) and all tangible  and intangible property embodying the copyrights, unpatented inventions (whether or not patentable);  





 






DB1/ 127789195.7 37  patents and patent applications; industrial design applications and registered industrial designs; license  agreements related to any of the foregoing and income therefrom; books, customer lists, records, writings,  computer tapes or disks, flow diagrams, specification sheets, computer software, source codes, object codes,  executable code, data, databases and other physical manifestations, embodiments or incorporations of any  of the foregoing; all other intellectual property; and all common law and other rights throughout the world  in and to all of the foregoing.  “Intercompany Subordination Agreement” means the Intercompany Subordination Agreement,  dated as of the Closing Date, among the Company and its Subsidiaries, in form and substance reasonably  satisfactory to the Administrative Agent and the Lenders, as amended, restated, supplemented or otherwise  modified from time to time in accordance with the terms thereof.  “Interest Election Request” means a request by the Borrower Representative to convert or continue  a Borrowing in accordance with Section 2.08, which shall be, in the case of any such written request, in the  form of Exhibit E or any other form approved by the Administrative Agent.  “Interest Expense” means, with respect to any Person for any fiscal period, interest expense of such  Person determined in accordance with GAAP for the relevant period ended on such date.  “Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline Loan),  the first Business Day of each fiscal quarter of the Company and the Maturity Date, (b) with respect to any  SOFR Rate 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 Term SOFR Borrowing with an Interest Period of more than three months’  duration, the 90th day of such Interest Period and, if applicable the 180th day of such Interest Period, (c) with  respect to any Swingline Loan, the first Business Day of each calendar quarter and the Maturity Date, and  (d) the Maturity Date.  “Interest Period” means, as to each SOFR Rate Loan, the period commencing on the date such  SOFR Rate Loan is disbursed or converted to or continued as a SOFR Rate Loan and ending on the date  one, three or six months thereafter (in each case, subject to the availability thereof), as selected by the  Borrower Representative; provided, that: (i) any Interest Period that would otherwise end on a day that is  not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls  in another calendar month, in which case such Interest Period shall end on the next preceding Business Day,  (ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which  there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall  end on the last Business Day of the calendar month at the end of such Interest Period, (iii) no Interest Period  shall extend beyond the Maturity Date and (iv) no tenor that has been removed from this definition pursuant  to Section 2.16(b) shall be available for selection by the Borrower Representative.  “In-Transit Inventory” means Inventory of a Loan Party which is in transit with a common carrier  from vendors or suppliers of the Loan Party.  “Inventory” has the meaning assigned to such term in each Security Agreement, as applicable.  “Inventory Reserves” means, without duplication of any other Inventory Reserves, other Reserves  or items that are otherwise addressed through eligibility criteria such reserves as may be established from  time to time by the Administrative Agent in its Permitted Discretion with respect to the determination of  the salability of the Eligible Inventory, Eligible In-Transit Inventory, Eligible LC Inventory and Eligible  Consigned Inventory, which reflect such other factors as affect the market value of the Eligible Inventory,  Eligible In-Transit Inventory, Eligible LC Inventory and Eligible Consigned Inventory or which reflect  claims and liabilities that the Administrative Agent determines will need to be satisfied in connection with  





 






DB1/ 127789195.7 38  the realization upon the 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  (i) vendor rebates; (ii) costs included in Inventory relating to advertising; (iii) a shrink reserve, (iv) an  obsolescence reserve, (v) a reserve based on markdowns (both permanent and point of sale), (vi) a reserve  based on Inventory imbalance, (vii) a reserve based on changes to Inventory character, composition or mix,  and (vii) the unreconciled discrepancy between the general inventory ledger and the perpetual inventory  ledger, to the extent the general inventory ledger reflects less Inventory than the perpetual inventory ledger.  “Investments” means, with respect to any Person, all investments by such Person in other Persons  (including Affiliates) in the form of loans (including guarantees), advances or capital contributions,  repayments of intercompany Indebtedness pursuant to clauses (a) and (b) of the definition of “Junior  Indebtedness”, purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other  securities issued by any other Person and investments that are required by GAAP to be classified on the  balance sheet of such Person in the same manner as the other investments included in this definition to the  extent such transactions involve the transfer of cash or other property.  For purposes of the definition of  “Unrestricted Subsidiary” and Section 6.02:  (1) “Investments” shall include the portion (proportionate to the Company’s direct or indirect equity  interest in such Subsidiary) of the Fair Market Value (as determined in good faith by the Company) of the  net assets of such Subsidiary at the time that such Subsidiary is designated an Unrestricted Subsidiary;  provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company  shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary equal to an  amount (if positive) equal to:  (a) its “Investment” in such Subsidiary at the time of such redesignation less  (b) the portion (proportionate to its direct or indirect equity interest in such Subsidiary)  of the Fair Market Value (as determined in good faith by the Company) of the net assets of such  Subsidiary at the time of such redesignation; and  (2) any property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market  Value (as determined in good faith by the Company) at the time of such transfer.  “IPCo JV” means ABG-Camuto, LLC, a Delaware limited liability company.  “IRS” means the United States Internal Revenue Service.  “ISP” shall have the meaning set forth in Section 2.06(b).  “Issuing Bank” means (a) Huntington, (b) Bank of Montreal, (c) Bank of America, N.A., (d) Wells  Fargo Bank, National Association, and (e) any other Lender from time to time designated by the Borrower  Representative as an Issuing Bank, with the consent of such Lender and upon notice to the Administrative  Agent, in which case the term “Issuing Bank” shall mean Huntington, Bank of Montreal, Bank of America,  N.A., Wells Fargo Bank, National Association and each such Lender, individually or collectively as the  context shall require and their respective successors.  The Issuing Bank may, in its discretion, arrange for  one or more Letters of Credit to be issued by its Affiliates, in which case the term “Issuing Bank” shall  include any such Affiliate with respect to Letters of Credit issued by such Affiliate (it being agreed that  such Issuing Bank shall, or shall cause such Affiliate to, comply with the requirements of Section 2.06 with  respect to such Letters of Credit). At any time there is more than one Issuing Bank, all singular references  to the Issuing Bank shall mean any Issuing Bank, either Issuing Bank, each Issuing Bank, the Issuing Bank  that has issued the applicable Letter of Credit, or both (or all) Issuing Banks, as the context may require.  





 






DB1/ 127789195.7 39  “ITA” means the Income Tax Act (Canada), as amended.  “Joinder Agreement” means a Joinder Agreement in substantially the form of Exhibit F.    “Joint Venture” means a corporation, partnership, limited liability company or other entity  (excluding any Subsidiary) in which any Person other than a Loan Party or any Restricted Subsidiary holds,  directly or indirectly, an equity interest.  “Joint Venture Equity Interests” has the meaning given to such term in Section 3.02.  “Junior Indebtedness” means (a) unsecured Indebtedness for borrowed money (other than  intercompany Indebtedness owing to the Company or to a Subsidiary if an Investment in such Subsidiary  by the obligor of such Indebtedness in such amount would be permitted at such time; provided that any  repayment of such Indebtedness will be deemed an Investment in such Subsidiary in such amount), (b) any  Indebtedness which is by its terms subordinated in right of payment or lien priority to the Obligations (other  than intercompany Indebtedness owing to the Company or to a Subsidiary if an Investment in such  Subsidiary by the obligor of such Indebtedness in such amount would be permitted at such time; provided  that any repayment of such Indebtedness will be deemed an Investment in such Subsidiary in such amount),  and (c) Indebtedness arising from agreements of a Loan Party or any Subsidiary providing for the  adjustment of acquisition or purchase price or similar obligations (including earn-outs), in each case,  Incurred or assumed in connection with any Investments or any acquisition or disposition of any business,  assets or a Subsidiary.  “Landlord Lien State” means such state(s) of the United States and province(s) of Canada in which  a landlord’s claim for rent may have priority over the Lien of the Administrative Agent in any of the  Collateral, which, as of the date hereof, are Washington, Pennsylvania, and Virginia; provided that the  Administrative Agent may, in its Permitted Discretion, upon five (5) Business Days’ prior notice to the  Borrower Representative, designate any additional state as a “Landlord Lien State”.  “LC Collateral Account” has the meaning assigned to such term in Section 2.06(j).  “LC Disbursement” means any payment made by an Issuing Bank pursuant to a Letter of Credit.  “LC Exposure” means, at any time, the sum of the Commercial LC Exposure and the Standby LC  Exposure.  “LC Individual Sublimit” means, with respect to any Issuing Bank, an amount equal to (a) with  respect to Letters of Credit issued by the Issuing Banks as of the Closing Date, the respective amounts set  forth on the Commitment Schedule, and (b) with respect to Letters of Credit issued by any other Issuing  Bank, the amount agreed to by the Issuing Bank and the Borrower Representative upon notice to the  Administrative Agent, in each case, as such amount may be increased for an Issuing Bank as agreed to by  such Issuing Bank and the Borrower Representative upon notice to the Administrative Agent.  “Lenders” means the Persons listed on the Commitment Schedule and any other Person that shall  have become a Lender hereunder pursuant to Section 2.09 or an Assignment and Assumption, other than  any such Person that ceases to be a Lender hereunder pursuant to an Assignment and Assumption.  Unless  the context otherwise requires, the term “Lenders” includes the Swingline Lender and the Issuing Bank.  “Letter of Credit Fees” has the meaning assigned to such term in Section 2.12(b).  





 






DB1/ 127789195.7 40  “Letters of Credit” has the meaning assigned to such term in Section 2.06, and the term “Letter of  Credit” means any one of them or each of them singularly, as the context may require.  “Lien” means, with respect to any asset, any mortgage, lien, pledge, hypothecation, charge, security  interest or similar encumbrance of any kind in respect of such asset, whether or not filed, recorded or  otherwise perfected under applicable law (including any conditional sale or other title retention agreement  or any lease in the nature thereof); provided that in no event shall an operating lease or an agreement to sell  be deemed to constitute a Lien.  “Loan Documents” means, collectively, this Agreement, any promissory notes issued pursuant to  this Agreement, any Letter of Credit applications, the Collateral Documents, the Loan Guaranty, the  Intercompany Subordination Agreement, each Compliance Certificate, the Fee Letter, any Borrowing Base  Certificate, any promissory notes issued hereunder, and any and all other instruments, agreements,  documents and writings executed in connection with the foregoing which the Company and the  Administrative Agent agree in writing is a “Loan Document.”  Any reference in this Agreement or any  other Loan Document to a Loan Document shall include all amendments, restatements, supplements or  other modifications thereto, and shall refer to this Agreement or such Loan Document as the same may be  in effect at any and all times such reference becomes operative.   “Loan Guaranty” means the U.S. Guaranty and/or the Canadian Guaranty, as the context so  requires.  “Loan Parties” means, collectively, the Borrowers and 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.  “Loans” means the loans and advances made by the Lenders or the Administrative Agent pursuant  to this Agreement, including Revolving Loans, Swingline Loans, Overadvances and Protective Advances.  “Material Adverse Effect” means any set of circumstances or events which (a) is material and  adverse to the business, properties, assets or financial condition of the Loan Parties and their Subsidiaries  taken as a whole, (b) impairs materially the rights and remedies of the Administrative Agent, the Issuing  Bank or any Lender under any Loan Document, or the ability of the Loan Parties taken as a whole to duly  and punctually pay or perform any of the Obligations, (c) has a material adverse effect upon the legality,  validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a  party, (d) has a material adverse effect upon the Collateral, or (e) has a material adverse effect upon the  Administrative Agent’s Liens (on behalf of itself and other Secured Parties) on the Collateral or the priority  of such Liens.  “Material Agreement” means any agreement to which any Loan Party or any Restricted Subsidiary  is a party that, if terminated or if breached by any Loan Party or any Restricted Subsidiary, would be  reasonably expected to have a Material Adverse Effect.  “Material Intellectual Property” means trademarks, trademark applications, service marks, trade  dress, trade names, business names, designs, logos, slogans (and all translations, adaptations, derivations  and combinations of the foregoing) indicia and other source and/or business identifiers, and all registrations  or applications for registrations which have heretofore been or may hereafter be issued thereon throughout  the world; copyrights and copyright applications (including copyrights for computer programs) and all  tangible and intangible property embodying the copyrights, unpatented inventions (whether or not  patentable); patents and patent applications; industrial design applications and registered industrial designs;  customer lists; license agreements related to any of the foregoing and income therefrom; in each case, (i)  





 






DB1/ 127789195.7 41  which are reasonably necessary in connection with the exercise of any rights or remedies with respect to  the Collateral or (ii) the Disposition of which (including, without limitation, by means of a Restricted  Payment or an Investment thereof) would otherwise materially adversely affect the Net Orderly Liquidation  Value of the Collateral.  “Maturity Date” means the earlier to occur of (i) the date that is five (5) years after the Closing  Date, and (ii) the date on which the Commitments are reduced to zero or otherwise terminated pursuant to  the terms hereof.  “Maximum Credit Amount” means, as of any date of determination, the lesser of (i) the Aggregate  Commitments and (ii) the Aggregate Borrowing Base.  “Maximum Rate” has the meaning assigned to such term in Section 9.18.    “Moody’s” means Moody’s Investors Service, Inc.  “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.  “Net Orderly Liquidation Value” means, with respect to Inventory of any Person, the monthly  orderly liquidation value thereof as determined in a manner reasonably acceptable to the Administrative  Agent (after consultation with the Company) by an appraiser reasonably acceptable to the Administrative  Agent, net of all costs of liquidation thereof.  “Net Proceeds” means, with respect to any Casualty, (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 and (ii) insurance proceeds, 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) the amount of all  payments required to be made as a result of such event to repay Indebtedness (other than Loans) that is  secured by a Lien in such asset that is not Collateral or is senior to the Liens securing the Secured  Obligations or, other than with respect to assets that are Collateral in which the Administrative Agent has  a first priority Lien, 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) 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 of the Borrower Representative).  “Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(d).    “Obligated Party” means a U.S. Obligated Party or a Canadian Obligated Party, as the context  requires.  “Obligations” means, individually and collectively as the content may require, the U.S. Obligations  and the Canadian Obligations.  “OFAC” means the Office of Foreign Assets Control of the United States Department of the  Treasury.  “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a  present or former connection between such Recipient and the jurisdiction imposing such Taxes (other than  





 






DB1/ 127789195.7 42  a connection 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,  Letter of Credit or any Loan Document).  “Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing  or similar Taxes that arise from any payment made under, from the execution, delivery, performance,  enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with  respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with  respect to an assignment (other than an assignment made pursuant to Section 2.19).  “Overadvance” has the meaning assigned to such term in Section 2.05(b).  “Participant” has the meaning assigned to such term in Section 9.04(c).   “Participant Register” has the meaning assigned to such term in Section 9.04(c).  “Participation Advance” shall have the meaning set forth in Section 2.06(d) hereof.  “Payment Conditions” means, at the time of determination with respect to any specified transaction  or payment, that:  (a) no Default or Event of Default then exists or would arise as a result of  entering into such transaction or the making such payment;  (b) immediately after giving effect to such transaction or payment, one of the  following tests shall be satisfied:  (i) (1) Availability for the 30 consecutive day period immediately  preceding such specified transaction or payment shall not have been less than the greater of $82,500,000  and 17.5% of the Maximum Credit Amount, and (2) Availability on the date of such specified transaction  or payment shall not be less than the greater of such amounts; or  (ii) (1) Availability for the 30 consecutive day period immediately  preceding such specified transaction or payment shall not have been less than the greater of $55,000,000  and 12.5% of the Maximum Credit Amount, (2) Availability on the date of such specified transaction or  payment shall not be less than the greater of such amounts, and (3) the Consolidated Fixed Charge Coverage  Ratio, based on the most recently completed Test Period and for which financial statements have been, or  have been required to be delivered to the Administrative Agent, shall not be less than 1.00 to 1.00; provided  that, notwithstanding the foregoing, with respect to Restricted Payments under Section 6.02(a)(i) and (ii)  of the definition thereof, in each case made by the Loan Parties prior to the date that is thirty (30) days  following the Closing Date, such Restricted Payments shall be permitted so long as (a) no Default or Event  of Default exists or would arise as a result of the subject payment and (b) on a pro forma basis after giving  effect to such payment, Availability shall be greater than the greater of (i) 20% of the Maximum Credit  Amount and (ii) $110,000,000; and  (c) the Administrative Agent shall have received a certificate from a  Responsible Officer of the Borrower Representative, including an updated Borrowing Base Certificate (as  applicable), certifying as to compliance with the preceding clauses and demonstrating (in reasonable detail)  the calculations required thereby; provided that no such certificate shall be required for any transaction  





 






DB1/ 127789195.7 43  made in reliance on the Payment Conditions with a value of less than $6,875,000 (or, in the case of any  Investment in a Restricted Subsidiary, $6,875,000).  “Payment Office” means initially The Huntington National Bank, 7 Easton Oval; EA4W57   Columbus, OH 43219; and, thereafter, such other office of the Administrative Agent, if any, which it may  designate by notice to the Borrower Representative and the Lenders.  “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and  any successor entity performing similar functions.  “Permitted Acquisition” means any Acquisition by the Company or any Restricted Subsidiary in a  transaction that satisfies each of the following requirements:  (a) if a Loan Party is acquiring the ownership interests in a Domestic Subsidiary (other than  an Excluded Subsidiary) or in a Canadian Subsidiary (other than an Excluded Subsidiary), such Person  shall execute a Joinder Agreement and such other documents required by Section 5.14 and join this  Agreement as a Borrower or Guarantor pursuant to Section 5.14;  (b) the board of directors or other equivalent governing body of such Person shall have  approved such Acquisition and the Loan Parties also shall have delivered to the Administrative Agent and  the Lenders written evidence of the approval of the board of directors (or equivalent body) of such Person  for such Acquisition;  (c) each applicable Governmental Authority shall have approved such Acquisition and the  Loan Parties shall have delivered to the Administrative Agent and the Lenders written evidence of the  approval of such Governmental Authority or such Acquisition;  (d) the business, division, product line or line of business acquired, or the business conducted  by the Person whose ownership interests are being acquired, as applicable, shall be engaged in a business  otherwise permitted to be engaged in by a Loan Party under this Agreement;  (e) as of the date of the execution of the definitive acquisition agreement, no Default exists,  will exist, or would result therefrom;  (f) for Acquisitions with respect to which the Consideration is equal to or greater than  $34,375,000, the Loan Parties shall deliver to the Administrative Agent at least five (5) days before (or such  shorter timeframe as may be agreed to by the Administrative Agent in its sole discretion) such Acquisition  (i) notice of such Acquisition and (ii) copies of (x) any agreements entered into or proposed to be entered  into by such Loan Parties in connection with such Acquisition, (y) such other information about such Person  or its assets as the Administrative Agent or any Lender may reasonably require;  (g) if such Acquisition is an acquisition of Equity Interests, such Acquisition will not result in  any violation of Regulation U; and  (h) the Loan Parties shall have satisfied the Payment Conditions before and immediately after  giving effect to such Acquisition.  “Permitted Consigned Inventory Account” means a deposit account specifically and exclusively  used for collected proceeds of consigned Inventory subject to a Permitted Consigned Inventory Financing.  





 






DB1/ 127789195.7 44  “Permitted Consigned Inventory Financing” means any secured, asset-based Indebtedness with  respect to any Loan Party’s or any Restricted Subsidiary’s Inventory which is consigned to Persons which  are not Loan Parties or Subsidiaries, so long as (x) such Indebtedness does not exceed an amount equal to  $50,000,000 at any time in the aggregate for all such financing arrangements, (y) such Indebtedness is  secured by (and only by) such consigned Inventory, the related receivables and proceeds of such consigned  Inventory, the applicable Permitted Consigned Inventory Account, and solely to the extent governing or  otherwise directly relating to such consigned Inventory, Documents (as defined in the UCC), licenses from  any Governmental Authority to sell any such consigned Inventory, and Chattel Paper (as defined in the  UCC), and (z) the proceeds of any such consigned Inventory are remitted to a Permitted Consigned  Inventory Account.  “Permitted Discretion” means a determination made by the Administrative Agent in the exercise  of its reasonable (from the perspective of a secured asset-based lender) credit judgment, exercised in good  faith in accordance with customary business practices in the retail industry.  “Permitted Holders” means Jay L. Schottenstein, his Affiliates and Affiliated Holders.  “Permitted Investments” means:  (1) any Investment in the Company or any Restricted Subsidiary; provided that the  aggregate amount of Investments by Loan Parties in Restricted Subsidiaries that are not Loan Parties in  reliance on this Clause (1) shall not exceed (when combined with Investments made by Loan Parties in  Subsidiaries that are not (or do not become in connection with such transaction) Loan Parties in reliance on  Clauses (3), (21) and (22) of the definition of Permitted Investments) $25,000,000; provided further that  the aggregate amount of Investments by U.S. Loan Parties in Canadian Loan Parties in reliance on this  Clause (1) shall not exceed $25,000,000; provided, further that, upon written notice from a Responsible  Officer of the Borrower Representative to the Administrative Agent, the dollar amounts set forth in the  foregoing provisos shall be reset at $25,000,000 and $25,000,000 respectively on any such date as the  Payment Conditions become satisfied (it being understood that such written notice shall include an updated  Borrowing Base Certificate (as applicable) and calculations (in reasonable detail) demonstrating  compliance with the Payment Conditions); provided, further that, with respect to any such Investment (in  a single transaction or a series of related transactions) consisting of assets of the type eligible to be included  in the Borrowing Base that decreases the Borrowing Base by $3,437,500 or more (after giving effect  thereto), the Borrower Representative shall have first delivered an updated Borrowing Base Certificate to  the Administrative Agent giving pro forma effect to such Investment and demonstrating pro forma  compliance with Section 6.12;  (2) any Investment in (A) cash, (B) Cash Equivalents, (C) short term tax-exempt  securities rated not lower than BBB by S&P, Baa2 by Moody’s or an equivalent rating by Fitch with  provisions for liquidity or maturity accommodations of two (2) years or less; (D) investments in other  readily marketable securities (excluding any equity or equity-linked securities other than auction rate  preferred securities) which are rated P1 or P2 by Moody’s, A1 or A2 by S&P or F1 or F2 by Fitch (in lieu  of a short term rating, a long term rating of not less than A2 by Moody’s, A by S&P or an equivalent rating  by Fitch would qualify under this sub-clause (vii), provided that no such security position shall exceed five  percent (5%) of the invested cash portfolio of the Loan Parties); and (E) in the case of investments by any  Foreign Subsidiary, obligations of a credit quality and maturity comparable to that of the items referred to  in clauses (B) through (D) above that are available in local markets;  (3) any Permitted Acquisition; provided that the aggregate amount of Investments by  Loan Parties in Restricted Subsidiaries that are not Loan Parties (or do not merge into a Loan Party in  connection with such transaction) in reliance on this Clause (3) shall not exceed (when combined with  





 






DB1/ 127789195.7 45  Investments made by Loan Parties in Subsidiaries that are not (or do not become in connection with such  transaction) Loan Parties in reliance on Clauses (1), (21) and (22) of the definition of Permitted  Investments) $25,000,000; provided, further that, upon written notice from a Responsible Officer of the  Borrower Representative to the Administrative Agent, the dollar amount set forth in the foregoing proviso  shall be reset at $25,000,000 on any such date as the Payment Conditions become satisfied (it being  understood that such written notice shall include an updated Borrowing Base Certificate (as applicable) and  calculations (in reasonable detail) demonstrating compliance with the Payment Conditions); provided,  further that, with respect to any such Investment (in a single transaction or a series of related transactions)  consisting of assets of the type eligible to be included in the Borrowing Base that decreases the Borrowing  Base by $3,437,500 or more (after giving effect thereto), the Borrower Representative shall have first  delivered an updated Borrowing Base Certificate to the Administrative Agent giving pro forma effect to  such Investment and demonstrating pro forma compliance with Section 6.12;  (4) any Investment in securities or other assets not constituting cash or Cash  Equivalents and received in connection with any disposition of assets permitted by Section 6.04;  (5) any Investment existing on the date hereof or an Investment consisting of any  extension, modification or renewal of any Investment existing on the date hereof; provided that the amount  of any such Investment may be increased (x) as required by the terms of such Investment as in existence on  the date hereof to the extent set forth Schedule 6.02 or (y) as otherwise permitted under this Agreement;  (6) loans and advances to officers, directors, employees or consultants of the Company  or any of its Subsidiaries (i) in the ordinary course of business in an aggregate outstanding amount (valued  at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not  to exceed $6,875,000 at the time of Incurrence, (ii) in respect of payroll payments and expenses in the  ordinary course of business and (iii) in connection with such Person’s purchase of Equity Interests of the  Company or any direct or indirect parent of the Company solely to the extent that the amount of such loans  and advances shall be contributed to the Company in cash as common equity;  (7) any Investment acquired by the Company or any Restricted Subsidiary (a) in  exchange for any other Investment or accounts receivable held by the Company or such Restricted  Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of  the issuer of such other Investment or accounts receivable, or (b) as a result of a foreclosure by the Company  or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect  to any secured Investment in default, or as a result of a Bail-In Action with respect to any contractual  counterparty of the Company or any Restricted Subsidiary;  (8) any Investment acquired by the Company or any Subsidiary in the settlement of  overdue Indebtedness and accounts payable owed to a Loan Party or a Subsidiary in the ordinary course of  business and for amounts which, individually and in the aggregate, are not material to the Loan Parties or  their Subsidiaries;  (9) Swap Agreement Obligations permitted under Section 6.01(j);  (10) additional Investments by the Company or any Restricted Subsidiary having an  aggregate Fair Market Value (as determined in good faith by the Company), taken together with all other  Investments made pursuant to this clause (10) that are at that time outstanding, not to exceed $25,000,000;  provided, however, that if any Investment pursuant to this clause (10) is made in any Person that is not a  Loan Party at the date of the making of such Investment and such Person becomes a Loan Party after such  date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall  





 






DB1/ 127789195.7 46  cease to have been made pursuant to this clause (10) for so long as such Person continues to be a Loan  Party;  (11) [Reserved];  (12) Investments the payment for which consists of Equity Interests of the Company  (other than Disqualified Stock);   (13) any transaction to the extent it constitutes an Investment that is permitted by and  made in accordance with the provisions of Section 6.05 (except transactions described in clauses (a), (b),  (c), (e), (f), (g), (i) or (m) of Section 6.05);  (14) guarantees issued in accordance with Section 6.01, including, without limitation,  any guarantee or other obligation issued or incurred under this Agreement in connection with any letter of  credit issued for the account of the Company or any of its Restricted Subsidiaries (including with respect  to the issuance of, or payments in respect of drawings under, such letters of credit);  (15) Investments consisting of purchases and acquisitions of inventory, supplies,  materials, services or equipment or purchases of contract rights or licenses or leases of in-bound intellectual  property (including, without limitation, Investments made in connection with a Similar Business), in each  case, in the ordinary course of business;  (16) [Reserved];  (17) [Reserved];  (18) Investments of a Restricted Subsidiary acquired after the date hereof or of an entity  merged into, amalgamated with, or consolidated with a Loan Party or a Restricted Subsidiary in a  transaction that is not prohibited by Section 6.08 after the date hereof to the extent that such Investments  were not made in contemplation of such acquisition, merger, amalgamation or consolidation and were in  existence on the date of such acquisition, merger, amalgamation or consolidation;   (19) Investments in the ordinary course of business consisting of Uniform Commercial  Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary  trade arrangements with customers;  (20) advances in the form of a prepayment of expenses in the ordinary course of  business, so long as such expenses are being paid in accordance with customary trade terms of the Company  or the Restricted Subsidiaries;  (21) Investments in Joint Ventures or Unrestricted Subsidiaries having an aggregate  Fair Market Value (as determined in good faith by the Company), taken together with all other Investments  made pursuant to this clause (21) that are at that time outstanding, not to exceed (x) $25,000,000, plus (y)  an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on  sale, repayments, income and similar amounts) actually received in respect of any such Investment (with  the Fair Market Value of each Investment being measured at the time made and without giving effect to  subsequent changes in value); provided that the aggregate amount of Investments made by Loan Parties in  reliance on this Clause (21) shall not exceed (when combined with Investments made by Loan Parties in  Subsidiaries that are not (or do not become in connection with such transaction) Loan Parties in reliance on  Clauses (1), (3) and (22) of the definition of Permitted Investments) $25,000,000; provided, further that,  upon written notice from a Responsible Officer of the Borrower Representative to the Administrative  





 






DB1/ 127789195.7 47  Agent, the dollar amount set forth in the foregoing proviso shall be reset at $25,000,000 on any such date  as the Payment Conditions become satisfied (it being understood that such written notice shall include an  updated Borrowing Base Certificate (as applicable) and calculations (in reasonable detail) demonstrating  compliance with the Payment Conditions); provided, however, that if any Investment pursuant to this clause  (21) is made in any Person that is not a Loan Party at the date of the making of such Investment and such  Person becomes a Loan Party after such date, such Investment shall thereafter be deemed to have been  made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (21) for so  long as such Person continues to be a Loan Party; provided, further that, with respect to any such Investment  (in a single transaction or a series of related transactions) consisting of assets of the type eligible to be  included in the Borrowing Base that decreases the Borrowing Base by $3,437,500 or more (after giving  effect thereto), the Borrower Representative shall have first delivered an updated Borrowing Base  Certificate to the Administrative Agent giving pro forma effect to such Investment and demonstrating pro  forma compliance with Section 6.12;  (22) any Investment in any Subsidiary of the Company or any Joint Venture in  connection with intercompany cash management arrangements or related activities arising in the ordinary  course of business; provided that the aggregate amount of Investments made by Loan Parties in Subsidiaries  or joint ventures that are not Loan Parties in reliance on this Clause (22) shall not exceed (when combined  with Investments made by Loan Parties in Subsidiaries that are not (or do not become in connection with  such transaction) Loan Parties in reliance on Clauses (1), (3) and (21) of the definition of Permitted  Investment) $25,000,000; provided, further that, upon written notice from a Responsible Officer of the  Borrower Representative to the Administrative Agent, the dollar amount set forth in the foregoing proviso  shall be reset at $25,000,000 on any such date as the Payment Conditions become satisfied (it being  understood that such written notice shall include an updated Borrowing Base Certificate (as applicable) and  calculations (in reasonable detail) demonstrating compliance with the Payment Conditions); provided,  however, that if any Investment pursuant to this clause (22) is made in any Person that is not a Loan Party  at the date of the making of such Investment and such Person becomes a Loan Party after such date, such  Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to  have been made pursuant to this clause (22) for so long as such Person continues to be a Loan Party;  (23) trade credit extended on usual and customary terms in the ordinary course of  business;  (24) Guarantees of any Loan Party or any Restricted Subsidiary of leases or of other  obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;   (25) subject to Pro Forma Compliance with the Payment Conditions, any other  Investments;   (26) Investments consisting of the ownership of Equity Interests in Article II JV, IPCo  JV and BC/VC existing as of the date hereof; and  (27) to the extent constituting an Investment, the transfer by a Loan Party or a Restricted  Subsidiary to a Special Purpose Receivables Subsidiary, and the purchase by such Special Purpose  Receivables Subsidiary, of wholesale accounts receivable, proceeds of such accounts receivable and other  property customarily transferred in connection with the financing or securitization of accounts receivable  for Fair Market Value (as determined in good faith by the Company) or for another price consistent with  customary or market practice for the sale of accounts receivable in connection with the financing or  securitization of accounts receivable (as determined in good faith by the Company).  





 






DB1/ 127789195.7 48  “Permitted Liens” means, with respect to any Person:  (1) pledges, bonds or deposits and other Liens granted by such Person under  workmen’s compensation laws, unemployment or employment insurance laws, old age pensions or similar  legislation or programs, or good faith deposits in connection with bids, tenders, contracts (other than for  the payment of Indebtedness (it being understood that Indebtedness permitted pursuant to Section 6.01(cc)  and other obligations in respect of cash management services shall not constitute Indebtedness for purposes  of this clause (1))) or leases to which such Person is a party, or deposits to secure public or statutory  obligations of such Person or deposits of cash or U.S. or Canadian government bonds to secure surety or  appeal bonds, performance and return of money bonds, or deposits as security for contested Taxes or import  duties or payments of rent, in each case Incurred in the ordinary course of business;  (2) (a) Liens imposed by law and landlords’, carriers’, warehousemen’s, mechanics’,  materialmen’s, repairmen’s, construction, or other like Liens, (b) Liens of customs brokers, freight  forwarders and common carriers, (c) inchoate Liens imposed pursuant to applicable Canadian federal or  provincial pension standards legislation, and (d) statutory and common law Liens of landlords, in each case  securing obligations that are not overdue by more than 45 days or that are being contested in good faith by  appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect  to which such Person shall then be proceeding with an appeal or other proceedings for review;  (3) Liens for Taxes not yet overdue by more than 45 days (or, with respect to real  estate Taxes, any longer period before delinquency), or that are being contested in good faith by appropriate  proceedings, if adequate reserves with respect thereto have been provided in accordance with GAAP;  (4) deposits or escrows to secure performance and surety bonds or bid bonds or with  respect to other regulatory requirements or letters of credit, bankers’ acceptances or similar obligations  (other than Indebtedness for borrowed money (it being understood that Indebtedness permitted pursuant to  Section 6.01(cc) and other obligations in respect of cash management services shall not constitute  Indebtedness for purposes of this clause (4))) issued pursuant to the request of and for the account of any  Person in the ordinary course of business;  (5) any state of facts as shown by any professional survey or physical inspection of  any owned or leased real property, minor encumbrances, minor encroachments, trackage rights, special and  supplemental assessments, easements or reservations of, or rights of others for licenses, rights-of-way,  sewers, electric lines, telegraph and telephone lines, communication towers, other utilities and other similar  purposes, servicing agreements, development agreements, site plan agreements, land use and air rights  agreements, reservations, restrictions and leases for mineral and water rights, all title exceptions, exclusions  and encumbrances in existence with respect to all owned or leased real property as of the date of this  Agreement at the time of acquisition of any interest in real property acquired after the date of this Agreement  and in existence at the time of such acquisition, and other similar liens, charges and encumbrances incurred  in the ordinary course of business, or title defects or irregularities that are of a minor nature or zoning or  other restrictions as to the use of real properties or Liens incidental to the conduct of the business of such  Person or to the ownership of its properties which were not Incurred in connection with Indebtedness and  in each case which do not in the aggregate with respect to any particular real property materially adversely  affect the value of said properties and materially impair their use in the operation of the business of such  Person as of the date of this Agreement or the date of any future acquisition as the case may be;  (6) (A) Liens on assets of a Subsidiary that is not a Loan Party securing Indebtedness  of a Subsidiary that is not a Loan Party permitted to be Incurred pursuant to Section 6.01;  (B) [Reserved];  





 






DB1/ 127789195.7 49  (C) Liens securing obligations in respect of Indebtedness permitted to be Incurred  pursuant to clause (d) or (m) (to the extent such guarantees are issued in respect of any Indebtedness) of  Section 6.01; provided that, in the case of clause (m) any Lien on the Collateral in reliance on this  clause (6)(C) shall be junior to the Liens on the Collateral securing the Obligations pursuant to a junior lien  intercreditor agreement or collateral trust agreement reasonably satisfactory to the Administrative Agent  and the Required Lenders reflecting the junior-lien status of the Liens securing such Indebtedness as it  relates to Collateral;  (D) [Reserved];   (E) Liens created pursuant to the Collateral Documents or otherwise securing the  Obligations;  (7) any Lien existing on the date of this Agreement and described on Schedule 6.07,  provided that the principal amount secured thereby is not hereafter increased, and no additional assets  become subject to such Lien (except pursuant to the terms of the agreements governing such Lien as in  effect on the date of this Agreement);  (8) Liens on assets, property or shares of stock of a Person at the time such Person  becomes a Subsidiary; provided, however, that such Liens are not created or Incurred in connection with,  or in contemplation of, such other Person becoming such a Subsidiary; provided, further, however, that  such Liens may not extend to any other property owned by the Company or any Restricted Subsidiary (other  than pursuant to after-acquired property clauses in effect with respect to such Lien at the time of acquisition  on property of the type that would have been subject to such Lien notwithstanding the occurrence of such  acquisition);  (9) Liens on assets or property at the time the Company or a Restricted Subsidiary  acquired the assets or property, including any acquisition by means of a merger, amalgamation or  consolidation with or into the Company or any Restricted Subsidiary; provided, however, that such Liens  are not created or Incurred in connection with, or in contemplation of, such acquisition; provided, further,  however, that the Liens may not extend to any other property owned by the Company or any Restricted  Subsidiary (other than pursuant to after-acquired property clauses in effect with respect to such Lien at the  time of acquisition on property of the type that would have been subject to such Lien notwithstanding the  occurrence of such acquisition);  (10) [Reserved];  (11) Liens on not more than $13,750,000 of deposits securing Swap Agreement  Obligations which were not incurred in violation of this Agreement;  (12) [Reserved];  (13) leases, subleases, licenses and sublicenses of real property which do not materially  interfere with the ordinary conduct of the business of the Company or any of the Subsidiaries, and all Liens  created or purported to be created by any lessee, sublesse, licensee or sublicensee of any Loan Parties in  violation of any applicable lease, sublease, licensee or sublicensee, without the express permission of such  Loan Parties;  (14) Liens arising from Uniform Commercial Code financing statement filings (or  equivalent filings including under the PPSA) regarding operating leases or other obligations not constituting  Indebtedness (it being understood that Indebtedness permitted pursuant to Section 6.01(cc) and other  





 






DB1/ 127789195.7 50  obligations in respect of cash management services shall not constitute Indebtedness for purposes of this  clause (14));  (15) Liens in favor of any Loan Party;  (16) [Reserved];  (17) pledges and deposits made in the ordinary course of business to secure liability to  insurance carriers;   (18) Liens on the Equity Interests of Unrestricted Subsidiaries;  (19) (a) leases or subleases, and licenses or sublicenses (including with respect to  intellectual property) granted to others in the ordinary course of business, in all such cases, not interfering  in any material respect with the business of the Company and the Subsidiaries, taken as a whole and (b) and  Liens on real property which is not owned but is leased or subleased by the Company or any Restricted  Subsidiary;  (20) Liens to secure any refinancing, future advance, increase, cross-collateralization,  refunding, extension, renewal or replacement (or successive refinancings, refundings, extensions, renewals  or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in clauses 6(C),  (7), (8), (9), (11), and (35) of this definition; provided, however, that (x) such new Lien shall be limited to  all or part of the same property (including any after acquired property to the extent it would have been  subject to the original Lien) that secured the original Lien (plus improvements on and accessions to such  property, proceeds and products thereof, customary security deposits and any other assets pursuant to the  after-acquired property clauses to the extent such assets secured (or would have secured) the Indebtedness  being refinanced, refunded, extended, renewed or replaced), and (y) the Indebtedness secured by such Lien  at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount  (or accreted value, if applicable) described under clauses 6(C), (7), (8), (9), (11) and (35) of this definition  at the time the original Lien became a Permitted Lien under this Agreement and, in the case of any Lien on  Collateral, shall not have a greater priority level with respect to Liens securing the Obligations that the  Liens securing the Indebtedness so refinanced, refunded, extended, renewed or replaced, (B) unpaid  accrued interest and premiums (including tender premiums), and (C) an amount necessary to pay any  underwriting discounts, defeasance costs, commissions, fees and expenses related to such refinancing,  refunding, extension, renewal or replacement; provided, further, however, that in the case of Liens to secure  any refinancing, refunding, extension or renewal of Indebtedness secured by a Lien referred to in clause (8)  or (9), such new Lien shall have priority equal to or more junior than the Lien securing such refinanced,  refunded, extended or renewed Indebtedness;  (21) [Reserved];  (22) judgment and attachment Liens not giving rise to an Event of Default and notices  of lis pendens and associated rights related to litigation being contested in good faith by appropriate  proceedings and for which adequate reserves have been made;  (23) Liens arising out of conditional sale, title retention, consignment or similar  arrangements for the sale or purchase of goods entered into in the ordinary course of business or in  connection with a Similar Business;   (24) Liens incurred to secure cash management services or to implement cash pooling  arrangements in the ordinary course of business;  





 






DB1/ 127789195.7 51  (25) Liens in favor of credit card issuers or credit card processors pursuant to  agreements therewith;  (26) any encumbrance or restriction (including put and call arrangements) with respect  to Equity Interests of any Joint Venture or similar arrangement securing obligations of such Joint Venture  or pursuant to any joint venture agreement or similar agreement;  (27) any amounts held by a trustee in the funds and accounts under any indenture issued  in escrow pursuant to customary escrow arrangements pending the release thereof, or under any indenture  pursuant to customary discharge, redemption or defeasance provisions;  (28) Liens (i) arising by virtue of any statutory or common law provisions relating to  banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds  maintained with a depository or financial institution, (ii) attaching to commodity trading accounts or other  commodity brokerage accounts incurred in the ordinary course of business or (iii) encumbering reasonable  customary initial deposits and margin deposits and similar Liens attaching to brokerage accounts incurred  in the ordinary course of business and not for speculative purposes;  (29) Liens that are contractual rights of set-off relating to pooled deposits, sweep  accounts, reserve accounts or similar accounts of the Company or any Restricted Subsidiary to permit  satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company  or any Restricted Subsidiary, including with respect to credit card charge-backs and similar obligations;  (30) Liens disclosed by the title reports, commitments or title insurance policies with  respect to any real property; provided that in connection with the acquisition of any interest of any Loan  Party in real property acquired after the date of this Agreement, such Liens are in existence at the time of  such acquisition (and not created or suffered expressly in anticipation of such acquisition);  (31) Liens that are contractual rights of set-off relating to purchase orders and other  agreements entered into with customers, suppliers or service providers of the Company or any Restricted  Subsidiary in the ordinary course of business;  (32) in the case of real property that constitutes a leasehold or subleasehold interest,  (x) any Lien to which the fee simple interest (or any superior leasehold interest) is or may become subject  and any subordination of such leasehold or subleasehold interest to any such Lien in accordance with the  terms and provisions of the applicable leasehold or subleasehold documents, and (y) any right of first  refusal, right of first negotiation or right of first offer which is granted to the lessor or sublessor;  (33) agreements to subordinate any interest of the Company or any Restricted  Subsidiary in any accounts receivable arising from inventory consigned by the Company or any such  Restricted Subsidiary pursuant to an agreement entered into in the ordinary course of business;  (34) Liens securing insurance premium financing arrangements; provided that such  Liens are limited to the applicable unearned insurance premiums;  (35) [Reserved];  (36) Liens on securities that are the subject of repurchase agreements constituting Cash  Equivalents under clause (e) of the definition thereof;  





 






DB1/ 127789195.7 52  (37) Liens upon real or personal property, including any attachment thereof, prior to  adjudication of a dispute on the merits;  (38) with respect to a Permitted Wholesale A/R Financing, Liens on wholesale accounts  receivable, proceeds of such accounts receivable and other property upon which Liens are customarily  granted in connection with the financing or securitization of accounts receivable (but not, for the avoidance  of doubt, on any property included in the calculation of the Borrowing Base);  (39) Liens in favor of landlords on leasehold improvements financed by allowances or  advances provided by such landlords pursuant to lease arrangements;  (40) Liens on proceeds in an aggregate amount not to exceed $6,875,000 at any one  time outstanding granted in connection with securities lending transactions or reverse repurchase  agreements involving United States Treasury bonds;   (41) Liens securing other obligations of the Loan Parties and their Restricted  Subsidiaries in an aggregate amount not to exceed $25,000,000 at any one time outstanding;   (42) with respect to a Permitted Consigned Inventory Financing, Liens on consigned  Inventory and the related receivables and proceeds of such consigned Inventory, the applicable Permitted  Consigned Inventory Account, and solely to the extent governing or otherwise directly relating to such  consigned Inventory, Documents (as defined in the UCC), licenses from any Governmental Authority to  sell any such consigned Inventory, and Chattel Paper (as defined in the UCC); and  (43) Liens created in connection with any Sale/Leaseback Transaction permitted by  Section 6.04;  provided, however, notwithstanding the foregoing and Section 6.07, the Loan Parties and their  Restricted Subsidiaries shall not, directly or indirectly, create, Incur or suffer to exist any Lien on any owned  Real Estate other than pursuant to the foregoing clauses (2), (3), (5), (8), (9), (13), (14), (15), (19), (20),  (22), (23), (30), (37) and (43) in this definition of “Permitted Liens”.  “Permitted Wholesale A/R Financing” means, collectively, any facility evidenced by the Factoring  Agreements or any other factoring arrangement or any securitization transaction or series of securitization  transactions that may be entered into by any Loan Party so long as (x) the only assets so factored or  securitized pursuant to such facility, arrangement or transaction are the wholesale Accounts of a Loan Party  or a Restricted Subsidiary to the extent the same are not included in the Borrowing Base hereunder, proceeds  of such accounts receivable and other assets which are customarily transferred or in respect of which  security interests are customarily granted in connection with the financing or securitization of accounts  receivable and (y) other than pursuant to an unsecured guaranty by the Company or any of its Subsidiaries,  no Loan Party or any Restricted Subsidiary whose assets are not being financed or securitized pursuant to  such facility, arrangement or transaction shall become party to any such facility, arrangement or transaction.  “Person” means any natural person, corporation, limited liability company, unlimited liability  company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.  “Plan” means 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 Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069  of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.  





 






DB1/ 127789195.7 53  “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.  “PPSA” means the Personal Property Security Act (Ontario) or such other applicable legislation in  effect from time to time in such other jurisdiction in Canada (including the Civil Code (Quebec)) for  purposes of the provisions hereof relating to perfection, effect of perfection or non-perfection or priority.  “Preferred Stock” means any Equity Interest with preferential right of payment of dividends or  upon liquidation, dissolution, or winding up.  “Prime Rate” means the rate of interest publicly announced from time to time by the Administrative  Agent as its “prime rate”, which rate may not be the lowest or most favorable rate then being charged  commercial borrowers or others by the Administrative Agent.  Any change in the Prime Rate announced  by the Administrative Agent shall take effect at the opening of business on the day specified in the public  announcement of such change.  Notwithstanding the foregoing, if the Prime Rate shall be less than 0.00%,  such rate shall be deemed to be 0.00% for the purposes of this Agreement and the other Loan Documents.  “Prior Claims” means all liabilities and obligations of any Canadian Loan Party secured by any  Liens, choate or inchoate, which rank or are capable of ranking pari passu or in priority to the Liens granted  to the Administrative Agent to secure the Canadian Secured Obligations, including, (a) any such amounts  due and not paid for wages or vacation pay (including amounts protected by the Wage Earner Protection  Program Act (Canada)), amounts due and not paid under any legislation relating to workers’ compensation  or to employment insurance, all amounts deducted or withheld and not paid and remitted when due with  respect to Taxes including amounts currently or past due and not paid for realty, municipal or similar taxes  (to the extent impacting personal or moveable property); and (b) (i) all amounts currently or past due and  not yet contributed, remitted or paid to or under any Canadian Pension Plan or under the Canada Pension  Plan, the Quebec Pension Plan, the Pension Benefits Act (Ontario) or any similar legislation, and (ii) any  solvency deficiency or wind-up deficiency with respect to Canadian Defined Benefit Plans that are  registered in Ontario.  “Pro Forma Compliance” means, with respect to any determination for any period and any  transaction, that such determination shall be made by giving pro forma effect to each such transaction, as  if each such transaction had been consummated on the first day of such period, based on, in the case of  determinations made in reliance on pro-forma financial statement calculations only, historical results  accounted for in accordance with GAAP and, to the extent applicable, reasonable assumptions that are  specified in detail in the relevant compliance certificate, financial statement or other document provided to  the Administrative Agent or any Lender in connection herewith (which shall be prepared by the Company  in good faith (subject to the approval of the Administrative Agent, not to be unreasonably withheld)) and  for such purposes historical financial statements shall be recalculated as if such transaction had been  consummated at the beginning of the applicable period, and any Indebtedness or other liabilities to be  incurred, assumed or repaid had been incurred, assumed or repaid at the beginning of such period (and  assuming that such Indebtedness to be incurred bears interest during any portion of the applicable  measurement period prior to the relevant acquisition at the weighted average of the interest rates applicable  to such Indebtedness incurred during such period) and, to the extent pro forma financial statements are  required to be prepared by the Company under Regulation S-X of the Securities Act of 1933 (“Reg. S-X”)  reflecting such transaction for any period, all pro forma calculations made hereunder with respect to such  transaction and for such period shall be in conformity with Reg. S-X at all times after such pro-forma  financial statements reflecting such transactions are required to be filed by the Company under Reg. S-X.   “Proceeds of Crime Act” means the Proceeds of Crime (Money Laundering) and Terrorist  Financing Act (Canada), as amended.  





 






DB1/ 127789195.7 54  “Projections” has the meaning assigned to such term in Section 3.06(b).   “Protective Advance” has the meaning assigned to such term in Section 2.04.  “QFC” has the meaning set forth in Section 9.29.  “QFC Credit Support” has the meaning set forth in Section 9.29.  “Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party that has  assets exceeding $10,000,000 at the time the relevant Loan Guaranty or grant of the relevant security  interest becomes or would become effective with respect to such Swap Obligation or such other person as  constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations  promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such  time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.  “Qualified Counterparties” means each Administrative Agent, each Lender and each Affiliate of a  Lender.  “Real Estate” means all leases and all land, together with the buildings, structures, parking areas,  and other improvements thereon, now or hereafter owned by any Loan Party or any Restricted Subsidiary,  as the context may require, including all easements, rights-of-way, and similar rights relating thereto and  all leases, tenancies, and occupancies thereof.  “Recipient” means, as applicable, (a) the Administrative Agent, (b) any Lender and (c) any Issuing  Bank, or any combination thereof (as the context requires).  “Register” has the meaning assigned to such term in Section 9.04.  “Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the  respective directors, officers, partners, members, trustees, employees, agents, administrators, managers,  representatives and advisors of such Person and such Person’s Affiliates.  “Release” means any releasing, spilling, leaking, pumping, pouring, emitting, emptying,  discharging, injecting, escaping, leaching, migrating, disposing or dumping of any Hazardous Material into  the environment.  “Relevant Entity” means (a) each Loan Party and each Subsidiary of any Loan Party, and (b) each  Person that, directly or indirectly, is in control of a Person described in clause (a) above.  For purposes of  this definition, control of a Person means the direct or indirect (x) ownership of, or power to vote, twenty- five percent (25%) or more of the issued and outstanding equity interests having ordinary voting power for  the election of directors of such Person or other Persons performing similar functions for such Person, or  (y) power to direct or cause the direction of the management and policies of such Person whether by  ownership of equity interests, contract or otherwise.  “Relevant Governmental Body” means the Board or the Federal Reserve Bank of New York, or a  committee officially endorsed or convened by the Board or the Federal Reserve Bank of New York, or any  successor thereto.  “Relevant Plan” has the meaning set forth in Section 9.04(e).  





 






DB1/ 127789195.7 55  “Rent Reserve” means, with respect to any store located in a Landlord Lien State, warehouse  distribution center, regional distribution center or depot where any Inventory subject to Liens arising by  operation of law is located and, at all times after the ninetieth (90th) day after the Closing Date, no Collateral  Access Agreement for such location has been obtained, a reserve equal to two (2) months’ rent at such store  located in a Landlord Lien State, warehouse distribution center, regional distribution center or depot.  “Report” means reports prepared by the Administrative Agent or another Person showing the  results of appraisals, field examinations or audits pertaining to the assets of the Loan Parties from  information furnished by or on behalf of the Borrowers, after the Administrative Agent has exercised its  rights of inspection pursuant to this Agreement, which Reports may be distributed to the Lenders by the  Administrative Agent.  “Reportable Compliance Event” means that any Relevant Entity becomes a Sanctioned Person, or  is charged by indictment, criminal complaint or similar charging instrument, arraigned, or custodially  detained in connection with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or  has knowledge of facts or circumstances to the effect that it is reasonably likely that any aspect of its  operations is in actual or probable violation of any Anti-Terrorism Law.  “Required Lenders” means, at any time, Lenders (other than Defaulting Lenders) having Revolving  Exposures and unused Commitments representing more than 50% of the sum of the Aggregate Credit  Exposure and unused Commitments at such time.  “Requirement of Law” means, with respect to any Person, (a) the charter, articles or certificate of  organization or incorporation and bylaws or other organizational or governing documents of such Person  and (b) any statute, law (including common law), treaty, rule, regulation, code, ordinance, order, decree,  writ, judgment, injunction or determination of any arbitrator or court or other Governmental Authority  (including Environmental Laws), in each case applicable to or binding upon such Person or any of its  property or to which such Person or any of its property is subject.  “Reserves” means (a) without duplication of any other Reserves, any Inventory Reserves, or items  that are otherwise addressed through eligibility criteria, any reserves which the Administrative Agent deems  necessary, in its Permitted Discretion, (i) to reflect impediments to the Administrative Agent’s ability to  realize upon the Collateral, (ii) to reflect claims and liabilities that the Administrative Agent determines  will need to be satisfied in connection with the realization upon the Collateral of the type eligible to be  included in the Borrowing Base, or (iii) to reflect criteria, events, conditions, contingencies or risks which  adversely affect any component of the Borrowing Base, including, for example, reserves for accrued and  unpaid interest on the Obligations, Rent Reserves, reserves for loyalty programs, reserves for outstanding  gift certificates and gift cards of the Loan Parties entitling the holder thereof to use all or a portion of the  certificate or gift card to pay all or a portion of the purchase price for any Inventory, reserves for  consignee’s, warehousemen’s, mortgagee’s and bailee’s charges, reserves for charges due to carriers,  freight forwarders and customs brokers that are more than 60 days past due, reserves for deferred, unpaid  rent obligations with respect to the Loan Parties’ leases of real property to the extent the applicable Loan  Party and Landlord have not entered into a written agreement providing for a payment plan for, or waiver  of, such deferred rent obligations, reserves for dilution of Credit Card Accounts or Eligible Trade Accounts,  other reserves with respect to the determination of the collectability in the ordinary course of Eligible  Accounts, reserves for layaway deposits, reserves for customs charges and shipping charges and other  foreign landing costs related to any Inventory in transit, reserves for expenses associated with merchandise  repurpose processing, and reserves for outstanding taxes, fees, assessments, and other governmental  charges, and reserves for Prior Claims, and (b) Banking Services/Swap Reserves.  





 






DB1/ 127789195.7 56  The Administrative Agent may, in its Permitted Discretion and with no less than five (5) Business  Days’ prior written notice to the Borrower Representative (other than during a Dominion Period in which  case notice shall not be required), adjust Reserves, provided that, if after the delivery of such notice the  Borrower Representative notifies the Administrative Agent that it desires to discuss the Reserves described  therein, then the Administrative Agent will discuss such Reserves with the Borrower Representative,  provided that nothing in this proviso shall obligate the Administrative Agent to eliminate, reduce, or delay  any such Reserves; provided, that no Borrowings shall be permitted (or Letters of Credit issued) against the  newly proposed Reserves during any such five (5) Business Day period.  “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial  Institution, a UK Resolution Authority.  “Responsible Officer” means, with respect to any Loan Party, the Chief Executive Officer,  President, Chief Financial Officer, Treasurer or Assistant Treasurer of such Loan Party, any other executive  officer, including any Executive Vice President or Senior Vice President of such Loan Party, any Vice  President of any Restricted Subsidiary of such Loan Party, any manager or the members (as applicable) in  the case of any Loan Party which is a limited liability company, and such other individuals, designated by  written notice to the Administrative Agent from the Borrower Representative, authorized to execute notices,  reports and other documents on behalf of such Loan Party required hereunder.  The Borrower  Representative may amend such list of individuals from time to time by giving written notice of such  amendment to the Administrative Agent.  Any document delivered hereunder that is signed by a  Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all  necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible  Officer shall be conclusively presumed to have acted on behalf of such Loan Party in their capacity as an  officer of such Loan Party and not in any individual capacity.  “Refinancing Indebtedness” has the meaning specified in Section 6.01(n).  “Restricted Investment” means any Investment that is not a Permitted Investment.  “Restricted Payments” has the meaning specified in Section 6.02(a).  “Restricted Subsidiary” means, with respect to any Person, any Subsidiary of such Person other  than an Unrestricted Subsidiary of such Person.  Unless the context otherwise requires, the term “Restricted  Subsidiary” shall mean a Restricted Subsidiary of the Company.  Each Loan Party (other than the Company)  shall constitute a Restricted Subsidiary. “Revolving Exposure” means, with respect to any Lender at any time, the sum of (a) the  outstanding principal amount of such Lender’s Revolving Loans, LC Exposure, Participation Advances,  and Swingline Exposure at such time, plus (b) an amount equal to its Applicable Percentage of the aggregate  principal amount of Overadvances and Protective Advances outstanding at such time.  “Revolving Exposure Limitations” has the meaning set forth in Section 2.01.    “Revolving Loan” means a Loan made pursuant to Section 2.01(a).  “S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC  business.  “Sale/Leaseback Transaction” means an arrangement relating to property now owned or hereafter  acquired by a Loan Party or a Restricted Subsidiary whereby such Loan Party or Restricted Subsidiary  





 






DB1/ 127789195.7 57  transfers such property to a Person and such Loan Party or Restricted Subsidiary leases it from such Person,  other than leases between any Loan Party and a Restricted Subsidiary or between Restricted Subsidiaries.  “Sanctioned Country” means, at any time, a country or territory which is itself the subject or target  of any Sanctions (at the time of this Agreement, Cuba, Iran, North Korea, Crimea Region, the Donetsk and  Luhansk territories of Ukraine, and Syria).  “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of  designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the  Treasury, the U.S. Department of State, or by the United Nations Security Council, Her Majesty’s Treasury  of the United Kingdom, the European Union or any EU member state, (b) a Blocked Person, (c) a Canadian  Blocked Person, (d) any Person operating, organized or resident in a Sanctioned Country, or (e) any Person  owned or controlled by any such Person or Persons described in the foregoing clauses (a) through (d).  “Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or  enforced from time to time (a) by the U.S. government, including those administered by the Office of  Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, (b) by the  United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom,  or (c) by a government of Canada pursuant to Canadian Economic Sanctions and Export Control Laws.  “SEC” means the Securities and Exchange Commission of the U.S.  “Secured Obligations” means all U.S. Secured Obligations and Canadian Secured Obligations;  provided however, Banking Services Obligations and Swap Agreement Obligations shall be Secured  Obligations solely to the extent there is sufficient Collateral following satisfaction of all other Obligations  in accordance with Section 2.18.  “Secured Parties” means (a) the Administrative Agent, (b) the Lenders, (c) each Issuing Bank,  (d) Qualified Counterparties to whom any Banking Services Obligations are owing, (e) Qualified  Counterparties to whom Swap Agreement Obligations constituting Secured Obligations hereunder are  owing, and (f) the successors and assigns of each of the foregoing.  “Security Agreement” means and refers to each of the U.S. Security Agreement and the Canadian  Security Agreements.  “Selected Months” means the Spring Selected Months or the Fall Selected Months, as applicable.   For the avoidance of doubt, the Selected Months shall in no event be comprised of a consecutive four- month period.  “Senior Representative” means, with respect to any Indebtedness, the trustee, administrative agent,  collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such  Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in  such capacities.  “Settlement” has the meaning assigned to such term in Section 2.05(d).    “Settlement Date” has the meaning assigned to such term in Section 2.05(d).  “Similar Business” has the meaning specified in Section 6.06.  





 






DB1/ 127789195.7 58  “SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR  Administrator.    “SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator  of the secured overnight financing rate).  “SOFR Rate Loan” means any Loan that bears interest based on the Adjusted Term SOFR.  “Solvent” means, with respect to any Person on any date of determination, taking into account any  right of reimbursement, contribution or similar right available to such Person from other Persons, that on  such date (i) the fair value of the property of such Person is greater than the total amount of liabilities,  including contingent liabilities, of such Person, (ii) the present fair saleable value of the assets of such  Person is not less than the amount that will be required to pay the probable liability of such Person on its  debts as they become absolute and matured, (iii) such Person is able to realize upon its assets and pay its  debts and other liabilities, contingent obligations and other commitments as they mature in the normal  course of business, (iv) such Person does not intend to, and does not believe that it will, incur debts or  liabilities beyond such Person’s ability to pay as such debts and liabilities mature, (v) such Person is not  engaged in business or a transaction, and is not about to engage in business or a transaction, for which such  Person’s property would constitute unreasonably small capital after giving due consideration to the  prevailing practice in the industry in which such Person is engaged, and (vi) such Person is not an “insolvent  person” as such term is defined in the BIA.  In computing the amount of contingent liabilities at any time,  it is intended that such liabilities will be computed at the amount which, in light of all the facts and  circumstances existing at such time, represents the amount that can reasonably be expected to become an  actual or matured liability.  “Special Purpose Receivables Subsidiary” means (i) a direct or indirect Subsidiary of the Company  established in connection with a Permitted Wholesale A/R Financing for the acquisition of wholesale  Accounts of a Loan Party or a Restricted Subsidiary to the extent the same are not included in the Borrowing  Base hereunder, proceeds of such accounts receivable and other assets which are customarily transferred in  connection with the financing or securitization of accounts receivable, which engages in no material  activities other than in connection with the financing of accounts receivable of a Loan Party and/or  Restricted Subsidiaries, and which is organized in a manner intended to reduce the likelihood that it would  be substantively consolidated with the Company or any of the Subsidiaries (other than Special Purpose  Receivables Subsidiaries) in the event the Company or any such Subsidiary becomes subject to a proceeding  under the Bankruptcy Code (or other Insolvency Laws) and (ii) any subsidiary of a Special Purpose  Receivables Subsidiary.  “Specified Event of Default” means the occurrence of any Event of Default described in any of  clauses (a), (b) (due to inaccuracy in the calculation of the Borrowing Base included in any Borrowing Base  Certificate), (c)(i) (due to a failure to comply with Section 6(j) of the U.S. Security Agreement, Section 6(j)  of the Canadian Security Agreement, Section 5.01(e) or Section 6.12), (e) or (i) of Article VII hereof.  “Spot Rate” means, on any date, as determined by the Administrative Agent, the spot selling rate  posted by Reuters on its website for the sale of the applicable currency for U.S. Dollars at approximately  11:00 a.m., New York City time, on such date (the “Applicable Quotation Date”); provided, that if, for any  reason, no such spot rate is being quoted, the spot selling rate shall be determined by reference to such  publicly available service for displaying exchange rates as may be reasonably selected by the  Administrative Agent, or, in the event no such service is selected, such spot selling rate shall instead be the  rate reasonably determined by the Administrative Agent as the spot rate of exchange in the market where  its foreign currency exchange operations in respect of the applicable currency are then being conducted, at  





 






DB1/ 127789195.7 59  or about 11:00 a.m., New York City time, on the Applicable Quotation Date for the purchase of the relevant  currency for delivery two Business Days later.  “Spring Selected Months” means a period of two (2) consecutive fiscal months occurring prior to  or during the spring selling season of each fiscal year of the Company, which period shall be selected by  the Company upon forty-five (45) days prior written notice to the Administrative Agent and shall  commence on the first day of a fiscal month of the Company.  Notwithstanding the foregoing, the first  period comprising Spring Selected Months following the Closing Date shall commence on May 1, 2022.  “Standby LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all  standby Letters of Credit outstanding at such time plus (b) the aggregate amount of all LC Disbursements  relating to standby Letters of Credit that have not yet been reimbursed by or on behalf of the Borrowers at  such time.  The Standby LC Exposure of an Issuing Bank (in its capacity as such) shall be the Standby  Exposure in respect of standby Letters of Credit issued by such Issuing Bank.  The Standby LC Exposure  of any Lender at any time shall be its Applicable Percentage of the aggregate Standby LC Exposure at such  time.  “Statements” has the meaning given to such term in Section 3.06(a).  “Subordinated Indebtedness” of a Person means any Indebtedness of such Person the payment of  which is subordinated to payment of the Secured Obligations to the written satisfaction of the  Administrative Agent.  “subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited  liability company, partnership, association or other business entity (a) 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, or (b) that is, as of such date, otherwise Controlled, by the parent or one or  more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.  “Subsidiary” means any direct or indirect subsidiary of the Company or a Loan Party, as applicable.   Notwithstanding the foregoing or anything herein to the contrary none of IPCo JV or BRX or any of their  respective Subsidiaries shall constitute a Subsidiary of the Company or any Subsidiary of the Company for  purposes of this Agreement, but shall each be considered a Joint Venture for purposes hereof.  “Subsidiary Equity Interests” has the meaning specified in Section 3.02.  “Supported QFC” has the meaning set forth in Section 9.29.  “Swap Agreement” means any agreement with respect to any swap, forward, spot, future, credit  default or derivative transaction or option or similar agreement involving, or settled by reference to, one or  more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or  pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any  combination of these transactions; provided that no phantom stock or similar plan providing for payments  only on account of services provided by current or former directors, officers, employees or consultants of  the Borrowers or the Restricted Subsidiaries shall be a Swap Agreement.  “Swap Agreement Obligations” means any and all obligations of the Loan Parties and their  Restricted Subsidiaries, whether absolute or contingent and howsoever and whensoever created, arising,  evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions  therefor), under (a) any and all Swap Agreements permitted hereunder with a Lender or an Affiliate of a  





 






DB1/ 127789195.7 60  Lender, and (b) any and all cancellations, buy backs, reversals, terminations or assignments of any such  Swap Agreement transaction.  “Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under  any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the  Commodity Exchange Act or any rules or regulations promulgated thereunder.  “Swingline Exposure” means, at any time, the aggregate principal amount of all Swingline Loans  outstanding at such time. The Swingline Exposure of any Lender at any time shall be its Applicable  Percentage of the aggregate Swingline Exposure at such time.  “Swingline Lender” means Huntington, in its capacity as lender of Swingline Loans hereunder.  Any consent required of the Administrative Agent or the Issuing Bank shall be deemed to be required of  the Swingline Lender and any consent given by Huntington in its capacity as Administrative Agent or  Issuing Bank shall be deemed given by Huntington in its capacity as Swingline Lender.  “Swingline Loan” has the meaning assigned to such term in Section 2.05(a).   “Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, withholdings,  (including backup withholding), assessments, fees or other charges imposed by any Governmental  Authority, including any interest, additions to tax or penalties applicable thereto.  “Term SOFR” means:   (a) for any calculation with respect to a SOFR Rate Loan, the Term SOFR Reference Rate for  a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR  Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of  such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if  as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR  Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a  Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term  SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator  on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference  Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S.  Government Securities Business Day is not more than five (5) U.S. Government Securities Business Days  prior to such Periodic Term SOFR Determination Day; and  (b) for any calculation with respect to a ABR Loan on any day, the Term SOFR Reference  Rate for a tenor of one month on the day (such day, the “ABR Term SOFR Determination Day”) that is two  (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term  SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any ABR Term  SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published  by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR  Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor  as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business  Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR  Administrator so long as such first preceding U.S. Government Securities Business Day is not more than  five (5) U.S. Government Securities Business Days prior to such ABR Term SOFR Determination Day.  





 






DB1/ 127789195.7 61  “Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a  successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its  reasonable discretion).  “Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.  “Test Period” means, as of any date of determination, the most recently completed twelve (12)  fiscal months of the Loan Parties ended on or prior to such time (taken as one accounting period) for which  financial statements have been delivered (or are required to have been delivered) to the Administrative  Agent.  “Total Assets” means, at any date of determination, the consolidated total assets of the Company  and its Subsidiaries as of the last day of the most recent fiscal quarter of the Company for which financial  statements have been delivered pursuant to Section 5.01(a) or (b) as adjusted to give effect to any acquisition  or Disposition of a Person or assets that may have occurred on or after the last day of such fiscal quarter.  “Trade Date” has the meaning set forth in Section 9.04(e).  “Transactions” means the execution, delivery and performance by the Loan Parties of this  Agreement and the other Loan Documents, the borrowing of Loans and other credit extensions, the use of  the proceeds thereof and the issuance of Letters of Credit hereunder.  “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on  such Loan, or on the Loans comprising such Borrowing, is determined by reference to Adjusted Term SOFR  or the Alternate Base Rate.  “UCC” means the Uniform Commercial Code as in effect from time to time in the State of New  York or in any other state the laws of which are required to be applied in connection with the issue of  perfection of security interests.  “UCP” shall have the meaning set forth in Section 2.06(b).  “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA  Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation  Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time)  promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions  and investment firms, and certain affiliates of such credit institutions or investment firms.  “UK Resolution Authority” means the Bank of England or any other public administrative authority  having responsibility for the resolution of any UK Financial Institution.  “Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding  the related Benchmark Replacement Adjustment.  “Unfinanced Capital Expenditures” means for any period, Capital Expenditures of the Company  and its Restricted Subsidiaries made in cash during such period, except to the extent financed with the  proceeds of Finance Lease Obligations or other Indebtedness (other than Loans incurred hereunder),  common Equity Interests or Disqualified Stock, or casualty proceeds, condemnation proceeds, or other  proceeds that would not be included in Consolidated EBITDA, less cash received from the sale of any fixed  assets of the Company and its Restricted Subsidiaries (including, without limitation, equipment) during  





 






DB1/ 127789195.7 62  such period; provided that the aggregate amount of Unfinanced Capital Expenditures during such period  may not be less than zero.  “Unfunded Pension Liability” means, in respect of a Canadian Defined Benefit Plan, any solvency  deficiency or wind-up deficiency (as determined for the purposes of the Pension Benefits Act (Ontario) or  other equivalent provincial legislation), as identified in the most recent actuarial valuation report that has  been filed with the applicable pension regulator in respect of such Canadian Defined Benefit Plan.  “Unliquidated Obligations” means, at any time, any Secured Obligations (or portion thereof) that  are contingent in nature or unliquidated at such time, including any Secured Obligation that is: (i) an  obligation to reimburse a bank for drawings not yet made under a letter of credit issued by it; (ii) any other  obligation (including any guarantee) that is contingent in nature at such time; or (iii) an obligation to provide  collateral to secure any of the foregoing types of obligations.  “Unrestricted Subsidiary” means:   (1) any Subsidiary of the Company that at the time of determination shall be  designated an Unrestricted Subsidiary by the Board of Directors of the Company in the manner  provided below; and  (2) any Subsidiary of an Unrestricted Subsidiary.  The Company may designate any Subsidiary of the Company (including any newly acquired or  newly formed Subsidiary of the Company) to be an Unrestricted Subsidiary by written notice to the  Administrative Agent unless at the time of such designation such Subsidiary or any of its Subsidiaries owns  any Equity Interests or Indebtedness of, or owns or holds any Lien on any property of, the Company or any  other Restricted Subsidiary that is not a Subsidiary of the Subsidiary to be so designated, in each case at the  time of such designation; provided, however, that the Subsidiary to be so designated and its Subsidiaries  do not at the time of designation have and do not thereafter Incur any Indebtedness pursuant to which the  lender has recourse to any of the assets of the Company or any of the Restricted Subsidiaries unless  otherwise permitted under Section 6.02; provided, further, however, that either:  (a) the Subsidiary to be so designated has total consolidated assets of $1,000 or less;  or  (b) if such Subsidiary has consolidated assets greater than $1,000, then such  designation would be permitted under Section 6.02.  Notwithstanding the foregoing, no Unrestricted Subsidiary may own any Material Intellectual  Property unless such Material Intellectual Property is subject to a non-exclusive, irrevocable (until the  Obligations (other than contingent or indemnity obligations for which no claim has been made by the Person  entitled thereof) have been paid in full and all Commitments have terminated), royalty-free license of such  Material Intellectual Property and applications in favor of the Administrative Agent for use in connection  with the exercise of rights and remedies of the Secured Parties under the Loan Documents with respect to  the Collateral, which license shall be substantially similar to the license described in Section 8(c) of the  U.S. Security Agreement and Section 8(c) of the Canadian Security Agreement (or otherwise reasonably  satisfactory to the Administrative Agent).  The Company may designate any Unrestricted Subsidiary to be a Restricted Subsidiary by written  notice to the Administrative Agent; provided, however, that immediately after giving effect to such  designation, the Company shall be in Pro Forma Compliance with the Payment Conditions.  





 






DB1/ 127789195.7 63  As of the date hereof, no entity is an Unrestricted Subsidiary.  “Unused Commitment Fee Rate” means 0.25% per annum.  “U.S.” means the United States of America.  “U.S. Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of  ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which  Section 4975 of the Code applies, and (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”.  “U.S. Borrowers” means, individually and collectively as the context may require, the Company  and each U.S. Subsidiary Borrower.  “U.S. Borrowing Base” means:   (a) the product of (i) 90% multiplied by (ii) the Eligible Credit Card Accounts of the  U.S. Loan Parties at such time, plus  (b) the product of (i) 85% multiplied by (ii) the Eligible Trade Accounts of the U.S.  Loan Parties at such time, plus  (c) the product of (i) (x) during the Selected Months, 92.5%, and (y) at all other  times, 90% multiplied by (ii) the Net Orderly Liquidation Value percentage identified in the most  recent inventory appraisal ordered and received by the Administrative Agent multiplied by (iii) the  U.S. Loan Parties’ Eligible Inventory (other than Eligible LC Inventory, Eligible In-Transit  Inventory, and Eligible Consigned Inventory) at such time, valued at the lower of average cost or  market, determined utilizing the retail method, as appropriate, or such other method approved in  writing by the Administrative Agent at the request of the Borrower Representative, net of applicable  Inventory Reserves, plus  (d) the lesser of (i) the result of the product of (x) 90% multiplied by (y) the Net  Orderly Liquidation Value percentage identified in the most recent inventory appraisal ordered and  received by the Administrative Agent multiplied by (z) the U.S. Loan Parties’ Eligible In-Transit  Inventory and Eligible LC Inventory at such time, valued at the lower of average cost or market,  determined utilizing the retail method, as appropriate, or such other method approved in writing by  the Administrative Agent at the request of the Borrower Representative, net of applicable Inventory  Reserves, or (ii) 15% of the U.S. Inventory Availability, plus  (e) the product of (i) 90% multiplied by (ii) the Net Orderly Liquidation Value  percentage identified in the most recent inventory appraisal ordered and received by the  Administrative Agent multiplied by (iii) the U.S. Loan Parties’ Eligible Consigned Inventory at  such time, valued at the lower of average cost or market, determined utilizing the retail method, as  appropriate, or such other method approved in writing by the Administrative Agent at the request  of the Borrower Representative, net of applicable Inventory Reserves; provided, however, the  amount added to the U.S. Borrowing Base pursuant to this clause (e) shall not exceed the lesser of  (x) $30,000,000 and (y) the result of $30,000,000 minus the amount added to the Canadian  Borrowing Base at such time pursuant to clause (d) of the definition of Canadian Borrowing Base,  minus  





 






DB1/ 127789195.7 64  (f) applicable Reserves.  Subject to the provisions hereof expressly permitting the Administrative Agent to adjust Reserves, the U.S.  Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate  delivered to the Administrative Agent pursuant to Section 5.01(e) (or, prior to the first such delivery,  delivered to the Administrative Agent pursuant to Section 4.01(r)).  “U.S. Collateral” means any and all property owned, leased or operated by a U.S. Loan Party  covered by the Collateral Documents and any and all other property of any U.S. Loan Party, now existing  or hereafter acquired, that may at any time be or become subject to a security interest or Lien in favor of  the Administrative Agent to secure the Secured Obligations.  “U.S. Dollar” or “$” means the lawful money of the United States of America.   “U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday  or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed  income departments of its members be closed for the entire day for purposes of trading in United States  government securities.  “U.S. Guaranteed Obligations” has the meaning set forth in Section 10.01.  “U.S. Guarantor” means each Domestic Subsidiary of a Borrower that is listed on the signature  pages hereto as a Guarantor or that becomes a party hereto as a Guarantor pursuant to Section 5.14, in each  case, until such Subsidiary’s U.S. Guaranty is released in accordance herewith.  “U.S. Guaranty” means Article X of this Agreement.  “U.S. Inventory Availability” means the aggregate amount resulting from the calculation of clause  (c), plus clause (d)(i), plus clause (e) of the U.S. Borrowing Base.  “U.S. Loan Parties” means the U.S. Borrowers and the U.S. Guarantors.   “U.S. Obligated Party” has the meaning set forth in Section 10.02.  “U.S. Obligations” means, with respect to the U.S. Loan Parties, all unpaid principal of and accrued  and unpaid interest on the Loans to the U.S. Borrowers, all LC Exposure, all accrued and unpaid fees and  all expenses, reimbursements  (including pursuant to Section 2.06(a)), indemnities and other obligations of  the U.S. Loan Parties to the Lenders or to any Lender, the Administrative Agent, any Issuing Bank or any  indemnified party arising under the Loan Documents (including guarantee obligations and interest, costs,  fees and other amounts accruing during the pendency of any proceeding under any Insolvency Laws,  regardless of whether allowed or allowable in such proceeding) but, in each case, excluding any obligations  of the U.S. Parties in respect of the Canadian Obligations.  “U.S. Overadvance” means any Overadvance made to or for the benefit of a U.S. Borrower.  “U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the  Code.  “U.S. Protective Advance” means a Protective Advance made to, on behalf of or in respect of a  U.S. Borrower.  





 






DB1/ 127789195.7 65  “U.S. Revolving Exposure” means, with respect to any Lender at any time, the sum of (a) the  outstanding principal amount of such Lender’s U.S. Revolving Loans, LC Exposure and U.S. Swingline  Exposure at such time, plus (b) an amount equal to its Applicable Percentage of the aggregate principal  amount of U.S. Overadvances and U.S. Protective Advances outstanding at such time.  “U.S. Revolving Loan” means a Revolving Loan made by the Lenders to any U.S. Borrower.  “U.S. Secured Obligations” means all U.S. Obligations, together with all (a) Banking Services  Obligations of the U.S. Borrowers or any Restricted Subsidiary (other than a Canadian Loan Party) of a  U.S. Borrower; and (b) Swap Agreement Obligations of the U.S. Borrowers or any Restricted Subsidiary  (other than a Canadian Loan Party) of a U.S. Borrower owing to one or more Qualified Counterparties;  provided that Excluded Swap Obligations with respect to any Loan Party shall not be U.S. Secured  Obligations of such Loan Party.  “U.S. Security Agreement” means that certain Security Agreement, in form and substance  reasonably satisfactory to the Administrative Agent and the Lenders, dated as of the Closing Date, among  the U.S. Loan Parties and the Administrative Agent, and, as the context requires, any other pledge or  security agreement entered into, after the Closing Date by any other U.S. Loan Party (as required by this  Agreement or any other Loan Document), or any other Person, as the same may be amended, restated,  supplemented or otherwise modified from time to time.  “U.S. Special Resolution Regimes” has the meaning set forth in Section 9.29.  “U.S. Subsidiary Borrowers” means, collectively (i) each Domestic Subsidiary of the Company  that is a party to this Agreement as a “Borrower” on the date hereof and (ii) each Domestic Subsidiary of  the Company that becomes a party to this Agreement as a “Borrower” after the date hereof pursuant to  Section 5.14, in each case, until such time as such Domestic Subsidiary is released from its obligations  under the Loan Documents in accordance with this Agreement.  “U.S. Swingline Exposure” means, at any time, the sum of the aggregate principal amount of all  outstanding U.S. Swingline Loans at such time. The U.S. Swingline Exposure of any Lender at any time  shall be its Applicable Percentage of the total U.S. Swingline Exposure at such time.  “U.S. Swingline Loan” means a Swingline Loan made to a U.S. Borrower.  “U.S. Tax Compliance Certificate” has the meaning assigned to such term in  Section 2.17(f)(ii)(B)(3).  “USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate  Tools Required to Intercept and Obstruct Terrorism Act of 2001.  “Weighted Average Life to Maturity” means, when applied to any Indebtedness or Disqualified  Stock or Preferred Stock, as the case may be, at any date, the quotient obtained by dividing (1) the sum of  the products of the number of years from the date of determination to the date of each successive scheduled  principal payment of such Indebtedness or redemption or similar payment with respect to such Disqualified  Stock or Preferred Stock multiplied by the amount of such payment, by (2) the sum of all such payments.  “Wholly Owned Subsidiary” of any Person means a Restricted Subsidiary of such Person 100% of  the outstanding Equity Interests or other ownership interests of which (other than directors’ qualifying  shares or shares required pursuant to applicable Requirements of Law) shall at the time be owned by such  Person or by one or more Wholly Owned Subsidiaries of such Person.  





 






DB1/ 127789195.7 66  “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial  withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of  ERISA.  “Write-Down and Conversion Powers” means (a) 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 and (b) with respect to the United Kingdom, any powers  of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change  the form of a liability of any UK Financial Institution or any contract or instrument under which that liability  arises, to convert all or part of that liability into shares, securities or obligations of that person or any other  person, to provide that any such contract or instrument is to have effect as if a right had been exercised  under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In  Legislation that are related to or ancillary to any of those powers.  SECTION 1.02 Classification of Loans and Borrowings.  For purposes of this Agreement, Loans  and Borrowings may be classified and referred to by Class (e.g., a “U.S. Revolving Loan” or a “U.S.  Revolving Borrowing”) or by Type (e.g., a “SOFR Rate Loan” or a “Term SOFR Borrowing”) or by Class  and Type (e.g., a “Term SOFR U.S. Revolving Loan”).  SECTION 1.03 Terms Generally.  The definitions of terms herein shall apply equally to the  singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include  the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including”  shall be deemed to be followed by the phrase “without limitation”. The word “law” shall be construed as  referring to all statutes, rules, regulations, codes and other laws (including official rulings and  interpretations thereunder having the force of law or with which affected Persons customarily comply) and  all judgments, orders and decrees of all Governmental Authorities. The word “will” shall be construed to  have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any  definition of or reference to any agreement, instrument or other document herein shall be construed as  referring to such agreement, instrument or other document as from time to time amended, restated,  supplemented or otherwise modified (subject to any restrictions on such amendments, restatements,  supplements or modifications set forth herein or in the other Loan Documents), (b) any definition of or  reference to any statute, rule or regulation shall be construed as referring thereto as from time to time  amended, supplemented or otherwise modified (including by succession of comparable successor laws),  (c) any reference herein to any Person shall be construed to include such Person’s successors and assigns  (subject to any restrictions on assignments set forth herein) and, in the case of any Governmental Authority,  any other Governmental Authority that shall have succeeded to any or all functions thereof, (d) the words  “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this  Agreement in its entirety and not to any particular provision hereof, (e) all references herein to Articles,  Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and  Schedules to, this Agreement, (f) any reference in any definition to the phrase “at any time” or “for any  period” shall refer to the same time or period for all calculations or determinations within such definition,  and (g) the words “asset” and “property” shall be construed to have the same meaning and effect and to  refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and  contract rights.  For purposes of any Collateral located in the Province of Quebec or charged by any deed of  hypothec (or any other Loan Document) and for all other purposes pursuant to which the interpretation or  construction of a Loan Document may be subject to the laws of the Province of Quebec or a court or tribunal  exercising jurisdiction in the Province of Québec, (a) “priority” shall be deemed to include “rank” or “prior  claim”, as applicable, (b) “beneficial ownership” shall be deemed to include “ownership”, (c) “leasehold  





 






DB1/ 127789195.7 67  interest” shall be deemed to include “valid rights resulting from a lease”, (d) “lease” shall be deemed to  include a “lease” or a “contract of leasing (crédit-bail)”, as applicable, (e) “personal property” shall be  deemed to include “movable property”, (f) “real property” shall be deemed to include “immovable  property”, (g) “tangible property” shall be deemed to include “corporeal property”, (h) “intangible  property” shall be deemed to include “incorporeal property”, (i) “security interest”, “lien” and “mortgage”  shall be deemed to include a “hypothec”, “prior claim”, “reservation of ownership” and a “resolutory  clause”, as applicable, (j) all references to filing, registering or recording under the UCC or the PPSA shall  be deemed to include publication by registration under the Civil Code of Québec, (k) all references to  “perfection” of or “perfected” Liens shall be deemed to include a reference to the “opposability” of such  Liens to third parties, (l) any “right of offset”, “right of setoff” or similar expression shall be deemed to  include a “right of compensation”, (m) “goods” shall be deemed to include “corporeal movable property”  other than chattel paper, documents of title, instruments, money and securities, (n) an “agent” shall be  deemed to include a “mandatary”, and (o) “deposit account” shall be deemed to include a “financial  account” (within the meaning of Article 2713.6 of the Civil Code of Québec).  SECTION 1.04 Accounting Terms; GAAP.  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 after the date hereof there occurs (a) any change in GAAP or in the application  thereof on the operation of any provision hereof or (b) any change in the historical accounting practices,  systems or reserves relating to the components of the Borrowing Base that is adverse to the Lenders in any  material respect, and the Borrower Representative notifies the Administrative Agent that the Borrowers  request an amendment to any provision hereof to eliminate the effect of such change (or if the  Administrative Agent notifies the Borrower Representative that the Required Lenders request an  amendment to any provision hereof for such purpose), regardless of whether any such notice is given before  or after such change, then the provisions herein shall be interpreted on the basis of GAAP as in effect and  applied, or based on the historical accounting practices, systems or reserves in effect, in each case,  immediately before such change shall have become effective until such notice shall have been withdrawn  or such provision amended in accordance herewith, and the Borrower Representative, the Administrative  Agent and the Lenders agree to negotiate in good faith with respect to any proposed amendment to eliminate  or adjust for the effect of any such change. Notwithstanding any other provision contained herein, all terms  of an accounting or financial nature used herein shall be construed, and all computations of amounts and  ratios referred to herein shall be made (i) without giving effect to any election under Financial Accounting  Standards Board Accounting Standards Codification 825-10-25 (or any other Accounting Standards  Codification or Financial Accounting Standard having a similar result or effect or any successor thereto) to  value any Indebtedness or other liabilities of the Company or any Subsidiary at “fair value”, as defined  therein and (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt  instruments under Financial Accounting Standards Board 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.  SECTION 1.05 Rates.  Neither the Administrative Agent nor any Lender warrants or accepts  responsibility for, and neither the Administrative Agent nor any Lender shall have any liability with respect  to (a) the continuation of, administration of, submission of, calculation of or any other matter related to  Alternate Base Rate, the Term SOFR Reference Rate or Term SOFR, or any component definition thereof  or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto  (including any Benchmark Replacement), including whether the composition or characteristics of any such  alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or  produce the same value or economic equivalence of, or have the same volume or liquidity as, Alternate  Base Rate, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance  or unavailability, or (b) the effect, implementation or composition of any Conforming Changes.  The  





 






DB1/ 127789195.7 68  Administrative Agent, the Lenders and their respective affiliates or other related entities may engage in  transactions that affect the calculation of Alternate Base Rate, the Term SOFR Reference Rate, Term SOFR,  any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant  adjustments thereto, in each case, in a manner adverse to the Borrowers.  The Administrative Agent may  select information sources or services in its reasonable discretion to ascertain Alternate Base Rate, the Term  SOFR Reference Rate, Term SOFR or any other Benchmark or any component definition thereof or rates  referred to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no  liability to the Borrowers, any Lender or any other Person for damages of any kind, including direct or  indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort,  contract or otherwise and whether at law or in equity), for any error by, or any calculation of any such rate  (or component thereof) provided by, any such information source or service.  SECTION 1.06 Status of Obligations.  In the event that any Borrower or any other Loan Party shall  at any time issue or have outstanding any Subordinated Indebtedness, such Borrower shall take or cause  such other Loan Party to take all such actions as shall be necessary to cause the Secured Obligations to  constitute senior indebtedness (however denominated) in respect of such Subordinated Indebtedness and to  enable the Administrative Agent and the Lenders to have and exercise any payment blockage or other  remedies available or potentially available to holders of senior indebtedness under the terms of such  Subordinated Indebtedness, in each case, to the extent set forth in the applicable subordination agreement.  Without limiting the foregoing, the Secured Obligations are hereby designated as “senior indebtedness”  and as “designated senior indebtedness” and words of similar import under and in respect of any indenture  or other agreement or instrument under which such Subordinated Indebtedness is outstanding and are  further given all such other designations as shall be required under the terms of any such Subordinated  Indebtedness in order that the Lenders may have and exercise any payment blockage or other remedies  available or potentially available to holders of senior indebtedness under the terms of such Subordinated  Indebtedness, in each case, to the extent set forth in the applicable subordination agreement.  SECTION 1.07 Exchange Rates.  Without limiting the other terms of this Agreement, the  calculations and determinations under this Agreement of any amount in any currency other than U.S.  Dollars shall be deemed to refer to the Dollar Amount thereof, as the case may be, and all Borrowing Base  Certificates delivered under this Agreement shall express such calculations or determinations in U.S.  Dollars or the Dollar Amount thereof, as the case may be. Each requisite currency translation shall be based  on the Spot Rate.  SECTION 1.08 Divisions.  For all purposes under the Loan Documents, in connection with any  division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s  laws):  (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or  liability of a different Person, then it shall be deemed to have been transferred from the original Person to  the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed  to have been organized on the first date of its existence by the holders of its Equity Interests at such time.  ARTICLE II.  THE CREDITS  SECTION 2.01 Commitments.  Subject to the terms and conditions set forth herein, each Lender  severally agrees, from time to time during the Availability Period, to make U.S. Revolving Loans  denominated in U.S. Dollars to the U.S. Borrowers and Canadian Revolving Loans denominated in U.S.  Dollars to the Canadian Borrowers, in an aggregate principal amount that will not result in:  (i) such Lender’s Revolving Exposure exceeding such Lender’s Commitment;  





 






DB1/ 127789195.7 69  (ii) the Aggregate Credit Exposure exceeding the Aggregate Commitments;  (iii) the sum of (A) the Aggregate U.S. Revolving Exposure plus (B) the Canadian  Over-Usage Amount, exceeding the U.S. Borrowing Base;  (iv) the Aggregate Credit Exposure of all Lenders exceeding the Aggregate Borrowing  Base; or  (v) the Aggregate Canadian Revolving Exposure exceeding the Canadian Sublimit;  subject to the Administrative Agent’s authority, in its sole discretion, to make Protective Advances  and Overadvances pursuant to the terms of Sections 2.04 and 2.05. The limitations on Borrowings referred  to in clauses (i) through (v) are referred to collectively as the “Revolving Exposure Limitations.” Within  the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow,  prepay and reborrow Revolving Loans.  SECTION 2.02 Loans and Borrowings.  (a) Each Loan (other than a Swingline Loan) shall be made  as part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders ratably in  accordance with their respective 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; provided that the Commitments  of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans  as required. Any Protective Advance, any Overadvance and any Swingline Loan shall be made in  accordance with the procedures set forth in Sections 2.04 and 2.05.  (b) All Borrowings shall be denominated in U.S. Dollars. Subject to Section 2.14, each  Borrowing shall be comprised entirely of ABR Loans or SOFR Rate Loans as the Borrower Representative  may request in accordance herewith. Each Swingline Loan shall be an ABR Loan. Each Lender at its option  may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such  Loan (and in the case of an Affiliate, the provisions of Sections 2.14, 2.15, 2.16 and 2.17 shall apply to such  Affiliate to the same extent as to such Lender); provided, however, (i) the exercise of such option shall be  recorded in the Register in accordance with Section 9.04(b)(iv) and such Affiliate shall have provided the  tax forms required by 2.17(f) to the Administrative Agent, and (ii) any that any exercise of such option shall  not affect the obligation of the Borrowers to repay such Loan in accordance with the terms of this  Agreement.  (c) At the commencement of each Interest Period for any Term SOFR Borrowing, such  Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than  $5,000,000. At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in an  aggregate amount that is an integral multiple of $100,000 and not less than $1,000,000; provided that an  ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Aggregate  Commitments or that is required to finance the reimbursement of an LC Disbursement as contemplated by  Section 2.06(d).  Each Swingline Loan shall be in an amount that is an integral multiple of $100,000 and  not less than $1,000,000. Borrowings of more than one Type and Class may be outstanding at the same  time; provided that there shall not at any time be, collectively, more than a total of six (6) SOFR Rate Loans  outstanding.  (d) Notwithstanding any other provision of this Agreement, the Borrower Representative 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 Maturity Date.  





 






DB1/ 127789195.7 70  SECTION 2.03 Requests for Borrowings.  To request a Borrowing, the Borrower Representative  shall notify the Administrative Agent of such request in writing in a form approved by the Administrative  Agent and signed by the Borrower Representative not later than (a) in the case of a Term SOFR Borrowing,  1:00 p.m., New York time, three (3) U.S. Government Securities Business Days before the date of the  proposed Borrowing or (b) in the case of an ABR Borrowing (other than a Swingline Borrowing), 1:00 p.m.,  New York time, on the date of the proposed Borrowing; provided that any such notice of an ABR Revolving  Borrowing to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e) may  be given not later than 10:00 a.m., New York time, on the date of such proposed Borrowing. Each such  telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery,  facsimile, or emailed pdf to the Administrative Agent of a written Borrowing Request signed by the  Borrower Representative. Each such telephonic and written Borrowing Request shall specify the following  information in compliance with Section 2.02:  (i) the name of the applicable Borrower(s) and whether such Borrowing is a U.S.  Borrowing or Canadian Borrowing;  (ii) the aggregate amount of the requested Borrowing and a breakdown of the separate  wires comprising such Borrowing;  (iii) the date of such Borrowing, which shall be a Business Day;  (iv) the Type of such Borrowing; and  (v) in the case of a Term SOFR Borrowing, the initial Interest Period to be applicable  thereto, which shall be a period contemplated by the definition of the term “Interest Period.”  Any Borrowing Request that shall fail to specify any of the information required by the preceding  provisions of this paragraph may be rejected by the Administrative Agent if such failure is not corrected  promptly after the Administrative Agent shall give written or telephonic notice thereof to the Borrower  Representative and, if so rejected, will be of no force or effect. 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 Protective Advances.   (a) Subject to the limitations set forth below, after the Closing Date, the Administrative Agent  is authorized by the Borrowers and the Lenders, from time to time in the Administrative Agent’s sole  discretion (but shall have absolutely no obligation to), to make Loans to the U.S. Borrowers or the Canadian  Borrowers, as applicable, on behalf of all Lenders, which the Administrative Agent, in its Permitted  Discretion, deems necessary or desirable (i) to preserve or protect the applicable Collateral, or any portion  thereof, (ii) to enhance the likelihood of, or maximize the amount of, repayment of the applicable Loans  and other applicable Obligations, or (iii) to pay any other amount chargeable to or required to be paid by  the applicable Borrower pursuant to the terms of this Agreement, including payments of reimbursable  expenses (including costs, fees, and expenses as described in Section 9.03) and other sums payable under  the Loan Documents (any of such Loans are herein referred to as “Protective Advances”); provided that  (i) the aggregate principal amount of outstanding Protective Advances shall not, at any time, exceed (x) 5%  of the Aggregate Commitments then in effect or (y) when aggregated with the aggregate outstanding  principal amount of Overadvances, 10% of the Aggregate Commitments then in effect; provided further  that no Protective Advance shall be made if after giving effect thereto, any Lender’s Revolving Exposure  shall exceed such Lender’s Commitment. Protective Advances may be made even if the conditions  precedent set forth in Section 4.02 have not been satisfied.  Subject to Section 9.21, the Protective Advances  





 






DB1/ 127789195.7 71  shall be secured by the Liens in favor of the Administrative Agent in and to the applicable Collateral and  shall constitute U.S. Obligations or Canadian Obligations, as applicable, hereunder. All Protective  Advances shall be in U.S. Dollars and ABR Borrowings. The Administrative Agent’s authorization to make  Protective Advances may be revoked at any time by the Required Lenders. Any such revocation must be in  writing and shall become effective prospectively upon the Administrative Agent’s receipt thereof. At any  time the making of such Revolving Loan would not violate the Revolving Exposure Limitations and the  conditions precedent set forth in Section 4.02 have been satisfied, the Administrative Agent may request  the Lenders to make a Revolving Loan to repay a Protective Advance. At any other time the Administrative  Agent may require the Lenders to fund their risk participations described in Section 2.04(b).  (b) Upon the making of a Protective Advance by the Administrative Agent (whether before or  after the occurrence of a Default), each Lender shall be deemed, without further action by any party hereto,  to have unconditionally and irrevocably purchased from the Administrative Agent, without recourse or  warranty, an undivided interest and participation in such Protective Advance in proportion to its Applicable  Percentage. From and after the date, if any, on which any Lender is required to fund its participation in any  Protective Advance purchased hereunder, the Administrative Agent shall promptly distribute to such  Lender, such Lender’s Applicable Percentage of all payments of principal and interest and all proceeds of  Collateral (subject to Section 9.21) received by the Administrative Agent in respect of such Protective  Advance; provided that no Lender holding a Commitment shall be obligated in any event to make Revolving  Loans in an amount in excess of its Commitment minus its Applicable Percentage (taking into account any  reallocations under Section 2.20) of the LC Exposure of all outstanding Letters of Credit.  SECTION 2.05 Swingline Loans and Overadvances.  (a) The Administrative Agent, the Swingline Lender and the Lenders agree that in order to  facilitate the administration of this Agreement and the other Loan Documents, promptly after the Borrower  Representative requests an ABR Borrowing, the Swingline Lender may, at its election and option made in  its sole discretion cancelable at any time for any reason whatsoever, have the terms of this Section 2.05(a)  apply to such Borrowing Request by advancing, on behalf of the Lenders and in the amount requested,  same day funds to the applicable Borrowers, on the date of the applicable Borrowing to the applicable  Funding Account(s) (each such Loan made solely by the Swingline Lender pursuant to this Section 2.05(a)  is referred to in this Agreement as a “Swingline Loan”), with settlement among them as to the Swingline  Loans to take place on a periodic basis as set forth in Section 2.05(d). Each Swingline Loan shall be subject  to all the terms and conditions applicable to other ABR Loans funded by the Lenders, except that all  payments thereon shall be payable to the Swingline Lender solely for its own account. The aggregate Dollar  Amount of Swingline Loans outstanding at any time (a) drawn under the U.S. Borrowing Base, shall not  exceed $55,000,000 and (b) drawn under the Canadian Borrowing Base, shall not exceed $5,500,000.  The  Swingline Lender shall not make any Swingline Loan if, after giving effect thereto, the Borrowers would  not be in compliance with the Revolving Exposure Limitations. All Swingline Loans shall be ABR  Borrowings in U.S. Dollars.  Swingline Lender’s agreement to make Swingline Loans under this Agreement  is cancelable at any time for any reason whatsoever and the making of Swingline Loans by Swingline  Lender from time to time shall not create any duty or obligation, or establish any course of conduct, pursuant  to which Swingline Lender shall thereafter be obligated to make Swingline Loans in the future.  (b) Any provision of this Agreement to the contrary notwithstanding, at the request of the  Borrower Representative, the Administrative Agent may in its sole discretion (but with absolutely no  obligation), make Revolving Loans to the Borrowers, on behalf of the Lenders, in amounts that exceed  Availability (any such excess Revolving Loans are herein referred to collectively as “Overadvances”);  provided that, no Overadvance shall result in a Default due to the Borrowers’ failure to comply with Section  2.01 for so long as such Overadvance remains outstanding in accordance with the terms of this paragraph,  but solely with respect to the amount of such Overadvance; provided, further that the aggregate amount of  





 






DB1/ 127789195.7 72  outstanding Overadvances shall not, at any time, exceed (x) 5% of the Aggregate Commitments then in  effect or (y) when aggregated with the aggregate outstanding amount of Protective Advances then  outstanding, 10% of the Aggregate Commitments then in effect; provided further that no Overadvance shall  be made if after giving effect thereto, any Lender’s Revolving Exposure shall exceed such Lender’s  Commitment. Overadvances may be made even if the condition precedent set forth in Section 4.02(c) has  not been satisfied. All Overadvances shall be in U.S. Dollars and ABR Borrowings. The applicable  Borrowers shall be required to repay each Overadvance no later than the 30th day after the date of the  making thereof. The Administrative Agent’s authorization to make Overadvances may be revoked at any  time by the Required Lenders. Any such revocation must be in writing and shall become effective  prospectively upon the Administrative Agent’s receipt thereof.  (c) Upon the making of a Swingline Loan or an Overadvance (whether before or after the  occurrence of a Default and regardless of whether a Settlement has been requested with respect to such  Swingline Loan or Overadvance), each Lender shall be deemed, without further action by any party hereto,  to have unconditionally and irrevocably purchased from the Swingline Lender or the Administrative Agent,  as the case may be, without recourse or warranty, an undivided interest and participation in such Swingline  Loan or Overadvance in proportion to its Applicable Percentage of the Commitment. The Swingline Lender  or the Administrative Agent may, at any time, require the Lenders to fund their participations. From and  after the date, if any, on which any Lender is required to fund its participation in any Swingline Loan or  Overadvance purchased hereunder, the Administrative Agent shall promptly distribute to such Lender, such  Lender’s Applicable Percentage of all payments of principal and interest and all proceeds of Collateral  (subject to Section 9.21) received by the Administrative Agent in respect of such Loan; provided that no  Lender holding a Commitment shall be obligated in any event to make Revolving Loans in an amount in  excess of its Commitment minus its Applicable Percentage (taking into account any reallocations under  Section 2.20) of the LC Exposure of all outstanding Letters of Credit.  (d) The Administrative Agent, on behalf of the Swingline Lender, shall request settlement (a  “Settlement”) with the Lenders on at least a weekly basis or on any date that the Administrative Agent  elects or that Swingline Lender at its own option exercisable for any reason may request, by notifying the  Lenders of such requested Settlement by facsimile, telephone, or electronic transmission no later than 3:00  p.m. on the date of such requested Settlement (the “Settlement Date”). Each Lender (other than the  Swingline Lender, in the case of the Swingline Loans) shall transfer the amount of such Lender’s Applicable  Percentage of the outstanding principal amount of the applicable Loan (plus interest accrued thereon to the  extent requested by Administrative Agent) with respect to which Settlement is requested to the  Administrative Agent, to such account of the Administrative Agent as the Administrative Agent may  designate, not later than 5:00 p.m. on such Settlement Date if requested by 3:00 p.m., otherwise not later  than 5:00 p.m. the next Business Day. Settlements may occur during the existence of a Default and whether  or not the applicable conditions precedent set forth in Section 4.02 have then been satisfied or the  Commitments have otherwise been terminated. Such amounts transferred to the Administrative Agent shall  be applied against the amounts of the Swingline Lender’s Swingline Loans and, together with Swingline  Lender’s Applicable Percentage of such Swingline Loan, shall constitute Revolving Loans of such Lenders,  respectively. If any such amount is not transferred to the Administrative Agent by any Lender on such  Settlement Date, the Swingline Lender shall be entitled to recover from such Lender on demand such  amount, together with interest thereon, as specified in Section 2.07.  SECTION 2.06 Letters of Credit.  (a) General.  Subject to the terms and conditions hereof, on and after the Closing Date, an  Issuing Bank shall issue or cause the issuance of standby and/or commercial letters of credit denominated  in U.S. Dollars (“Letters of Credit”) for the account of any U.S. Borrower, either for its support or the  support of any of its Restricted Subsidiaries’ obligations, so long as, after the issuance thereof, (i) the LC  





 






DB1/ 127789195.7 73  Exposure shall not exceed $75,000,000, (ii) LC Exposure of any Issuing Bank shall not exceed such Issuing  Bank’s LC Individual Sublimit, and (iii) the Borrowers will be in compliance with the Revolving Exposure  Limitations.  All disbursements or payments related to Letters of Credit shall be deemed to be U.S.  Revolving Loans and shall bear interest at the Applicable Rate for ABR Loans.  Letters of Credit that have  not been drawn upon shall not bear interest (but fees shall accrue in respect of outstanding Letters of Credit  as provided in Section 2.12(b) hereof). Notwithstanding any other provision of this Agreement, no Issuing  Bank shall be under any obligation to issue any Letter of Credit if (i) any order, judgment or decree of any  Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from  issuing any Letter of Credit, or any law applicable to the Issuing Bank or any request or directive (whether  or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank  shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or the  Letter of Credit in particular or shall impose upon the Issuing Bank with respect to the Letter of Credit any  restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated  hereunder) not in effect on the date of this Agreement, or shall impose upon the Issuing Bank any  unreimbursed loss, cost or expense which was not applicable on the date of this Agreement, and which the  Issuing Bank in good faith deems material to it, or (ii) the issuance of the Letter of Credit would violate one  or more policies of the Issuing Bank applicable to letters of credit generally. Each U.S. Borrower  unconditionally and irrevocably agrees that, in connection with any Letter of Credit issued for the support  of any Restricted Subsidiary’s obligations as provided in the first sentence of this paragraph, such Borrower  will be fully responsible for the reimbursement of LC Disbursements in accordance with the terms hereof,  the payment of interest thereon and the payment of fees due under this Agreement to the same extent as if  it were the sole account party in respect of such Letter of Credit (such Borrower hereby irrevocably waiving  any defenses that might otherwise be available to it as a guarantor or surety of the obligations of such  Restricted Subsidiary that is an account party in respect of any such Letter of Credit). (b) Issuance of Letters of Credit.  (i) The Borrower Representative, on behalf of any U.S. Borrower, either for the  support of any obligations of any U.S. Borrower’s or any Restricted Subsidiary thereof, may request  an Issuing Bank to issue or cause the issuance, amendment, or extension of a Letter of Credit by  delivering to the Issuing Bank, with a copy to Administrative Agent at the Payment Office, prior  to 12:00 p.m., at least five (5) Business Days prior to the proposed date of issuance, amendment,  or extension (or such shorter period as may be agreed to by the Issuing Bank and Administrative  Agent), such Issuing Bank’s form of Letter of Credit Application (the “Letter of Credit  Application”) completed to the satisfaction of Administrative Agent and the Issuing Bank (which  shall include, among other things, the amount of such Letter of Credit); and, such other certificates,  documents and other papers and information as Administrative Agent or the Issuing Bank may  reasonably request.  No Issuing Bank shall issue any requested Letter of Credit if such Issuing Bank  has received notice at least one day prior to the requested date of issuance, amendment or extension  of the applicable Letter of Credit, from Administrative Agent or any Lender that one or more of the  applicable conditions set forth in Section 4.02 of this Agreement have not been satisfied or the  commitments of Lenders to make Revolving Loans hereunder have been terminated for any reason.  (ii) Each Letter of Credit shall, among other things, (i) provide for the payment of sight  drafts, other written demands for payment, or acceptances of usance drafts when presented for  honor thereunder in accordance with the terms thereof and when accompanied by the documents  described therein and (ii) have an expiry date not later than twelve (12) months after such Letter of  Credit’s date of issuance, provided that a Letter of Credit may include a provision for the automatic  extension of the Letter of Credit, but in no event expire later than five (5) Business Days prior to  the Maturity Date (except that a Letter of Credit may expire up to one year beyond the Maturity  Date if such Letter of Credit has been Cash Collateralized on or prior to date of issuance thereof).   





 






DB1/ 127789195.7 74  Each standby Letter of Credit shall be subject either to the Uniform Customs and Practice for  Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600,  (the “UCP”) or the International Standby Practices (International Chamber of Commerce  Publication Number 590) (the “ISP”), or any subsequent revision thereof at the time a standby  Letter of Credit is issued, as determined by Issuing Bank, and each commercial Letter of Credit  shall be subject to the UCP. In addition, no commercial Letter of Credit may permit the presentation  of an ocean bill of lading that includes a condition that the original bill of lading is not required to  claim the goods shipped thereunder. (iii) Administrative Agent shall use its reasonable efforts to notify Lenders of the  request by the Borrower Representative for a Letter of Credit hereunder. (c) Requirements For Issuance of Letters of Credit. (i) The Borrower Representative shall authorize and direct any Issuing Bank to name  the applicable U.S. Borrower as the “Applicant” or “Account Party” of each Letter of Credit.  If  Administrative Agent is not the Issuing Bank of any Letter of Credit, the Borrower Representative  shall authorize and direct the applicable Issuing Bank to deliver to Administrative Agent all  instruments, documents, and other writings and property received by such Issuing Bank pursuant  to the Letter of Credit and to accept and rely upon Administrative Agent’s instructions and  agreements with respect to all matters arising in connection with the Letter of Credit, and the  application therefor. (ii) In connection with all commercial Letters of Credit issued or caused to be issued  by an Issuing Bank under this Agreement, each U.S. Borrower hereby appoints the Issuing Bank,  or its designee, as its attorney, with full power and authority if an Event of Default shall have  occurred and for as long as such Event of Default is continuing: (i) to sign and/or endorse such  Borrower’s name upon any warehouse or other receipts, and acceptances; (ii) to sign such  Borrower’s name on bills of lading; (iii) to clear Inventory through the United States of America  Customs Department (“Customs”) in the name of such Borrower or Issuing Bank or Issuing Bank’s  designee, and to sign and deliver to Customs officials powers of attorney in the name of such  Borrower for such purpose; and (iv) to complete in such Borrower’s name or Issuing Bank’s, or in  the name of Issuing Bank’s designee, any order, sale or transaction, obtain the necessary documents  in connection therewith, and collect the proceeds thereof.  Neither Administrative Agent, Issuing  Bank nor their attorneys will be liable for any acts or omissions nor for any error of judgment or  mistakes of fact or law taken in accordance with this Section 2.06, except for Administrative  Agent’s, Issuing Bank’s or their respective attorney’s gross negligence or willful misconduct (as  determined by a court of competent jurisdiction in a final non-appealable judgment).  This power,  being coupled with an interest, is irrevocable as long as any Letters of Credit remain outstanding. (d) Disbursements, Reimbursement. (i) Immediately upon the issuance of each Letter of Credit, each Lender shall be  deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Issuing Bank  a participation in such Letter of Credit and each drawing thereunder in an amount equal to such  Lender’s Applicable Percentage of the LC Exposure (as in effect from time to time) and the amount  of such drawing, respectively. (ii) In the event of any request for a drawing under a Letter of Credit by the beneficiary  or transferee thereof, the Issuing Bank will promptly notify Administrative Agent and the Borrower  Representative.  Regardless of whether the Borrower Representative shall have received such  





 






DB1/ 127789195.7 75  notice, U.S. Borrowers shall reimburse (such obligation to reimburse Issuing Bank shall sometimes  be referred to as a “Reimbursement Obligation”) Issuing Bank prior to 1:00 p.m., New York time,  on each date that an amount is paid by Issuing Bank under any Letter of Credit (each such date, a  “Drawing Date”) in an amount equal to such LC Disbursement so paid by the Issuing Bank.  In the  event the U.S. Borrowers fail to reimburse Issuing Bank for the full amount of any drawing under  any Letter of Credit by 1:00 p.m., New York time, on the Drawing Date, Issuing Bank will promptly  notify Administrative Agent and each Lender holding a Commitment thereof, and U.S. Borrowers  shall be automatically deemed to have requested that a U.S. Revolving Loan in an amount equal to  such payment to be maintained as an ABR Loan be made by Lenders to be disbursed on the  Drawing Date under such Letter of Credit, and Lenders holding the Commitments shall be  unconditionally obligated to fund such Revolving Loan (all whether or not the conditions specified  in Section 4.02 are then satisfied or the commitments of Lenders to make Revolving Loans  hereunder have been terminated for any reason) as provided for in Section 2.06(d)(iii) below.  Any  notice given by Issuing Bank pursuant to this Section 2.06(d)(ii) may be oral if promptly confirmed  in writing; provided that the lack of such a confirmation shall not affect the conclusiveness or  binding effect of such notice. (iii) Each Lender holding a Commitment shall upon any notice pursuant to Section  2.06(d)(ii) make available to Issuing Bank through Administrative Agent at the Payment Office an  amount in immediately available funds equal to its Applicable Percentage (subject to any contrary  provisions of Section 2.20) of the amount of the drawing, whereupon the participating Lenders  shall (subject to Section 2.06(d)(iv)) each be deemed to have made a U.S. Revolving Loan  maintained as an ABR Loan to U.S. Borrowers in that amount.  If any Lender holding a  Commitment so notified fails to make available to Administrative Agent, for the benefit of Issuing  Bank, the amount of such Lender’s Applicable Percentage of such amount by 2:00 p.m. on the  Drawing Date, then interest shall accrue on such Lender’s obligation to make such payment, from  the Drawing Date to the date on which such Lender makes such payment (1) at a rate per annum  equal to the Fed Funds Rate during the first three (3) days following the Drawing Date and (2) at a  rate per annum equal to the rate applicable to U.S. Revolving Loans maintained as an ABR Loan  on and after the fourth day following the Drawing Date.  Administrative Agent and Issuing Bank  will promptly give notice of the occurrence of the Drawing Date, but failure of Administrative  Agent or Issuing Bank to give any such notice on the Drawing Date or in sufficient time to enable  any Lender holding a Commitment to effect such payment on such date shall not relieve such  Lender from its obligations under this Section 2.06(d)(iii), provided that such Lender shall not be  obligated to pay interest as provided in Section 2.06(d)(iii)(1) and (2) until and commencing from  the date of receipt of notice from Administrative Agent or Issuing Bank of a drawing. (iv) With respect to any unreimbursed drawing that is not converted into a U.S.  Revolving Loan maintained as an ABR Loan to U.S. Borrowers in whole or in part as contemplated  by Section 2.06(d)(ii), for any reason, U.S. Borrowers shall be deemed to have incurred from  Administrative Agent a borrowing (each a “Letter of Credit Borrowing”) in the amount of such  drawing.  Such Letter of Credit Borrowing shall be due and payable on demand (together with  interest) and shall bear interest at the rate per annum applicable to a U.S. Revolving Loan  maintained as an ABR Loan.  Each applicable Lender’s payment to Administrative Agent pursuant  to Section 2.06(d)(iii) shall be deemed to be a payment in respect of its participation in such Letter  of Credit Borrowing and shall constitute a “Participation Advance” from such Lender in satisfaction  of its obligation to participate in respect of the applicable Letter of Credit under this Section 2.06(d). (v) Each applicable Lender’s obligations hereunder to participate in respect of the  Letters of Credit shall continue until the last to occur of any of the following events: (x) Issuing  Bank ceases to be obligated to issue or cause to be issued Letters of Credit hereunder; (y) no Letter  





 






DB1/ 127789195.7 76  of Credit issued or created hereunder remains outstanding and uncancelled; and (z) all Persons  (other than U.S. Borrowers) have been fully reimbursed for all payments made under or relating to  Letters of Credit. (e) Repayment of Participation Advances.  Upon (and only upon) receipt by Administrative  Agent for the account of Issuing Bank of immediately available funds from U.S. Borrowers (i) in  reimbursement of any payment made by Issuing Bank or Administrative Agent under the Letter of Credit  with respect to which any Lender has made a Participation Advance to Administrative Agent, or (ii) in  payment of interest on such a payment made by Issuing Bank or Administrative Agent under such a Letter  of Credit, Administrative Agent will pay to each Lender holding a Commitment, in the same funds as those  received by Administrative Agent, the amount of such Lender’s Applicable Percentage of such funds,  except Administrative Agent shall retain the amount of the Applicable Percentage of such funds of any  Lender holding a Commitment that did not make a Participation Advance in respect of such payment by  Administrative Agent (and, to the extent that any of the other Lender(s) holding the Commitment have  funded any portion of such Defaulting Lender’s Participation Advance in accordance with the provisions  of Section 2.20, Administrative Agent will pay over to such non-Defaulting Lenders a pro rata portion of  the funds so withheld from such Defaulting Lender).  If Issuing Bank or Administrative Agent is required  at any time to return to any such Borrower, or to a trustee, receiver, liquidator, custodian, or any official in  any insolvency proceeding, any portion of the payments made by such Borrowers to Issuing Bank or  Administrative Agent pursuant to Section 2.06(e) in reimbursement of a payment made under the Letter of  Credit or interest or fee thereon, each applicable Lender shall, on demand of Administrative Agent,  forthwith return to Issuing Bank or Administrative Agent the amount of its Applicable Percentage of any  amounts so returned by Issuing Bank or Administrative Agent plus interest at the Fed Funds Rate. (f) Documentation.  Each U.S. Borrower agrees to be bound by the terms of the Letter of  Credit Application and by Issuing Bank’s interpretations of any Letter of Credit issued on behalf of such  U.S. Borrower and by Issuing Bank’s written regulations and customary practices relating to letters of  credit, though Issuing Bank’s interpretations may be different from such Borrower’s own.  In the event of  a conflict between the Letter of Credit Application and this Agreement, this Agreement shall govern.  It is  understood and agreed that, except in the case of gross negligence or willful misconduct (as determined by  a court of competent jurisdiction in a final non-appealable judgment), Issuing Bank shall not be liable for  any error, negligence and/or mistakes, whether of omission or commission, in following the Borrower  Representative’s or any Borrower’s instructions or those contained in the Letters of Credit or any  modifications, amendments or supplements thereto. (g) Determination to Honor Drawing Request.  In determining whether to honor any request  for drawing under any Letter of Credit by the beneficiary thereof, Issuing Bank shall be responsible only to  determine that the documents and certificates required to be delivered under such Letter of Credit have been  delivered and that they comply on their face with the requirements of such Letter of Credit and that any  other drawing condition appearing on the face of such Letter of Credit has been satisfied in the manner so  set forth. (h) Nature of Participation and Reimbursement Obligations.  The obligation of each Lender  holding a Commitment in accordance with this Agreement to make the Revolving Loans or Participation  Advance as a result of a drawing under a Letter of Credit, and the obligations of U.S. Borrowers to  reimburse Issuing Bank upon a draw under a Letter of Credit, shall be absolute, unconditional and  irrevocable, and shall be performed strictly in accordance with the terms of this Section 2.06(h) under all  circumstances, including the following circumstances: 





 






DB1/ 127789195.7 77  (i) any set-off, counterclaim, recoupment, defense or other right which such Lender  or any Borrower, as the case may be, may have against Issuing Bank, Administrative Agent, any  Borrower or Lender, as the case may be, or any other Person for any reason whatsoever;  (ii) the failure of any U.S. Borrower or any other Person to comply, in connection with  a Letter of Credit Borrowing, with the conditions set forth in this Agreement for the making of a  Revolving Loan, it being acknowledged that such conditions are not required for the making of a  Letter of Credit Borrowing and the obligation of Lenders to make Participation Advances under  Section 2.06(d);  (iii) any lack of validity or enforceability of any Letter of Credit;  (iv) any claim of breach of warranty that might be made by any Borrower,  Administrative Agent, Issuing Bank or any Lender against the beneficiary of a Letter of Credit, or  the existence of any claim, set-off, recoupment, counterclaim, cross-claim, defense or other right  which any Borrower, Administrative Agent, Issuing Bank or any Lender may have at any time  against a beneficiary, any successor beneficiary or any transferee of any Letter of Credit or assignee  of the proceeds thereof (or any Persons for whom any such transferee or assignee may be acting),  Issuing Bank, Administrative Agent or any Lender or any other Person, whether in connection with  this Agreement, the transactions contemplated herein or any unrelated transaction (including any  underlying transaction between any Borrower or any Restricted Subsidiaries of such Borrower and  the beneficiary for which any Letter of Credit was procured);  (v) the lack of power or authority of any signer of (or any defect in or forgery of any  signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy, enforceability  or genuineness of any draft, demand, instrument, certificate or other document presented under or  in connection with any Letter of Credit, or any fraud or alleged fraud in connection with any Letter  of Credit, or the transport of any property or provision of services relating to a Letter of Credit, in  each case even if Issuing Bank or any of Issuing Bank’s Affiliates has been notified thereof;  (vi) payment by Issuing Bank under any Letter of Credit against presentation of a  demand, draft or certificate or other document which is forged or does not fully comply with the  terms of such Letter of Credit (provided that the foregoing shall not excuse Issuing Bank from any  obligation under the terms of any applicable Letter of Credit to require the presentation of  documents that on their face appear to satisfy any applicable requirements for drawing under such  Letter of Credit prior to honoring or paying any such draw);  (vii) the solvency of, or any acts or omissions by, any beneficiary of any Letter of  Credit, or any other Person having a role in any transaction or obligation relating to a Letter of  Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any  property or services relating to a Letter of Credit;  (viii) any failure by Issuing Bank or any of Issuing Bank’s Affiliates to issue any Letter  of Credit in the form requested by the Borrower Representative, unless Administrative Agent and  Issuing Bank have each received written notice from the Borrower Representative of such failure  within six (6) Business Days after Issuing Bank shall have furnished Administrative Agent and the  Borrower Representative a copy of such Letter of Credit and such error is material and no drawing  has been made thereon prior to receipt of such notice;  (ix) the occurrence of any Material Adverse Effect;  





 






DB1/ 127789195.7 78  (x) any breach of this Agreement or any other Loan Document by any party thereto;  (xi) the occurrence or continuance of an insolvency proceeding with respect to any  Borrower or any Guarantor;  (xii) the fact that a Default or an Event of Default shall have occurred and be continuing;  (xiii) the fact that it may be past the Maturity Date, or the fact that this Agreement or the  obligations of Lenders to make Revolving Loans have been terminated; and  (xiv) any other circumstance or happening whatsoever, whether or not similar to any of  the foregoing.  (i) Liability for Acts and Omissions.   (i) As between U.S. Borrowers and Issuing Bank, Swingline Lender, Administrative  Agent and Lenders, each U.S. Borrower assumes all risks of the acts and omissions of, or misuse  of the Letters of Credit by, the respective beneficiaries of such Letters of Credit.  In furtherance  and not in limitation of the foregoing, Issuing Bank shall not be responsible for: (i) the form,  validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party  in connection with the application for an issuance of any such Letter of Credit, even if it should in  fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if  Issuing Bank or any of its Affiliates shall have been notified thereof); (ii) the validity or sufficiency  of any instrument transferring or assigning or purporting to transfer or assign any such Letter of  Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove  to be invalid or ineffective for any reason; (iii) the failure of the beneficiary of any such Letter of  Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with  any conditions required in order to draw upon such Letter of Credit or any other claim of any  Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any dispute  between or among any Borrower and any beneficiary of any Letter of Credit or any such transferee;  (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail,  cable, facsimile, telex or otherwise, whether or not they be in cipher; (v) errors in interpretation of  technical terms; (vi) any loss or delay in the transmission or otherwise of any document required  in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the  misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under  such Letter of Credit; or (viii) any consequences arising from causes beyond the control of Issuing  Bank, including any act or omission, whether rightful or wrongful, of any present or future de jure  or de facto Governmental Authority, and none of the above shall affect or impair, or prevent the  vesting of, any of Issuing Bank’s rights or powers hereunder.  Nothing in the preceding sentence  shall relieve Issuing Bank from liability for Issuing Bank’s gross negligence or willful misconduct  (as determined by a court of competent jurisdiction in a final non-appealable judgment) in  connection with actions or omissions described in such clauses (i) through (viii) of such sentence.   In no event shall Issuing Bank or Issuing Bank’s Affiliates be liable to any Borrower for any  indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including  without limitation attorneys’ fees), or for any damages resulting from any change in the value of  any property relating to a Letter of Credit. (ii) Without limiting the generality of the foregoing, Issuing Bank and each of its  Affiliates:  (i) may rely on any oral or other communication believed in good faith by Issuing Bank  or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of  Credit; (ii) may honor any presentation if the documents presented appear on their face  





 






DB1/ 127789195.7 79  substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may  honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was  pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise,  and shall be entitled to reimbursement to the same extent as if such presentation had initially been  honored, together with any interest paid by Issuing Bank or its Affiliates; (iv) may honor any  drawing that is payable upon presentation of a statement advising negotiation or payment, upon  receipt of such statement (even if such statement indicates that a draft or other document is being  delivered separately), and shall not be liable for any failure of any such draft or other document to  arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or  negotiating bank claiming that it rightfully honored under the laws or practices of the place where  such bank is located; and (vi) may settle or adjust any claim or demand made on Issuing Bank or  its Affiliate in any way related to any order issued at the applicant’s request to an air carrier, a letter  of guarantee or of indemnity issued to a steamship agent or carrier or any document or instrument  of like import (each an “Order”) and honor any drawing in connection with any Letter of Credit  that is the subject of such Order, notwithstanding that any drafts or other documents presented in  connection with such Letter of Credit fail to conform in any way with such Letter of Credit.  (iii) In furtherance and extension and not in limitation of the specific provisions set  forth above, any action taken or omitted by Issuing Bank under or in connection with the Letters  of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in  good faith and without gross negligence or willful misconduct (as determined by a court of  competent jurisdiction in a final non-appealable judgment), shall not put Issuing Bank under any  resulting liability to any Borrower, Administrative Agent or any Lender.  (j) Cash Collateral. If any Event of Default shall occur and be continuing, or if any Letter of  Credit remains outstanding after five (5) Business Days prior to the Maturity Date, then on the Business  Day that the Borrower Representative receives notice from the Administrative Agent or the Required  Lenders demanding the deposit of cash collateral pursuant to this paragraph, the U.S. Borrowers shall Cash  Collateralize all Letters of Credit; provided that the obligation to Cash Collateralize all Letters of Credit  shall become effective immediately, without demand or other notice of any kind, upon the occurrence of  any Event of Default with respect to any Borrower described in clause (e) of Article VII. For the purposes  of this Agreement, “Cash Collateralize” shall mean, with respect to any Letter of Credit, the deposit in U.S.  Dollars in an account with the Administrative Agent, in the name of the Administrative Agent and for the  benefit of the Lenders (the “LC Collateral Account”), an amount in cash equal to 105% of the amount of  the LC Exposure in respect of such Letter of Credit issued and outstanding on such date plus accrued and  unpaid interest thereon. Such deposit shall be held by the Administrative Agent as collateral for the payment  and performance of the Secured Obligations. The Administrative Agent shall have exclusive dominion and  control, including the exclusive right of withdrawal, over the LC Collateral Account and the U.S. Borrowers  hereby grant the Administrative Agent a security interest in the LC Collateral Account. Other than any  interest earned on the investment of such deposits, which investments shall be made at the option and sole  discretion of the Administrative Agent and at the U.S. Borrowers’ risk and expense, such deposits shall not  bear interest. Interest or profits, if any, on such investments shall accumulate in the LC Collateral Account.  Moneys in the LC Collateral Account shall be applied by the Administrative Agent to reimburse the Issuing  Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be  held for the satisfaction of the reimbursement obligations of the U.S. Borrowers for the LC Exposure at  such time or, if the maturity of the Loans has been accelerated (but subject to the consent of the Required  Lenders), be applied to satisfy other Secured Obligations. If the U.S. Borrowers are required to Cash  Collateralize Letters of Credit solely as a result of the occurrence of an Event of Default, the cash collateral  (to the extent not applied as aforesaid) shall be returned to the U.S. Borrowers within three (3) Business  Days after all such Events of Default have been waived as confirmed in writing by the Administrative  Agent.  In each case, the U.S. Borrowers hereby irrevocably authorize the Administrative Agent, in its sole  





 






DB1/ 127789195.7 80  discretion, on the U.S. Borrowers’ behalf and in any U.S. Borrowers’ name, to open the LC Collateral  Account and to make and maintain deposits in such account or in an account opened by a U.S. Borrower,  in any amount required to be made by the U.S. Borrowers, out of the proceeds of Collateral, from a  Borrowing, or out of any other funds of the U.S. Borrowers coming into the Administrative Agent’s or any  Lender’s possession at any time.  Any net return on such cash or investments shall be credited to such  account and constitute additional cash collateral.  No Borrower may withdraw any amount credited to any  such account except as expressly set forth above.  (k) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or  outstanding hereunder is in support of any obligations of, or is for the account of, a Restricted Subsidiary,  the U.S. Borrowers shall be obligated to reimburse the applicable Issuing Bank hereunder for any and all  drawings under such Letter of Credit. Each U.S. Borrower hereby acknowledges that the issuance of Letters  of Credit requested by such U.S. Borrower for the account of Restricted Subsidiaries inures to the benefit  of such U.S. Borrower, and that such U.S. Borrower’s business derives substantial benefits from the  businesses of such Restricted Subsidiaries.  (l) Existing Letters of Credit. Each Existing Letter of Credit shall be deemed to be a Letter of  Credit issued for the account of the U.S. Borrowers on the Closing Date for all purposes hereof and of the  other Loan Documents (whether or not a U.S. Borrower was the applicant with respect thereto or otherwise  responsible for reimbursement obligations with respect thereto prior to the Closing Date), and no issuance  or similar fees (as distinguished from ongoing participation or fronting fees) will be required in connection  with the deemed issuance of the Existing Letters of Credit on the Closing Date.  SECTION 2.07 Funding of Borrowings.  (a) Each Lender shall make each Loan to be made by such Lender hereunder on the proposed  date thereof by wire transfer of immediately available funds by 3:00 p.m., New York time, to the account  of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders in an  amount equal to such Lender’s Applicable Percentage. The Administrative Agent will make such Loans  available to the applicable Borrower by promptly crediting the amounts so received, in like funds, to the  applicable Funding Account; provided that ABR Loans made to finance the reimbursement of (i) an LC  Disbursement as provided in Section 2.06(d) shall be remitted by the Administrative Agent to the applicable  Issuing Bank and (ii) a Protective Advance shall be retained by the Administrative Agent.  (b) Unless the Administrative Agent shall have received notice from a Lender prior to the  proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such  Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such  share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon  such assumption, make available to the applicable Borrower a corresponding amount. In such event, if a  Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent,  then the applicable Lender and the applicable Borrowers severally agree to pay to the Administrative Agent  forthwith on demand such corresponding amount with interest thereon, for each day from and including the  date such amount is made available to the applicable Borrower to but excluding the date of payment to the  Administrative Agent, at (i) in the case of such Lender, the rate reasonably determined by the  Administrative Agent to be the cost to it of funding such amount or (ii) in the case of the Borrowers, the  interest rate applicable to ABR Loans.  If such Lender does not pay such amount forthwith upon the  Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the  applicable Borrower, and the applicable Borrower shall pay such interest at the interest rate applicable to  ABR Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall  constitute such Lender’s Loan included in such Borrowing.  Any payment by the applicable Borrower shall  





 






DB1/ 127789195.7 81  be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make  such payment to the Administrative Agent.  SECTION 2.08 Interest Elections.  (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing  Request and, in the case of a Term SOFR Borrowing, shall have an initial Interest Period as specified in  such Borrowing Request. Thereafter, the Borrower Representative may elect to convert such Borrowing to  a different Type or to continue such Borrowing and, in the case of a Term SOFR Borrowing, may elect  Interest Periods therefor, all as provided in this Section. The Borrower Representative may elect different  options with respect to different portions of the affected Borrowing, in which case each such portion shall  be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans  comprising each such portion shall be considered a separate Borrowing. This Section shall not apply to  Swingline Borrowings, Overadvances or Protective Advances, which may not be converted or continued.  (b) To make an election pursuant to this Section, the Borrower Representative shall notify the  Administrative Agent of such election by telephone by the time that a Borrowing Request would be required  under Section 2.03 if the Borrowers were requesting a Borrowing of the Type resulting from such election  to be made on the effective date of such election. Each such telephonic Interest Election Request shall be  irrevocable and shall be confirmed promptly by hand delivery or facsimile to the Administrative Agent of  a written Interest Election Request in a form approved by the Administrative Agent and signed by the  Borrower Representative.   (c) Each telephonic and written Interest Election Request shall specify the following  information in compliance with Section 2.02:  (i) the name of the applicable Borrower and 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) the Type of Borrowing; and  (iv) if the resulting Borrowing is a Term SOFR Borrowing, the Interest Period to be  applicable thereto after giving effect to such election, which shall be a period contemplated by the  definition of the term “Interest Period”.  If any such Interest Election Request requests a Term SOFR Borrowing, but does not specify an  Interest Period, then the Borrowers shall be deemed to have selected an Interest Period of one month’s  duration.  (d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall  advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.  (e) If the Borrower Representative fails to deliver a timely Interest Election Request with  respect to a Term SOFR Borrowing prior to the end of the Interest Period applicable thereto, then, unless  





 






DB1/ 127789195.7 82  such Borrowing is repaid as provided herein, at the end of such Interest Period, such Borrowing shall be  converted to an ABR Borrowing.  (f) Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is  continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower  Representative (provided that no such notice shall be required in the case of an Event of Default under  clause (e) of Article VII), then, so long as an Event of Default is continuing (i) no outstanding Borrowing  may be converted to or continued as a Term SOFR Borrowing, and (ii) unless repaid, each Term SOFR  Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.  SECTION 2.09 Termination and Reduction of Commitments; Increase in Commitments.  (a) Unless previously terminated the Commitments shall terminate on the Maturity Date.  (b) The Borrowers may at any time terminate the Commitments upon (i) the payment in full  in cash of all outstanding Loans, together with accrued and unpaid interest thereon and on any LC Exposure,  (ii) the cancellation and return of all outstanding Letters of Credit (or alternatively, with respect to each  such Letter of Credit, the Cash Collateralization (or, at the discretion of the Administrative Agent, a back- up standby letter of credit satisfactory to the Administrative Agent and the Issuing Bank)) of all outstanding  Letters of Credit, (iii) the payment in full in cash of the accrued and unpaid fees, and (iv) the payment in  full in cash of all reimbursable expenses and other Obligations, together with accrued and unpaid interest  thereon.  (c) The Borrowers may from time to time reduce the Commitments; provided that (i) each  reduction of the Commitments shall be in an amount that is an integral multiple of $5,000,000 and (ii) the  Borrowers shall not terminate or reduce the Commitments if, after giving effect to any concurrent  prepayment of the Revolving Loans in accordance with Section 2.11, the Borrowers would not be in  compliance with the Revolving Exposure Limitations.  (d) The Borrower Representative shall notify the Administrative Agent of any election to  terminate or reduce the Commitments under paragraph (b) or (c) of this Section at least three (3) Business  Days prior to the effective date of such termination or reduction, specifying such election and the effective  date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders  of the contents thereof. Each notice delivered by the Borrower Representative pursuant to this Section shall  be irrevocable; provided that a notice of termination of the Commitments delivered by the Borrower  Representative may state that such notice is conditioned upon the effectiveness of other credit facilities, in  which case such notice may be revoked by the Borrower Representative (by notice to the Administrative  Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or  reduction of the Commitments shall be permanent. Each reduction of the Commitments shall be made  ratably among the Lenders in accordance with their respective Commitments.  (e) The Borrowers shall have the right to increase the Commitments by obtaining additional  Commitments, either from one or more of the Lenders or another lending institution provided that (i) any  such request for an increase shall be in a minimum amount of $25,000,000, (ii) the Commitments may be  increased pursuant hereto on no more than four (4) occasions, (iii) the aggregate amount of all additional  Commitments obtained under this clause (e) shall not exceed $100,000,000, (iv)  the identity of any such  new Lender shall be reasonably acceptable to the Administrative Agent, such approval not to be  unreasonably withheld or delayed, (v) any such new Lender assumes all of the rights and obligations of a  “Lender” hereunder, and (vi) the procedure described in Section 2.09(f) have been satisfied. Nothing  contained in this Section 2.09 shall constitute, or otherwise be deemed to be, a commitment on the part of  any Lender to increase its Commitment hereunder at any time.  





 






DB1/ 127789195.7 83  (f) Any amendment hereto for such an increase or addition shall be in form and substance  reasonably satisfactory to the Administrative Agent and shall only require the written signatures of the  Administrative Agent, the Borrowers and each Lender being added or increasing its Commitment, subject  only to the approval of the Required Lenders if any such increase or addition would cause the Commitments  to exceed $650,000,000. As a condition precedent to such an increase or addition, the Borrowers shall  deliver to the Administrative Agent (i) a certificate of each Loan Party signed by an Responsible Officer of  such Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or  consenting to such increase, and (B) in the case of the Borrowers, certifying that, before and after giving  effect to such increase or addition, (1) the representations and warranties contained in Article III and the  other Loan Documents are true and correct in all material respects (except that any representation or  warranty which by its terms is made as of a specified date shall be required to be true and correct in all  material respects only as of such specified date, and that any representation or warranty which is subject to  any materiality qualifier shall be required to be true and correct in all respects) and (2) no Default exists,  and (ii) legal opinions and documents consistent with those delivered on the Closing Date, to the extent  reasonably requested by the Administrative Agent.  (g) On the effective date of any such increase or addition, (i) any Lender increasing (or, in the  case of any newly added Lender, extending) its Commitment shall make available to the Administrative  Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the  benefit of the other Lenders, as being required in order to cause, after giving effect to such increase or  addition and the use of such amounts to make payments to such other Lenders, each Lender’s portion of  the outstanding Revolving Loans of all the Lenders to equal its revised Applicable Percentage of such  outstanding Revolving Loans, and the Administrative Agent shall make such other adjustments among the  Lenders with respect to the Revolving Loans then outstanding and amounts of principal, interest,  commitment fees and other amounts paid or payable with respect thereto as shall be necessary, in the  opinion of the Administrative Agent, in order to effect such reallocation and (ii) the Borrowers shall be  deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any increase (or  addition) in the Commitments (with such reborrowing to consist of the Types of Revolving Loans, with  related Interest Periods if applicable, specified in a notice delivered by the Borrower Representative, in  accordance with the requirements of Section 2.03). The deemed payments made pursuant to clause (ii) of  the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount  prepaid and, in respect of each SOFR Rate Loan (if applicable), shall be subject to indemnification by the  Borrowers pursuant to the provisions of Section 2.15(d) if the deemed payment occurs other than on the  last day of the related Interest Periods. Within a reasonable time after the effective date of any increase or  addition, the Administrative Agent shall, and is hereby authorized and directed to, revise the Commitment  Schedule to reflect such increase or addition and shall distribute such revised Commitment Schedule to  each of the Lenders and the Borrower Representative, whereupon such revised Commitment Schedule shall  replace the old Commitment Schedule and become part of this Agreement.  Additionally, on the effective  date of any such increase or addition, the following dollar floors shall be automatically and proportionately  increased (such that the percentage yielded by dividing such existing dollar floor by the aggregate  Commitments, in each case as in effect prior to the effectiveness of such increased or additional  Commitments, is the same as the percentage yielded by dividing such increased dollar floor by the aggregate  Commitments, in each case immediately following the effectiveness of such increased or additional  Commitments):  (i) the maximum amounts of Swingline Loans set forth in Section 2.05(a); (ii) the dollar  floors set forth in the definition of “Covenant Testing Event”; (iii) the dollar floors set forth in clause (b) of  the definition of “Dominion Period”; (iv) the dollar floors set forth in clauses (i) and (ii) of the definition  of “Increased BBC Reporting Period”; (v) the dollar floors set forth in clauses (i) and (ii) of the definition  of “Increased Financial Reporting Period”; (vi) the dollar floors set forth in clauses (b)(i) and (b)(ii) of the  definition of “Payment Conditions”; (vii) the dollar floors set forth in clauses (i) and (ii) of the definition  of “Testing Event”; and (viii) the dollar floors set forth in Sections 5.07(a) and 5.07(b).  





 






DB1/ 127789195.7 84  SECTION 2.10 Repayment and Amortization of Loans; Evidence of Debt.  (a) Subject to Section 9.21, the Borrowers hereby unconditionally promise to pay (i) to the  Administrative Agent for the account of each Lender the then unpaid principal amount of each Revolving  Loan on the Maturity Date, (ii) to the Administrative Agent the then unpaid amount of each Protective  Advance on the earlier of the Maturity Date and demand by the Administrative Agent, and (iii) to the  Administrative Agent the then unpaid principal amount of each Overadvance on the earlier of the Maturity  Date and the 30th day after such Overadvance is made.  (b) On each Business Day during any Dominion Period, the Administrative Agent shall apply  all funds credited to a Concentration Account of the U.S. Borrowers on such Business Day or the  immediately preceding Business Day (at the discretion of the Administrative Agent, whether or not  immediately available), first, to prepay any U.S. Protective Advances and U.S. Overadvance that may be  outstanding, second, to prepay the U.S. Revolving Loans and U.S. Swingline Loans, third, to prepay any  Canadian Protective Advance and Canadian Overadvance that may be outstanding, fourth to prepay any  Canadian Revolving Loans and Canadian Swingline Loans, and fifth, as the Borrower Representative may  direct. The Administrative Agent shall apply all funds credited to a Concentration Account of the Canadian  Loan Parties on such Business Day or the immediately preceding Business Day in the order specified in  subclauses third through fifth above.  (c) Each Lender shall maintain in accordance with its usual practice an account or accounts  evidencing the Indebtedness of the Borrowers to such Lender resulting from each Loan made by such  Lender, including the amounts of principal and interest payable and paid to such Lender from time to time  hereunder.  (d) The Administrative Agent shall maintain accounts in which it shall record (i) the amount  of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto, (ii) the  amount of any principal or interest due and payable or to become due and payable from the Borrowers to  each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for  the account of the Lenders and each Lender’s share thereof.  (e) The entries made in the accounts maintained pursuant to paragraph (c) or (d) of this Section  shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided  that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein  shall not in any manner affect the obligation of the Borrowers to repay the Loans in accordance with the  terms of this Agreement.  (f) Any Lender (including the Swingline Lender) may request that Loans made by it be  evidenced by a promissory note. In such event, the Borrowers shall 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 payable to the order of the payee named  therein (or to such payee and its registered assigns).  SECTION 2.11 Prepayment of Loans.  (a) The Borrowers shall have the right at any time and from time to time to prepay any  Borrowing in whole or in part, subject to prior notice in accordance with paragraph (c) of this Section and,  if applicable, payment of any break funding expenses under Section 2.15(d).  





 






DB1/ 127789195.7 85  (b) Except for Overadvances permitted under Section 2.05, in the event and on each occasion  that the Borrowers are not in compliance with the Revolving Exposure Limitations, the Canadian Borrowers  and the U.S. Borrowers shall, subject to Section 9.21, severally prepay the Revolving Loans and/or  Swingline Loans (or, if no such Loans are outstanding, Cash Collateralize outstanding Letters of Credit) of  such Borrower(s) in an aggregate amount that, after giving effect to such prepayments or Cash  Collateralization the Borrowers shall be in compliance with the Revolving Exposure Limitations.  (c) The Borrower Representative shall notify the Administrative Agent (and, in the case of  prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by facsimile or email) of  any prepayment hereunder not later than (i) 1:00 p.m., New York time, (A) in the case of prepayment of a  Term SOFR Borrowing, three (3) U.S. Government Securities Business Days before the date of  prepayment, or (B) in the case of prepayment of an ABR Borrowing, on the date of prepayment. Each such  notice shall be irrevocable and shall specify the prepayment date and the principal amount of each  Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment is given in connection  with a conditional notice of termination of the Commitments as contemplated by Section 2.09, then such  notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section  2.09. Promptly following receipt of any such notice relating to a Revolving Loan Borrowing, the  Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any  Revolving Loan Borrowing shall be in an amount that would be permitted in the case of an advance of a  Revolving Loan Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Revolving  Loan Borrowing shall be applied ratably to the Revolving Loans included in the prepaid Borrowing.  Prepayments shall be accompanied by (i) accrued interest to the extent required by Section 2.13 and  (ii) break funding payments, if any, pursuant to Section 2.15(d).  SECTION 2.12 Fees.  (a) The U.S. Borrowers agree to pay to the Administrative Agent, for the account of each  Lender in accordance with its Applicable Percentage, a commitment fee equal to the Unused Commitment  Fee Rate multiplied by the actual daily amount of the Available Commitment during the period from and  including the Closing Date to but excluding the date on which the Commitments terminate. Accrued  commitment fees shall be payable in arrears on the first Business Day of each fiscal quarter of the Company  and on the date on which the Commitments terminate, commencing on the first such date to occur after the  Closing Date. All commitment fees shall be computed on the basis of a year of 360 days and shall be  payable for the actual number of days elapsed, (including the first day but excluding the last day).  (b) U.S. Borrowers shall pay (x) to Administrative Agent, for the ratable benefit of Lenders  holding Commitments, fees for each Letter of Credit for the period from and excluding the date of issuance  of same to and including the date of expiration or termination, equal to (A) with respect to Standby LC  Exposure, the same Applicable Rate used to determine the interest rate applicable to SOFR Rate Loans on  the aggregate daily amount of such Lender’s Standby LC Exposure (excluding any portion thereof  attributable to unreimbursed LC Disbursements), and (B) with respect to Commercial LC Exposure, the  same Applicable Rate used to determine the interest rate applicable to SOFR Rate Loans on the aggregate  daily amount of such Lender’s Commercial LC Exposure (excluding any portion thereof attributable to  unreimbursed LC Disbursements), in each case such fees to be calculated on the basis of a 360-day year for  the actual number of days elapsed and to be payable monthly in arrears on the first day of each calendar  month and on the Maturity Date, and (y) to Issuing Bank, a fronting fee of 0.125% per annum times the  aggregate daily face amount of each outstanding Letter of Credit for the period from and excluding the date  of issuance of same to and including the date of expiration or termination, to be payable quarterly in arrears  on the first day of each calendar quarter and on the Maturity Date (all of the foregoing fees, the “Letter of  Credit Fees”).  In addition, the U.S. Borrowers shall pay to Issuing Bank, for the benefit of such Issuing  Bank customary fees and administrative expenses payable with respect to the Letters of Credit as such  





 






DB1/ 127789195.7 86  Issuing Bank may generally charge or incur from time to time in connection with the issuance, maintenance,  amendment (if any), assignment or transfer (if any), negotiation, and administration of Letters of Credit, to  be payable on demand.  All such charges shall be deemed earned in full on the date when the same are due  and payable hereunder and shall not be subject to rebate or pro-ration upon the termination of this  Agreement for any reason.  Any such charge in effect at the time of a particular transaction shall be the  charge for that transaction, notwithstanding any subsequent change in Issuing Bank’s prevailing charges  for that type of transaction.  Upon and after the occurrence of an Event of Default, and during the  continuation thereof, at the option of the Administrative Agent or at the direction of Required Lenders (or,  in the case of any Event of Default under clause (e) of Article VII, immediately and automatically upon the  occurrence of any such Event of Default without the requirement of any affirmative action by any party),  the Letter of Credit Fees described in clause (x) of this Section 2.12(b) shall be increased by an additional  two percent (2.0%) per annum; provided that all such fees shall be payable on the date on which the  Commitments terminate and any such fees accruing after the date on which the Commitments terminate  shall be payable on demand. Any other fees payable to the Issuing Bank pursuant to this paragraph shall be  payable within 30 days after demand. (c) The Borrowers agree to pay to the Administrative Agent, for its own account, fees payable  in the amounts and at the times separately agreed upon between the Borrowers and the Administrative  Agent.  (d) All fees payable hereunder shall be paid on the dates due and shall be paid in U.S. Dollars,  in immediately available funds, to the Administrative Agent (or to an Issuing Bank, in the case of fees  payable to it) for distribution, in the case of commitment fees and participation fees, to the Lenders.  (e) Upon payment, such fees in this Section 2.12 shall not be refundable under any  circumstances, absent manifest error in calculation.  SECTION 2.13 Interest.  (a) The Loans comprising each ABR Borrowing (including each Swingline Loan denominated  in U.S. Dollars) shall bear interest at the Alternate Base Rate plus the Applicable Rate.  (b) The Revolving Loans comprising each Term SOFR Borrowing shall bear interest at the  Adjusted Term SOFR for the Interest Period in effect for such Borrowing plus the Applicable Rate.  (c) Each Protective Advance and each Overadvance shall bear interest at the Alternate Base  Rate plus the Applicable Rate.  (d) Notwithstanding the foregoing, upon the occurrence and during the continuance of an  Event of Default, the Administrative Agent or the Required Lenders may, at their option, by notice to the  Borrower Representative, declare that (i) all Loans shall bear interest at 2% plus the rate otherwise  applicable to such Loans as provided in the preceding paragraphs of this Section or (ii) in the case of any  other amount outstanding hereunder, such amount shall accrue at 2% plus the rate applicable to such fee or  other obligation as provided hereunder, in each case, from the date such Event of Default occurred until the  date such Event of Default is cured or waived in writing in accordance herewith; provided, that (x) the  default rate of interest set forth in this clause (d) shall apply automatically and without notice to the  Borrower Representative upon the occurrence and during the continuance of any Event of Default under  clauses (a) and (e) of Article VII and (y) application of the default rate of interest pursuant to this clause (d)  may be revoked at the option of the Required Lenders notwithstanding any provision of Section 9.02  requiring the consent of “each Lender affected thereby” for reductions in interest rates.  





 






DB1/ 127789195.7 87  (e) Accrued interest on each Loan (for ABR Loans, accrued through the last day of the prior  calendar month) shall be payable in arrears on each Interest Payment Date for such Loan and upon  termination of the Commitments; provided that (i) interest accrued pursuant to paragraph (d) of this Section  shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a  prepayment of an ABR Loan prior to the end of the Availability Period), accrued interest on the principal  amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the  event of any conversion of any SOFR Rate Loan prior to the end of the current Interest Period therefor,  accrued interest on such Loan shall be payable on the effective date of such conversion.  (f) All interest hereunder shall be computed on the basis of a year of 360 days, except that  interest computed by reference to clause (a) of the Alternate Base Rate shall be computed on the basis of a  year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of  days elapsed (including the first day but excluding the last day). The applicable Adjusted Term SOFR,  Term SOFR, SOFR or Alternate Base Rate shall be determined by the Administrative Agent, and such  determination shall be conclusive absent manifest error. For the purposes of the Interest Act (Canada), the  yearly rate of interest to which any rate calculated on the basis of a period of time different from the actual  number of days in the year (360 days, for example) is equivalent is the stated rate multiplied by the actual  number of days in the year (365 or 366, as applicable) and divided by the number of days in the shorter  period (360 days, in the example).  SECTION 2.14 Conforming Changes; Effect of Benchmark Transition Event.    (a) Conforming Changes.  In connection with the use or administration of Term SOFR, the  Administrative Agent will have the right to make Conforming Changes from time to time and,  notwithstanding anything to the contrary herein or in any other Loan Document, any amendments  implementing such Conforming Changes will become effective without any further action or consent of  any other party to this Agreement or any other Loan Document.  The Administrative Agent will promptly  notify the Borrower Representative and Lenders of the effectiveness of any Conforming Changes in  connection with the use or administration of Term SOFR.   (b) Effect of Benchmark Transition Event.   (i) Benchmark Replacement.  Notwithstanding anything to the contrary herein or in  any other Loan Document, upon the occurrence of a Benchmark Transition Event, (i) if a  Benchmark Replacement is determined in accordance with clause (a) of the definition of  “Benchmark Replacement” with respect to such Benchmark Transition Event, such Benchmark  Replacement will replace then-current Benchmark for all purposes hereunder and under any Loan  Document on the related Benchmark Replacement Date without any amendment to, or further  action or consent of any other party to, this Agreement or any other Loan Document and (ii) if a  Benchmark Replacement is determined in accordance with clause (b) of the definition of  “Benchmark Replacement” with respect to such Benchmark Transition Event, such Benchmark  Replacement will replace then-current Benchmark for all purposes hereunder and under any Loan  Document at the time (not less than five (5) Business Days after the Administrative Agent has  provided notice thereof to each Lender) set forth in the notice of implementation of such  Benchmark Replacement provided by the Administrative Agent to the Borrower Representative  and Lenders, without any amendment to, or further action or consent of any other party to, this  Agreement or any other Loan Document, so long as the Administrative Agent has not received, by  such time, written notice of objection to such Benchmark Replacement from Lenders comprising  the Required Lenders.  No replacement of a Benchmark with a Benchmark Replacement pursuant  to this Section 2.14(b) will occur prior to the applicable Benchmark Transition Start Date.   





 






DB1/ 127789195.7 88  (ii) Benchmark Replacement Conforming Changes.  In connection with the use,  administration, adoption or implementation of a Benchmark Replacement, the Administrative  Agent will have the right to make Conforming Changes from time to time and, notwithstanding  anything to the contrary herein or in any other Loan Document, any amendments implementing  such Conforming Changes will become effective without any further action or consent of any other  party to this Agreement or any other Loan Document.    (iii) Notices; Standards for Decisions and Determinations.  The Administrative Agent  will promptly notify the Borrower Representative and Lenders of (i) the implementation of any  Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with  the use, administration, adoption or implementation of a Benchmark Replacement.  The  Administrative Agent will promptly notify the Borrower Representative of the removal or  reinstatement of any tenor of a Benchmark pursuant to paragraph (iv) below.  Any determination,  decision or election that may be made by the Administrative Agent or, if applicable, any Lender  (or group of Lenders) pursuant to this Section 2.14, including any determination with respect to a  tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date  and any decision to take or refrain from taking any action or any selection, will be conclusive and  binding absent manifest error and may be made in its or their sole discretion and without consent  from any other party to this Agreement or any other Loan Document, except, in each case, as  expressly required pursuant to this Section 2.14(b).  (iv) Unavailability of Tenor of Benchmark.  Notwithstanding anything to the contrary  herein or in any other Loan Document, at any time (including in connection with the  implementation of a Benchmark Replacement), (x) if the then-current Benchmark is a term rate  (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not  displayed on a screen or other information service that publishes such rate from time to time as  selected by the Administrative Agent in its reasonable discretion or (B) the administrator of such  Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a  public statement or publication of information announcing that any tenor for such Benchmark is  not or will not be representative or in compliance with or aligned with the International  Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the  Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous  definition) for any Benchmark settings at or after such time to remove such unavailable, non- representative, non-compliant or non-aligned tenor and (y) if a tenor that was removed pursuant to  clause (x) above either (A) is subsequently displayed on a screen or information service for a  Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an  announcement that it is not or will not be representative or in compliance with or aligned with the  International Organization of Securities Commissions (IOSCO) Principles for Financial  Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative  Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for  all Benchmark settings at or after such time to reinstate such previously removed tenor.  (v) Benchmark Unavailability Period.  Upon the Borrower Representative’s receipt of  notice of the commencement of a Benchmark Unavailability Period, the Borrower Representative  may revoke any pending request for a Borrowing of, conversion to or continuation of SOFR Rate  Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing  that, the Borrower Representative will be deemed to have converted any such request into a request  for a borrowing of or conversion to ABR Loans.  During a Benchmark Unavailability Period or at  any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of  Alternate Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as  applicable, will not be used in any determination of Alternate Base Rate.  





 






DB1/ 127789195.7 89  SECTION 2.15 Increased Costs; Losses.  (a) Increased Costs Generally.  If any Change in Law shall (i) impose, modify or deem  applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against  assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or any  Issuing Bank, (ii) subject the Administrative Agent or any Lender to any Taxes (other than (A) Indemnified  Taxes, (B) Taxes described in clauses (b) through (e) of the definition of Excluded Taxes and (C)  Connection Income Taxes) with respect to any Loan Document or (iii) impose on any Lender or any Issuing  Bank any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by  such Lender or any Letter of Credit or participation therein, and the result of any of the foregoing shall be  to increase the cost to such Lender or any Issuing Bank of making, converting to, continuing or maintaining  any Loan or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender or  any Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its  obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or  receivable by such Lender or such Issuing Bank hereunder (whether of principal, interest or any other  amount) then, upon request of such Lender or such Issuing Bank, the Borrowers will pay to such Lender or  such Issuing Bank such additional amount or amounts as will compensate such Lender or such Issuing Bank  for such additional costs incurred or reduction suffered.  (b) Capital Requirements.  If any Lender or any Issuing Bank determines that any Change in  Law affecting such Lender or such Issuing Bank or any lending office of such Lender or such Lender’s or  such Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have  the effect of reducing the rate of return on such Lender’s or such Issuing Bank’s capital or on the capital of  such Lender’s or such Issuing Bank’s holding company, if any, as a consequence of this Agreement, the  Commitments of such Lender 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 Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for  such Change in Law (taking into consideration such Lender’s or such Issuing Bank’s policies and the  policies of such Lender’s or such Issuing Bank’s holding company with respect to capital adequacy), then  from time to time the Borrowers will pay to such Lender or such Issuing Bank, as the case may be, such  additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or  such Issuing Bank’s holding company for any such reduction suffered.  (c) Certificates for Reimbursement; Delay in Requests.  A certificate of a Lender or an Issuing  Bank setting forth the amount or amounts necessary to compensate such Lender or such Issuing Bank or its  holding company, as the case may be, as specified in the foregoing paragraph (a) or (b) and delivered to the  Borrower Representative shall be conclusive absent manifest error.  The Borrowers shall pay such Lender  or such Issuing Bank, as the case may be, the amount shown as due on any such certificate within ten (10)  Business Days after receipt thereof.  Failure or delay on the part of a Lender or an Issuing Bank to demand  compensation pursuant to this Section 2.15 shall not constitute a waiver of such Lender’s or such Issuing  Bank’s right to demand such compensation; provided that the Borrowers shall not be required to  compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs incurred or  reductions suffered more than nine (9) months prior to the date that such Lender or such Issuing Bank  notifies the Borrower Representative of the Change in Law giving rise to such increased costs or reductions  and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor (except that, if the  Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period  referred to above shall be extended to include the period of retroactive effect thereof).  (d) Compensation for Losses.  Upon demand of any Lender (with a copy to the Administrative  Agent) from time to time, the Borrowers shall promptly compensate such Lender for and hold such Lender  harmless from any loss, cost or expense incurred by it as a result of (a) any continuation, conversion,  





 






DB1/ 127789195.7 90  payment or prepayment of any SOFR Rate Loan on a day other than the last day of the Interest Period for  such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise) or (b) any  failure by the Borrowers (for a reason other than the failure of such Lender to make a Loan) to prepay,  borrow, continue or convert any SOFR Rate Loan on the date or in the amount notified by the Borrower  Representative, including any loss or expense arising from the liquidation or reemployment of funds.   SECTION 2.16 Illegality; Inability to Determine Rates.    (a) Illegality.  If any Lender determines that any law, rule or regulation has made it unlawful,  or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending  office to make, maintain or fund Loans whose interest is determined by reference to SOFR, the Term SOFR  Reference Rate or Term SOFR, or to determine or charge interest rates based upon SOFR, the Term SOFR  Reference Rate, Term SOFR or Adjusted Term SOFR, then, upon notice thereof by such Lender to the  Borrower Representative (through the Administrative Agent), (a) any obligation of Lenders to make SOFR  Rate Loans, and any right of the Borrowers to continue SOFR Rate Loans or to convert ABR Loans to  SOFR Rate Loans, shall be suspended, and (b) the interest rate on ABR Loans shall, if necessary to avoid  such illegality, be determined by the Administrative Agent without reference to the Term SOFR component  of Alternate Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower  Representative that the circumstances giving rise to such determination no longer exist.  Upon receipt of  such notice, (i) the Borrowers shall, if necessary to avoid such illegality, upon demand from such Lender  (with a copy to the Administrative Agent), prepay or, if applicable, convert all SOFR Rate Loans of such  Lender to ABR Loans (the interest rate on which ABR Loans of such Lender shall, if necessary to avoid  such illegality, be determined by the Administrative Agent without reference to the Term SOFR component  of Alternate Base Rate), on the last day of the Interest Period therefor, if such Lender may lawfully continue  to maintain such SOFR Rate Loans to such day, or immediately, if such Lender may not lawfully continue  to maintain such SOFR Rate Loans to such day, and (ii) if necessary to avoid such illegality, the  Administrative Agent shall during the period of such suspension compute the Alternate Base Rate without  reference to the Term SOFR component of Alternate Base Rate, in each case until the Administrative Agent  is advised in writing by each affected Lender that it is no longer illegal for such Lender to determine or  charge interest rates based upon SOFR, the Term SOFR Reference Rate or Term SOFR.  (b) Inability to Determine Rates. Subject to Section 2.14(b), if, on or prior to the first day of  any Interest Period for a SOFR Rate Loan (i) the Administrative Agent determines (which determination  shall be conclusive and binding absent manifest error) that Term SOFR cannot be determined pursuant to  the definition thereof or (ii) the Administrative Agent is advised by the Required Lenders that Term SOFR  or Adjusted Term SOFR 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, the  Administrative Agent will promptly so notify the Borrower Representative and each Lender.  Thereafter,  the obligation of Lenders to make or maintain SOFR Rate Loans shall be suspended (and the interest rate  on ABR Loans shall be determined by the Administrative Agent without reference to the Term SOFR  component thereof) until the Administrative Agent (with respect to clause (ii), upon the instruction of the  Required Lenders) revokes such notice.  Upon receipt of such notice, the Borrower Representative may  revoke any pending request for a borrowing of, conversion to or continuation of SOFR Rate Loans or,  failing that, will be deemed to have converted such request into a request for ABR Loans in the amount  specified therein.  Subject to Section 2.14(b), if the Administrative Agent determines (which determination  shall be conclusive and binding absent manifest error) that Term SOFR cannot be determined pursuant to  the definition thereof on any given day, the interest rate on ABR Loans shall be determined by the  Administrative Agent without reference to the Term SOFR component thereof until the Administrative  Agent revokes such determination.  SECTION 2.17 Withholding of Taxes; Gross-Up.  





 






DB1/ 127789195.7 91  (a) Payments Free of Taxes. Any and all payments by or on account of any obligation of any  Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes,  except as required by applicable law. If any applicable law (as determined in the good faith discretion of an  applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by  a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or  withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental  Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable  by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has  been made (including such deductions and withholdings applicable to additional sums payable under this  Section 2.17) the applicable Recipient receives an amount equal to the sum it would have received had no  such deduction or withholding been made.  (b) Payment of Other Taxes by the Loan Parties. The Loan Parties shall timely pay to the  relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative  Agent timely reimburse it for the payment of, any Other Taxes.  (c) Evidence of Payment. As soon as practicable after any payment of Taxes by any Loan Party  to a Governmental Authority pursuant to this Section 2.17, 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.  (d) Indemnification by the Loan Parties. Subject in all cases to Section 9.21, the Loan Parties  shall jointly and severally indemnify each Recipient, within 10 days after demand therefor, for the full  amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to  amounts payable under this Section) payable or paid by such Recipient or required to be withheld or  deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect  thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant  Governmental Authority. A certificate setting forth in reasonable detail the calculation of the amount of  such payment or liability delivered to the Borrower Representative by a Lender (with a copy to the  Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be  conclusive absent manifest error.  (e) Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative  Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but  only to the extent that any Loan Party has not already indemnified the Administrative Agent for such  Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes  attributable to such Lender’s failure to comply with the provisions of Section 9.04(c) relating to the  maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each  case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any  reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or  legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth in reasonable  detail the calculation of 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 such Lender from any other source  against any amount due to the Administrative Agent under this paragraph (e).  (f) Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of  withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower  Representative and the Administrative Agent, at the time or times reasonably requested by the Borrower  





 






DB1/ 127789195.7 92  Representative or the Administrative Agent and at the time or times prescribed by applicable law, such  properly completed and executed documentation reasonably requested by the Borrower Representative or  the Administrative Agent or prescribed by applicable law as will permit such payments to be made without  withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the  Borrower Representative or the Administrative Agent, shall deliver such other documentation prescribed  by applicable law or reasonably requested by the Borrower Representative or the Administrative Agent as  will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject  to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in  the preceding two sentences, the completion, execution and submission of such documentation (other than  such documentation set forth in Section 2.17(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in  the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to  any material unreimbursed cost or expense or would materially prejudice the legal or commercial position  of such Lender.  (ii) Without limiting the generality of the foregoing, in the event that any Borrower is  a U.S. Person,  (A) any Lender that is a U.S. Person shall deliver to the Borrower  Representative and the Administrative Agent on or prior to the date on which such Lender  becomes a Lender under this Agreement (and from time to time thereafter upon the  reasonable request of the Borrower Representative or the Administrative Agent), executed  copies of IRS Form W-9 (or successor form) certifying that such Lender is exempt from  U.S. Federal backup withholding tax;  (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver  to the Borrower Representative and the Administrative Agent (in such number of copies as  shall be requested by the recipient) on or prior to the date on which such Foreign Lender  becomes a Lender under this Agreement (and from time to time thereafter upon the  reasonable request of the Borrower Representative or the Administrative Agent),  whichever of the following is applicable:  (1) in the case of a Foreign Lender claiming the benefits of an income  tax treaty to which the United States is a party (x) with respect to payments of  interest under any Loan Document, executed copies of IRS Form W-8BEN or W- 8BEN-E, as applicable (or successor form), 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, as applicable (or successor  form), 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) in the case of a Foreign Lender claiming that its extension of credit  will generate U.S. effectively connected income, executed copies of IRS Form W- 8ECI (or successor form);  (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 a Borrower within the meaning of Section 881(c)(3)(B) of the  Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of  





 






DB1/ 127789195.7 93  the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS  Form W- 8BEN or W-8BEN-E, as applicable (or successor form); or  (4) to the extent a Foreign Lender is not the Beneficial Owner,  executed copies of IRS Form W-8IMY (or successor form), accompanied by IRS  Form W-8ECI (or successor form), IRS Form W- 8BEN or W-8BEN-E, as  applicable (or successor form), a U.S. Tax Compliance Certificate substantially in  the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9 (or successor form), and/or  other certification documents from each Beneficial Owner, as applicable; provided  that if the Foreign Lender is a partnership and one or more direct or indirect  partners of such Foreign Lender are claiming the portfolio interest exemption, such  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 Representative and the Administrative Agent (in such number of copies as  shall be requested by the recipient) on or prior to the date on which such Foreign Lender  becomes a Lender under this Agreement (and from time to time thereafter upon the  reasonable request of the Borrower Representative or the Administrative Agent), executed  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  Borrowers or the Administrative Agent to determine the withholding or deduction required  to be made; and  (D) if a payment made to a Lender under any Loan Document would be subject  to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply  with the applicable reporting requirements of FATCA (including those contained in  Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the  Borrower Representative and the Administrative Agent at the time or times prescribed by  law and at such time or times reasonably requested by the Borrower Representative or the  Administrative Agent such documentation prescribed by applicable law (including as  prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation  reasonably requested by the Borrower Representative or the Administrative Agent as may  be necessary for the Borrowers 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.  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 Representative and the Administrative Agent in writing of its legal inability to do so.  (g) Treatment of Certain Refunds. If any party determines in its sole discretion exercised in  good faith that it has received a refund of any Taxes as to which it has been indemnified pursuant to this  Section 2.17 (including by the payment of additional amounts pursuant to this Section 2.17), it shall pay to  the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made  under this Section 2.17 with respect to the Taxes giving rise to such refund), net of all out-of-pocket  expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by  the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the  





 






DB1/ 127789195.7 94  request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to  this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental  Authority) in the event that such indemnified party is required to repay such refund to such Governmental  Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified  party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) 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 giving  rise to such refund had never been paid. This paragraph (g) shall not be construed to require any indemnified  party to make available its Tax returns (or any other information relating to its Taxes that it deems  confidential) to the indemnifying party or any other Person.  (h) Survival. Each party’s obligations under this Section 2.17 shall survive the resignation or  replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender,  the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under  any Loan Document.  (i) Defined Terms. For purposes of this Section 2.17, the term “Lender” includes any Issuing  Bank and the term “applicable law” includes FATCA.  SECTION 2.18 Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) The  Borrowers shall make each payment required to be made by them hereunder (whether of principal, interest,  fees or reimbursement of LC Disbursements, or of amounts payable under Sections 2.15, 2.16 or 2.17, or  otherwise) prior to 12:00 p.m., New York time, on the date when due, in immediately available funds,  without 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 at  the Administrative Agent’s Payment Office, or as otherwise directed by the Administrative Agent, except  payments to be made directly to an Issuing Bank or Swingline Lender as expressly provided herein and  except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons  entitled thereto. 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. If any payment  hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the  next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be  payable for the period of such extension. All payments hereunder of principal or interest in respect of any  Loan, and all payments in respect of LC Disbursements and all other payments hereunder and under each  other Loan Document, shall be made in U.S. Dollars.  (b) Any proceeds of Collateral received by the Administrative Agent (i) not constituting either  (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which  shall be applied as specified by the Borrowers) or (B) amounts to be applied from a Concentration Account  during a Dominion Period (which shall be applied in accordance with Section 2.10(b)) or (ii) after an Event  of Default has occurred and is continuing and the Administrative Agent so elects or the Required Lenders  so direct, shall be applied ratably first, to pay any fees, indemnities, or expense reimbursements including  amounts then due to the Administrative Agent and the Issuing Banks from the Borrowers (other than in  connection with Banking Services Obligations or Swap Agreement Obligations), second, to pay any fees  or expense reimbursements then due to the Lenders from the Borrowers (other than in connection with  Banking Services Obligations or Swap Agreement Obligations), third, to pay interest due in respect of the  Overadvances and Protective Advances, fourth, to pay the principal of the Overadvances and Protective  Advances, fifth, to pay interest then due and payable on the Loans (other than the Overadvances and  Protective Advances) ratably, sixth, to prepay principal on the Loans (other than the Overadvances and  





 






DB1/ 127789195.7 95  Protective Advances) and unreimbursed LC Disbursements ratably, seventh, to Cash Collateralize all  outstanding Letters of Credit, eighth, ratably to the payment of any amounts owing with respect to (x)  Banking Services Obligations arising from Banking Services described in clauses (b), (c), (d), (f), (g) and  (h) of the definition of Banking Services and (y) Banking Services Obligations arising from Banking  Services (other than those described in clauses (b), (c), (d), (f), (g) and (h) of the definition of Banking  Services) and Swap Agreement Obligations, in each case under this sub-clause (y), for which Banking  Services/Swap Reserves have been established but only up to the amount of such Banking Services/Swap  Reserves, ninth, to payment of any amounts owing with respect to Banking Services Obligations and Swap  Agreement Obligations not paid pursuant to clause eighth above up to and including the amount most  recently provided to the Administrative Agent pursuant to Section 2.22, and tenth, to the payment of any  other Secured Obligation provided that (i) any amounts received from any U.S. Collateral or any U.S. Loan  Party shall be applied, first, in the order provided above in clauses first through seventh to all amounts  constituting U.S. Secured Obligations, second, in the order provided above in clauses first through seventh  to the Canadian Secured Obligations, third, in the order provided above in clauses eighth through tenth to  all amounts constituting U.S. Secured Obligations and fourth in the order provided above in clauses eighth  through tenth to the Canadian Secured Obligations and (ii) any such application of proceeds from any  Canadian Collateral or any Canadian Loan Party shall be made solely in respect of Canadian Secured  Obligations. Notwithstanding the foregoing, amounts received from any Loan Party shall not be applied to  any Excluded Swap Obligation of such Loan Party. Notwithstanding anything to the contrary contained in  this Agreement, unless so directed by the Borrower Representative, or unless an Event of Default is in  existence, neither the Administrative Agent nor any Lender shall apply any payment which it receives to  any SOFR Rate Loan of a Class, except (a) on the expiration date of the Interest Period applicable thereto  or (b) in the event, and only to the extent, that there are no outstanding ABR Loans and, in any such event,  the Borrowers shall pay the break funding payment required in accordance with Section 2.15(d). The  Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse  and reapply any and all such proceeds and payments to any portion of the Secured Obligations.  (c) At the election of the Administrative Agent, all payments of principal, interest, LC  Disbursements, fees, premiums, reasonable and documented reimbursable expenses (including, without  limitation, all reimbursement for fees, costs and expenses pursuant to Section 9.03), and other sums payable  under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made  following a request by the Borrower Representative pursuant to Section 2.03 or a deemed request as  provided in this Section, provided that, in the case of any deemed request (other than a payment of principal,  interest, LC Disbursements, and fees due under this Agreement), the Administrative Agent shall have  provided the Borrower Representative prior written notice that such sums are due and payable, the amount  thereof and the date payment is requested to be made, and provided further that no amount from any  Canadian Loan Party shall be applied to pay any U.S. Secured Obligations. Each Borrower hereby  irrevocably authorizes the Administrative Agent to make a Borrowing for the purpose of paying each  payment referred to in the preceding sentence on or after the date any of the same becomes due and payable  and agrees that all such amounts charged shall constitute Loans (including Swingline Loans and  Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs,  fees and expenses as described in Section 2.04 and Section 9.03) and that all such Borrowings shall be  deemed to have been requested pursuant to Section 2.03, 2.04 or 2.05, as applicable.  (d) If, except as otherwise expressly provided herein, 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 LC Disbursements resulting in such Lender receiving payment of a greater  proportion of the aggregate amount of its Loans and participations in LC Disbursements and Swingline  Loans and accrued interest thereon than its applicable proportion as provided herein, then the Lender  receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and  participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that  





 






DB1/ 127789195.7 96  the benefit of all such payments shall be shared by all such Lenders ratably in accordance with the aggregate  amount of principal of and accrued interest on their respective Loans and participations in LC  Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or  any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the  purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this  paragraph shall not be construed to apply to any payment made by the Borrowers pursuant to and in  accordance with the express terms of this Agreement (including the application of funds arising from the  existence of a Defaulting Lender or a Disqualified Institution), or any payment obtained by a Lender as  consideration for the assignment of or sale of a participation in any of its Loans or participations in LC  Disbursements or Swingline Loans to any assignee or participant, other than to the Borrowers or any  Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). Each Borrower  consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any  Lender acquiring a participation pursuant to the foregoing arrangements may, subject to Section 9.08,  exercise against such Borrower rights of set-off and counterclaim with respect to such participation as fully  as if such Lender were a direct creditor of such Borrower in the amount of such participation.  (e) Unless the Administrative Agent shall have received notice from the Borrower  Representative prior to the date on which any payment is due to the Administrative Agent for the account  of the Lenders or the Issuing Bank hereunder that the Borrowers will not make such payment, the  Administrative Agent may assume that the Borrowers have made such payment on such date in accordance  herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the  case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then  each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative  Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon,  for each day from and including the date such amount is distributed to it to but excluding the date of payment  to the Administrative Agent, at 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 hereunder, then the  Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any  amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such  Lender’s obligations hereunder until all such unsatisfied obligations are fully paid and/or (ii) hold any such  amounts in a segregated account as cash collateral for, and application to, any future funding obligations of  such Lender hereunder. Application of amounts pursuant to (i) and (ii) above shall be made in any order  determined by the Administrative Agent in its discretion.  (g) The Administrative Agent may from time to time provide the Borrowers with billing  statements or invoices with respect to any of the Secured Obligations (the “Billing Statements”). The  Administrative Agent is under no duty or obligation to provide Billing Statements, which, if provided, will  be solely for the Borrowers’ convenience. The Billing Statements may contain estimates of the amounts  owed during the relevant billing period, whether of principal, interest, fees or other Secured Obligations. If  the Borrowers pay the full amount indicated on a Billing Statement on or before the due date indicated on  such Billing Statement, the Borrowers shall not be in default; provided, that acceptance by the  Administrative Agent, on behalf of the Lenders, of any payment that is less than the payment due at that  time shall not constitute a waiver of the Administrative Agent’s or the Lenders’ right to receive payment in  full at another time.  SECTION 2.19 Mitigation Obligations; Replacement of Lenders.  (a) If any Lender requests compensation under Section 2.15(a) or (b), or if the Borrowers are  required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority  





 






DB1/ 127789195.7 97  for the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to  designate a different lending office for funding or booking its Loans hereunder or to assign 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  2.15(a) or (b) or 2.17, as the case may be, in the future and (ii) would not subject such Lender to any material  unreimbursed cost or expense and would not otherwise be materially disadvantageous to such Lender.  (b) If any Lender requests compensation under Section 2.15(a) or (b), or if the Borrowers are  required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority  for the account of any Lender pursuant to Section 2.17, and, in each case, such Lender has declined or is  unable to designate a different lending office in accordance with paragraph (a) of this Section, or if any  Lender becomes a Defaulting Lender, then the Borrowers may, at their sole expense and effort, upon notice  to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse  (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights (other  than its existing rights to payments pursuant to Section 2.15(a) or (b) or 2.17) and obligations under this  Agreement and other Loan Documents to an assignee that shall assume such obligations (which assignee  may be another Lender, if a Lender accepts such assignment); provided that (i) if the assignee is not already  a Lender, an Affiliate of a Lender or an Approved Fund, the Borrowers shall have received the prior written  consent of the Administrative Agent (and in circumstances where its consent would be required under  Section 9.04, the Issuing Bank and the Swingline Lender), which consent shall not unreasonably be  withheld or delayed, (ii) such Lender shall have received payment of an amount equal to the outstanding  principal of its Loans and funded participations in LC Disbursements and Swingline Loans, accrued interest  thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such  outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts) and  (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.15(a) or  (b) or payments required to be made pursuant to Section 2.17, such assignment will result in a reduction in  such compensation or payments. A Lender shall not be required to make any such assignment and  delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling  the Borrowers to require such assignment and delegation cease to apply.  SECTION 2.20 Defaulting Lenders. Notwithstanding any provision of this Agreement to the  contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long  as such Lender is a Defaulting Lender:  (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting  Lender pursuant to Section 2.12(a);  (b) such Defaulting Lender shall not have the right to vote on any issue on which voting is  required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and  Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required  Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or  other modification pursuant to Section 9.02) or under any other Loan Document; provided, that, except as  otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the  case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender  directly affected thereby;  (c) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a  Defaulting Lender then:  (i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting  Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective  





 






DB1/ 127789195.7 98  Applicable Percentages (calculated without regard to such Defaulting Lender’s Commitment) but  only to the extent that (x) the conditions set forth in Section 4.02 are satisfied at the time of such  reallocation and (y) the sum of all non-Defaulting Lenders’ Revolving Exposures plus such  Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non- Defaulting Lenders’ Commitments;  (ii) if the reallocation described in clause (i) above cannot, or can only partially, be  effected, then within one (1) Business Day following notice by the Administrative Agent (x) first,  the U.S. Borrowers or Canadian Borrowers, as applicable, shall prepay such U.S. Swingline  Exposure and Canadian Swingline Exposure, respectively, and (y) second, the U.S. Borrowers shall  Cash Collateralize, for the benefit of the Issuing Bank, the U.S. Borrowers’ obligations  corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial  reallocation pursuant to clause (i) above) for so long as such LC Exposure is outstanding;  (iii) if the U.S. Borrowers Cash Collateralize any portion of such Defaulting Lender’s  LC Exposure pursuant to clause (ii) above, the Borrowers shall not be required to pay any fees to  such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC  Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;  (iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to  clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall  be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and  (v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated  nor Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or  remedies of the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under  Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the  Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash  Collateralized; and  (d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required  to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew, extend or  increase any Letter of Credit, unless it is satisfied that the related exposure and such Defaulting Lender’s  then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders  and/or cash collateral will be provided by the Borrowers in accordance with Section 2.20(c), and  participating interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit  shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such  Defaulting Lender shall not participate therein).  (e) Any payment of principal, interest, fees or other amounts received by the Administrative  Agent for the account of any Defaulting Lender or received by the Administrative Agent from a Defaulting  Lender pursuant to Section 9.08 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 such Defaulting Lender to  the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by  such Defaulting Lender to the Issuing Bank or Swingline Lender hereunder; third, to Cash Collateralize the  Issuing Bank’s LC Exposure with respect to such Defaulting Lender in accordance with Section 2.20(c),  fourth, as the Borrower Representative may request (so long as no Default or Event of Default exists), to  the funding of any Revolving Loan in respect of which such 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 and the Borrower, to be held in a deposit account and released pro rata in order  to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this  





 






DB1/ 127789195.7 99  Agreement and (y) Cash Collateralize the Issuing Banks’ future LC Exposure with respect to such  Defaulting Lender with respect to future Letters of Credit issued under this Agreement; sixth, to the  payment of any amounts owing to the Lenders, the Issuing Bank or Swingline Lender as a result of any  judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Bank or Swingline  Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations  under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any  amounts owing to the Borrower Representative as a result of any judgment of a court of competent  jurisdiction obtained by the Borrower Representative or any other Loan Party against such Defaulting  Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth,  to such 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 Revolving Loans or LC Disbursements in  respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Revolving  Loans were made or the related Letters of Credit were issued 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 Loans of, and LC  Disbursements owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment  of any Revolving Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all  Revolving Loans and funded and unfunded participations in LC Disbursements and Swingline Loans are  held by the Lenders pro rata in accordance with the Commitments without giving effect to sub-section (c)  above. 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  2.20(e) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably  consents hereto.  In the event that each of the Administrative Agent, the Borrowers, the Issuing Bank and the  Swingline Lender agrees in writing that a Defaulting Lender has adequately remedied all matters that caused  such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall  be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment  such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as  the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in  accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with  respect to fees accrued or payments made by or on behalf of any Borrower while that Lender was a  Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the  affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release  of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.  SECTION 2.21 Returned Payments. If after receipt of any payment which is applied to the payment  of all or any part of the Obligations (including a payment effected through exercise of a right of setoff), the  Administrative Agent or any Lender is for any reason compelled to surrender such payment or proceeds to  any Person because such payment or application of proceeds is invalidated, declared fraudulent, set aside,  determined to be void or voidable as a preference, impermissible setoff, or a diversion of trust funds, or for  any other reason (including pursuant to any settlement entered into by the Administrative Agent or such  Lender in its discretion), then the Obligations or part thereof intended to be satisfied shall be revived and  continued and this Agreement shall continue in full force as if such payment or proceeds had not been  received by the Administrative Agent or such Lender. The provisions of this Section 2.21 shall be and  remain effective notwithstanding any contrary action which may have been taken by the Administrative  Agent or any Lender in reliance upon such payment or application of proceeds. The provisions of this  Section 2.21 shall survive the termination of this Agreement.  SECTION 2.22 Banking Services and Swap Agreements. Each Lender or Affiliate (other than  Lenders that are Affiliates of the Administrative Agent) thereof providing Banking Services for, or having  Swap Agreements with, any Loan Party or any Restricted Subsidiary shall deliver to the Administrative  





 






DB1/ 127789195.7 100  Agent, promptly after entering into such Banking Services or Swap Agreements, written notice setting forth  the aggregate amount (to the extent quantifiable) of all Banking Services Obligations and the notional  amount and the current mark-to-market value of the Swap Agreement Obligations of such Loan Party or  Restricted Subsidiary to such Lender or Affiliate (whether matured or unmatured, absolute or contingent).  In addition, each such Lender or Affiliate thereof shall deliver to the Administrative Agent, from time to  time after a significant change therein or upon a request therefor, a summary of the amounts due or to  become due (to the extent quantifiable) in respect of such Banking Services Obligations and Swap  Agreement Obligations. The most recent information provided to the Administrative Agent shall be used  in determining the amounts to be applied in respect of such Banking Services Obligations and/or Swap  Agreement Obligations pursuant to Section 2.18(b).  Notwithstanding the foregoing, no such notice shall  be required with respect to any Banking Services provided prior to the Closing Date to a Loan Party by any  Person that is a Lender or an Affiliate thereof as of the Closing Date.  ARTICLE III.  REPRESENTATIONS AND WARRANTIES  Each Loan Party represents and warrants to the Lenders that:  SECTION 3.01 Organization and Qualification; Power and Authority; Compliance With Laws;  Event of Default.  Each Loan Party and each Restricted Subsidiary of each Loan Party (i) is a corporation,  partnership, limited liability company or unlimited liability company duly organized, validly existing and  in good standing under the laws of its jurisdiction of organization, (ii) has the lawful power to own or lease  its properties and to engage in the business it presently conducts or proposes to conduct, (iii) is duly licensed  or qualified and in good standing in each jurisdiction where the property owned or leased by it or the nature  of the business transacted by it or both makes such licensing or qualification necessary, except where the  failure to be so licensed or qualified and in good standing would not constitute a Material Adverse Effect,  (iv) has full power to enter into, execute, deliver and carry out this Agreement and the other Loan  Documents to which it is a party, to incur the Indebtedness contemplated by the Loan Documents and to  perform its Obligations under the Loan Documents to which it is a party, and all such actions have been  duly authorized by all necessary proceedings on its part, and (v) is in compliance with all applicable  Requirements of Law (other than Environmental Laws which are specifically addressed in Section 3.13 and  Anti-Terrorism Laws which are specifically addressed in Section 3.16) in all jurisdictions in which any  Loan Party or Restricted Subsidiary of any Loan Party is presently or will be doing business except where  the failure to do so would not constitute a Material Adverse Effect.  No Event of Default or Default exists  or is continuing.  No Loan Party is a Covered Entity.  SECTION 3.02 Capitalization; Subsidiaries and Joint Ventures; Investment Companies.   Schedule 3.02 states (i) the name of each of the Company’s Subsidiaries, its jurisdiction of organization  and the amount, percentage and type of equity interests in such Subsidiary (the “Subsidiary Equity  Interests”), (ii) all Joint Ventures in which the Company or any Restricted Subsidiary owns any Equity  Interests (the “Joint Venture Equity Interests”) and (iii) any options, warrants or other rights outstanding to  purchase any such Subsidiary Equity Interests or Joint Venture Equity Interests.  The Company and each  Restricted Subsidiary of the Company has good and marketable title to all of the Subsidiary Equity Interests  and Joint Venture Equity Interests it purports to own, free and clear in each case of any Lien (other than  Permitted Liens) and all such Subsidiary Equity Interests and Joint Venture Equity Interests have been  validly issued and fully paid and are nonassessable (if applicable).  None of the Loan Parties or Subsidiaries  of any Loan Party is an “investment company” registered or required to be registered under the Investment  Company Act of 1940 or under the “control” of an “investment company” as such terms are defined in the  Investment Company Act of 1940 and shall not become such an “investment company” or under such  “control.”   





 






DB1/ 127789195.7 101  SECTION 3.03 Validity and Binding Effect.  This Agreement and each of the other Loan  Documents (i) has been duly and validly executed and delivered by each Loan Party that is a party thereto  and (ii) constitutes, or will constitute, legal, valid and binding obligations of each Loan Party that is a party  thereto, enforceable against such Loan Party in accordance with its terms, except to the extent that  enforceability of this Agreement or any other Loan Document may be limited by bankruptcy, insolvency,  reorganization, moratorium or other similar laws affecting the enforceability of creditors’ rights generally  or limiting the right of specific performance or by general principles of equity.  SECTION 3.04 No Conflict; Material Agreements; Consents.  Neither the execution and delivery  of this Agreement or the other Loan Documents by any Loan Party nor the consummation of the transactions  herein or therein contemplated or compliance with the terms and provisions hereof or thereof by any of  them will conflict with, constitute a default under or result in any breach of (i) the terms and conditions of  the articles or certificate of incorporation, code of regulations, bylaws, certificate of limited partnership,  partnership agreement, certificate of formation, operating agreement, limited liability company agreement  or other organizational documents of any Loan Party, (ii) any Requirement of Law or any agreement or  instrument or order, writ, judgment, injunction or decree to which any Loan Party or any of its Restricted  Subsidiaries is a party or by which it or any of its Restricted Subsidiaries is bound or to which it is subject,  in each case under clause (ii), except as would not result in a Material Adverse Effect, or (iii) result in the  creation or enforcement of any Lien, charge or encumbrance whatsoever upon any property (now or  hereafter acquired) of any Loan Party or any of its Restricted Subsidiaries (except Liens created pursuant  to the Loan Documents).  None of the Loan Parties or their Restricted Subsidiaries is bound by any  contractual obligation, or subject to any restriction in any organization document, or any Requirement of  Law which results in a Material Adverse Effect.  No consent, approval, exemption, order or authorization  of, or a registration or filing with, any Governmental Authority or any other Person is required by any  Requirement of Law or any agreement in connection with the execution, delivery and carrying out of this  Agreement and the other Loan Documents other than those which have been obtained or made and are in  full force and effect and except for filings necessary to perfect Liens created pursuant to the Loan  Documents.  SECTION 3.05 Litigation.  There are no actions, suits, proceedings or investigations pending or,  to the knowledge of any Loan Party, threatened against such Loan Party or any Restricted Subsidiary of  such Loan Party at law or in equity before any arbitrator or any Governmental Authority which (i) involve  any Loan Document or the Transactions or (ii) individually or in the aggregate would reasonably be  expected to result in a Material Adverse Effect.  None of the Loan Parties or any Restricted Subsidiaries of  any Loan Party is in violation of any order, writ, injunction or any decree of any Governmental Authority  which constitutes a Material Adverse Effect.  SECTION 3.06 Financial Statements; No Material Adverse Effect; Beneficial Ownership  Certification.  (a) Historical Statements.  The Loan Parties have delivered or caused to be delivered to the  Administrative Agent copies of the (i) audited consolidated year-end financial statements of the Company  and its Subsidiaries for and as of the end of the fiscal year ended January 30, 2021 and (ii) unaudited  consolidated interim financial statements of the Company and its Subsidiaries for and as of the fiscal quarter  ended on October 30, 2021 (such annual and interim statements being collectively referred to as the  “Statements”).  The Statements were compiled from the books and records maintained by the Loan Parties’  management, are correct and complete in all material respects and fairly represent in all material respects  the consolidated financial condition of the Company and its Subsidiaries as of the respective dates thereof  and the results of operations for the fiscal periods then ended and have been prepared in accordance with  GAAP consistently applied, subject (in the case of the interim statements) to normal year-end audit  adjustments.  





 






DB1/ 127789195.7 102  (b) Financial Projections.  The Loan Parties have delivered to the Administrative Agent  summary projected financial statements (including, without limitation, a consolidated income statement,  balance sheet and cash flow together with a detailed explanation of the assumptions used in preparing such  projected financial statements) of the Company and its Subsidiaries on a quarterly basis for the first fiscal  year following the Closing Date and on an annual basis for the two fiscal years thereafter, derived from  various assumptions of the Loan Parties’ management (the “Projections”).  The Projections have been  prepared in good faith based on assumptions believed by the Company to be reasonable at the time such  Projections were prepared and information believed by the Company to have been accurate based upon the  information available to the Company at the time such Projections were furnished to the Lenders, and the  Company is not be aware of any facts or information that would lead it to believe that such Projections are  incorrect or misleading in any material respect; it being understood that (a) the Projections represent a  reasonable range of possible results in light of the history of the business, present and foreseeable conditions  and the intentions of the Loan Parties’ management, it being understood that such Projections (i) are as to  future events and not to be viewed as facts, (ii) are subject to significant uncertainties and contingencies,  many of which are beyond the control of the Loan Parties and their Subsidiaries, and (iii) no assurance can  be given that the Projections will be realized, (b) actual results may significantly vary from the Projections  and such variations may be adverse and material and (c) the Projections should not be regarded as a  representation by the Loan Parties or its management that the projected results or financial condition of the  Loan Parties will be achieved.  (c) Accuracy of Financial Statements; No Material Adverse Effect.  As of the respective dates  of the Statements, no Loan Party nor any Subsidiary thereof has any liabilities, contingent or otherwise, or  forward or long-term commitments that are not disclosed in the Statements or in the notes thereto, and  except as disclosed therein there are no unrealized or anticipated losses from any commitments of any Loan  Party or any Subsidiary thereof and, in each case, which constitutes a Material Adverse Effect.  Since  October 30, 2021, no Material Adverse Effect has occurred.  (d) Beneficial Ownership.  As of the date hereof, the information included in the Beneficial  Ownership Certification is true and correct in all material respects.  SECTION 3.07 Margin Stock.  None of the Loan Parties or any Subsidiaries of any Loan Party  engages or intends to engage principally, or as one of its important activities, in the business of extending  credit for the purpose, immediately, incidentally or ultimately, of purchasing or carrying margin stock  (within the meaning of Regulation U, T or X as promulgated by the Board of Governors of the Federal  Reserve System).  No part of the proceeds of any Loan or Letter of Credit has been or will be used,  immediately, incidentally or ultimately, to purchase or carry any margin stock or to extend credit to others  for the purpose of purchasing or carrying any margin stock or which is inconsistent with the provisions of  the regulations of the Board of Governors of the Federal Reserve System.  None of the Loan Parties or any  Subsidiary of any Loan Party holds or intends to hold or, after giving effect to the use of proceeds of any  Loan or drawing of any Letter of Credit, will hold, margin stock in such amounts that more than twenty- five (25%) of the reasonable value of the assets of any Loan Party or Subsidiary of any Loan Party are or  will be represented by margin stock.  As of the Closing Date, none of the Loan Parties holds any margin  stock.  SECTION 3.08 Full Disclosure.  Neither this Agreement nor any other Loan Document, nor any  certificate, statement, agreement or other documents furnished to the Administrative Agent or any Lender  in connection herewith or therewith, taken as a whole, contains any untrue statement of a material fact or  omits to state a material fact necessary in order to make the statements contained herein and therein, in light  of the circumstances under which they were made, not misleading.  There is no fact known to any Loan  Party which would reasonably be expected to constitute a Material Adverse Effect which has not been set  forth in this Agreement or in the certificates, statements, agreements or other documents furnished in  





 






DB1/ 127789195.7 103  writing to the Administrative Agent and the Lenders prior to or at the date hereof in connection with the  transactions contemplated hereby.  SECTION 3.09 Taxes.  All federal and other material Tax returns required to have been filed with  respect to each Loan Party and each Restricted Subsidiary of each Loan Party have been filed, and payment  or adequate provision has been made for the payment of all Taxes, fees, assessments and other governmental  charges which have or may become due pursuant to said returns or to assessments received, except to the  extent that (a) the amount thereof is not individually or in the aggregate material or (b) such Taxes, fees,  assessments and other charges are being contested in good faith by appropriate proceedings diligently  conducted and for which such reserves or other appropriate provisions, if any, as shall be required by GAAP  shall have been made.  Each Loan Party and each of its respective Restricted Subsidiaries has withheld all  employee withholdings and has made all employer contributions to be withheld and made by it pursuant to  applicable law on account of the Canadian Pension Plans, employment insurance and employee income  Taxes, except where the failure to do so, individually or in the aggregate, would not reasonably be expected  to result in a Material Adverse Effect.  SECTION 3.10 Properties, Patents, Trademarks, Copyrights, Licenses, Etc.    (a) As of the date hereof, Schedule 3.10(a) hereto sets forth the address of each parcel of real  property that is owned or leased by any Loan Party. Except as set forth on Schedule 3.10(a), (i) each of  such leases and subleases of each Loan Party is valid and enforceable in accordance with its terms and is  in full force and effect, except to the extent that enforceability thereof may be limited by bankruptcy,  insolvency, reorganization, moratorium or other similar laws affecting the enforceability of creditors’ rights  generally or limiting the right of specific performance or by general principles of equity, (ii) no default by  any party to any such lease or sublease exists, and (iii) each of the Loan Parties and each of its Restricted  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 Permitted Liens except, in the case of (i), (ii) or (iii), to the  extent that the failure of the foregoing to be true would result in a Material Adverse Effect.  (b) Each Loan Party and each Restricted Subsidiary of each Loan Party owns or possesses all  the material patents, trademarks, service marks, trade names, copyrights, licenses, registrations, franchises,  permits and rights necessary to own and operate its properties and to carry on its business as presently  conducted and planned to be conducted by such Loan Party or Restricted Subsidiary, without known  possible, alleged or actual conflict with the rights of others, except with respect to any conflict that does  not, individually or in the aggregate, result in a Material Adverse Effect.  Except as set forth on Schedule  3.10(b), each Loan Party’s and each Restricted Subsidiary’s rights with respect to such material patents,  trademarks, service marks, trade names, copyrights, and other Intellectual Property necessary to own and  operate its properties and to carry on its business as presently conducted and planned to be conducted are  not subject to any licensing agreement or similar arrangement (other than (A) restrictions relating to  software licenses that may limit such Loan Party’s ability to transfer or assign any such agreement to a third  party and (B) licensing agreements or similar agreements that do not materially impair the ability of the  Administrative Agent or the Lenders to avail themselves of their rights of disposal and other rights granted  under the Collateral Documents in respect of Inventory).  SECTION 3.11 Insurance.  Schedule 3.11 hereto sets forth a description of all insurance  maintained by or on behalf of the Loan Parties as of the date hereof. As of the date hereof, no premiums in  respect of such insurance are overdue.  The properties of each Loan Party and each of its Restricted  Subsidiaries are insured pursuant to policies and other bonds which are valid and in full force and effect  and which provide adequate coverage from reputable and financially sound insurers in amounts sufficient  to insure the assets and risks of each such Loan Party and Restricted Subsidiary in accordance with prudent  business practice in the industry of such Loan Parties and Restricted Subsidiaries.    





 






DB1/ 127789195.7 104  SECTION 3.12 ERISA Compliance; Canadian Pension Plans.    (i) Each Plan is in compliance in all respects with the applicable provisions of ERISA,  the Code and other federal or state law, except where the failure to comply does not result in a  Material Adverse Effect.  Each Plan that is intended to qualify under Section 401(a) of the Code  has received from the IRS a favorable determination or opinion letter, which has not by its terms  expired, that such Plan is so qualified, or such Plan is entitled to rely on an IRS advisory or opinion  letter with respect to an IRS-approved master and prototype or volume submitter plan, or a timely  application for such a determination or opinion letter is currently being processed by the IRS with  respect thereto; and, to the best knowledge of the Company, nothing has occurred which would  prevent, or cause the loss of, such qualification.  Except as would not result in a Material Adverse  Effect, (a) the Company and each ERISA Affiliate have made all required contributions to each  Plan subject to Sections 412 or 430 of the Code, and (b) no application for a funding waiver or an  extension of any amortization period pursuant to Sections 412 or 430 of the Code has been made  with respect to any Plan.  (ii) Except as would not, either individually or in the aggregate, result in a Material  Adverse Effect, (a) no ERISA Event has occurred or is reasonably expected to occur; (b) no Plan  has any unfunded pension liability (i.e., excess of benefit liabilities over the current value of that  Plan’s assets, determined pursuant to the assumptions used for funding the Plan for the applicable  plan year in accordance with Section 430 of the Code); (c) neither the Company nor any of its  ERISA Affiliates has incurred, or reasonably expects to incur, any liability under Title IV of ERISA  with respect to any Plan (other than premiums due and not delinquent under Section 4007 of  ERISA); (d) neither the Company nor any of its ERISA Affiliates has incurred, or reasonably  expects to incur, any liability (and no event has occurred which, with the giving of notice under  Section 4219 of ERISA, would result in such liability) under Section 4201 of ERISA, with respect  to a Multiemployer Plan; (e) neither the Company nor any of its ERISA Affiliates has received  notice that a Multiemployer Plan is insolvent or in critical or endangered status and that additional  contributions are due to the Multiemployer Plan; and (f) neither the Company nor any of its ERISA  Affiliates has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA.  (iii) Each Foreign Plan is duly registered under all applicable Requirements of Law  which require registration and, as applicable, is approved for tax purposes by the relevant tax  authorities in the jurisdiction in which such Foreign Plans are registered. Each Loan Party and any  Restricted Subsidiary thereof have complied with and performed in all material respects all of its  obligations under and in respect of the Foreign Plans under the terms thereof, any funding  agreements and all applicable Requirements of Law (including any fiduciary, funding, investment  and administration obligations).  (iv) No Foreign Benefit Event has occurred and no Borrower, no Restricted Subsidiary  of a Borrower or any Loan Party is aware of any fact, event or circumstance existing as of the date  hereof that would reasonably be expected to constitute or result in a Foreign Benefit Event.  (v) Schedule 3.12 lists as of the Closing Date all Canadian Pension Plans currently  maintained or contributed to by the Loan Parties. Except as would not reasonably be expected,  individually or in the aggregate, to result in a Material Adverse Effect, as of the Closing Date, the  Canadian Pension Plans are duly registered under the ITA and all other applicable laws which  require registration. Except as would not reasonably be expected, individually or in the aggregate,  to result in a Material Adverse Effect, (i) each Loan Party has complied with and performed all of  its obligations under and in respect of the Canadian Pension Plans under the terms thereof, any  funding agreements and all applicable laws (including any fiduciary, funding, investment and  





 






DB1/ 127789195.7 105  administration obligations), (ii) all employer and employee payments, contributions or premiums  to be remitted, paid to or in respect of each Canadian Pension Plan have been paid in a timely  fashion in accordance with the terms thereof, any funding agreement and all applicable laws, and  (iii) there have been no improper withdrawals or applications of the assets of the Canadian Pension  Plans. As at the date of this Agreement, no promises of benefit improvements under the Canadian  Pension Plans have been made except where such improvement would not be reasonably expected  to have a Material Adverse Effect, and, in any event, no such improvements will result in any  additional solvency deficiency or going concern unfunded liability under any Canadian Defined  Benefit Plan which would be reasonably expected to have a Material Adverse Effect. There are no  outstanding disputes concerning the assets of the Canadian Pension Plans which would be  reasonably expected to have a Material Adverse Effect. No Canadian Pension Event has occurred  which has resulted in, or would reasonably be expected to result in, a Material Adverse Effect.   Each of the Canadian Pension Plans is fully funded on both a going concern and on a solvency  basis (using actuarial methods and assumptions which are consistent with the valuations last filed  with the applicable Governmental Authorities and which are consistent with generally accepted  actuarial principles) and no Canadian Pension Event has occurred.  SECTION 3.13 Environmental Matters.  Each Loan Party and each Restricted Subsidiary of each  Loan Party is and has been in compliance with applicable Environmental Laws except to the extent that any  non-compliance would not in the aggregate constitute a Material Adverse Effect.  No Loan Party or any  Restricted Subsidiary (i) has incurred an Environmental Liability, (ii) has received notice of any claim with  respect to any Environmental Liability or (iii) has knowledge of any Environmental Liability except, in any  case of (i), (ii) or (iii), where such failure or liability, as the case may be, would not reasonably be expected  to result in a Material Adverse Effect.  SECTION 3.14 Labor Matters.  Except as would not reasonably be expected, individually or in the  aggregate, to result in a Material Adverse Effect, (i) there are no strikes, lockouts, slowdowns or any other  labor disputes against Company or any Restricted Subsidiary pending or, to the knowledge of Company,  threatened, (ii) the hours worked by and payments made to employees of Company and the Restricted  Subsidiaries have not been in violation of the Fair Labor Standards Act of 1938, the Employee Standards  Act (Ontario) or any other applicable federal, state, provincial, territorial, local or foreign law dealing with  such matters and (iii) all payments due from Company or any Restricted Subsidiary, or for which any claim  may be made against Company or any Restricted Subsidiary, on account of wages and employee health and  welfare insurance and other benefits, have been paid or accrued as a liability on the books of Company or  such Restricted Subsidiary to the extent required by GAAP. The consummation of the Transactions do not  give rise to any right of termination or right of renegotiation on the part of any union under any collective  bargaining agreement to which Company or any Restricted Subsidiary is bound.  SECTION 3.15 Solvency.  Before and after giving effect to the transactions contemplated by this  Agreement and the other Loan Documents, including all Indebtedness incurred thereby and the payment of  all fees related thereto, the Loan Parties, taken as a whole are Solvent.  SECTION 3.16 Anti-Terrorism Laws, Anti-Corruption Laws and Sanctions. Each Loan Party has  implemented and maintains in effect policies and procedures designed to ensure compliance by such Loan  Party, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Terrorism  Laws, Anti-Corruption Laws and applicable Sanctions, and such Loan Party, its Subsidiaries and their  respective officers and directors and, to the knowledge of such Loan Party, its employees and agents, are  in compliance with Anti-Terrorism Laws, Anti-Corruption Laws and applicable Sanctions in all material  respects and are not knowingly engaged in any activity that would reasonably be expected to result in any  Loan Party being designated as a Sanctioned Person. None of (a) any Loan Party, any Subsidiary or any of  their respective directors, officers or, to the knowledge of any such Loan Party or Subsidiary, employees,  





 






DB1/ 127789195.7 106  or (b) to the knowledge of any such Loan Party or Subsidiary, any agent of such Loan Party or any  Subsidiary that will act in any capacity in connection with or benefit from the credit facility established  hereby, is a Sanctioned Person.  No Borrowing or Letter of Credit, use of proceeds, Transaction or other  transaction contemplated by this Agreement or the other Loan Documents will violate Anti-Terrorism  Laws, Anti-Corruption Laws or applicable Sanctions.  Notwithstanding the foregoing, the representations  made in this Section 3.16 shall not be made by nor apply to any Person that qualifies as a corporation that  is registered or incorporated under the laws of Canada or any province or territory thereof and that carries  on business in whole or in part in Canada within the meaning of Section 2 of the Foreign Extraterritorial  Measures (United States) Order, 1992 passed under the Foreign Extraterritorial Measures Act (Canada) in  so far as such representations would result in a violation of or conflict with the Foreign Extraterritorial  Measures Act (Canada) or any similar law.  SECTION 3.17 EEA Financial Institutions. No Loan Party is an EEA Financial Institution.  SECTION 3.18 Security Interest in Collateral. The provisions of the Security Agreements create  legal, valid and enforceable (except to the extent that enforceability thereof may be limited by bankruptcy,  insolvency, reorganization, moratorium or other similar laws affecting the enforceability of creditors’ rights  generally or limiting the right of specific performance or by general principles of equity) Liens on the  Collateral granted by (a) the U.S. Loan Parties in favor of the Administrative Agent (for the benefit of the  Secured Parties), securing the Secured Obligations and (b) the Canadian Loan Parties in favor of the  Administrative Agent (for the benefit of the Secured Parties), securing the Canadian Secured Obligations.  SECTION 3.19 Credit Card Agreements.  All Credit Card Agreements relating to Eligible Credit  Card Accounts are in full force and effect, currently binding upon each Loan Party that is a party thereto  and, to the knowledge of the Loan Parties, binding upon other parties thereto in accordance with their terms  (except to the extent that enforceability thereof may be limited by bankruptcy, insolvency, reorganization,  moratorium or other similar laws affecting the enforceability of creditors’ rights generally or limiting the  right of specific performance or by general principles of equity). The Loan Parties are in compliance in all  material respects with each such Credit Card Agreement.  Annexed hereto as Schedule 3.19 is a list  describing all arrangements as of the date hereof to which any Loan Party is a party with respect to the  processing and/or payment to such Loan Party of the proceeds of any credit card charges, debit card charges,  and other e-commerce charges contemplated by the definition of “Credit Card Accounts” for sales made by  such Loan Party.  SECTION 3.20 Plan Assets; Prohibited Transactions. No Loan Party or any of its Subsidiaries is  an entity deemed to hold “plan assets” (within the meaning of the Plan Asset Regulations), and neither the  execution, delivery or performance of the transactions contemplated under this Agreement, including the  making of any Loan and the issuance of any Letter of Credit hereunder, will give rise to a non-exempt  prohibited transaction under Section 406 of ERISA or Section 4975 of the Code.  Should any of the information or disclosures provided on any of the Schedules attached hereto become  outdated or incorrect in any material respect, the Company shall promptly provide the Administrative Agent  in writing with such revisions or updates to such Schedule as may be necessary or appropriate to update or  correct same.  No Schedule shall be deemed to have been amended, modified or superseded by any such  correction or update, nor shall any breach of warranty or representation resulting from the inaccuracy or  incompleteness of any such Schedule be deemed to have been cured thereby, unless and until the Required  Lenders, in their sole and absolute discretion, shall have accepted in writing such revisions or updates to  such Schedule; provided however, that the Company may update Schedule 3.02 without any Lender  approval in connection with any transaction permitted under Sections 6.04 and Section 6.08.  





 






DB1/ 127789195.7 107  SECTION 3.21 Beneficial Ownership Certificate.  Each Loan Party represents that as of the  Closing Date, the information included in the Beneficial Ownership Certification is true and correct in all  respects.  ARTICLE IV.  CONDITIONS  SECTION 4.01 Closing Date.  This Agreement shall not become effective, and the obligations of  the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become  effective, until the date on which each of the following conditions is satisfied:  (a) Credit Agreement. The Administrative Agent (or its counsel) shall have received from each  party hereto either (A) a counterpart of this Agreement signed on behalf of such party or (B) written  evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic  transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this  Agreement.  (b) Other Loan Documents. The Administrative Agent (or its counsel) shall have received  either (A) a counterpart of each Collateral Document, the Intercompany Subordination Agreement, and any  promissory notes request pursuant to Section 2.10(f), in each case, signed on behalf of each party thereto  or (B) written evidence satisfactory to the Administrative Agent (which may include facsimile or other  electronic transmission of a signed signature page thereof) that each such party has signed a counterpart of  each such Collateral Document, the Intercompany Subordination Agreement, and promissory note.  (c) Lien Searches. The Administrative Agent shall have received the results of a recent lien  search (1) in each jurisdiction where the Loan Parties are organized and (2) in respect of (i) DSW Shoe  Warehouse, Inc., eTailDirect LLC, Ebuys, Inc., Camuto LLC and CCI Operations LLC, in Ohio, (ii) VCS  Group LLC, in Delaware, and (iii) Sole Society Group, Inc. in California, and such searches shall reveal no  Liens on any of the assets of the Loan Parties except for Permitted Liens or subject to satisfactory estoppel  letters discharged on or prior to the Closing Date pursuant to a pay-off letter or other documentation  satisfactory to the Administrative Agent.  (d) Corporate Structure. The corporate structure, capital structure and other material debt  instruments, material accounts and governing documents of the Borrowers and their Subsidiaries shall be  reasonably acceptable to the Administrative Agent in its Permitted Discretion.  (e) Tax Withholding. The Administrative Agent shall have received a properly completed and  signed IRS Form W-8 or W-9, as applicable, for each Loan Party.  (f) Legal Due Diligence. The Administrative Agent and its counsel shall have completed all  legal due diligence, the results of which shall be satisfactory to Administrative Agent in its Permitted  Discretion.  (g) USA PATRIOT Act, Etc. The Administrative Agent and the Lenders shall have received  (i) all documentation and other information required by bank regulatory authorities under applicable “know  your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and  Proceeds of Crime Act, for each Loan Party, and (ii) to the extent requested by any Lender or the  Administrative Agent from the Borrower Representative directly at least ten (10) Business Days prior to  the date hereof, each Borrower, to the extent qualifying as a “legal entity customer” under the Beneficial  





 






DB1/ 127789195.7 108  Ownership Regulation, shall deliver to each such Lender or Administrative Agent a Beneficial Ownership  Certification at least three (3) Business Days prior to the date hereof.  (h) Opinions. The Administrative Agent shall have received a written opinion of (i) Vorys,  Sater, Seymour and Pease LLP, counsel to the Loan Parties, (ii) Shipman & Goodwin, local counsel for the  Loan Parties formed under the laws of the state of Connecticut, (iii) Evans & Dixon, L.L.C., local counsel  for the Loan Party formed under the laws of the state of Missouri, and (iv) Osler, Hoskin & Harcourt LLP,  local counsel for the Loan Party formed under the laws of the Province of Ontario, Canada, in each case  addressed to the Administrative Agent, the Issuing Bank and the Lenders and in form and substance  reasonably satisfactory to the Administrative Agent and its counsel.   (i) Financial Statements and Projections. The Lenders shall have received the Statements, the  Projections and a projection of Availability on a monthly basis for the twelve (12) month period following  the Closing Date.  (j) Closing Certificates; Certified Certificate of Incorporation; Good Standing Certificates.  The Administrative Agent shall have received (i) a certificate of each Loan Party, dated as of the Closing  Date and executed by its Secretary or Assistant Secretary, which shall (A) certify the resolutions of its  Board of Directors, members or other body authorizing the execution, delivery and performance of the Loan  Documents to which it is a party, (B) identify by name and title and bear the signatures of the Responsible  Officers of such Loan Party authorized to sign the Loan Documents to which it is a party, and (C) contain  appropriate attachments, including the certificate or articles of incorporation or organization of each Loan  Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true  and correct copy of its by-laws or operating, management or partnership agreement, and (ii) a good standing  certificate for each Loan Party from its jurisdiction of organization or the substantive equivalent available  in the jurisdiction of organization for each Loan Party from the appropriate governmental officer in such  jurisdiction.  (k) Collateral and Guaranty Requirement; Perfection Certificate. Subject to Section 5.17, the  Collateral and Guaranty Requirement shall have been satisfied with respect to all Loan Parties as of the  Closing Date and the Administrative Agent shall have received a completed perfection certificate, in form  and substance reasonably satisfactory to the Administrative Agent, dated as of the Closing Date and signed  by a Responsible Officer of the Borrower, together with all attachments contemplated thereby.  (l) Officer’s Certificate. The Administrative Agent shall have received a certificate, signed by  a Responsible Officer of the Borrower Representative, dated as of the Closing Date (i) stating that no  Default has occurred and is continuing, (ii) stating that the representations and warranties contained in the  Loan Documents are true and correct in all material respects as of such date (it being understood and agreed  that any representation or warranty which is subject to any materiality qualifier shall be required to be true  and correct in all respects), and (iii) certifying any other factual matters as may be reasonably requested by  the Administrative Agent.  (m) Fees and Expenses. The Lenders and the Administrative Agent shall have received all fees  required to be paid, including pursuant to the Fee Letter, and all expenses for which invoices have been  presented at least two (2) Business Days prior to the Closing Date (including the reasonable and  documented fees and expenses of legal counsel), on or before the Closing Date.  (n) Payoff. The Administrative Agent shall have received a payoff letter from PNC Bank,  National Association, as administrative agent under the Existing Credit Agreement, reasonably satisfactory  in form and substance to the Administrative Agent evidencing that the Existing Credit Agreement has been  or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full  





 






DB1/ 127789195.7 109  (other than the Existing Letters of Credit), and all Liens securing obligations under the Existing Credit  Agreement have been or concurrently with the Closing Date are being released.  (o) Control Agreements. Subject to Section 5.17, the Administrative Agent shall have received  each deposit account control agreement and securities account control agreement, in form and substance  reasonably satisfactory to the Administrative Agent, required to be provided pursuant to the Security  Agreements.  (p) Credit Card Notifications. Subject to Section 5.17, the Administrative Agent shall have  received copies of the Credit Card Notifications, duly executed by the applicable Loan Parties with respect  to all Eligible Credit Card Accounts.  (q) Solvency. The Administrative Agent shall have received a solvency certificate from a  Financial Officer of the Company.  (r) Borrowing Base Certificate. The Administrative Agent shall have received a Borrowing  Base Certificate which calculates the U.S. Borrowing Base and the Canadian Borrowing Base as of  February 28, 2022.  (s) Closing Availability. After giving effect to all Borrowings to be made on the Closing Date,  the issuance (or deemed issuance) of any Letters of Credit on the Closing Date and the payment of all fees  and expenses due hereunder, the Administrative Agent shall be reasonably satisfied that Availability shall  not be less than $100,000,000.  (t) Filings, Registrations and Recordings. Each document (including any UCC or PPSA  financing statement) required by the Collateral 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 Permitted  Liens), shall be in proper form for filing, registration or recordation.  (u) Insurance. The Administrative Agent shall have received evidence of insurance coverage  in form, scope, and substance reasonably satisfactory to the Administrative Agent and otherwise in  compliance with the terms of Section 5.11 hereof.  (v) Collateral Diligence.  The Administrative Agent shall have received, in form and substance  reasonably satisfactory to it, an assignment of an existing Inventory appraisal of the Loan Parties, an  assignment of an existing field examination with respect to the Loan Parties, and all other diligence, reports,  audits or certifications as it may reasonably request.  (w) No Proceedings.  There shall not be any action, suit, investigation or proceeding pending  or, to the knowledge of the Loan Parties, threatened in any court or before any arbitrator or Governmental  Authority that is reasonably likely to be adversely determined, and if, adversely determined would  reasonably be expected to have a Material Adverse Effect.   (x) Material Adverse Effect. No Material Adverse Effect shall have occurred since October  30, 2021.   For purposes of determining compliance with the conditions specified in this Section 4.01, each  Lender and Issuing Bank that has signed this Agreement shall be deemed to have consented to, approved  or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or  





 






DB1/ 127789195.7 110  approved by or acceptable or satisfactory to a Lender or Issuing Bank, as applicable, unless the  Administrative Agent shall have received notice from such Lender or Issuing Bank prior to the proposed  Closing Date specifying its objection thereto.  The Administrative Agent shall notify the Borrowers, the  Lenders and the Issuing Bank of the Closing Date, and such notice shall be conclusive and binding. SECTION 4.02 Each Credit Event. The obligation of each Lender to make a Loan on the occasion  of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend any Letter of Credit, is subject  to the satisfaction of the following conditions:  (a) The representations and warranties of the Loan Parties set forth in the Loan Documents  shall be true and correct in all material respects with the same effect as though made on and as of the date  of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as  applicable (it being understood and agreed that any representation or warranty which by its terms is made  as of a specified date shall be required to be true and correct in all material respects only as of such specified  date, and that any representation or warranty which is subject to any materiality qualifier shall be required  to be true and correct in all respects);  (b) 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, no Default or Event of Default  shall have occurred and be continuing; and  (c) After giving effect to any Borrowing or the issuance, amendment, renewal or extension of  any Letter of Credit, the Borrowers shall be in compliance with the Revolving Exposure Limitations.  Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be  deemed to constitute a representation and warranty by the Borrowers on the date thereof as to the matters  specified in paragraphs (a), (b), and (c) of this Section.  Notwithstanding the failure to satisfy the conditions precedent set forth in paragraphs (a) or (b) of  this Section, unless otherwise directed by the Required Lenders, the Administrative Agent may, but shall  have no obligation to, continue to make Loans, and an Issuing Bank may, but shall have no obligation to,  issue, amend, renew or extend, or cause to be issued, amended, renewed or extended, any Letter of Credit  for the ratable account and risk of the Lenders from time to time if the Administrative Agent believes that  making such Loans or issuing, amending, renewing or extending, or causing the issuance, amendment,  renewal or extension of, any such Letter of Credit is in the best interests of the Lenders.  ARTICLE V.  AFFIRMATIVE COVENANTS  Until the Commitments shall have expired or been terminated and the principal of and interest on  each Loan and all fees, expenses and other amounts payable under any Loan Document (other than  contingent or indemnity obligations for which no claim has been made by the Person entitled thereto) shall  have been paid in full and all Letters of Credit shall have expired or have been Cash Collateralized pursuant  to the terms hereof, or terminated, in each case without any pending draw, and all LC Disbursements shall  have been reimbursed, each Loan Party executing this Agreement covenants and agrees, jointly and  severally with all of the other Loan Parties, with the Lenders that:  SECTION 5.01 Financial Statements; Borrowing Base and Other Information. The Borrower  Representative will furnish to the Administrative Agent, for distribution to each Lender:  





 






DB1/ 127789195.7 111  (a) Within ninety (90) calendar days after the end of each fiscal year (or, if the Company  notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to  file its annual report on Form 10-K, then such later date as so extended by the SEC (but not to exceed one  hundred thirty-five (135) days after the end of the applicable fiscal year)), financial statements of the  Company and its Subsidiaries consisting of an audited consolidated balance sheet as of the end of such  fiscal year, and related consolidated statements of income, shareholders’ equity and cash flows for the fiscal  year then ended, all in reasonable detail and setting forth in comparative form the financial statements as  of the end of and for the preceding fiscal year, and certified by independent certified public accountants of  nationally recognized standing reasonably satisfactory to the Administrative Agent.  The certificate or  report of accountants shall be free of qualifications (other than any consistency qualification that may result  from a change in the method used to prepare the financial statements as to which such accountants concur)  and shall not indicate the occurrence or existence of any event, condition or contingency which would  materially impair the prospect of payment or performance of any covenant, agreement or duty of any Loan  Party under any of the Loan Documents.   (b) For each of the first three fiscal quarters of each fiscal year of the Company, within forty- five (45) calendar days after the end of any such fiscal quarter (or, if the Company notifies the  Administrative Agent that the SEC has extended the applicable deadline for the Company to file its  quarterly report on Form 10-Q, such later date as so extended by the SEC (but not to exceed one hundred  (100) days after the end of the applicable fiscal quarter)), financial statements of the Company and its  Subsidiaries, consisting of a consolidated balance sheet as of the end of such fiscal quarter and related  consolidated statements of income, shareholders’ equity and cash flows for the fiscal quarter then ended  and the fiscal year through that date, all in reasonable detail and certified (subject to normal year-end audit  adjustments and the absence of footnotes) by a Financial Officer of the Company as presenting fairly in all  material respects the financial condition and results of operations of the Company and its Subsidiaries on a  consolidated basis in accordance with GAAP, consistently applied, and setting forth in comparative form  the respective financial statements for the corresponding date and period in the previous fiscal year.  (c) During any Increased Financial Reporting Period, within thirty (30) days after the end of  each fiscal month of the Company, monthly financial statements of the Company and its Subsidiaries,  consisting of a consolidated balance sheet and related statements of operations and cash flows as of the end  of and for such fiscal month and the then elapsed portion of the fiscal year, all in reasonable detail and  certified (subject to normal year-end audit adjustments and the absence of footnotes) by a Financial Officer  of the Company as presenting fairly in all material respects the financial condition and results of operations  of the Company and its Subsidiaries on a consolidated basis in accordance with GAAP, consistently applied,  and setting forth in comparative form the respective financial statements for the corresponding date and  period (or periods) in (or, in the case of the balance sheet, as of the end of) the previous fiscal year.  (d) Concurrently with any delivery of financial statements under clause (a), (b) or (c) above, a  Compliance Certificate, which shall (i) when delivered concurrently with the delivery of the financial  statements delivered under clause (b) or (c), certify that such financial statements present fairly in all  material respects the financial condition and results of operations of the Company and its consolidated  Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year- end audit adjustments and the absence of footnotes, (ii) certify as to whether a Default has occurred and, if  a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with  respect thereto, (iii) state whether any change in GAAP or in the application thereof has occurred since the  date of the audited financial statements referred to in Section 3.06 and, if any such change has occurred,  specifying the effect of such change on the financial statements accompanying such certificate, (iv) provide  reasonably detailed calculations demonstrating the Consolidated Fixed Charge Coverage Ratio,  (v)  describe whether, since the later of the date hereof and the date of the last Compliance Certificate, any  Loan Party shall have (A) changed its name as it appears in official filings in the state or province of  





 






DB1/ 127789195.7 112  incorporation or organization, (B) changed its chief executive office, (C) changed the type of entity that it  is, (D) changed its organization identification number, if any, issued by its state or province of incorporation  or other organization, (E) changed its state or province of incorporation or organization, (F) acquired,  registered or issued any new patents, trademarks or copyrights and whether any material intent-to-use  trademarks are no longer “intent-to-use” trademarks, or (G) closed any store location, and (vi) certify a list  of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as  an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set  forth in clause (b) of the definition of the term “Immaterial Subsidiary”.  (e) On or before each Borrowing Base Reporting Date, a Borrowing Base Certificate setting  forth a computation of the Borrowing Base as of the most recently ended fiscal month or week, as  applicable, to which such Borrowing Base Reporting Date relates, together with supporting information  and any additional reports with respect to the Borrowing Base that the Administrative Agent may  reasonably request.  (f) On or before each Borrowing Base Reporting Date, the following information as of the  most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date  relates, all delivered electronically in a text formatted file in form reasonably acceptable to the  Administrative Agent:   (i) a reasonably detailed aging of the Loan Parties’ Credit Card Accounts and other  Accounts;  (ii) a schedule detailing the Loan Parties’ Inventory;  (iii) a reasonably detailed accounts payable aging;  (iv) a worksheet of calculations prepared by the Loan Parties to determine Eligible  Credit Card Accounts, Eligible Trade Accounts, Eligible Inventory, Eligible Consigned Inventory,  and Eligible In-Transit Inventory, such worksheets detailing the Credit Card Accounts, other  Accounts and Inventory excluded from Eligible Credit Card Accounts, Eligible Trade Accounts,  Eligible Inventory, Eligible Consigned Inventory, and Eligible In-Transit Inventory and the reason  for such exclusion;  (v) a reconciliation of the Loan Parties’ Credit Card Accounts, other Accounts and  Inventory between (A) the amounts shown in the Loan Parties’ general ledger and financial  statements and the reports delivered pursuant to clauses (i) and (ii) above and (B) the amounts and  dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base  Certificate delivered pursuant to clause (e) above as of such date; and  (vi) such other information regarding the Collateral or Loan Parties as the  Administrative Agent may from time to time reasonably request.  (g) Concurrent with any field exam permitted under Section 5.07 (or at such other times as  agreed upon by the Administrative Agent and the Company), the Borrower Representative shall provide  notice to the Administrative Agent of any removal or addition of any credit card issuer or credit card  processor to the extent that (i) in the case of a removal, Credit Card Accounts of such credit card issuer or  credit card processor were included in any previous Borrowing Base or (ii) in the case of an addition, the  Borrower Representative desires to include the Credit Card Accounts of such credit card issuer or credit  card processor in the Borrowing Base, and concurrently with any such notice of an addition, the Company  shall provide to the Administrative Agent (A) evidence reasonably satisfactory to the Administrative Agent  





 






DB1/ 127789195.7 113  that a Credit Card Notification shall have been delivered to such credit card issuer or credit card processor,  (B) a true and complete copy of each Credit Card Agreement with respect thereto, together with all material  amendments, waivers and other modifications thereto, and (C) such other information with respect thereto  as may be reasonably requested by the Administrative Agent; for the avoidance of doubt, unless otherwise  agreed by the Administrative Agent, no Credit Card Accounts of an added credit card issuer or credit card  processor may be included in the Borrowing Base until a field exam with respect thereto has been  completed.  The Borrower Representative shall be deemed to have furnished to the Administrative Agent the  financial statements and certificates required to be delivered pursuant to Sections 5.01(a) and (b) and the  reports and other material required by Section 5.02(p)(iv) upon the filing of such financial statements or  material by the Company through the SEC’s EDGAR system (or any successor electronic gathering system)  or the publication by the Company of such financial statements on its website, so long as such system or  website is publicly available; provided that, the Borrower Representative shall, at the reasonable request of  the Administrative Agent or any Lender, promptly deliver electronic or paper copies of such filings together  all accompanying exhibits, attachments, calculations, or other supporting documentation included with such  filing.  SECTION 5.02 Notices of Material Events and Delivery of Other Reports. The Borrower  Representative will furnish to the Administrative Agent prompt (but in any event within any time period  after such Responsible Officer has such knowledge that may be specified below) written notice of the  following:  (a) Promptly after any Responsible Officer of any Loan Party has learned of the occurrence of  an Event of Default or a Default (and in any event within five (5) Business Days after knowledge thereof),  a certificate signed by an Responsible Officer setting forth the details of such Event of Default or Default  and the action which such Loan Party proposes to take with respect thereto.   (b) Promptly after the commencement thereof (and in any event within five (5) Business Days  after knowledge by a Responsible Officer of the Borrower Representative thereof), notice of all actions,  suits, proceedings or investigations before or by any Governmental Authority or any other Person against  any Loan Party or any Restricted Subsidiary which involve a claim or series of claims that, individually or  in the aggregate would reasonably be expected to have a Material Adverse Effect.  (c) Promptly in the event that any Loan Party or its accountants conclude or advise that any  previously issued financial statement, audit report or interim review should no longer be relied upon or that  disclosure should be made or action should be taken to prevent future reliance.  (d) Promptly upon the occurrence of any ERISA Event or Foreign Benefit Event.  (e) (1) Promptly upon filing thereof, a copy of the most recent actuarial valuation report  prepared in respect of any Canadian Defined Benefit Plan that has been filed with the applicable pension  regulator in Canada, and (2) promptly after any request therefor by the Administrative Agent or any Lender,  copies of (i) any documents described in Section 101(k)(1) of ERISA that any Loan Party or any ERISA  Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section  101(l)(1) of ERISA that any Loan Party or any ERISA Affiliate may request with respect to any  Multiemployer Plan; provided that if a Loan Party or any ERISA Affiliate has not requested such documents  or notices from the administrator or sponsor of the applicable Multiemployer Plan and is eligible to request  such documents or notices, the applicable Loan Party or the applicable ERISA Affiliate shall promptly  make a request for such documents and notices from such administrator or sponsor and shall provide copies  of such documents and notices promptly after receipt thereof.  





 






DB1/ 127789195.7 114  (f) Within five (5) Business Days after knowledge by a Responsible Officer of the Borrower  Representative of the occurrence of any Casualty with respect to Collateral having a value in the amount of  $13,750,000 or more, whether or not covered by insurance.  (g) Within ten (10) Business Days after knowledge by a Responsible Officer of the Borrower  Representative of the receipt by any Loan Party or any Restricted Subsidiary thereof, any default notice  received under or with respect to any leased location or public warehouse where Collateral in the amount  of $13,750,000 or more is located.  (h) After knowledge by a Responsible Officer of the Borrower Representative of (i) any action  or inaction of a plan sponsor or administrator that would reasonably be expected to result in a Canadian  Pension Event; the existence of any Unfunded Pension Liability in an amount in excess of $6,875,000; and  (iii) receipt of any notice from, or any action of, any Governmental Authority that that would reasonably  be expected to result in a Canadian Pension Event; which, for each of clause (i)-(iii), results, or would  reasonably be expected to result in, a Material Adverse Effect.   (i) (A) Within five (5) Business Days after knowledge by a Responsible Officer of the  Borrower Representative (1) of the occurrence of any default or event of default by any Person under any  agreement relating to Eligible Trade Accounts contained in the U.S. Borrowing Base, or (2) that any  Account Debtor with respect to Eligible Trade Accounts ceases to meet the requirements of clause (i) of  the definition of “Eligible Trade Accounts” and (B) on and at the time of submission to the Administrative  Agent of the Borrowing Base Certificate after a Responsible Officer of the Borrower Representative has  knowledge that any Loan Party has entered into a material amendment, waiver or other modification of any  agreement applicable to any Eligible Trade Account included in the U.S. Borrowing Base.  (j) (A) Within five (5) Business Days after knowledge by a Responsible Officer of the  Borrower Representative (1) of the occurrence of any default or event of default by any Person under any  Credit Card Agreement relating to Credit Cards Accounts contained in the Borrowing Base, (2) the  establishment of, or receipt by any Loan Party of a notice of any proposed establishment of, a reserve or  reserve account (or similar concept), whether in the form of an actual deposit account, book entry or  otherwise, in connection with any Credit Card Agreement for the purposes of securing all or any portion of  any Loan Party’s existing or potential obligations to the applicable credit card issuer or processor under  such Credit Card Agreement, or (3) that any credit card issuer, credit card processor or debit card issuer or  provider with respect to Credit Card Accounts ceases to meet the requirements of clause (f) of the definition  of “Eligible Credit Card Accounts” and (B) on and at the time of submission to the Administrative Agent  of the Borrowing Base Certificate after a Responsible Officer of the Borrower Representative has  knowledge that any Loan Party has entered into a material amendment, waiver or other modification of a  Credit Card Agreement applicable to any Credit Card Account included in the Borrowing Base.  (k) Within five (5) Business Days after knowledge by a Responsible Officer of the Borrower  Representative of the filing of any Lien with respect to any delinquent Taxes in excess of $2,750,000.  (l) Within five (5) Business Days after knowledge by a Responsible Officer of the Borrower  Representative of any change in the information provided in the Beneficial Ownership Certification that  would result in a change to the list of the beneficial owners identified in parts (c) or (d) of such certification.  (m) Promptly after knowledge by a Responsible Officer of the Borrower Representative of any  other development that results, or would reasonably be expected to result in, a Material Adverse Effect.  (n) Promptly upon learning thereof, report to Administrative Agent all matters materially  affecting the value, enforceability or collectability of any portion of the Collateral, including any Loan  





 






DB1/ 127789195.7 115  Parties’ reclamation or repossession of, or the return to any Loan Party of, a material amount of goods or  claims or disputes asserted by any customer or other obligor.  (o) (i) at least thirty (30) days prior thereto, notice of any Loan Party’s opening of any new  office or place of business or any Loan Party’s closing of an existing office or place of business (but  excluding (A) the closing of any store location and (B) other than with respect to stores in Canada located  in a province in respect of which the Administrative Agent has not made a PPSA registration, the opening  of any new store location), and (ii) promptly upon any Loan Party’s learning thereof, notice of any labor  dispute to which any Loan Party may become a party, any strikes or walkouts relating to any of its plants  or other facilities, and the expiration of any labor contract to which any Loan Party is a party or by which  any Loan Party is bound.  (p) Promptly upon their becoming available to the Loan Parties:  (i) The annual budget and a copy of the plan and forecast (including monthly  projected consolidated balance sheets, income statements and cash flow statements) of the  Company and its Subsidiaries for each quarter of such fiscal year, to be supplied no later than 60  days following the end of the prior fiscal year;  (ii) [Reserved];  (iii) Any reports including management letters submitted to any Loan Party by  independent accountants in connection with any annual or interim audit of financial statements;  and  (iv) Reports, including Forms 10-K, 10-Q and 8-K, registration statements and  prospectuses and other shareholder communications, filed by any Loan Party with the SEC or any  Canadian federal or provincial securities commission, or with any national securities exchange, or  distributed by the Company to its shareholders generally, as the case may be.  (q) Promptly following any request therefor, 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,  Proceeds of Crime Act and the Beneficial Ownership Regulation.  (r) Promptly upon entering into such agreements, copies of the primary transaction documents  (and any material amendments thereto) governing any Permitted Consigned Inventory Financing.  (s) Promptly upon entering into such agreements, copies of the primary transaction documents  (and any material amendments thereto) governing any Permitted Wholesale A/R Financing.  (t) Promptly following any request therefor, such other information regarding the operations,  business affairs and financial condition of any Loan Party or any Restricted Subsidiary, or compliance with  the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.  SECTION 5.03 Preservation of Existence, Etc. Each Loan Party shall, and shall cause each of its  Restricted Subsidiaries to, maintain its legal existence as a corporation, limited partnership, limited liability  company or unlimited liability company, as applicable, and its license or qualification and good standing  (a) in its jurisdiction of incorporation or organization, and (b) in each jurisdiction in which its ownership or  lease of property or the nature of its business makes such license or qualification necessary, except with  respect to clause (b), except where the failure to so maintain any license or qualification would not  





 






DB1/ 127789195.7 116  reasonably be expected to result in a Material Adverse Effect; provided that the foregoing shall not prohibit  any merger, amalgamation, consolidation, liquidation, dissolution, disposition or other transaction  permitted under Section 6.04 or Section 6.08.  SECTION 5.04 Payment of Liabilities, Including Taxes, Etc. Each Loan Party shall, and shall  cause each of its Restricted Subsidiaries to, duly pay and discharge all liabilities to which it is subject or  which are asserted against it, promptly as and when the same shall become due and payable, including all  Taxes and governmental charges upon it or any of its properties, assets, income or profits, prior to the date  on which penalties attach thereto, unless such liabilities, including Taxes or similar charges, are being  contested in good faith and by appropriate and lawful proceedings diligently conducted and for which such  reserve or other appropriate provisions, if any, as shall be required by GAAP shall have been made, except  to the extent that the failure to pay or discharge any such liabilities would not reasonably be expected to  result in a Material Adverse Effect.  SECTION 5.05 Maintenance of Insurance.    (a) Each Loan Party shall, and shall cause each of its Restricted Subsidiaries to, insure its  properties and assets against loss or damage by fire and such other insurable hazards as such assets are  commonly insured (including fire, extended coverage, property damage, workers’ compensation, public  liability and business interruption insurance) and against other risks (including errors and omissions) in  such amounts as similar properties and assets are insured by prudent companies in similar circumstances  carrying on similar businesses, and with reputable and financially sound insurers having a financial strength  rating of at least A- by A.M. Best Company (or otherwise reasonably satisfactory to the Administrative  Agent) and including self-insurance to the extent customary (but not with respect to insurance on the  Collateral included in the Borrowing Base), all as reasonably acceptable by the Administrative Agent and  as may be required pursuant to the terms of the Collateral Documents.  At the request of the Administrative  Agent, the Loan Parties shall deliver to the Administrative Agent (x) annually a certificate of insurance  signed by the Loan Parties’ independent insurance broker describing and certifying as to the existence of  the insurance on the Collateral required to be maintained by this Agreement and the other Loan Documents,  (y) copies of the endorsements described in the next two (2) sentences attached to such certificate, and  (z) from time to time a summary schedule indicating all insurance then in force with respect to each of the  Loan Parties.  All insurance policies required in this clause shall name the Administrative Agent (for the  benefit of the Administrative Agent and the Secured Parties) as an additional insured, as applicable, and  with respect to casualty policies covering Collateral, as lender loss payee, and shall contain lender loss  payable clauses, through endorsements in form and substance reasonably satisfactory to the Administrative  Agent.  Additionally, such policies of insurance shall provide that it shall not be canceled, modified or not  renewed (i) by reason of nonpayment of premium except upon not less than ten (10) days’ prior written  notice thereof by the insurer to the Administrative Agent or (ii) for any other reason except upon not less  than thirty (30) days’ prior written notice thereof by the insurer to the Administrative Agent.  The applicable  Loan Parties shall notify the Administrative Agent promptly of any occurrence causing a material loss or  decline in value of the Collateral and the estimated (or actual, if available) amount of such loss or decline.   Subject in all cases to the provisions of this Agreement (including, without limitation, Section 5.12), any  monies received by the Administrative Agent constituting insurance proceeds may, at the option of the  Administrative Agent, be applied by the Administrative Agent to the payment of the Obligations in  accordance with the terms of this Agreement.  (b) [Reserved].  SECTION 5.06 Maintenance of Properties. Each Loan Party shall, and shall cause each of its  Restricted Subsidiaries to, maintain in good repair, working order and condition (ordinary wear and tear  excepted) in accordance with the general practice of other businesses of similar character and size, all of  





 






DB1/ 127789195.7 117  those properties useful or necessary to its business, and from time to time, such Loan Party will make or  cause to be made all appropriate repairs, renewals or replacements thereof, except where the failure to do  so would not reasonably be expected to have a Material Adverse Effect.  SECTION 5.07 Inspection Rights; Appraisals.  (a) Each Loan Party shall, and shall cause each of its Restricted Subsidiaries to, permit any of  the officers or authorized employees or representatives of the Administrative Agent (including any  consultants, accountants, and agents retained by the Administrative Agent), as and when determined by the  Administrative Agent, upon reasonable prior notice and during normal business hours, to visit and inspect  its properties, to conduct at such Loan Party’s premises field examinations of such Loan Party’s assets,  liabilities, books and records, including examining and making extracts from its books and records, and to  discuss its affairs, finances and condition with its officers and independent accountants, all at such  reasonable times and as often as reasonably requested.  The examinations contemplated by this Section  5.07(a) shall be limited to one during each twelve (12) month period unless (1) an Event of Default has  occurred and is continuing (during which time there shall be no limit on the number of field examinations)  or (2) Availability is at any time less than the greater of (a) $68,750,000 and (b) 15% of the Maximum  Credit Amount, in each case, for a period of three (3) consecutive Business Days, in which case of clause  (2), one additional field examination may, and at the written direction of the Required Lenders shall, be  done at the expense of the Loan Parties during the subsequent twelve (12) month period. For the avoidance  of doubt, all such examinations and evaluations conducted during an Event of Default shall be at the expense  of the Loan Parties. Each Loan Party acknowledges that the Administrative Agent may obtain additional  field examinations at the Lenders’ expense and, after exercising its rights of inspection under this clause  (a), may prepare and distribute to the Lenders certain Reports pertaining to such Loan Party’s assets for  internal use by the Administrative Agent and the Lenders.  (b) On an annual basis, at the Administrative Agent’s request, the Borrower Representative  will provide the Administrative Agent with appraisals or updates thereof of the Loan Parties’ Inventory  from an appraiser engaged by and reasonably acceptable to the Administrative Agent, and prepared on a  basis reasonably satisfactory to the Administrative Agent, such appraisals and updates to include, without  limitation, information required by any applicable Requirement of Law.  The appraisals contemplated by  this Section 5.07(b) shall be limited to one during each twelve (12) month period unless (1) an Event of  Default has occurred and is continuing (during which time there shall be no limit on the number of  appraisals) or (2) Availability is at any time less than the greater of (a) $68,750,000 and (b) 15% of the  Maximum Credit Amount, in each case, for a period of three (3) consecutive Business Days, in which case  of clause (2), one additional appraisal may, and at the written direction of the Required Lenders shall, be  done at the expense of the Loan Parties during the subsequent twelve (12) month period.  For the avoidance  of doubt, all such appraisals commenced during the existence of an Event of Default shall be at the expense  of the Loan Parties.  Each Loan Party acknowledges that the Administrative Agent may obtain additional  Inventory appraisals at the Lenders’ expense and, after exercising its rights under this clause (b), may share  copies of the appraisals and/or certain Reports summarizing the appraisals for internal use by the  Administrative Agent and the Lenders.  SECTION 5.08 Keeping of Records and Books of Account.  Each Loan Party shall, and shall cause  each Restricted Subsidiary of such Loan Party to, maintain and keep proper books of record and account  which enable such Loan Party and its Restricted Subsidiaries to issue financial statements in accordance  with GAAP and as otherwise required by applicable Laws of any Governmental Authority having  jurisdiction over such Loan Party or any Restricted Subsidiary of such Loan Party, and in which full, true  and correct entries shall be made in all material respects of all its dealings and business and financial affairs.  





 






DB1/ 127789195.7 118  SECTION 5.09 Compliance with Laws and Material Contractual Obligations. Each Loan Party  shall, and shall cause each of its Restricted Subsidiaries to, comply with all applicable Requirements of  Law, including all Environmental Laws, in all respects, except, where the failure to do so, individually or  in the aggregate, would not reasonably be expected to result in a Material Adverse Effect (except in the  case of Anti-Terrorism Laws and Sanctions, with respect to which compliance shall be governed by Section  5.11).  Each Loan Party will, and will cause each Restricted Subsidiary to perform in all material respects  its obligations under material agreements to which it is a party, except (A) where the validity or amount  thereof is being contested in good faith by appropriate proceedings, or (B) where the failure to do so,  individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.   The Company will maintain in effect and enforce policies and procedures designed to ensure compliance  by the Company, its Restricted Subsidiaries and their respective directors, officers, employees and agents  with Anti-Terrorism Laws and applicable Sanctions.  SECTION 5.10 Use of Proceeds.  The Loan Parties will use the Letters of Credit and the proceeds  of the Loans to (a) refinance existing Indebtedness on the Closing Date and to pay fees and expenses  incurred in connection with the Transactions, (b) provide working capital to the Borrowers, and (c) for  general corporate purposes of the Borrowers, in each case to the extent not prohibited under the terms of  this Agreement or any other Loan Document.  No part of the proceeds of any Loan and no Letter of Credit  will be used, whether directly or indirectly (w) for any purpose that entails a violation of any of the  Regulations of the Board, including Regulations T, U and X, (x) 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, (y) 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 (z)   in any manner that would result in the violation of any Sanctions applicable to any party hereto.   Notwithstanding the foregoing, the covenants made in clauses (x), (y) and (z) of this Section 5.10 shall not  be made by nor apply to any Person that qualifies as a corporation that is registered or incorporated under  the laws of Canada or any province thereof and that carries on business in whole or in part in Canada within  the meaning of Section 2 of the Foreign Extraterritorial Measures (United States) Order, 1992 passed under  the Foreign Extraterritorial Measures Act (Canada) in so far as such representations would result in a  violation of or conflict with the Foreign Extraterritorial Measures Act (Canada) or any similar law.  SECTION 5.11 Anti-Terrorism Laws; International Trade Law Compliance.  (a) No Relevant  Entity will become a Sanctioned Person, (b) no Relevant Entity, either in its own right or through any third  party, will (i) have any of its assets in a Sanctioned Country or in the possession, custody or control of a  Sanctioned Person in violation of any Anti-Terrorism Law; (ii) do business in or with, or directly derive  any of its income from investments in or transactions with, any Sanctioned Country or Sanctioned Person  in violation of any Anti-Terrorism Law; (iii) engage in any dealings or transactions prohibited by any Anti- Terrorism Law; or (iv) use the Loans or Letters of Credit or any proceeds therefrom to fund any operations  in, finance any investments or activities in, or, make any payments to, a Sanctioned Country or Sanctioned  Person in violation of any Anti-Terrorism Law or would otherwise result in any violation of any Anti- Terrorism Laws or Sanctions; (c) the funds used to repay the Obligations will not be derived from any  unlawful activity or in any manner that would cause a party to this Agreement to be in breach of any Anti- Terrorism Laws or Sanctions, (d) each Relevant Entity shall comply with all Anti-Terrorism Laws, and  (e) the Company shall promptly notify the Administrative Agent in writing upon the occurrence of a  Reportable Compliance Event.  SECTION 5.12 Casualty.  In respect of any loss or damage to the Collateral resulting from fire,  vandalism, malicious mischief or any other casualty or physical harm (a “Casualty”) which affects a  material portion of the Inventory included in the Borrowing Base, the Borrower Representative will and  will cause each applicable Loan Party to comply in all respects with the provisions of this Section 5.12.   The Borrower Representative shall comply with its notice obligations in respect of Casualties relating to  





 






DB1/ 127789195.7 119  Inventory pursuant to Section 5.02(f).  Except during the existence of an Event of Default, the Company or  such Loan Party may adjust, settle and compromise any such insurance claim or any proposed  condemnation award and shall collect the Net Proceeds thereof and have the right to repair, refurbish,  restore, replace or rebuild any asset affected by such Casualty (for the avoidance of doubt, without the  obligation to make any mandatory prepayment of the Revolving Loans under Section 2.11(b) as a result  thereof during the period beginning on the day of such Casualty and ending on the date that any such repair,  refurbishment, restoration, replacement or rebuilding is complete). The Company and such Loan Party will  in good faith file and prosecute all claims necessary to obtain any such Net Proceeds. If an Event of Default  exists and is continuing, then the Administrative Agent may appear in any such proceedings and  negotiations and effect such settlement and such collection of any Net Proceeds, and the Borrower  Representative and the applicable Loan Party each hereby authorizes the Administrative Agent, at its  option, to adjust, settle, compromise and collect any Net Proceeds under any insurance with respect to such  Collateral and any Net Proceeds pursuant to any Casualty with respect to such Collateral, and, until such  time as such Event of Default no longer exists, each such Loan Party hereby irrevocably appoints the  Administrative Agent as its attorney-in-fact, coupled with an interest, for such purposes.  SECTION 5.13 [Reserved].    SECTION 5.14 Additional Collateral; Further Assurances.  (a) Subject to applicable law, each Loan Party will cause each Restricted Subsidiary that is  formed or acquired after the date of this Agreement (and is not an Excluded Subsidiary), that becomes a  Restricted Subsidiary after the date hereof (and is not an Excluded Subsidiary) or that ceases to be an  Excluded Subsidiary after the date hereof in accordance with the terms of this Agreement within sixty (60)  days (in each case, as such time may be extended in the Administrative Agent’s sole discretion) to become  a Borrower or a Guarantor pursuant to a Joinder Agreement and take all such further actions (including  authorizing the filing and recording of financing statements, fixture filings, and other documents) that are  required under the Collateral Documents or this Agreement to cause the Collateral and Guaranty  Requirement to be satisfied with respect to such Subsidiary. Upon execution and delivery thereof, each  such Person (i) shall automatically become a Borrower or Guarantor, as applicable hereunder and thereupon  shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and  (ii) will grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the  applicable Secured Parties, in any property of such Loan Party which constitutes Collateral, under the  applicable Security Agreement.  With respect to any Excluded Subsidiary formed or acquired after the date  of this Agreement and the Equity Interests of which are directly owned by a Loan Party and required to be  pledged to the Administrative Agent pursuant to the applicable Security Agreement, the applicable Loan  Party shall, within sixty (60) days (in each case, as such time may be extended in the Administrative Agent’s  sole discretion) of the formation or acquisition of such Excluded Subsidiary (A) notify the Administrative  Agent thereof and (B) deliver to the Administrative Agent an updated schedule of the pledged Equity  Interests to the applicable Security Agreement if reasonably requested by the Administrative Agent and  confirmation that the original certificates evidencing such pledged Equity Interests (if any) have been  delivered to the Administrative Agent, together with appropriate powers executed in blank.  (b) The Loan Parties will execute any and all further documents, agreements and instruments,  and take all such further actions (including authorizing the filing and recording of financing statements,  fixture filings, and other documents) which may be required by any Requirement of Law or which the  Administrative Agent may, from time to time, reasonably request, to cause the Collateral and Guaranty  Requirement to be and remain satisfied at all times.  SECTION 5.15 Environmental Laws.  Except where the failure to do so would not reasonably be  expected to have Material Adverse Effect, the Company and each Restricted Subsidiary shall (i) conduct  





 






DB1/ 127789195.7 120  its operations and keep and maintain all of its real property in compliance with all Environmental Laws;  (ii) obtain and renew all environmental permits necessary for its operations and properties; and  (iii) implement any and all investigation, remediation, removal and response actions that are necessary to  comply with Environmental Laws pertaining to the presence, generation, treatment, storage, use, disposal,  transportation or Release of any Hazardous Materials into, on, at, under, above or from any of its Real  Estate, provided, however, that neither a Loan Party nor any of its Restricted Subsidiaries shall be required  to undertake any such cleanup, removal, remedial or other action to the extent that its obligation to do so is  being contested in good faith and by proper proceedings and adequate reserves have been set aside and are  being maintained by the Loan Parties with respect to such circumstances in accordance with GAAP.  SECTION 5.16 Canadian Pension Plans.  (a) For each existing, or hereafter adopted, Canadian Pension Plan, each Loan Party will, in a  timely fashion comply with and perform in all material respects all of its obligations under and in respect  of such Canadian Pension Plan, including under any funding agreements and all applicable laws (including  any fiduciary, funding, investment and administration obligations), unless any failure to so comply or  perform would not reasonably be expected to have a Material Adverse Effect.  (b) All employer or employee payments, contributions or premiums required to be remitted,  paid to or in respect of each Canadian Pension Plan shall be paid or remitted by each Loan Party in a timely  fashion in accordance with the terms thereof, any funding agreements and all applicable laws, unless any  failure to so would not reasonably be expected to have a Material Adverse Effect.  SECTION 5.17 Post-Closing Covenants. The Loan Parties will execute and deliver the documents  and complete the tasks set forth on Schedule 5.17, in each case within the time limits specified on such  schedule (or such longer period as the Administrative Agent may agree in its sole discretion).  ARTICLE VI.  NEGATIVE COVENANTS  Until the Commitments shall have expired or been terminated and the principal of and interest on  each Loan and all fees, expenses and other amounts payable under any Loan Document (other than  contingent or indemnity obligations for which no claim has been made by the Person entitled thereto) shall  have been paid in full and all Letters of Credit shall have expired or have been Cash Collateralized pursuant  to the terms hereof, or terminated, in each case without any pending draw, and all LC Disbursements shall  have been reimbursed, each Loan Party executing this Agreement covenants and agrees, jointly and  severally with all of the other Loan Parties, with the Lenders that:  SECTION 6.01 Indebtedness. No Loan Party will, nor will it permit any Restricted Subsidiary to,  directly or indirectly, Incur any Indebtedness (including Acquired Indebtedness) or issue any shares of  Disqualified Stock; and Company shall not permit any of the Restricted Subsidiaries (other than any Loan  Party) to issue any shares of Preferred Stock, except:  (a) the Incurrence by the Company or any Restricted Subsidiary of Indebtedness pursuant to  any Loan Document;  (b) [Reserved];  (c) Indebtedness, Preferred Stock and Disqualified Stock existing on the date hereof (other  than Indebtedness described in clause (a) above) and, if such Indebtedness is for borrowed money and is in  





 






DB1/ 127789195.7 121  excess of $13,750,000, individually or in the aggregate, in such amounts outstanding on the date hereof and  set forth in Schedule 6.01;  (d) Indebtedness (including Finance Lease Obligations) Incurred by any Loan Party or any  Restricted Subsidiary, Disqualified Stock issued by any Loan Party or any Restricted Subsidiary and  Preferred Stock issued by any Restricted Subsidiary to finance (whether prior to or within 180 days after)  the acquisition, lease, construction, repair, replacement or improvement of property (real or personal) or  equipment (whether through the direct purchase of assets or the Equity Interests of any Person owning such  assets); provided that, (x) the principal amount of such Indebtedness does not exceed the cost of acquiring,  constructing or improving such property (real or personal) or equipment and (y) the principal amount of  such Indebtedness, Disqualified Stock and Preferred Stock, when aggregated with the principal amount or  liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding  and Incurred or issued pursuant to this clause (d), together with any Refinancing Indebtedness in respect  thereof Incurred pursuant to clause (n) below, does not exceed at any one time outstanding the greater of  $48,125,000 and 17.5% of Consolidated EBITDA, calculated on a pro forma basis giving effect to such  Indebtedness, Disqualified Stock, or Preferred Stock, as applicable, and based on the most recently  completed Test Period (plus, in the case of any Refinancing Indebtedness, the Additional Refinancing  Amount);  (e) Indebtedness Incurred by any Loan Party or any Restricted Subsidiary constituting  reimbursement obligations with respect to letters of credit and bank guarantees issued in the ordinary course  of business, including, without limitation, letters of credit in respect of workers’ compensation claims,  health, disability or other benefits to employees or former employees or their families or property, casualty  or liability insurance or self-insurance and letters of credit in connection with the maintenance of, or  pursuant to the requirements of, Environmental Law, and other Indebtedness with respect to reimbursement  type obligations regarding workers’ compensation claims;  (f) unsecured Indebtedness arising from agreements of a Loan Party or any Restricted  Subsidiary providing for indemnification, adjustment of acquisition or purchase price or similar obligations  (including earn-outs), in each case, Incurred or assumed in connection with the any Investments or any  acquisition or disposition of any business, assets or a Subsidiary not prohibited by this Agreement, other  than guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets  or Subsidiary for the purpose of financing such acquisition;  (g) shares of Preferred Stock of a Restricted Subsidiary issued to the Company or another  Restricted Subsidiary; provided that any subsequent issuance or transfer of any Equity Interests or any other  event which results in any Restricted Subsidiary that holds such shares of Preferred Stock of another  Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such  shares of Preferred Stock (except to the Company or another Restricted Subsidiary) shall be deemed, in  each case, to be an issuance of shares of Preferred Stock not permitted by this clause (g);  (h) without in any way limiting the applicability of Section 6.02, Indebtedness of the Company  or a Restricted Subsidiary to the Company or a Restricted Subsidiary; provided that if a Loan Party incurs  such Indebtedness to a Restricted Subsidiary that is not a Loan Party (except in respect of intercompany  current liabilities incurred in the ordinary course of business in connection with the cash management, tax  and accounting operations of the Company and its Subsidiaries), such Indebtedness is subordinated in right  of payment to the Obligations pursuant to the Intercompany Subordination Agreement; provided that if a  U.S. Loan Party incurs such Indebtedness to a Canadian Loan Party (except in respect of intercompany  current liabilities incurred in the ordinary course of business in connection with the cash management, tax  and accounting operations of the Company and its Subsidiaries), such Indebtedness is subordinated in right  of payment to the Obligations pursuant to the Intercompany Subordination Agreement; provided, further,  





 






DB1/ 127789195.7 122  that any subsequent issuance or transfer of any Equity Interests or any other event which results in any  Restricted Subsidiary holding such Indebtedness ceasing to be a Restricted Subsidiary or any other  subsequent transfer of any such Indebtedness (except to the Company or another Restricted Subsidiary or  any pledge of such Indebtedness constituting a Permitted Lien but not the transfer thereof upon foreclosure)  shall be deemed, in each case, to be an Incurrence of such Indebtedness not permitted by this clause (h);  (i) Indebtedness incurred pursuant to a Permitted Consigned Inventory Financing;  (j) Swap Agreement Obligations that are not incurred for speculative purposes but (A) for the  purpose of fixing or hedging interest rate risk with respect to any Indebtedness that is permitted by the terms  of this Agreement to be outstanding; (B) for the purpose of fixing or hedging currency exchange rate risk  with respect to any currency exchanges; or (C) for the purpose of fixing or hedging commodity price risk  with respect to any commodity purchases or sales and, in each case, extensions or replacements thereof;  (k) obligations (including reimbursement obligations with respect to letters of credit, bank  guarantees, warehouse receipts and similar instruments) in respect of indemnities, warranties, statutory  obligations, performance, bid, appeal and surety bonds, completion guarantees and similar obligations  provided by a Loan Party or any Restricted Subsidiary, in each case incurred in the ordinary course of  business or consistent with past practice or industry practice;   (l) Indebtedness or Disqualified Stock of the Company or Indebtedness, Disqualified Stock or  Preferred Stock of any Restricted Subsidiary in an aggregate principal amount or liquidation preference,  which when aggregated with the principal amount and liquidation preference of all other Indebtedness,  Disqualified Stock and Preferred Stock then outstanding and Incurred pursuant to this clause (l), together  with any Refinancing Indebtedness in respect thereof incurred pursuant to clause (n) below, does not exceed  at any one time outstanding the greater of $137,500,000 and 50% of Consolidated EBITDA, calculated on  a pro forma basis giving effect to such Indebtedness, Disqualified Stock or Preferred Stock, as applicable,  and based on the most recently completed Test Period (plus, in the case of any Refinancing Indebtedness,  the Additional Refinancing Amount);  (m) any guarantee by a Loan Party or any Restricted Subsidiary of Indebtedness or other  obligations of a Loan Party or any Restricted Subsidiary so long as the Incurrence of such Indebtedness  Incurred by such Loan Party or such Restricted Subsidiary is not prohibited under the terms of this  Agreement; provided that (A) if such Indebtedness is by its express terms subordinated in right of payment  to the Obligations by such Restricted Subsidiary, as applicable, any such guarantee with respect to such  Indebtedness shall be subordinated in right of payment to the Obligations, substantially to the same extent  as such Indebtedness is subordinated to the Obligations, (B) the aggregate principal amount of Indebtedness  or other obligations of a Canadian Loan Party guaranteed by a U.S. Loan Party in reliance on this clause (m)  shall not exceed at any one time outstanding the greater of $34,375,000 and 12.5% of Consolidated  EBITDA, calculated on a pro forma basis giving effect to such Indebtedness and based on the most recently  completed Test Period; and (C) the aggregate principal amount of Indebtedness or other obligations of a  Restricted Subsidiary that is not a Loan Party guaranteed by a Loan Party in reliance on this clause (m)  shall not exceed at any one time outstanding the greater of $34,375,000 and 12.5% of Consolidated  EBITDA, calculated on a pro forma basis giving effect to such Indebtedness and based on the most recently  completed Test Period;  (n) the Incurrence by a Loan Party or any Restricted Subsidiary of Indebtedness or Disqualified  Stock, or by any Restricted Subsidiary of Preferred Stock, that serves to refund, refinance or defease any  Indebtedness Incurred or Disqualified Stock or Preferred Stock issued as permitted under clauses (c), (d),  (l) and (n) of this Section 6.01 up to the outstanding principal amount (or, if applicable, the liquidation  preference, face amount, or the like) or, if greater, committed amount (only to the extent the committed  





 






DB1/ 127789195.7 123  amount could have been Incurred on the date of initial Incurrence and was deemed Incurred at such time  for the purposes of this Section 6.01) of such Indebtedness, Disqualified Stock or Preferred Stock, in each  case at the time such Indebtedness was Incurred or Disqualified Stock or Preferred Stock was issued  pursuant to clauses (c), (d), (l) and (n) of this Section 6.01, or any Indebtedness, Disqualified Stock or  Preferred Stock Incurred or issued to so refund or refinance such Indebtedness, Disqualified Stock or  Preferred Stock plus any additional Indebtedness, Disqualified Stock or Preferred Stock Incurred or issued  to pay premiums (including tender premiums), accrued and unpaid interest, expenses, defeasance costs and  fees in connection therewith (subject to the following proviso, “Refinancing Indebtedness”) prior to its  respective maturity; provided, however, that:  (i) such Refinancing Indebtedness has a Weighted Average Life to Maturity at the  time such Refinancing Indebtedness is Incurred which is not less than the shorter of (x) the  remaining Weighted Average Life to Maturity of the Indebtedness, Disqualified Stock or Preferred  Stock being refunded, refinanced or defeased and (y) the Weighted Average Life to Maturity that  would result if all payments of principal on the Indebtedness, Disqualified Stock or Preferred Stock  being refunded or refinanced that were due on or after the date that is one year following the  Maturity Date were instead due on such date;  (ii) to the extent such Refinancing Indebtedness refinances (a) Indebtedness junior in  right of payment to the Obligations, such Refinancing Indebtedness is junior in right of payment to  the Obligations, (b) Disqualified Stock or Preferred Stock, such Refinancing Indebtedness is  Disqualified Stock or Preferred Stock, or (c) Indebtedness secured by a Lien on the Collateral that  is junior to the Lien on the Collateral securing the Obligations, such Refinancing Indebtedness (if  secured) is secured by a Lien on the Collateral that is, as applicable, junior to the Lien on the  Collateral securing the Obligations to the same extent as such Indebtedness being refinanced (or  that is junior thereto), and a Senior Representative of such Refinancing Indebtedness acting on  behalf of the holders of such Indebtedness shall have become party to a junior lien intercreditor  agreement or collateral trust agreement reasonably satisfactory to the Administrative Agent and the  Required Lenders reflecting the junior-lien status of the Liens securing such Indebtedness as it  relates to Collateral; and  (iii) such Refinancing Indebtedness shall not include Indebtedness of a Restricted  Subsidiary that is not a Loan Party that refinances Indebtedness of the Company or another Loan  Party or (y) Indebtedness of the Company or a Restricted Subsidiary that refinances Indebtedness  of an Unrestricted Subsidiary;  (o) unsecured Indebtedness of the Company that is equity-linked (including, without  limitation, Indebtedness that is convertible into Equity Interests of the Company) and not guaranteed by  any Subsidiary of the Company in an amount not to exceed $137,500,000 at any time outstanding;  (p) [Reserved];  (q) Indebtedness arising from the honoring by a bank or other financial institution of a check,  draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided  that such Indebtedness is extinguished within five Business Days of its Incurrence;  (r) Indebtedness of a Loan Party or any Restricted Subsidiary supported by a Letter of Credit,  in a principal amount not in excess of the stated amount of such Letter of Credit;  (s) [Reserved];  





 






DB1/ 127789195.7 124  (t) Indebtedness of any Loan Party or any Restricted Subsidiary consisting of (A) the financing  of insurance premiums or (B) take-or-pay obligations contained in supply arrangements, in each case, in  the ordinary course of business;  (u) Indebtedness consisting of Indebtedness of the Company or a Restricted Subsidiary to  current or former officers, directors and employees thereof or any direct or indirect parent thereof, their  respective estates, spouses or former spouses, in each case to finance the purchase or redemption of Equity  Interests of the Company or any direct or indirect parent of the Company to the extent described in Section  6.02(b)(iv);  (v) Indebtedness in respect of Obligations of the Company or any Restricted Subsidiary to pay  the deferred purchase price of goods or services or progress payments in connection with such goods and  services; provided that such obligations are incurred in connection with open accounts extended by  suppliers on customary trade terms in the ordinary course of business and not in connection with the  borrowing of money or any Swap Agreement Obligations;  (w) [Reserved];  (x) [Reserved];  (y) Indebtedness of any Person that becomes a Restricted Subsidiary after the date hereof;  provided that such Indebtedness exists at the time such Person becomes a Restricted Subsidiary and is not  created in contemplation of or in connection with such Person becoming a Restricted Subsidiary;  (z) Indebtedness in respect of the financing of insurance premiums in the ordinary course of  business or consistent with past practice or industry practice;  (aa) Indebtedness to customs brokers, freight forwarders, common carriers, landlords and  similar Persons, in each case incurred in the ordinary course of business or consistent with past practice;  provided, however, for purposes of this clause (aa), it is understood and agreed that any deferred rent  arrangements entered into, or to be entered into, with landlords, such deferred rent arrangements shall only  be considered to be in the ordinary course of business or consistent with past practice to the extent such  deferred rent arrangements are entered into as a result of the impacts on the Loan Parties business from  COVID-19;   (bb) Indebtedness in an aggregate amount not to exceed $137,500,000 at any time outstanding  incurred pursuant to a Permitted Wholesale A/R Financing;  (cc) Indebtedness owed on a short-term basis to banks and other financial institutions incurred  in the ordinary course of business of the Company and its Restricted Subsidiaries with such banks or  financial institutions that arises in connection with ordinary banking arrangements, including cash  management, cash pooling arrangements and related activities to manage cash balances of the Company  and its Subsidiaries, including treasury, depository, overdraft, credit, purchasing or debit card, electronic  funds transfer and other cash management arrangements and Indebtedness in respect of netting services,  overdraft protection, credit card programs, automatic clearinghouse arrangements and similar  arrangements.  For purposes of determining compliance with this Section 6.01, at the time of incurrence, the  Company will be entitled to divide and classify an item of Indebtedness in more than one of the categories  of Indebtedness described above (or any portion thereof) without giving pro forma effect to the  Indebtedness Incurred pursuant to any other clause or paragraph of this Section (or any portion thereof)  





 






DB1/ 127789195.7 125  when calculating the amount of Indebtedness that may be Incurred pursuant to any such clause or paragraph  (or any portion thereof).  Accrual of interest, the accretion of accreted value, the payment of interest or dividends in the form  of additional Indebtedness, Disqualified Stock or Preferred Stock, as applicable, amortization of original  issue discount, the accretion of liquidation preference and increases in the amount of Indebtedness  outstanding solely as a result of fluctuations in the exchange rate of currencies will not be deemed to be an  Incurrence of Indebtedness, Disqualified Stock or Preferred Stock for purposes of this Section 6.01.  In  addition, Guaranties of, or obligations in respect of letters of credit relating to, Indebtedness which is  otherwise included in the determination of a particular amount of Indebtedness shall not be included in the  determination of such amount of Indebtedness; provided that the Incurrence of the Indebtedness represented  by such guarantee or letter of credit, as the case may be, was in compliance with this Section 6.01.  For purposes of determining compliance with any U.S. Dollar-denominated restriction on the  Incurrence of Indebtedness, the Dollar-equivalent principal amount of Indebtedness denominated in a  foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such  Indebtedness was Incurred, in the case of term debt, or first committed or first Incurred (whichever yields  the lower U.S. Dollar equivalent), in the case of revolving credit debt.  However, if the Indebtedness is  Incurred to refinance other Indebtedness denominated in a foreign currency, and the refinancing would  cause the applicable U.S. Dollar-denominated restriction to be exceeded if calculated at the relevant  currency exchange rate in effect on the date of the refinancing, the U.S. Dollar-denominated restriction will  be deemed not to have been exceeded so long as the principal amount of the refinancing Indebtedness does  not exceed the principal amount of the Indebtedness being refinanced.  Notwithstanding any other provision of this Section 6.01, the maximum amount of Indebtedness  that the Loan Parties and Restricted Subsidiaries may Incur pursuant to this Section 6.01 shall not be deemed  to be exceeded, with respect to any outstanding Indebtedness, solely as a result of fluctuations in the  exchange rate of currencies.  The principal amount of any Indebtedness Incurred to refinance other  Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, will be calculated  based on the currency exchange rate applicable to the currencies in which the respective Indebtedness is  denominated that is in effect on the date of the refinancing.  SECTION 6.02 Restricted Payments.  (a) No Loan Party shall, and no Loan Party shall permit any of the Restricted Subsidiaries to,  directly or indirectly:  (i) declare or pay any dividend or make any distribution on account of any Loan  Party’s or any of the Restricted Subsidiaries’ Equity Interests, including any payment made in  connection with any merger, amalgamation or consolidation involving the Company (other than  (A) dividends or distributions payable solely in Equity Interests (other than Disqualified Stock) of  the Company; or (B) dividends or distributions by a Restricted Subsidiary so long as, in the case of  any dividend or distribution payable on or in respect of any class or series of securities issued by a  Restricted Subsidiary that is not a Wholly Owned Subsidiary, a Loan Party or the Restricted  Subsidiary which owns the equity interests of such non-Wholly Owned Subsidiary receives at least  its pro rata share of such dividend or distribution in accordance with its Equity Interests in such  class or series of securities);  (ii) purchase or otherwise acquire or retire for value any Equity Interests of the  Company or any direct or indirect parent of the Company;  





 






DB1/ 127789195.7 126  (iii) (x) make any principal payment on, or redeem, repurchase, defease or otherwise  acquire or retire for value, in each case prior to any scheduled repayment or scheduled maturity,  any Junior Indebtedness of the Company or any Loan Party (other than the payment, redemption,  repurchase, defeasance, acquisition or retirement of (A) Junior Indebtedness in anticipation of  satisfying a sinking fund obligation or principal installment to the extent not prohibited by the terms  of any applicable subordination provisions and (B) Indebtedness permitted under clause (h) of  Section 6.01) or (y) in the case of Junior Indebtedness of the type described in clause (c) of the  definition of Junior Indebtedness, make any payment on such Indebtedness;  (iv) [Reserved]; or  (v) make any Restricted Investment;  (all such payments and other actions set forth in subclauses (i) through (v) above being collectively  referred to as “Restricted Payments”).  (b) The provisions of Section 6.02(a) shall not prohibit:  (i) the payment of any dividend or distribution or the consummation of any  irrevocable redemption within 60 days after the date of declaration thereof, if at the date of  declaration or the giving of notice of such irrevocable redemption, as applicable, such payment  would have complied with the provisions of this Agreement; provided that if such dividend,  distribution or redemption is being made pursuant to Section 6.02(b)(xx), a Reserve shall be  established by the Administrative Agent in an amount equal to the Restricted Payment so declared;  (ii) (A) the redemption, repurchase, retirement or other acquisition of any Equity  Interests (“Retired Capital Stock”) or Junior Indebtedness of the Company or any Loan Party solely  in exchange for, or solely out of the proceeds of, the substantially concurrent sale of, Equity  Interests of the Company or contributions to the equity capital of the Company (other than any  Disqualified Stock or any Equity Interests sold to a Subsidiary of the Company) (collectively,  including any such contributions, “Refunding Capital Stock”); and  (B) the declaration and payment of dividends on the Retired Capital Stock solely  out of the proceeds of the substantially concurrent sale (other than to a Subsidiary of the  Company) of Refunding Capital Stock;  (iii) the redemption, repurchase, defeasance, or other acquisition or retirement of any  Junior Indebtedness of any Loan Party made by exchange for, or out of the proceeds of the  substantially concurrent sale of, new Indebtedness of a Loan Party, which is Incurred in accordance  with Section 6.01 so long as:  (A) the principal amount (or accreted value, if applicable) of such new  Indebtedness does not exceed the principal amount (or accreted value, if applicable), plus  any accrued and unpaid interest, of the Junior Indebtedness being so redeemed,  repurchased, defeased, acquired or retired for value (plus the amount of any premium  required to be paid under the terms of the instrument governing the Junior Indebtedness  being so redeemed, repurchased, acquired or retired, plus any tender premiums, plus any  defeasance or other costs, fees and expenses incurred in connection therewith);  (B) such Indebtedness is subordinated as to right of payment and lien priority  to the Obligations or the related Guarantee of such Loan Party, as the case may be, at least  





 






DB1/ 127789195.7 127  to the same extent as the applicable Junior Indebtedness so purchased, exchanged,  redeemed, repurchased, defeased, acquired or retired for value (it being understood that if  the Junior Indebtedness so purchased, exchanged, redeemed, repurchased, defeased,  acquired or retired for value is unsecured, such Indebtedness shall be unsecured);  (C) such Indebtedness has a final scheduled maturity date equal to or later than  the earlier of (x) the final scheduled maturity date of the applicable Junior Indebtedness  being so redeemed, repurchased, acquired or retired and (y) 91 days following the Maturity  Date; and  (D) such Indebtedness has a Weighted Average Life to Maturity at the time  Incurred which is not less than the shorter of (x) the remaining Weighted Average Life to  Maturity of the applicable Junior Indebtedness being so redeemed, repurchased, defeased,  acquired or retired and (y) the Weighted Average Life to Maturity that would result if all  payments of principal on the applicable Junior Indebtedness being redeemed, repurchased,  defeased, acquired or retired that were due on or after the date that is one year following  the Maturity Date;  (iv) so long as no Dominion Period is continuing immediately before or after the  making of such Restricted Payment and so long as no Event of Default is continuing immediately  before or after the making of such Restricted Payment, a Restricted Payment to pay for the  repurchase, retirement or other acquisition for value of Equity Interests of the Company or any  direct or indirect parent of the Company held by any future, present or former employee, director,  officer or consultant of the Company or any Restricted Subsidiary of the Company or any direct or  indirect parent of the Company pursuant to any management equity plan or stock option plan or  any other management or employee benefit plan or other agreement or arrangement; provided,  however, that the aggregate Restricted Payments made under this clause (iv) do not exceed in any  calendar year an amount equal to (x) $6,875,000 plus (y) the value of any shares surrendered by  any such employee, director, officer or consultant, or otherwise withheld by the Company, in  connection with any tax obligation of such employee, director, officer or consultant (or the payment  thereof by the Company or any Restricted Subsidiary) in an amount not to exceed $2,750,000, with  unused amounts in any calendar year being permitted to be carried over to the next succeeding  calendar year; provided further, however, that such amount in any calendar year may be increased  by an amount not to exceed:  (A) the cash proceeds received by the Company or any of the Restricted  Subsidiaries from the sale of Equity Interests (other than Disqualified Stock) of the  Company or any direct or indirect parent of the Company (to the extent contributed to the  Company) to employees, directors, officers or consultants of the Company and the  Restricted Subsidiaries or any direct or indirect parent of the Company that occurs after the  date hereof and during such calendar year; plus  (B) the cash proceeds of key man life insurance policies received by the  Company or any direct or indirect parent of the Company (to the extent contributed to the  Company) or the Restricted Subsidiaries after the date hereof and during such calendar  year;  (v) [Reserved];  (vi) [Reserved];  





 






DB1/ 127789195.7 128  (vii) [Reserved];  (viii) other Restricted Payments that, when taken together with all other Restricted  Payments made pursuant to this clause (viii), would not exceed $40,000,000 after the date hereof;  provided, that no Dominion Period exists, in each case, after giving pro forma effect to such  Restricted Payment;  (ix) the distribution, as a dividend or otherwise, of shares of Equity Interests of  Unrestricted Subsidiaries;  (x) [Reserved];  (xi) payment of Indebtedness created under the Loan Documents;  (xii) payment of regularly scheduled interest and principal payments or reimbursement  obligations under letters of credit, in each case, as and when due in respect of any Indebtedness  permitted by this Agreement, other than payments in respect of the Subordinated Indebtedness  prohibited by the subordination provisions thereof;  (xiii) payments constituting the refinancings of Indebtedness to the extent such  refinanced Indebtedness is permitted by Section 6.01;  (xiv) payment of secured Indebtedness that becomes due as a result of (A) any voluntary  sale or transfer of any assets (other than assets included in any Borrowing Base) securing such  Indebtedness or (B) any casualty or condemnation proceeding (including a disposition in lieu  thereof) of any assets (other than assets included in any Borrowing Base) securing such  Indebtedness;  (xv) subject to the terms of the Intercompany Subordination Agreement, payments of  intercompany Indebtedness permitted under Section 6.01 and owed to any Loan Party;  (xvi) repurchases of Equity Interests that occur or are deemed to occur upon exercise of  stock options or warrants if such Equity Interests represent a portion of the exercise price of such  options or warrants;  (xvii) Restricted Payments by the Company or any Restricted Subsidiary to allow the  payment of cash in lieu of the issuance of fractional shares upon the exercise of options or warrants  or upon the conversion or exchange of Equity Interests of any such Person;   (xviii) payments or distributions to dissenting stockholders pursuant to applicable law,  pursuant to or in connection with a consolidation, amalgamation, merger or transfer of all or  substantially all of the assets of the Company and the Restricted Subsidiaries, taken as a whole, that  complies with Section 6.08; provided that if such consolidation, amalgamation, merger or transfer  of assets constitutes a Change in Control, all Obligations shall have been repaid in full (or the Event  of Default specified in Section 7.01(g) shall have been waived); and  (xix) any Loan Party or their Restricted Subsidiaries may make Restricted Payments so  long as the Borrowers are in Pro Forma Compliance with the Payment Conditions.  Notwithstanding anything herein to the contrary, nothing in this Agreement shall prohibit the Loan Parties  from paying the indebtedness and obligations under the Existing Credit Agreement on the Closing Date.  





 






DB1/ 127789195.7 129  Notwithstanding anything else set forth in this Section 6.02 or the definition of “Permitted Investments” to  the contrary, no Restricted Payment or Investment (other than an Investment in another Loan Party) of any  Material Intellectual Property owned by the Company or another Loan Party shall be permitted under this  Agreement unless such Material Intellectual Property is subject to a non-exclusive, irrevocable (until the  Obligations (other than contingent or indemnity obligations for which no claim has been made by the Person  entitled thereof) have been paid in full and all Commitments have terminated), royalty-free license of such  Material Intellectual Property in favor of the Administrative Agent for use in connection with the exercise  of rights and remedies of the Secured Parties under the Loan Documents with respect to the Collateral,  which license shall be substantially similar to the license described in Section 8(c) of the U.S. Security  Agreement and Section 8(c) of the Canadian Security Agreement (or otherwise reasonably satisfactory to  the Administrative Agent).  As of the date hereof, all of the Subsidiaries of the Company will be Restricted Subsidiaries.  For purposes  of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the  Company and the Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated will  be deemed to be Investments in an amount determined as set forth in the last sentence of the definition of  “Investments.” Such designation will only be permitted if a Restricted Payment or Permitted Investment in  such amount would be permitted at such time and if such Subsidiary otherwise meets the definition of an  Unrestricted Subsidiary.  SECTION 6.03 Limitations on Restrictive Agreements.  No Loan Party shall, or shall permit any  of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist any  consensual encumbrance or consensual restriction which prohibits or limits the ability of:  (a) any Loan Party or Restricted Subsidiary to pay dividends or make any other distributions  to the Company or any Restricted Subsidiary (1) on its Equity Interests; or (2) with respect to any other  interest or participation in, or measured by, its profits;  (b) any Loan Party or Restricted Subsidiary to make loans or advances to the Company or any  Restricted Subsidiary that is a direct or indirect parent of such Subsidiary;  (c) any Loan Party to create, incur or permit to exist any Lien in favor of the Administrative  Agent upon the Collateral;  except in each case for such encumbrances or restrictions existing under or by reason of:  (i) (A) contractual encumbrances or restrictions in effect on the date hereof and, with  respect to any such encumbrances in described in Section 6.03(c) which are in a Material  Agreement, as set forth on Schedule 6.03 and (B) contractual encumbrances or restrictions pursuant  to this Agreement, the other Loan Documents, and, in each case, similar contractual encumbrances  effected by any amendments, modifications, restatements, renewals, supplements, refundings,  replacements or refinancings of such agreements or instruments;  (ii) (A) this Agreement, and (B) if applicable, the documents governing a Permitted  Consigned Inventory Financing or Permitted Wholesale A/R Financing;  (iii) applicable law or any applicable rule, regulation or order;  (iv) any agreement or other instrument of a Person acquired by a Loan Party or any  Restricted Subsidiary which was in existence at the time of such acquisition (but not created in  contemplation thereof or to provide all or any portion of the funds or credit support utilized to  





 






DB1/ 127789195.7 130  consummate such acquisition), which encumbrance or restriction is not applicable to any Person,  or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property  or assets of the Person and its Subsidiaries, so acquired;  (v) contracts or agreements for the sale of assets to the extent such sale is not  prohibited pursuant to the terms hereof, including any restriction with respect to a Restricted  Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Equity  Interests or assets of such Restricted Subsidiary;  (vi) (A) secured Indebtedness otherwise permitted to be Incurred pursuant to  Section 6.01 and Section 6.07 that limits the right of the debtor to dispose of or grant Liens on the  assets securing such Indebtedness and (B) contractual encumbrances or restrictions under any  agreement governing any Indebtedness existing as of the Closing Date;  (vii) customary net worth provisions contained in real property leases entered into by  any Loan Party or Restricted Subsidiary, so long as the Company has determined in good faith that  such net worth provisions would not reasonably be expected to impair the ability of the Company  and its Restricted Subsidiaries to meet their ongoing obligations;  (viii) customary provisions in joint venture agreements and other similar agreements  entered into in the ordinary course of business and relating solely to the applicable Joint Venture;  (ix) purchase money obligations to the extent not prohibited hereunder for property  acquired and Finance Lease Obligations in the ordinary course of business;  (x) customary provisions contained in leases, licenses and other similar agreements  entered into in the ordinary course of business;  (xi) any encumbrance or restriction that restricts in a customary manner the subletting,  assignment or transfer of any property or asset that is subject to a lease, license or similar contract,  or the assignment or transfer of any such lease, license (including without limitation, licenses of  intellectual property) or other contracts;  (xii) other Indebtedness, Disqualified Stock or Preferred Stock of the Company or any  Restricted Subsidiary, in each case, so long as such encumbrances and restrictions contained in any  agreement or instrument will not materially affect any Loan Party’s ability to make anticipated  principal or interest payments on the Loans (as determined in good faith by the Company), provided  that such Indebtedness, Disqualified Stock or Preferred Stock is permitted pursuant to Section 6.01;  (xiii) any Investment not prohibited by Section 6.02;  (xiv) customary restrictions and conditions contained in the document relating to any  Lien, so long as (1) such Lien is a Permitted Lien and such restrictions or conditions relate only to  the specific asset subject to such Lien, and (2) such restrictions and conditions are not created for  the purpose of avoiding the restrictions imposed by this Section 6.03;  (xv) [Reserved];  (xvi) any encumbrances or restrictions of the type referred to in Section 6.03(a), (b), or  (c) above imposed by any amendments, modifications, restatements, renewals, increases,  supplements, refundings, replacements or refinancings of the contracts, instruments or obligations  





 






DB1/ 127789195.7 131  referred to in clauses (i) through (xiv) above; provided that such amendments, modifications,  restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the  good faith judgment of the Company, no more restrictive with respect to such dividend and other  payment restrictions than those contained in the dividend or other payment restrictions prior to such  amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or  refinancing.  For purposes of determining compliance with this Section 6.03, (i) the priority of any Preferred  Stock in receiving dividends or liquidating distributions prior to dividends or liquidating  distributions being paid on common stock shall not be deemed a restriction on the ability to make  distributions on Equity Interests and (ii) the subordination of loans or advances made to the  Company or a Restricted Subsidiary to other Indebtedness Incurred by the Company or any such  Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.  SECTION 6.04 Sale of Equity Interests and Assets.  Except as set forth herein, no Loan Party shall,  or shall permit any of its Restricted Subsidiaries to, sell, transfer, convey, assign or otherwise Dispose of  any of its properties or other assets, including the Equity Interests of any of its Subsidiaries (whether in a  public or a private offering or otherwise), other than:  (a) (x) the Disposition of obsolete, no longer used or useful, surplus, uneconomic, negligible  or worn out machinery, equipment or other fixed assets; and (y) the Disposition of Intellectual Property  (including the abandonment thereof or surrender or transfer for no consideration), in each case under this  clause (y): (i) in the ordinary course of business, including pursuant to non-exclusive licenses of Intellectual  Property or otherwise as may be required pursuant to the terms of any lease, sublease, license or sublicense,  or (ii) which, in the reasonable judgment of the Company or any Subsidiary, are determined to be no longer  used or useful, surplus, uneconomical, negligible or obsolete in the conduct of business;  (b) (x) the sale of inventory and other assets in the ordinary course of business and (y) in  addition to sales of Inventory under the preceding clause (x), the sale of slow moving inventory outside of  the ordinary course (including in respect of a liquidation thereof); provided that the amount of inventory  Disposed of pursuant to this clause (y) shall be capped in an amount not to exceed $34,375,000 during any  fiscal year; provided, further that, with respect to any such sale pursuant to this clause (y) which (in a single  transaction or a series of related transactions) decreases the Borrowing Base by $3,437,500 or more (after  giving effect thereto), the Borrower Representative shall have first delivered an updated Borrowing Base  Certificate to the Administrative Agent giving pro forma effect to such sale and demonstrating pro forma  compliance with Section 6.12;  (c) Dispositions permitted by Sections 6.02, 6.07 (solely to the extent such Liens constitute  “Dispositions” as a result of the applicable security interest), and 6.08;  (d) (1) the sale or issuance of any Subsidiary’s Equity Interests to the Company or any  Restricted Subsidiary; provided, however, with respect to any such sale, such Investment shall not be  prohibited by Section 6.02 and (2) the sale or issuance of Equity Interests of the Company to any employee  (and, where required by law, to any officer or director) under any employment or compensation plans or to  qualify such officers and directors;  (e) the sale of assets that do not constitute Eligible Inventory, Eligible In-Transit Inventory,  Eligible LC Inventory, Eligible Consigned Inventory, Eligible Trade Accounts or Eligible Credit Card  Accounts subsequent to the date hereof, so long as (1) no Default or Event of Default then exists or would  result therefrom, (2) each such sale or other disposition is in an arm’s-length transaction (and, for purposes  hereof, any transaction with an Affiliate that complies with Section 6.05 shall be considered an arm’s-length  





 






DB1/ 127789195.7 132  transaction) and the respective Borrower or Restricted Subsidiary receives at least fair market value, and  (3) the consideration received by such Borrower or such Restricted Subsidiary consists of at least 75% cash  and is paid at the time of the closing of such sale; provided, however, that the following shall be deemed to  be cash in respect of assets that are not Collateral of the type included in the Borrowing Base: (A) the  assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Company or  any of its Restricted Subsidiaries (other than Junior Indebtedness) and the valid release of the Company or  such Restricted Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or  other liability in connection with such Disposition, (B) Indebtedness (other than Junior Indebtedness) of  any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Disposition, to the  extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment  of such Indebtedness in connection with such Disposition, and (C) any Designated Non-cash Consideration  received by the Company or any Restricted Subsidiary in such asset sale having an aggregate Fair Market  Value (as determined in good faith by the Company), taken together with all other Designated Non-cash  Consideration received pursuant to this clause (e) that is at that time outstanding, not to exceed the greater  of $34,375,000 and 12.5% of Consolidated EBITDA, calculated on a pro forma basis giving effect to such  asset disposition and Designated Non-cash Consideration and based on the most recently completed Test  Period (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at  the time received and without giving effect to subsequent changes in value); provided, however, with  respect a Disposition (in a single transaction or a series of related transactions) consisting of assets  constituting Collateral of the type eligible to be included in the Borrowing Base that decreases the  Borrowing Base by $3,437,500 or more (after giving effect thereto), the Borrower Representative shall have  first delivered an updated Borrowing Base Certificate to the Administrative Agent giving pro forma effect  to such Disposition and demonstrating pro forma compliance with Section 6.12;  (f) subject to compliance with Payment Conditions, the sale of assets that constitute Eligible  Inventory, Eligible In-Transit Inventory, Eligible LC Inventory, Eligible Consigned Inventory, Eligible  Trade Accounts or Eligible Credit Card Accounts subsequent to the date hereof, so long as (1) each such  sale or other disposition is in an arm’s-length transaction and the respective Borrower or Restricted  Subsidiary receives at least fair market value, and (2) the consideration received by the Company and its  Restricted Subsidiaries in connection with such sale consists of at least 75% cash and is paid at the time of  the closing of such sale; provided that, with respect to any such sale (in a single transaction or a series of  related transactions) consisting of assets constituting Collateral of the type eligible to be included in the  Borrowing Base that decreases the Borrowing Base by $3,437,500 or more (after giving effect thereto), the  Borrower Representative shall have first delivered an updated Borrowing Base Certificate to the  Administrative Agent giving pro forma effect to such sale and demonstrating pro forma compliance with  Section 6.12;  (g) the Disposition of cash and Cash Equivalents in connection with the Company’s and its  Restricted Subsidiaries’ business needs, as determined in the reasonable business judgment of the Company  or the applicable Restricted Subsidiary;  (h) Dispositions of Accounts in connection with compromise, write down or collection thereof  in the ordinary course of business and consistent with past practice;  (i) leases, subleases, licenses or sublicenses of property which do not materially interfere with  the business of Borrowers and their Restricted Subsidiaries and the termination of such leases, subleases,  licenses or sublicenses in the ordinary course of business;  (j) Dispositions of Equity Interests to directors where required by applicable Requirements of  Law or to satisfy other requirements of applicable Requirements of Law with respect to the ownership of  Equity Interests of Foreign Subsidiaries;  





 






DB1/ 127789195.7 133  (k) Dispositions of Equity Interests of any Joint Venture to the extent required by the terms of  customary buy/sell type arrangements entered into in connection with the formation of such Joint Venture;  (l) transfer or disposition of property subject to or as a result of a casualty or condemnation  (or agreement in lieu of condemnation) (1) upon receipt of net cash proceeds of such casualty or (2) to a  Governmental Authority as a result of condemnation (or agreement in lieu of condemnation);   (m) bulk sales or other Dispositions of inventory of a Restricted Subsidiary not in the ordinary  course of business in connection with store closings, at arm’s length; provided, that (1) the Loan Parties  and their Restricted Subsidiaries shall not close in the aggregate more than 100 stores during the term of  this Agreement, (2) all sales of inventory in connection with store closings pursuant to this clause (m) shall  be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to  the Administrative Agent and (3) in connection with any Disposition pursuant to this clause (m) involving  greater than $3,437,500 of inventory included in the Borrowing Base, the Company shall have delivered an  updated Borrowing Base Certificate after giving effect to such bulk sales and demonstrating pro forma  compliance with Section 6.12;  (n) (1) any U.S. Loan Party may Dispose of its property to another U.S. Loan Party, (2) any  Canadian Loan Party may Dispose of its property to another Canadian Loan Party, (3) any Canadian Loan  Party may Dispose of its property to a U.S. Loan Party, (4) any U.S. Loan Party may Dispose of its property  to a Canadian Loan Party; provided that any Disposition in reliance on this clause (4) for less than Fair  Market Value (as determined in good faith by the Company) shall be deemed an Investment and must be  made in compliance with clause (1) of the definition of Permitted Investments, (5) any U.S. Loan Party  may Dispose of its property to a Canadian Loan Party in the ordinary course of business, and (6) any  Restricted Subsidiary that is not a Loan Party may Dispose of its property to the Company or any other  Restricted Subsidiary, (7) any Loan Party may Dispose of its property to a Restricted Subsidiary that is not  a Loan Party; provided that any Disposition in reliance on this clause (7) for less than Fair Market Value  (as determined in good faith by the Company) shall be deemed an Investment and must be made in  compliance with clause (1) of the definition of Permitted Investments and (8) any Loan Party may Dispose  of its property to a Restricted Subsidiary that is not a Loan Party in the ordinary course of business;  provided, however, with respect a Disposition (in a single transaction or a series of related transactions)  consisting of assets constituting Collateral of the type eligible to be included in the Borrowing Base that  decreases the Borrowing Base by $3,437,500 or more (after giving effect thereto), the Borrower  Representative shall have first delivered an updated Borrowing Base Certificate to the Administrative Agent  giving pro forma effect to such Disposition and demonstrating pro forma compliance with Section 6.12;   (o) Dispositions of any property to the extent that (1) (x) such property is exchanged for credit  against the purchase price of similar replacement property or (y) such Disposition represents an exchange  of assets (including a combination of Cash Equivalents and assets) for assets related to a Similar Business  of comparable or greater market value or usefulness to the business of the Company and the Restricted  Subsidiaries as a whole, as determined in good faith by the Company or (z) such Disposition represents a  swap of assets or lease, assignment or sublease of any real of personal property in exchange for services  (including in connection with any outsourcing arrangements) or comparable or greater value or usefulness  to the business of the Company and its Restricted Subsidiaries as a whole, as determined in good faith by  the Company, or (2) the proceeds of such Disposition are reasonably promptly applied to the purchase price  of such replacement property;  (p) Dispositions of assets which constitute Investments or Restricted Payments, in each case,  not prohibited by Section 6.02;  





 






DB1/ 127789195.7 134  (q) Dispositions of property (other than Collateral of the type eligible to be included in the  Borrowing Base) in connection with (i) Sale/Leaseback Transactions for fair value (as determined at the  time of the consummation thereof in good faith by the applicable Loan Party or Restricted Subsidiary) so  long as (x) 75% of the consideration received by such Loan Party or Restricted Subsidiary from such  Sale/Leaseback Transaction is in the form of cash and (ii) any Sale/Leaseback Transactions between  Excluded Subsidiaries;  (r) Dispositions pursuant to any Permitted Wholesale A/R Financing of wholesale Accounts,  proceeds of such accounts receivable and other assets which are customarily transferred in connection with  the financing or securitization of accounts receivable, in each case, either for Fair Market Value (as  determined in good faith by the Company) or for another price consistent with customary or market practice  for the sale of accounts receivable in connection with the financing or securitization of accounts receivable  (as determined in good faith by the Company);  (s) Dispositions of assets or issuances of the Company or any Restricted Subsidiary or sale of  Equity Interests of the Company or any Restricted Subsidiary which assets or Equity Interests so Disposed  or issued, in any single transaction or related series of transactions, have a fair market value (as determined  in good faith by the Company) of less than $6,875,000 per fiscal year;  (t) Dispositions arising from foreclosure or any similar action with respect to any property or  other asset of the Company or any of its Restricted Subsidiaries;  (u) any Disposition of Equity Interests in, or Indebtedness or other securities of, an  Unrestricted Subsidiary;  (v) any Disposition of Equity Interests of a Restricted Subsidiary pursuant to an agreement or  other obligation with or to a Person (other than the Company or a Restricted Subsidiary) from whom such  Restricted Subsidiary was acquired or from whom such Restricted Subsidiary acquired its business and  assets (having been newly formed in connection with such acquisition), in each case following the date  hereof, made as part of such acquisition and in each case comprising all or a portion of the consideration in  respect of such sale or acquisition;  (w) Dispositions of receivables in connection with the compromise, settlement or collection  thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring  or similar arrangements;  (x) to the extent constituting a Disposition, any surrender, expiration or waiver of contract  rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;  (y) Dispositions of real property (x) for the purpose of resolving minor title disputes or defects,  including encroachments and lot line adjustments, (y) for the purpose of granting easements, rights of way  or access and egress agreements; or (z) to any Governmental Authority in consideration of the grant,  issuance, consent or approval of or to any development agreement, change of zoning or zoning variance,  permit or authorization in connection with the conduct of any Loan Party’s business, in each case which  does not materially interfere with the business conducted on such real property;  (z) any Disposition of assets (other than Eligible Inventory, Eligible In-Transit Inventory,  Eligible LC Inventory, Eligible Consigned Inventory, Eligible Trade Accounts or Eligible Credit Card  Accounts) in the ordinary course of business to the extent replaced by substitute assets;  





 






DB1/ 127789195.7 135  provided, that any Disposition of Material Intellectual Property of the Loan Parties to any Person that is not  a Loan Party shall be made expressly subject to a non-exclusive, irrevocable (until the Obligations (other  than contingent or indemnity obligations for which no claim has been made by the Person entitled thereto)  have been paid in full and all Commitments have terminated), royalty-free license of such Material  Intellectual Property in favor of the Administrative Agent for use in connection with the exercise of rights  and remedies of the Secured Parties under the Loan Documents with respect to the Collateral, which license  shall be substantially similar to the license described in Section 8(c) of the U.S. Security Agreement and  Section 8(c) of the Canadian Security Agreement (or otherwise reasonably satisfactory to the  Administrative Agent).  SECTION 6.05 Affiliate Transactions.  No Loan Party shall, and no Loan Party shall permit any  of the Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, transfer or  otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into  or make or amend any transaction or series of transactions, contract, agreement, understanding, loan,  advance or guarantee with, or for the benefit of, any Affiliate of the Company (each of the foregoing, an  “Affiliate Transaction”) involving aggregate consideration in excess of $6,875,000 or services and goods  with a market value (as determined in good faith by the Company) in excess of $6,875,000, provided that,  the foregoing shall not apply to the following:  (a) Affiliate Transactions on terms that are not materially less favorable to the relevant Loan  Party or the Restricted Subsidiary than those that could have been obtained in a comparable transaction by  the relevant Loan Party or such Restricted Subsidiary with an unrelated Person;  (b) transactions between or among the Company and/or any of the Restricted Subsidiaries (or  any entity that becomes a Restricted Subsidiary as a result of such transaction);  (c) Restricted Payments permitted by Section 6.02 and Permitted Investments;  (d) the payment of reasonable and customary fees and reimbursement of out-of-pocket  expenses paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the  Company, any Restricted Subsidiary, or any direct or indirect parent of the Company;  (e) transactions in which the Company or any Restricted Subsidiary, as the case may be,  delivers to the Administrative Agent a letter from an Independent Financial Advisor stating that such  transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the  requirements of clause (a) of this Section 6.05;  (f) payments or loans (or cancellation of loans) to officers, directors, employees or consultants  which are approved by a majority of the Board of Directors of the Company in good faith;  (g) any agreements or transactions disclosed on Schedule 6.05 hereto and any amendment  thereto (so long as any such agreement together with all amendments thereto, taken as a whole, is not more  disadvantageous to the Lenders in any material respect than the original agreement as in effect on the date  hereof) or any transaction contemplated thereby as determined in good faith by the Company;  (h) the issuance of Equity Interests (other than Disqualified Stock) of the Company to any  Person;  (i) (A) transactions with customers, clients, suppliers or purchasers or sellers of goods or  services, or transactions otherwise relating to the purchase or sale of goods or services, in each case in the  ordinary course of business and otherwise in compliance with the terms of this Agreement, which are fair  





 






DB1/ 127789195.7 136  to Company and the Restricted Subsidiaries in the reasonable determination of the Board of Directors or  the senior management of Company, or are on terms at least as favorable as might reasonably have been  obtained at such time from an unaffiliated party or (B) transactions with Joint Ventures or Unrestricted  Subsidiaries entered into in the ordinary course of business and consistent with past practice; provided,  however, with respect to any consideration made to a Loan Party or its Restricted Subsidiaries by Joint  Ventures, the applicable Loan Party or Restricted Subsidiary shall receive at least Fair Market Value for  the goods or services of such transaction;  (j) the issuances of securities or other payments, awards or grants in cash, securities or  otherwise pursuant to, or the funding of, employment arrangements, management equity plans, stock option  and stock ownership plans or similar employee benefit plans approved by the Board of Directors of the  Company, or the Board of Directors of a Restricted Subsidiary, as applicable, in good faith;  (k) any contribution to the capital of the Company;  (l) transactions permitted by, and complying with, Section 6.08;  (m) transactions between the Company or any Restricted Subsidiary and any Person, a director  of which is also a director of the Company or any direct or indirect parent of Company; provided, however,  that such director abstains from voting as a director of the Company or such direct or indirect parent of the  Company, as the case may be, on any matter involving such other Person;  (n) pledges of Equity Interests of Unrestricted Subsidiaries;  (o) the formation and maintenance of any consolidated group or subgroup for tax, accounting  or cash pooling or management purposes in the ordinary course of business and not for the purpose of  circumventing any covenant set forth in this Agreement;  (p) any employment agreements entered into by the Company or any Restricted Subsidiary  and their respective officers and employees in the ordinary course of business;   (q) transactions undertaken in good faith (as certified by a responsible financial or accounting  officer of the Company in an Officer’s Certificate) for the purpose of improving the consolidated tax  efficiency of the Company and its Subsidiaries and not for the purpose of circumventing any covenant set  forth in this Agreement;   (r) non-exclusive licenses of Intellectual Property to or among Borrowers, their respective  Subsidiaries and their Affiliates;   (s) advances for commissions, travel and similar purposes in the ordinary course of business  to directors, officers and employees; and  (t) the transfer by a Loan Party or a Restricted Subsidiary to a Special Purpose Receivables  Subsidiary, and the purchase by such Special Purpose Receivables Subsidiary, of wholesale accounts  receivable, proceeds of such accounts receivable and other property customarily transferred in connection  with the financing or securitization of accounts receivable for Fair Market Value (as determined in good  faith by the Company) or for another price consistent with customary or market practice for the sale of  accounts receivable in connection with the financing or securitization of accounts receivable (as determined  in good faith by the Company).  





 






DB1/ 127789195.7 137  SECTION 6.06 Amendments of Certain Documents; Line of Business.  No Loan Party shall amend  its charter, bylaws or other organizational documents in any manner materially adverse to the interest of  the Lenders or such Loan Party’s duty or ability to repay the Obligations.  No Loan Party shall engage in  any business other than the (i) operation of designer and name brand shoe stores and related accessories or  operation of licensed shoe departments substantially as conducted and operated by such Loan Party or  Subsidiary during the fiscal year in existence as of the date hereof, (ii) marketing, designing, sourcing and  distributing footwear, handbags, accessories and apparel and licensing related intellectual property and  (iii) any other business reasonably related, incidental, ancillary or complementary thereto or that is a  reasonable extension, development or expansion thereof (“Similar Business”).  SECTION 6.07 Liens.  No Loan Party shall, and no Loan Party shall permit any of its Restricted  Subsidiaries to, directly or indirectly, create, Incur or suffer to exist any Lien securing Indebtedness of such  Loan Party or any Restricted Subsidiary, other than Permitted Liens, on any asset or property of such Loan  Party or Restricted Subsidiary.  With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time  of the Incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount  of such Indebtedness.  The “Increased Amount” of any Indebtedness shall mean any increase in the amount  of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the  amortization of original issue discount, the payment of interest in the form of additional Indebtedness with  the same terms or in the form of common stock of the Company, the payment of dividends on Preferred  Stock in the form of additional shares of Preferred Stock of the same class, accretion of original issue  discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result  of fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness  described in clause (3) of the definition of “Indebtedness.”  SECTION 6.08 Mergers, Amalgamations, Fundamental Changes, Etc.    (a) No Loan Party shall, or shall permit any of its Restricted Subsidiaries to, directly or  indirectly, by operation of law or otherwise, enter into any merger, consolidation or amalgamation, or  liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or Dispose of all or  substantially all of its property or business, except that:  (i) (x) any U.S. Loan Party may consolidate, amalgamate or merge into another U.S.  Loan Party or another Person that becomes a U.S. Loan Party (provided, however, with respect to  any such consolidation, amalgamation or merger involving the Company, the Company shall be  the surviving person) and (y) any Canadian Loan Party may consolidate, amalgamate or merge into  another Canadian Loan Party or another Person that becomes a Canadian Loan Party (provided,  however, with respect to any such consolidation, amalgamation or merger involving a Canadian  Borrower, a Canadian Borrower shall be a surviving person);  (ii) (x) any Domestic Subsidiary or Canadian Subsidiary may be merged,  amalgamated or consolidated with or into a U.S. Borrower (provided that a U.S. Borrower shall be  the continuing or surviving entity) or with or into any U.S. Guarantor (provided that a U.S.  Borrower or U.S. Guarantor shall be the continuing or surviving entity) and (y) any Canadian  Subsidiary may be merged, amalgamated or consolidated with or into a Canadian Borrower  (provided that a Canadian Borrower shall be the continuing or surviving entity) or with or into any  Canadian Guarantor (provided that a Canadian Borrower or Canadian Guarantor shall be the  continuing or surviving entity);  





 






DB1/ 127789195.7 138  (iii) any Subsidiary that is not a Loan Party may be merged, amalgamated or  consolidated with or into any other Subsidiary that is not a Loan Party; provided that if one  Subsidiary to such merger, amalgamation or consolidation is a Wholly Owned Subsidiary, the  Wholly Owned Subsidiary shall be the continuing or surviving entity;  (iv)  (x) any U.S. Loan Party may Dispose of any or all of its assets to another U.S.  Loan Party, (y) any Canadian Loan Party (other than a Canadian Borrower) may Dispose of any or  all of its assets to another Canadian Loan Party or any U.S. Loan Party, and (z) any Subsidiary  which is not a Loan Party may Dispose of any or all of its assets to, or enter into any merger,  amalgamation or consolidation with, (1) a Borrower or any Guarantor (upon voluntary liquidation  or otherwise), or (2) a Subsidiary that is not a Guarantor if the Subsidiary making the Disposition  is not a Guarantor; provided that any such Disposition by a Wholly Owned Subsidiary must be to  a Wholly Owned Subsidiary;  (v) any Investment not prohibited by Section 6.02 may be structured as a merger,  consolidation or amalgamation;  (vi) any Subsidiary may be dissolved or liquidated so long the Dispositions of assets  of such Person in connection with such liquidation or dissolution are to Persons entitled to receive  such assets in accordance with Section 6.04;   (vii) any Subsidiary may enter into any merger, amalgamation or consolidation in  connection with, or to effectuate, a Disposition not otherwise prohibited by Section 6.04; and  (viii) any Restricted Subsidiary may Dispose of any or all of its assets in connection  with, or to effectuate, a Disposition not otherwise prohibited by Section 6.04.  (b) No Loan Party shall (a) change its name as it appears in official filings in the state or  province of incorporation or organization, (b) change its chief executive office, (c) change the type of entity  that it is, (d) change its organization identification number, if any, issued by its state or province of  incorporation or other organization, or (e) change its state or province of incorporation or organization, in  each case, unless the Administrative Agent shall have received written notice of such change within 10  days (or such longer period as the Administrative Agent may agree in its sole discretion) following such  change and any reasonable action requested by the Administrative Agent in connection with such change  to continue at all times following such change for the Administrative Agent to have a valid, legal and  perfected security interest in all the Collateral in which a security interest may be perfected by a filing under  the Uniform Commercial Code (or its equivalent in any applicable jurisdiction), for the benefit of the  Secured Parties have been made or will have been made within 10 days (or such longer period as the  Administrative Agent may agree in its sole discretion) following such change.  (c) No Loan Party shall change its fiscal year from the basis in effect on the date hereof without  having first provided to the Administrative Agent thirty (30) days’ prior written notice thereof.  (d) No Loan Party will change the basis of accounting upon which its financial statements are  prepared for purposes of this Agreement, other than changes to comply with changes in GAAP, without  providing to the Administrative Agent prompt notice thereof; it being acknowledged that with respect to  calculations of the applicable Borrowing Base pursuant to this Agreement (but not for any other purpose,  including any financial reporting pursuant to any Requirement of Law) such change must be approved in  writing by the Administrative Agent, not to be unreasonably withheld.  





 






DB1/ 127789195.7 139  SECTION 6.09 Sanctions; Anti-Terrorism Laws.  No Loan Party shall, directly or indirectly, nor  shall any Loan Party permit any Subsidiary to directly or indirectly, use the proceeds of any Loans or Letters  of Credit, or lend, contribute or otherwise make available such proceeds to any Subsidiary, (i) to fund,  finance or facilitate any activities of or business with any individual or entity, or in any Sanctioned Country,  that, at the time of such funding, is the subject of Sanctions except (A) as otherwise permitted pursuant to  a license granted by the Office of Foreign Assets Control of the U.S. Department of the Treasury or (B)  otherwise to the extent permissible for a Person required to comply with Sanctions, or (ii) in any other  manner that will result in a violation of Sanctions by any party hereto.  No Loan Party shall, directly or  indirectly, nor shall any Loan Party permit any Subsidiary to directly or indirectly, use the proceeds of any  Loans or Letters of Credit for any purpose which would breach any Anti-Terrorism Laws applicable to any  Loan Party or Subsidiary, including the United States Foreign Corrupt Practices Act of 1977, the Corruption  of Foreign Public Officials Act (Canada), the UK Bribery Act 2010, and other Anti-Corruption Laws in  any jurisdiction in which any Loan Party or any of its Subsidiaries is located or is doing material business.   Notwithstanding the foregoing, the representations and covenants made in this Section 6.09 shall not be  made by nor apply to any Person that qualifies as a corporation that is registered or incorporated under the  laws of Canada or any province thereof and that carries on business in whole or in part in Canada within  the meaning of Section 2 of the Foreign Extraterritorial Measures (United States) Order, 1992 passed under  the Foreign Extraterritorial Measures Act (Canada) in so far as such representations would result in a  violation of or conflict with the Foreign Extraterritorial Measures Act (Canada) or any similar law.  SECTION 6.10 Restrictions on Certain Subsidiaries.  Each of Ebuys, Article II JV and BC/VC  shall not own, acquire, lease, possess or otherwise maintain any material assets except those held by such  entities on the date hereof.  SECTION 6.11 Canadian Pension Plans. The Loan Parties shall not (a) contribute to or assume an  obligation to contribute to any Canadian Defined Benefit Plan, without the prior written consent of the  Administrative Agent (consent not to be unreasonably withheld), or (b) acquire an interest in any Person  (other than pursuant to a Permitted Acquisition) if such Person sponsors, maintains or contributes to, or at  any time in the five-year period preceding such acquisition has sponsored, maintained, or contributed to a  Canadian Defined Benefit Plan, without the prior written consent of the Administrative Agent (consent not  to be unreasonably withheld).  SECTION 6.12 Consolidated Fixed Charge Coverage Ratio. At any time that a Covenant Testing  Event has occurred and is continuing, the Loan Parties will not permit the Consolidated Fixed Charge  Coverage Ratio for Company on a Consolidated Basis to be less than 1.00 to 1.00, as calculated on a trailing  twelve (12) month basis as of the end of each Test Period, commencing with the month ending immediately  prior to the occurrence of the Covenant Testing Event.   ARTICLE VII.  EVENTS OF DEFAULT  If any of the following events shall occur and shall not have been waived in accordance with  Section 9.02, it shall constitute an “Event of Default” (it being understood and agreed that such events shall  give effect to the grace period, if any, explicitly provided for such event as set forth below):  (a) any Loan Party (i) shall fail to pay any principal of any Loan or any reimbursement  obligation in respect of any LC Disbursement when and as the same shall become due and payable, and in  the currency required hereunder or (ii) shall fail to pay any interest on any Loan, fees or any other amounts  hereunder or under any other Loan Document within three (3) Business Days after the same shall become  due and payable; or  





 






DB1/ 127789195.7 140  (b) any representation or warranty made or deemed made by or on behalf of any Loan Party in  any Loan Document (whether made on behalf of itself or otherwise) or by any Loan Party (or any of its  officers) in connection with any Loan Document, or in any certificate, other instrument or statement  furnished pursuant to the provisions hereof or thereof (including, without limitation, any representation  made in any Borrowing Base Certificate), shall prove to have been incorrect in any material respect when  made or deemed made (other than a representation, warranty, certification or statement qualified by  materiality or reference to the absence of a Material Adverse Effect, in which event such representation,  warranty, certification or statement shall prove to have been false or misleading in any respect); or  (c) (i) any Loan Party shall fail to perform or observe any covenant contained in Section 5.01,  5.02(a), 5.03 (solely as to the existence of each Borrower), 5.07, 5.10, 5.11, 5.17, Article VI, Section 6(j)  of the U.S. Security Agreement or Section 6(j) of the Canadian Security Agreement, (ii) any Loan Party  shall fail to perform or observe any covenant contained in Section 5.02 (other than 5.02(a)), 5.05 or 5.15 if  the failure to perform or observe such covenant shall continue unremedied for five (5) Business Days; and  (iii) any Loan Party shall fail to perform or observe such other term, covenant or agreement contained in  any other Section of this Agreement or any Loan Document on its part to be performed or observed if the  failure to perform or observe such other term, covenant or agreement shall remain unremedied for 30 days  after the earlier to occur of (x) the Administrative Agent’s (given at the request of any Lender) notifying a  Responsible Officer of the Borrower Representative of such default, or (y) the obtaining of knowledge of  such default by any Responsible Officer of any Loan Party; or  (d) a default or breach shall occur under any agreement, document or instrument to which any  Loan Party is a party that is not cured within any applicable grace period therefor, and such default or breach  (i) involves the failure to make any payment when due in respect of any Indebtedness (other than the  Obligations) of any Loan Party in an aggregate amount of not less than $41,250,000, or (ii) causes or  permits any holder of such Indebtedness or a trustee thereof, with the giving of notice, if required, to cause  such Indebtedness or a portion thereof in excess of $41,250,000 in the aggregate outstanding principal  amount to become due prior to its stated maturity, or cash collateral in respect thereof (in excess of  $41,250,000) is demanded as a result of any such breach or default, in each case, regardless of whether such  right is exercised, by such holder or trustee; provided that this clause (d)(ii) shall not apply to secured  Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing  such Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for  such Indebtedness; or as a result of damage destruction or taking by fire, casualty or eminent domain or  agreement in lieu thereof; or  (e) any Loan Party shall generally not pay its debts as such debts become due, or shall admit  in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of  creditors; or any proceeding shall be instituted by or against any Loan Party seeking to adjudicate it  bankrupt or insolvent, or seeking receivership, interim receivership, liquidation, winding up,  reorganization, arrangement, adjustment, rescheduling, protection, relief, or composition, of it or its debts  under any Insolvency Laws, or seeking the entry of an order for relief or the appointment of a receiver,  interim receiver, monitor, trustee, custodian, sequestrator, conservator or other similar official for it or for  any substantial part of its property and, in the case of any such proceeding instituted against it (but not  instituted by it), either such proceeding shall remain undismissed or unstayed for a period of sixty (60) days,  or any of the actions sought in such proceeding (including, without limitation, the entry of an order for  relief against, or the appointment of a receiver, interim receiver, monitor, trustee, custodian or other similar  official for, it or for any substantial part of its property) shall occur; or any Loan Party shall take any  corporate action to authorize any of the actions set forth above in this subsection (e); or   (f) one or more judgments or orders for the payment of money in excess of $37,500,000 in the  aggregate shall be rendered against any Loan Party and either (i) enforcement proceedings shall have been  





 






DB1/ 127789195.7 141  commenced by any creditor upon such judgment or order or (ii) there shall be any period of forty-five (45)  consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending  appeal or otherwise, shall not be in effect; provided, however, that any such judgment or order shall not  give rise to an Event of Default under this subsection (f) if and so long as (A) the amount of such judgment  or order which remains unsatisfied is covered by a valid and binding policy of insurance between the  respective Loan Party and a third-party insurer covering full payment of such unsatisfied amount and  (B) such insurer has been notified, and has not disputed the claim made for payment, of the amount of such  judgment or order; or  (g) a Change in Control shall have occurred; or  (h) any of the following events or conditions shall have occurred and such event or condition,  when aggregated with any and all other such events or conditions set forth in this subsection (h), has resulted  or is reasonably expected to result in liabilities of the Loan Parties and/or the ERISA Affiliates in an  aggregate amount that would have a Material Adverse Effect:  (i) any ERISA Event shall have occurred with respect to a Plan; or  (ii) any of the Loan Parties or any of the ERISA Affiliates shall have been notified by  the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such  Multiemployer Plan; or  (iii) any of the Loan Parties or any of the ERISA Affiliates shall have been notified by  the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent or is being  terminated, within the meaning of Title IV of ERISA, or has been determined to be in “endangered”  or “critical” status within the meaning of Section 432 of the Code or Section 305 of ERISA and, as  a result of such insolvency, termination or determination, the aggregate annual contributions of the  Loan Parties and the ERISA Affiliates to all of the Multiemployer Plans that are insolvent, being  terminated or in endangered or critical status at such time have been or will be increased over the  amounts contributed to such Multiemployer Plans for the plan years of such Multiemployer Plans  immediately preceding the plan year in which such reorganization, insolvency or termination  occurs; or  (iv) any failure to satisfy the applicable minimum funding standards under Section  412(a) of the Code or Section 302(a) of ERISA, whether or not waived, shall exist with respect to  one or more of the Plans; or  (v) any Lien shall exist on the property and assets of any of the Loan Parties or any of  the ERISA Affiliates in favor of the PBGC;  (vi) a Canadian Pension Event shall have occurred; or  (vii) any Lien arises (save for contribution amounts not yet due) in connection with any  Canadian Pension Plans; or  (i) (i) any provision of any Loan Document, at any time after its execution and delivery and  for any reason, ceases to be in full force and effect (other than as a result of the gross negligence or willful  misconduct of the Administrative Agent); or any Loan Party or any Affiliate thereof contests in writing the  validity or enforceability of any provision of any Loan Document; or any Loan Party denies in writing that  it has any or further liability or obligation under any provision of any Loan Document, or purports to revoke,  terminate or rescind in writing any provision of any Loan Document or seeks to avoid or limit any Lien  





 






DB1/ 127789195.7 142  purported to be created under any Collateral Document; or (ii) any Lien purported to be created under any  Collateral Document shall cease to be, or shall be asserted by any Loan Party or any Affiliate thereof not  to be, a valid and perfected Lien on a material portion of the Collateral, with the priority required by the  applicable Collateral Document (other than as a result of the gross negligence or willful misconduct of the  Administrative Agent); or  (j) there shall occur any material uninsured damage (for the avoidance of doubt, for purposes  hereof, any loss insured by self-insurance or subject to a deductible or combination of deductibles not in  excess of $3,437,500 with respect to any otherwise insured occurrence shall not constitute uninsured  damage) to or loss, theft or destruction of any of the Collateral with a book value (determined in accordance  with GAAP) in excess of $13,750,000 in the aggregate, as to which the Loan Parties do not repair, restore  or replace the damaged or destroyed property within 180 days after the occurrence of such damaged or  destruction, or any of the Loan Parties’ assets with a book value (determined in accordance with GAAP) in  excess of $13,750,000 in the aggregate are attached, seized, levied upon or subjected to a writ or distress  warrant; or such come within the possession of any receiver, manager, receiver and manager, trustee,  custodian or assignee for the benefit of creditors and the same is not cured within forty-five (45) days  thereafter;   then, and in every such Event of Default (other than an Event of Default with respect to the Loan  Parties described in clause (e) of this Article), and at any time thereafter during the continuance of such  Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, by notice  to the Borrower Representative, take either or both of the following actions, at the same or different times:  (i) terminate the Commitments, whereupon the Commitments shall terminate immediately, and (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 Loan Parties accrued hereunder, shall become due and payable immediately, in each case without  presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Loan  Parties; and in the case of any event with respect to the Loan Parties described in clause (e) of this Article,  the Commitments shall automatically terminate and the principal of the Loans then outstanding, together  with accrued interest thereon and all fees and other obligations of the Loan Parties accrued hereunder, shall  automatically become due and payable, in each case without presentment, demand, protest or other notice  of any kind, all of which are hereby waived by the Loan Parties. Upon the occurrence and during the  continuance of an Event of Default, the Administrative Agent may, and at the request of the Required  Lenders shall, increase the rate of interest applicable to the Loans and other Obligations to the extent set  forth in this Agreement and exercise any rights and remedies provided to the Administrative Agent under  the Loan Documents or at law or equity, including all remedies provided under the UCC or the PPSA, as  applicable.  ARTICLE VIII.  THE ADMINISTRATIVE AGENT  SECTION 8.01 Appointment. Each of the Lenders, on behalf of itself and any of its Affiliates that  are Secured Parties and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent  and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other  Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms  of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In  addition, to the extent required under the laws of any jurisdiction other than the U.S., each of the Lenders  and the Issuing Bank hereby grants to the Administrative Agent any required powers of attorney to execute  





 






DB1/ 127789195.7 143  any Collateral Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s  behalf. The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders  (including the Swingline Lender and the Issuing Bank), and the Loan Parties shall not have rights as a third  party beneficiary of any of such provisions.  It is understood and agreed that the use of the term “agent” as  used herein or in any other Loan Documents (or any similar term) with reference to the Administrative  Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency  doctrine of any applicable law. Instead, such term is used as a matter of market custom, and is intended to  create or reflect only an administrative relationship between independent contracting parties.  The Lenders and the other Secured Parties hereby irrevocably authorize and instruct the  Administrative Agent to, without any further consent of any Lender or any other Secured Party, enter into  any intercreditor agreement with the collateral agent or other representatives of the holders of Indebtedness  that is permitted to be secured by a Lien on the Collateral that is permitted (including with respect to  priority) under this Agreement.  The Lenders and the other Secured Parties irrevocably agree that (x) the  Administrative Agent may rely exclusively on a certificate of a Responsible Officer of the Borrower  Representative as to whether any such other Liens are permitted and (y) any intercreditor agreement  referred to in the foregoing sentence, entered into by the Administrative Agent, shall be binding on the  Secured Parties, and each Lender and other Secured Party hereby agrees that it will take no actions contrary  to the provisions of any such intercreditor agreement.  For the purposes of the grant of security by any Borrower or any other Loan Party pursuant to the  laws of the Province of Quebec, each of the Lenders, on behalf of itself and any of its Affiliates that are  Secured Parties and the Issuing Banks hereby irrevocably appoints and authorizes the Administrative Agent  to act as the hypothecary representative (in such capacity, the “Attorney”) of the Secured Parties, as  contemplated under Article 2692 of the Civil Code of Québec, and to enter into, to take and to hold on their  behalf, and for their benefit, any hypothec granted by any Loan Party in favour of the Attorney, and to  exercise such powers and duties that are conferred upon the Attorney under any applicable deed of  hypothec. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may  be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney  pursuant to any deed of hypothec, applicable laws or otherwise, (b) benefit from and be subject to all  provisions hereof with respect to the Administrative Agent mutatis mutandis, including, without limitation,  all such provisions with respect to the liability or responsibility to and indemnification by the Lenders, and  (c) be entitled to delegate from time to time any of its powers or duties under any deed of hypothec on such  terms and conditions as it may determine from time to time. Any person who becomes a Lender or an  Issuing Bank hereunder shall, by its execution of an Assignment and Assumption, be deemed to have  consented to and confirmed the appointment of the Attorney as aforesaid and to have ratified, as of the date  it becomes a Lender or an Issuing Bank hereunder, all actions taken by the Attorney in such capacity. The  substitution of the Administrative Agent pursuant to the provisions of this Article VIII shall also constitute  the substitution of the Attorney and any successor Administrative Agent shall automatically (and without  any further act or formality) become the successor Attorney for the purposes of each deed of hypothec  referred to above.  SECTION 8.02 Rights as a Lender. The bank serving as the Administrative Agent hereunder shall  have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same  as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from,  lend money to and generally engage in any kind of business with any Loan Party or any Subsidiary or any  Affiliate thereof as if it were not the Administrative Agent hereunder.  SECTION 8.03 Duties and Obligations. The Administrative Agent shall not have any duties or  obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the  foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties,  





 






DB1/ 127789195.7 144  regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have  any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights  and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to  exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders  as shall be necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set  forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not  be liable for the failure to disclose, any information relating to any Loan Party or any Subsidiary that is  communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any  capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the  consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as  shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross  negligence or willful misconduct as determined by a final nonappealable judgment of a court of competent  jurisdiction. The Administrative Agent shall be deemed not to have knowledge of any Default unless and  until written notice thereof is given to the Administrative Agent by the Borrower Representative or a  Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire  into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the  contents of any certificate, report or other document delivered hereunder or in connection with any Loan  Document, (iii) the performance or observance of any of the covenants, agreements or other terms or  conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness  of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or  priority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of any condition  set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly  required to be delivered to the Administrative Agent.  The Administrative Agent shall not be responsible  or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with  the provisions hereof relating to Disqualified Institutions.  Without limiting the generality of the foregoing,  the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender  or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with  respect to or arising out of any assignment or participation of Loans, or disclosure of confidential  information, to any Disqualified Institution.  SECTION 8.04 Reliance. The Administrative Agent shall be entitled to rely upon, and shall not  incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument,  document or other writing believed by it to be genuine and to have been signed or sent by the proper Person.   The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed  by it to be made by the proper Person, and shall not incur any liability for relying thereon. The  Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent  accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it  in accordance with the advice of any such counsel, accountants or experts.  SECTION 8.05 Actions through Sub-Agents. The Administrative Agent may perform any and all  of its duties and exercise its rights and powers hereunder or under any other Loan Documents by or through  any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any  such sub-agent may perform any and all of its duties and exercise its rights and powers through their  respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such  sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply  to their respective activities in connection with the syndication of the credit facilities provided for herein as  well as activities as the Administrative Agent.  SECTION 8.06 Resignation. Subject to the appointment and acceptance of a successor  Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by  notifying the Lenders, the Issuing Bank and the Borrower Representative. Upon receipt of any such  





 






DB1/ 127789195.7 145  resignation, the Required Lenders shall have the right, in consultation with the Borrower Representative  and with the consent of the Borrower Representative (unless an Event of Default shall have occurred and  be continuing), to appoint a successor; provided, however, in no event shall any successor Administrative  Agent be a Disqualified Institution without the prior written consent of the Borrower Representative. If no  successor shall have been so appointed by the Required Lenders and shall have accepted such appointment  within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring  Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor  Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any  such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by its successor,  such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the  retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and  obligations hereunder and under the other Loan Documents. The fees payable by the Borrowers to a  successor Administrative Agent shall be the same as those payable to its predecessor, unless otherwise  agreed by the Borrowers and such successor. Notwithstanding the foregoing, in the event no successor  Administrative Agent shall have been so appointed and shall have accepted such appointment within 30  days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative  Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the  Borrowers, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring  Administrative Agent shall be discharged from its duties and obligations hereunder and under the other  Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the  Administrative Agent under any Collateral Document for the benefit of the Secured Parties, the retiring  Administrative Agent shall continue to be vested with such security interest as collateral agent for the  benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative  Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative  Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood  and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action  under any Collateral Document, including any action required to maintain the perfection of any such  security interest) and (b) the Required Lenders shall succeed to and become vested with all the rights,  powers, privileges and duties of the retiring Administrative Agent, provided that until the time the Required  Lenders appoint a successor Administrative Agent as provided herein, (i) all payments required to be made  hereunder or under any other Loan Document to the Administrative Agent for the account of any Person  other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other  communications required or contemplated to be given or made to the Administrative Agent shall also  directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the  Administrative Agent’s resignation from its capacity as such, the provisions of this Article, Section 2.17(d)  and Section 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in  any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its  sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any  of them while it was acting as Administrative Agent and in respect of the matters referred to in the proviso  under clause (a) above.  SECTION 8.07 Non-Reliance.  (a) Each Lender acknowledges and agrees that the extensions of credit made hereunder are  commercial loans and letters of credit and not investments in a business enterprise or securities. Each  Lender further represents that it is engaged in making, acquiring or holding commercial loans in the  ordinary course of its business and has, independently and without reliance upon the Administrative Agent  or any other Lender and based on such documents and information as it has deemed appropriate, made its  own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold  Loans hereunder. Each Lender shall, independently and without reliance upon the Administrative Agent or  any other Lender and based on such documents and information (which may contain material, non-public  





 






DB1/ 127789195.7 146  information within the meaning of the United States securities laws concerning the Borrowers and their  Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or  not taking action under or based upon this Agreement, any other Loan Document, any related agreement or  any document furnished hereunder or thereunder and in deciding whether or to the extent to which it will  continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder.  (b) Each Lender hereby agrees that (i) it has requested a copy of each Report prepared by or  on behalf of the Administrative Agent; (ii) the Administrative Agent (A) makes no representation or  warranty, express or implied, as to the completeness or accuracy of any Report or any of the information  contained therein or any inaccuracy or omission contained in or relating to a Report and (B) shall not be  liable for any information contained in any Report; (iii) the Reports are not comprehensive audits or  examinations, and that any Person performing any field examination will inspect only specific information  regarding the Loan Parties and will rely significantly upon the Loan Parties’ books and records, as well as  on representations of the Loan Parties’ personnel and that the Administrative Agent undertakes no  obligation to update, correct or supplement the Reports; (iv) it will keep all Reports confidential and strictly  for its internal use and it will not share the Report with any Loan Party or any other Person except as  otherwise permitted pursuant to this Agreement; and (v) without limiting the generality of any other  indemnification provision contained in this Agreement, (A) it will hold the Administrative Agent and any  such other Person preparing a Report harmless from any action the indemnifying Lender may take or  conclusion the indemnifying Lender may reach or draw from any Report in connection with any extension  of credit that the indemnifying Lender has made or may make to the Borrower, or the indemnifying Lender’s  participation in, or the indemnifying Lender’s purchase of, a Loan or Loans; and (B) it will pay and protect,  and indemnify, defend, and hold the Administrative Agent and any such other Person preparing a Report  harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts  (including reasonable attorneys’ fees) incurred by the Administrative Agent or any such other Person as the  direct or indirect result of any third parties who might obtain all or part of any Report through the  indemnifying Lender.  SECTION 8.08 Other Agency Titles. The joint bookrunners and joint lead arrangers, and  documentation agent shall not have any right, power, obligation, liability, responsibility or duty under this  Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such  Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby  makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as joint  bookrunners and joint lead arrangers, and documentation agent, as applicable, as it makes with respect to  the Administrative Agent in the preceding paragraph.  SECTION 8.09 Not Partners or Co-Venturers; Administrative Agent as Representative of the  Secured Parties.  (a) The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or  omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act  for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to  enforce the payment of the principal of and interest on any Loan after the date such principal or interest has  become due and payable pursuant to the terms of this Agreement.  (b) In its capacity, the Administrative Agent is a “representative” of the Secured Parties within  the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each  Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a  party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party  (other than the Administrative Agent) shall have the right individually to seek to realize upon the security  granted by any Collateral Document, it being understood and agreed that such rights and remedies may be  





 






DB1/ 127789195.7 147  exercised solely by the Administrative Agent for the benefit of the Secured Parties upon the terms of the  Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral  security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a  power of attorney, to execute and deliver on behalf of the Secured Parties any Loan Documents necessary  or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf  of the Secured Parties.  SECTION 8.10 Erroneous Payments.   (a) Each Lender and Issuing Bank hereby agrees that (i) if the Administrative Agent  notifies such Lender or Issuing Bank that the Administrative Agent has determined in its sole discretion  that any funds received by such Lender or Issuing Bank from the Administrative Agent or any of its  Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender  or Issuing Bank (whether or not known to such Lender or Issuing Bank) (whether as a payment, prepayment  or repayment of principal, interest, fees or otherwise; individually and collectively, an “Erroneous  Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing  Bank shall promptly, but in no event later than one Business Day thereafter, return to the Administrative  Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was  made, in same day funds, together with interest thereon in respect of each day from and including the date  such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such  amount is repaid to the Administrative Agent at the greater of the Fed Funds Rate and a rate determined by  the Administrative Agent in accordance with banking industry rules on interbank compensation from time  to time in effect and (ii) to the extent permitted by applicable law, such Lender or Issuing Bank shall not  assert, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect  to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous  Payments received, including without limitation any defense based on “discharge for value” or any similar  doctrine. A notice of the Administrative Agent to any Lender or Issuing Bank under this clause (a) shall be  conclusive, absent manifest error.  (b) Without limiting immediately preceding clause (a), if any Lender or Issuing Bank receives  a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of  principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates)  that (x) is in a different amount than, or on a different date from, that specified in a notice of payment,  prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such  payment, prepayment or repayment, (y) was not preceded or accompanied by a notice of payment,  prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) such Lender or  Issuing Bank otherwise becomes aware was transmitted, or received, in error (in whole or in part):  (i) (A) in the case of immediately preceding clause (x) or (y), an error shall be  presumed to have been made (and that it is deemed to have knowledge of such error at the time of  receipt of such Erroneous Payment) or (B) in the case of immediately preceding clause (z), an error  has been made, in each case, with respect to such payment, prepayment or repayment; and  (ii) such Lender or Issuing Bank shall promptly (and, in all events, within one Business  Day of its knowledge of such error) notify the Administrative Agent of its receipt of such payment,  prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the  Administrative Agent pursuant to this Section 8.10(b).  (c) The parties hereto agree that (x) in the event an Erroneous Payment (or portion thereof) is  not recovered from any Lender or Issuing Bank that has received such Erroneous Payment (or portion  thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender or  





 






DB1/ 127789195.7 148  Issuing Bank with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay,  discharge or otherwise satisfy any Obligations owed by the Borrower Representative or any other Loan  Party; provided, that this Section 8.10(c) shall not be interpreted to increase (or accelerate the due date for),  or have the effect of increase (or accelerating the due date for), the Obligations of the Borrower  Representative or any other Loan Party relative to the amount (and/or timing for payment) of the  Obligations that would have been payable had such Erroneous Payment not been made by the  Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x)  and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount  of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the  Borrower Representative or any other Loan Party for the express purpose of making such Erroneous  Payment.  (d) Each party’s obligations under this Section 8.10 shall survive the resignation or  replacement of the Administrative Agent, any transfer of rights or obligations by (or the replacement of) a  Lender, the termination of the Aggregate Commitments or the repayment, satisfaction or discharge of all  Obligations (or any portion thereof) under any Loan Document.  SECTION 8.11 No Reliance on Administrative Agent’s Customer Identification Program. Each  Lender and Issuing Bank acknowledges and agrees that neither such Lender nor Issuing Bank, nor any of  their Affiliates, participants or assignees, may rely on the Administrative Agent to carry out such Lender’s,  Issuing Bank’s, Affiliate’s, participant’s or assignee’s customer identification program, or other obligations  required or imposed under or pursuant to the USA PATRIOT Act or the regulations thereunder, including  the regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the “CIP Regulations”), or  any other Anti-Terrorism Law, including any programs involving any of the following items relating to or  in connection with any of the Loan Parties, their Affiliates or their agents, this Agreement, the Loan  Documents or the transactions hereunder or contemplated hereby: (a) any identity verification procedures,  (b) any record keeping, (c) comparisons with government lists, (d) customer notices or (e) other procedures  required under the CIP Regulations or such other laws.  ARTICLE IX.  MISCELLANEOUS  SECTION 9.01 Notices.  (a) Except in the case of notices and other communications expressly permitted to be given by  telephone or otherwise, all notices and other communications provided for herein shall be in writing and  shall be delivered by Electronic Systems (and subject in each case to paragraph (b) below) or by hand or  overnight courier service, mailed by certified or registered mail or sent by facsimile, as follows:  (i) if to any Loan Party, to the Borrower Representative at:   Designer Brands Inc.  810 DSW Drive  Columbus, OH 43219  Attention: Jared Poff, CFO  Email: jaredpoff@designerbrands.com   and  Designer Brands Inc.  





 






DB1/ 127789195.7 149  810 DSW Drive  Columbus, OH 43219  Attention: Michelle Krall, Esq., General Counsel  Email: michellekrall@dswinc.com  with a copy to (which shall not constitute notice):  Vorys, Sater, Seymour and Pease LLP  52 E. Gay Street  Columbus, OH 43215  Attention: Nici Workman, Esq.  Email: nnworkman@vorys.com  (ii) if to the Administrative Agent, the Swingline Lender, or Huntington as Issuing  Bank, at:  The Huntington National Bank  200 Public Square CM64  Cleveland, OH  44114  Attention: Asset Based Lending / Lynsey Sausaman  Telephone: 330-384-7342  Email: ABLOperations@huntington.com &  lynsey.m.sausaman@huntington.com with a copy to (which shall not constitute notice):  Morgan, Lewis & Bockius LLP  One Federal Street  Boston, MA 02110  Attention: Marjorie S. Crider, Esq.  Office No: 617-341-7789  Email: Marjorie.crider@morganlewis.com (iii) if to Bank of America, N.A., as Issuing Bank, at:  Bank of America, N.A.  Mail Code: NC1-025-04-69  800 W. Trade Street  Charlotte, NC 28255  Attention: Joann Regina  Email: joann.regina@bofa.com  Facsimile: 904-312-5688  (iv) if to Wells Fargo Bank, National Association, as Issuing Bank, at:  Wells Fargo Bank, National Association  125 High Street, 11th Floor  Boston, MA 02110  Attention: Maggie Townsend  Email: Maggie.Townsend@wellsfargo.com  Facsimile: 877-497-8640  





 






DB1/ 127789195.7 150  (v) if to Bank of Montreal, as Issuing Bank, at:  Bank of Montreal  115 S. Lasalle, St, 20W  Chicago, IL 60603  Attention: Sonja Filipovic  Email: Sonja.Filipovic@bmo.com  (vi) if to any other Lender, to it at its address or facsimile number set forth in its  Administrative Questionnaire.  All such notices and other communications (i) sent by hand or overnight courier service, or mailed  by certified or registered mail, shall be deemed to have been given when received, (ii) sent by facsimile  shall be deemed to have been given when sent, provided that if not given during normal business hours of  the recipient, such notice or communication shall be deemed to have been given at the opening of business  on the next Business Day of the recipient, or (iii) delivered through Electronic Systems to the extent  provided in paragraph (b) below shall be effective as provided in such paragraph.  (b) Notices and other communications to the Lenders hereunder may be delivered or furnished  by Electronic Systems pursuant to procedures approved by the Administrative Agent. Each of the  Administrative Agent and the Borrower Representative (on behalf of the Loan Parties) may, in its  discretion, agree to accept notices and other communications to it hereunder by Electronic Systems pursuant  to procedures approved by it; provided that approval of such procedures may be limited to particular notices  or communications. In the case of notices from the Borrower Representative to the Administrative Agent,  such acceptable and approved Electronic Systems include email to the Administrative Agent at the email  addresses identified above or as otherwise designated in writing pursuant to Section 9.01(c) below. All such  notices and other communications (i) sent to an email address shall be deemed received upon the sender’s  receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested”  function, as available, return email or other written acknowledgement), and (ii) posted to an Internet or  intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its email  address as described in the foregoing clause (i), of notification that such notice or communication is  available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if  such notice, email or other communication is not sent during the normal business hours of the recipient,  such notice or communication shall be deemed to have been sent at the opening of business on the next  Business Day of the recipient.  (c) Any party hereto may change its address, facsimile number or email address for notices  and other communications hereunder by notice to the other parties hereto. 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.  (d) Electronic Systems.  (i) Each Loan Party agrees that the Administrative Agent may, but shall not be  obligated to, make Communications (as defined below) available to the Issuing Bank and the other  Lenders by posting the Communications on Debt Domain, Intralinks, Syndtrak, ClearPar or a  substantially similar Electronic System.  (ii) Any Electronic System used by the Administrative Agent is provided “as is” and  “as available.” The Agent Parties (as defined below) do not warrant the adequacy of such Electronic  





 






DB1/ 127789195.7 151  Systems and expressly disclaim liability for errors or omissions in the Communications. No  warranty of any kind, express, implied or statutory, including any warranty of merchantability,  fitness for a particular purpose, non-infringement of third- party rights or freedom from viruses or  other code defects, is made by any Agent Party in connection with the Communications or any  Electronic System. In no event shall the Administrative Agent or any of its Related Parties  (collectively, the “Agent Parties”) have any liability to the Borrowers or the other Loan Parties, any  Lender, the Issuing Bank or any other Person or entity for damages of any kind, including direct or  indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract  or otherwise) arising out of any Borrower’s, any Loan Party’s or the Administrative Agent’s  transmission of communications through an Electronic System (other than for direct or actual  damages resulting from the gross negligence, bad faith or willful misconduct of, or the material  breach of the Loan Documents by, such Person, in each case, as determined by a final and non- appealable judgment of a court of competent jurisdiction).  “Communications” means, collectively,  any notice, demand, communication, information, document or other material provided by or on  behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein  which is distributed by the Administrative Agent, any Lender or the Issuing Bank by means of  electronic communications pursuant to this Section, including through an Electronic System.  SECTION 9.02 Waivers; Amendments.  (a) No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in  exercising any right or power hereunder or under any other Loan Document shall operate as a waiver  thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or  discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or  the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing  Bank and the Lenders hereunder and under any other Loan Document are cumulative and are not exclusive  of any rights or remedies that they would otherwise have. No waiver of any provision of any Loan  Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless  the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be  effective only in the specific instance and for the purpose for which given. Without limiting the generality  of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver  of any Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have  had notice or knowledge of such Default at the time.  (b) Except as provided in the first sentence of Section 2.09(f) (with respect to any commitment  increase), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may  be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or  agreements in writing entered into by the Borrowers and the Required Lenders (or the Administrative Agent  acting at the direction of the Required Lenders) or (y) in the case of any other Loan Document, pursuant to  an agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or Loan  Parties that are parties thereto, with the consent of the Required Lenders; provided that no such agreement  shall (i) increase the Commitment of any Lender without the written consent of such Lender (including any  such Lender that is a Defaulting Lender), (ii) reduce or forgive the principal amount of any Loan or LC  Disbursement or reduce the rate of interest thereon, or reduce or forgive any interest or fees payable  hereunder, without the written consent of each Lender (including any such Lender that is a Defaulting  Lender) directly affected thereby (except (1) in connection with the waiver of applicability of any post- default increase in interest rates, which waiver shall be effective with the consent of the Required Lenders  and (2) that any amendment or modification of defined terms used in the determination of the Borrowing  Base shall not constitute a reduction in the rate of interest or fees for purposes of this clause (ii)),  (iii) postpone any scheduled date of payment of the principal amount of any Loan or LC Disbursement, or  any date for the payment of any interest, fees or other Obligations payable hereunder, or reduce the amount  





 






DB1/ 127789195.7 152  of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment,  without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly  affected thereby (except (1) in connection with the waiver of applicability of any post-default increase in  interest rates, which waiver shall be effective with the consent of the Required Lenders and (2) that any  amendment or modification of defined terms used in the determination of the Borrowing Base shall not  constitute a reduction in the rate of interest or fees for purposes of this clause (iii)), (iv) change Section  2.10(b), 2.18(b) or 2.18(d) in a manner that would alter the manner in which payments are shared, without  the written consent of each Lender (other than any Defaulting Lender), (v) increase the advance rates set  forth in the definition of either Borrowing Base or change the definition of the term “U.S. Borrowing Base”,  “Canadian Borrowing Base” or “Borrowing Base” or any component definition thereof if as a result thereof  the amounts available to be borrowed by the Borrowers would be increased without the written consent of  each of the Lenders, provided that the foregoing shall not limit the discretion of the Administrative Agent  to change, establish or eliminate any Reserves, (vi) change any of the provisions of this Section or the  definition of “Required Lenders” or any other provision of any Loan Document specifying the number or  percentage of Lenders required to waive, amend or modify any rights thereunder or make any determination  or grant any consent thereunder, without the written consent of each Lender (other than any Defaulting  Lender) directly affected thereby, (vii) change Section 2.20, without the consent of each Lender (other than  any Defaulting Lender), (viii) release any Borrower from the Obligations or Loan Party from its obligation  under its Loan Guaranty (except as otherwise permitted herein or in the other Loan Documents), without  the written consent of each Lender (other than any Defaulting Lender), (ix) except as provided in clause (c)  of this Section or in any Collateral Document, release all or substantially all of the Collateral, without the  written consent of each Lender (other than any Defaulting Lender) or (x) except as expressly permitted  herein or in any other Loan Document, subordinate the Obligations hereunder or the Liens granted  hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be without  the written consent of each Lender; provided further that no such agreement shall amend, modify or  otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender  hereunder without the prior written consent of the Administrative Agent, such Issuing Bank or the  Swingline Lender, as the case may be (it being understood that any amendment to Section 2.20 shall require  the consent of the Administrative Agent, the Issuing Banks and the Swingline Lender). The Administrative  Agent may also amend the Commitment Schedule to reflect assignments entered into pursuant to Section  9.04, and this Agreement may be amended without any additional consents to provide for increased or  additional Commitments in the manner contemplated by Section 2.09 and in connection with a Benchmark  Transition Event in the manner contemplated by Section 2.14(b).  Additionally, without the consent of any  Lender or any 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 or this Agreement or in each case to otherwise enhance  the rights or benefits of any Lender under any Loan Document.  Notwithstanding the foregoing, the Fee  Letter and any other fee letters entered into after the date hereof may be amended in accordance with the  terms thereof.  (c) The Secured Parties hereby irrevocably authorize the Administrative Agent, without any  further consent of the Secured Parties, (i) to release any Liens granted to the Administrative Agent by the  Loan Parties on any Collateral (A) upon the termination of all the Commitments, payment and satisfaction  in full in cash of all Obligations (other than Unliquidated Obligations) and the Cash Collateralization (or,  at the discretion of the Administrative Agent, the providing of a backup standby letter of credit satisfactory  to the Administrative Agent and the Issuing Banks) of all outstanding Letters of Credit, (B) constituting  property being sold or disposed of to a Person that is not (and is not required to become) a Loan Party in a  





 






DB1/ 127789195.7 153  transaction permitted by this Agreement (and the Administrative Agent may rely conclusively on any  certificate to that effect, without further inquiry), and, to the extent that the property being sold or disposed  of constitutes 100% of the Equity Interest of a Subsidiary, the Administrative Agent is authorized to release  any Loan Guaranty provided by such Subsidiary, (C) constituting property leased to a Loan Party under a  lease which has expired or been terminated in a transaction not prohibited under this Agreement, (D) as  required to effect any sale or other disposition of such Collateral in connection with any exercise of  remedies of the Administrative Agent and the Lenders pursuant to Article VII, (E) constituting property of  a Loan Party that is being released as a Loan Party as provided below, and (F) constituting property which  is or becomes an Excluded Asset, and (ii) to release any Loan Guaranty provided by any U.S. Loan Party  or Canadian Loan Party (A) that is dissolved as permitted under Section 6.08 in connection with a voluntary  liquidation or dissolution thereof permitted by such Section, (B) upon the disposition of all of the  outstanding Equity Interests of a Subsidiary of the Company (other than a Canadian Borrower) to a Person  other than a Borrower or a Subsidiary in a transaction permitted by Section 6.05 (and the Administrative  Agent may rely conclusively on any such certificate to that effect provided by any Loan Party without  further inquiry), or (C) that becomes an Excluded Subsidiary (and the Administrative Agent may rely  conclusively on any such certificate to that effect provided by any Loan Party without further inquiry). Any  such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than  those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained  by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the  Collateral.  In connection with the foregoing, the Lenders, the Issuing Banks and the other Secured Parties  hereby authorize the Administrative Agent to execute and deliver any instruments, documents, and  agreements necessary or desirable to evidence and confirm the release of any Loan Party or Collateral  pursuant to the foregoing provisions of this Section 9.02(c), all without the further consent or joinder of any  Lender, any Issuing Bank or any other Secured Party.  In connection with any release hereunder, the  Administrative Agent shall promptly (and the Lenders, the Issuing Banks and the Secured Parties hereby  authorize the Administrative Agent to) take such action and execute any such documents as may be  reasonably requested by the Loan Parties and at the Loan Parties’ expense in connection with the release of  any Liens created by any Loan Document in respect of such Subsidiary, property or asset, as applicable;  provided, that the Administrative Agent shall have received a certificate of a Responsible Officer of the  Borrower Representative containing such certifications as the Administrative Agent shall reasonably  request.  (d) If, in connection with any proposed amendment, waiver or consent requiring the consent  of “each Lender” or “each Lender affected thereby,” the consent of the Required Lenders is obtained, but  the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but  has not been obtained being referred to herein as a “Non-Consenting Lender”), then the Borrowers may  elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently  with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrowers,  the Administrative Agent and the Issuing Bank shall agree, as of such date, to purchase for cash the Loans  and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and  to become a Lender for all purposes under this Agreement and to assume all obligations of the Non- Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of  Section 9.04, and (ii) the Borrowers shall pay to such Non-Consenting Lender in same day funds on the  day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non- Consenting Lender by the Borrowers hereunder to and including the date of termination, including without  limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount,  if any, equal to the payment which would have been due to such Lender on the day of such replacement  under Section 2.15 had the Loans of such Non-Consenting Lender been prepaid on such date rather than  sold to the replacement Lender.  





 






DB1/ 127789195.7 154  (e) Notwithstanding anything to the contrary herein the Administrative Agent may, with the  consent of the Borrower Representative only, amend, modify or supplement this Agreement or any of the  other Loan Documents to cure any ambiguity, omission, mistake, defect or inconsistency.  SECTION 9.03 Expenses; Indemnity; Damage Waiver.   (a) Except as otherwise provided in this Agreement, the Loan Parties shall, jointly and  severally, pay all (i) reasonable and documented out-of-pocket expenses incurred by the Administrative  Agent and its Affiliates, including the reasonable and documented fees, charges and disbursements of  counsel (in each case limited to one primary law firm in the U.S., one primary law firm in Canada, and one  law firm in any other relevant jurisdiction, except in the case of actual or perceived conflicts of interest, in  which case, such additional counsel for the affected persons) for the Administrative Agent, in connection  with the syndication and distribution (including, without limitation, via the internet or through an Electronic  System) of the credit facilities provided for herein, the preparation and administration of the Loan  Documents and any amendments, modifications or waivers of the provisions of the Loan Documents  (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) reasonable and  documented out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance,  amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and  (iii) reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Issuing  Bank or any Lender, including the reasonable fees, charges and disbursements of any counsel (in each case  limited to one primary law firm in the U.S., one primary law firm in Canada, and one law firm in any other  relevant jurisdiction, except in the case of actual or perceived conflicts of interest, in which case, such  additional counsel for the affected persons) for the Administrative Agent, the Issuing Bank or any Lender,  in connection with the enforcement, collection or protection of its rights in connection with the Loan  Documents, including its rights under this Section, or in connection with the Loans made or Letters of  Credit issued hereunder, including all such reasonable and documented out-of-pocket expenses incurred  during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit (in each case  limited to one primary law firm in the U.S., one primary law firm in Canada, and one law firm in any other  relevant jurisdiction, except in the case of actual or perceived conflicts of interest, in which case, such  additional counsel for the affected persons). Subject to Section 5.07, such reasonable and documented out- of-pocket expenses being reimbursed by the Loan Parties under this Section may include, without limiting  the generality of the foregoing, fees, costs and expenses incurred in connection with:  (i) appraisals and insurance reviews;  (ii) field examinations and the preparation of Reports based on the fees charged by a  third party retained by the Administrative Agent or the reasonable and documented internally  allocated fees for each Person employed by the Administrative Agent with respect to each field  examination;  (iii) fees and other charges for (A) lien and title searches and (B) filing financing  statements and continuations, and other actions to perfect, protect, and continue the Administrative  Agent’s Liens;  (iv) sums paid or incurred to take any action required of any Loan Party under the Loan  Documents that such Loan Party fails to pay or take; and  (v) forwarding loan proceeds, collecting checks and other items of payment, and  establishing and maintaining the accounts and lock boxes, and costs and expenses of preserving  and protecting the Collateral.  





 






DB1/ 127789195.7 155  All of the foregoing fees, costs and expenses may be charged to the Borrowers as Revolving Loans or to  another deposit account, all as described in Section 2.18(c).  (b) The Loan Parties, subject to Section 9.21, shall, jointly and severally, indemnify the  Administrative Agent, the Issuing Bank and each Lender, and each Related Party of any of the foregoing  Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from,  any and all losses, claims, damages, liabilities and related expenses, including the reasonable and  documented fees, charges and disbursements of any outside counsel for any Indemnitee (in each case  limited to one primary law firm in the U.S., one primary law firm in Canada, and one law firm in any other  relevant jurisdiction, except in the case of actual or perceived conflicts of interest, in which case, such  additional counsel for the affected persons), incurred by any Indemnitee or asserted against any Indemnitee  by any Person arising out of, in connection with, or as a result of (i) the execution or delivery of this  Agreement and the other Loan Documents or any agreement or instrument contemplated hereby or thereby,  the performance by the parties hereto of their respective obligations hereunder or thereunder or the  consummation of the Transactions or any other transactions contemplated hereby or thereby, (ii) any Loan  or Letter of Credit or the use of the proceeds therefrom (including any refusal by the Issuing Bank to honor  a demand for payment under a Letter of Credit if the documents presented in connection with such demand  do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release  of Hazardous Materials on or from any property owned or operated by a Loan Party or a Subsidiary, or any  Environmental Liability related in any way to a Loan Party or a Subsidiary, or (iv)  any actual or prospective  claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not such claim,  litigation, investigation or proceeding is brought by the Loan Parties or their respective equity holders,  Affiliates, creditors or any other third Person and whether based on contract, tort or any other theory and  regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any  Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses  (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have  resulted from the gross negligence, bad faith, or willful misconduct of such Indemnitee or (y) arise from  any claim, litigation, investigation, arbitration or proceeding (a “Proceeding”) that does not directly or  primarily involve an act or omission of the Company or any of its Affiliates and that is brought by an  Indemnitee against any other Indemnitee (other than any Proceeding against any Indemnitee solely in its  capacity or in fulfilling its role as the Administrative Agent, Swingline Lender, Issuing Bank, bookrunner,  arranger or any similar role hereunder). This Section 9.03(b) shall not apply with respect to Taxes other  than any Taxes that represent losses or damages arising from any non-Tax claim.  (c) To the extent that any Loan Party fails to pay any amount required to be paid by it to the  Administrative Agent (or any sub-agent thereof), the Swingline Lender or the Issuing Bank (or any Related  Party of any of the foregoing) under paragraph (a) or (b) of this Section, each Lender severally agrees to  pay to the Administrative Agent, the Swingline Lender or the Issuing Bank (or any Related Party of any of  the foregoing), as the case may be, such Lender’s Applicable Percentage (determined as of the time that the  applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount (it being  understood that the Loan Parties’ failure to pay any such unpaid amount shall not relieve any Loan Party  of any default in the payment thereof); provided that the unreimbursed expense or indemnified loss, claim,  damage, liability or related expense, as the case may be, was incurred by or asserted against the  Administrative Agent, the Swingline Lender or the Issuing Bank in its capacity as such or against any  Related Party of any of the foregoing acting for the Administrative Agent, the Swingline Lender or the  Issuing Bank in connection with such capacity.  (d) To the extent permitted by applicable law, no Loan Party shall assert, and each Loan Party  hereby waives, any claim against any Indemnitee (i) for any damages arising from the use by others of  information or other materials obtained through telecommunications, electronic or other information  transmission systems (including the Internet) (other than for direct or actual damages resulting from the  





 






DB1/ 127789195.7 156  gross negligence, bad faith or willful misconduct of, or the material breach of the Loan Documents by, such  Indemnitee, in each case, as determined by a final and non-appealable judgment of a court of competent  jurisdiction) or (ii) on any theory of liability, for special, indirect, consequential or punitive damages (as  opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,  any other Loan Document or any agreement or instrument contemplated hereby or thereby, the  Transactions, any Loan or Letter of Credit or the use of the proceeds thereof; provided that, nothing in this  paragraph (d) shall relieve any Loan Party of any obligation it may have to indemnify an Indemnitee against  special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party.  (e) All amounts due under this Section shall be payable not later than 10 days after written  demand therefor.  (f) Notwithstanding the foregoing, no Canadian Loan Party shall have any liability under this  Section 9.03 for any expenses or indemnities that do not arise from the commitments or extensions of credit  to the Canadian Loan Parties, the conduct or alleged conduct of any Canadian Loan Party, the assets of any  Canadian Loan Party, any Default or Event of Default relating to any Canadian Loan Party, any services  provided to any Canadian Loan Party or any enforcement action against any Canadian Loan Party.  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 the  Issuing Bank that issues any Letter of Credit), except that (i) no Loan Party may 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 any Loan Party without such consent shall be null and void) and (ii) no  Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this  Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person  (other than the parties hereto, their respective successors and assigns permitted hereby (including any  Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in  paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each  of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or  claim under or by reason of this Agreement.  (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to  one or more Persons (other than an Ineligible Institution) all or a portion of its rights and obligations under  this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with  the prior written consent (in each case, such consent not to be unreasonably withheld or delayed) of:  (A) the Borrower Representative, provided that the Borrower Representative  shall be deemed to have consented to any such assignment unless it shall object thereto by  written notice to the Administrative Agent within 10 Business Days after having received  notice thereof, and provided further that no consent of the Borrower Representative shall  be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or,  if an Event of Default has occurred and is continuing, any other assignee;  (B) the Administrative Agent shall be required for assignments in respect of  the Revolving Loan if such assignment is to a Person that is not a Lender with a  Commitment in respect of such Revolving Loan, an Affiliate of such Lender or an  Approved Fund with respect to such Lender;  (C) each Issuing Bank; and  





 






DB1/ 127789195.7 157  (D) the Swingline Lender.  (ii) Assignments shall be subject to the following additional conditions:  (A) except in the case of an assignment to a Lender or an Affiliate of a Lender  or an Approved Fund or an assignment of the entire remaining amount of the assigning  Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of  the assigning Lender subject to each such assignment (determined as of the date the  Assignment and Assumption with respect to such assignment is delivered to the  Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower  Representative and the Administrative Agent otherwise consent, provided that no such  consent of the Borrower Representative shall be required if an Event of Default has  occurred and is continuing;  (B) each partial assignment shall be made as an assignment of a proportionate  part of all the assigning Lender’s rights and obligations under this Agreement (including  its obligations to fund the Loans and other products under the Canadian Sublimit);  (C) the parties to each assignment shall execute and deliver to the  Administrative Agent an Assignment and Assumption, together with a processing and  recordation fee of $3,500 and the tax forms required by Section 2.17(f);   (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative  Agent an Administrative Questionnaire in which the assignee designates one or more credit  contacts to whom all syndicate-level information (which may contain material non-public  information about the Company, the other Loan Parties and their Related Parties or their  respective securities) will be made available and who may receive such information in  accordance with the assignee’s compliance procedures and applicable laws, including  Federal and state securities laws; and  (E) each assignee Lender shall acquire and equal proportionate share (as  determined by the assigned Commitments in relation to all other Commitments of other  Lenders), either directly, or through an Affiliate or a branch, of the Canadian Sublimit.  For the purposes of this Section 9.04(b), the terms “Approved Fund” and “Ineligible Institution”  have the following meanings:  “Approved Fund” means any Person (other than a natural person) that is engaged in making,  purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its  business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity  or an Affiliate of an entity that administers or manages a Lender.  “Ineligible Institution” means a (a) natural person, (b) Defaulting Lender, (c) holding company,  investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or  relative(s) thereof; provided that, such holding company, investment vehicle or trust shall not constitute an  Ineligible Institution if it (x) has not been established for the primary purpose of acquiring any Loans or  Commitments, (y) is managed by a professional advisor, who is not such natural person or a relative thereof,  having significant experience in the business of making or purchasing commercial loans, and (z) has assets  greater than $25,000,000 and a significant part of its activities consist of making or purchasing commercial  loans and similar extensions of credit in the ordinary course of its business, (d) a Permitted Holder, Loan  





 






DB1/ 127789195.7 158  Party or a Subsidiary or other Affiliate of a Loan Party, or (e) subject to Section 9.04(e) below, a  Disqualified Institution.  (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this  Section, from and after the effective date specified in each Assignment and Assumption, the  assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such  Assignment and Assumption, have the rights and obligations of a Lender under this Agreement,  and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment  and Assumption, be released from its obligations under this Agreement (and, in the case of an  Assignment and Assumption covering all of the assigning Lender’s rights and obligations under  this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the  benefits of Sections 2.15, 2.16, 2.17 and 9.03 with respect to facts and circumstances occurring  prior to the effective date of such assignment; provided, that except to the extent otherwise  expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a  waiver or release of any claim of any part hereunder arising from that Lender’s having been a  Defaulting Lender). 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.  (iv) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent  of the Borrowers, shall maintain at one of its U.S. offices a copy of each Assignment and  Assumption delivered to it and a register for the recordation of the names and addresses of the  Lenders, and the Commitment of, and principal amount of and stated interest on the Loans and LC  Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the  “Register”). The entries in the Register shall be conclusive absent manifest error, and the  Borrowers, the Administrative Agent, the Issuing Bank and the Lenders shall treat each Person  whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all  purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available  for inspection by the Borrowers, the Issuing Bank and any Lender, at any reasonable time and from  time to time upon reasonable prior notice.  (v) Upon its receipt of a duly completed Assignment and Assumption executed by an  assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless  the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in  paragraph (b) of this Section and any written consent to such assignment required by paragraph (b)  of this Section, the Administrative Agent shall accept such Assignment and Assumption and record  the information contained therein in the Register; provided that if either the assigning Lender or  the assignee shall have failed to make any payment required to be made by it pursuant to Section  2.05, 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), the Administrative Agent shall have no obligation  to accept such Assignment and Assumption and record the information therein in the Register  unless and until such payment shall have been made in full, together with all accrued interest  thereon. No assignment shall be effective for purposes of this Agreement unless it has been  recorded in the Register as provided in this paragraph.  (c) Any Lender may, without the consent of the Borrowers, the Administrative Agent, the  Issuing Bank or the Swingline Lender, sell participations to one or more banks or other entities (a  “Participant”) other than an Ineligible Institution in all or a portion of such Lender’s rights and obligations  under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided  that (A) such Lender’s obligations under this Agreement shall remain unchanged; (B) such Lender shall  remain solely responsible to the other parties hereto for the performance of such obligations; and (C) the  





 






DB1/ 127789195.7 159  Borrowers, 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 or instrument pursuant to which a Lender sells such a participation shall provide  that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,  modification or waiver of any provision of this Agreement; provided that such agreement or instrument  may provide that such Lender will not, without the consent of the Participant, agree to any amendment,  modification or waiver described in the first proviso to Section 9.02(b) that affects such Participant. The  Borrowers agree that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17  (subject to the requirements and limitations therein, including the requirements under Section 2.17(f) and  (g) (it being understood that the documentation required under Section 2.17(f) shall be delivered to the  participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment  pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the  provisions of Sections 2.18 and 2.19 as if it were an assignee under paragraph (b) of this Section; and  (B) shall not be entitled to receive any greater payment under Section 2.15 or 2.17, with respect to any  participation, than its participating Lender would have been entitled to receive, except to the extent such  entitlement to receive a greater payment results from a Change in Law that occurs after the Participant  acquired the applicable participation.  Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use  reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.19(b) with  respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the  benefits of Section 9.08 as though it were a Lender, provided such Participant agrees to be subject to Section  2.18(c) 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 Borrowers, maintain a register on which it enters the name and address of  each Participant and the principal amounts of (and stated interest on) each Participant’s interest in the Loans  or other obligations under this Agreement or any other Loan Document (the “Participant Register”);  provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register  (including the identity of any Participant or any information relating to a Participant’s interest in any  Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) to any Person  except to the extent that such disclosure is necessary to establish that such 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.  (d) Any Lender may at any time pledge or assign a security interest in all or any portion of its  rights under this Agreement to secure obligations of such Lender, including without limitation any pledge  or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such  pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest  shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for  such Lender as a party hereto.  (e) Without limiting the foregoing, with respect to Disqualified Institutions:  (i) No assignment or participation shall be made to any Person that was a Disqualified  Institution as of the date (the “Trade Date”) on which the assigning Lender entered into a binding  agreement to sell and assign all or a portion of its rights and obligations under this Agreement to  such Person (unless the Company has consented to such assignment in writing in its sole and  absolute discretion, in which case such Person will not be considered a Disqualified Institution for  





 






DB1/ 127789195.7 160  the purpose of such assignment or participation).  For the avoidance of doubt, with respect to any  assignee that becomes a Disqualified Institution after the applicable Trade Date (including as a  result of the delivery of a notice pursuant to, and/or the expiration of the notice period referred to  in, the definition of “Disqualified Institution”), (x) such assignee shall not retroactively be  disqualified from becoming a Lender and (y) the execution by the Borrowers of an Assignment and  Assumption with respect to such assignee will not by itself result in such assignee no longer being  considered a Disqualified Institution. Any assignment in violation of this Section 9.04(e) shall not  be void, but the other provisions of this Section 9.04(e) shall apply.  (ii) If any assignment or participation is made to any Disqualified Institution without  the Company’s prior written consent in violation of clause (i) above, or if any Person becomes a  Disqualified Institution after the applicable Trade Date, the Borrowers may, at their sole expense  and effort, upon notice to the applicable Disqualified Institution and the Administrative Agent,  (A) terminate any Commitment of such Disqualified Institution and repay all obligations of the  Borrowers owing to such Disqualified Institution in connection with such Commitment, and/or  (B) require such Disqualified Institution to assign, without recourse (in accordance with and subject  to the restrictions contained in this Section 9.04), all of its interest, rights and obligations under this  Agreement to one or more assignees permitted under this Section 9.04 at the lesser of (x) the  principal amount thereof and (y) the amount that such Disqualified Institution paid to acquire such  interests, rights and obligations, in each case plus accrued interest, accrued fees and all other  amounts (other than principal amounts) payable to it hereunder.  (iii) Notwithstanding anything to the contrary contained in this Agreement,  Disqualified Institutions (A) will not (x) have the right to receive information, reports or other  materials provided to the Lenders by the Borrowers, the Administrative Agent or any other Lender,  (y) attend or participate in meetings attended by the Lenders and the Administrative Agent, or  (z) access any electronic site established for the Lenders or confidential communications from  counsel to or financial advisors of the Administrative Agent or the Lenders and (B) (x) for purposes  of any consent to any amendment, waiver or modification of, or any action under, and for the  purpose of any direction to the Administrative Agent or any Lender to undertake any action (or  refrain from taking any action) under this Agreement or any other Loan Document, each  Disqualified Institution will be deemed to have consented in the same proportion as the Lenders  that are not Disqualified Institutions consented to such matter, and (y) for purposes of voting any  plan of reorganization or plan of liquidation pursuant to any Insolvency Laws (a “Relevant Plan”),  each Disqualified Institution party hereto hereby agrees (1) not to vote on such Relevant Plan, (2) if  such Disqualified Institution does vote on such Relevant Plan notwithstanding the restriction in the  foregoing clause (1), such vote will be deemed not to be in good faith and shall be “designated”  pursuant to Section 1126(e) of the U.S. Bankruptcy Code (or any similar provision in any other  Insolvency Laws), and such vote shall not be counted in determining whether the applicable class  has accepted or rejected such Relevant Plan in accordance with Section 1126(c) of the U.S.  Bankruptcy Code (or any similar provision in any other Insolvency Laws) and (3) not to contest  any request by any party for a determination by the applicable bankruptcy court (or other applicable  court of competent jurisdiction) effectuating the foregoing clause (2).  (iv) The Administrative Agent shall have the right, and the Company hereby expressly  authorizes the Administrative Agent, to (A) post the list of Disqualified Institutions provided by  the Company and any updates thereto from time to time (collectively, the “DQ List”) on Syndtrak  or a substantially similar electronic transmission system, including that portion of such electronic  transmission system that is designated for “public side” Lenders and/or (B) provide the DQ List to  each Lender requesting the same.  





 






DB1/ 127789195.7 161  SECTION 9.05 Survival. All covenants, agreements, representations and warranties made by the  Loan Parties in the Loan Documents and in the certificates or other instruments delivered in connection  with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied  upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and  the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any  such other party or on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank or  any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the  time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of  or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is  outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not  expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive  and remain in full force and effect regardless of the consummation of the transactions contemplated hereby,  the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or  the termination of this Agreement or any other Loan Document or any provision hereof or thereof.  SECTION 9.06 Counterparts; Integration; Effectiveness; Electronic Execution.  (a) This Agreement may be executed in counterparts (and by different parties hereto on  different counterparts), each of which shall constitute an original, but all of which when taken together shall  constitute a single contract. This Agreement, the other Loan Documents and any separate letter agreements  with respect to fees payable to the Administrative Agent constitute the entire contract among the parties  relating to the subject matter hereof and supersede any and all previous agreements and understandings,  oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement  shall become effective when it shall have been executed by the Administrative Agent and when the  Administrative Agent shall have received counterparts 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 the parties hereto and their respective successors and assigns.  (b) Delivery of an executed counterpart of a signature page of this Agreement by telecopy,  emailed pdf or any other electronic means that reproduces an image of the actual executed signature page  shall be effective as delivery of a manually executed counterpart of this Agreement. The words “execution,”  “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in  connection with this Agreement and the transactions contemplated hereby or thereby shall be deemed to  include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall  be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery  thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided  for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce  Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on  the Uniform Electronic Transactions Act.  SECTION 9.07 Severability. Any provision of any Loan Document held to be invalid, illegal or  unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity,  illegality or unenforceability without affecting the validity, legality and enforceability of the remaining  provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate  such provision in any other jurisdiction.  SECTION 9.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each  Lender and each of its Affiliates 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 obligations at any time owing by such Lender or Affiliate to or for the  credit or the account of any Loan Party against any of and all the Secured Obligations held by such Lender,  





 






DB1/ 127789195.7 162  irrespective of whether or not such Lender shall have made any demand under the Loan Documents and  although such obligations may be unmatured; provided that the foregoing authorization shall not entitle any  Lender to apply any deposits (i) of any Canadian Loan Party to the satisfaction of any of the U.S. Secured  Obligations or (ii) to the extent that such deposit constitutes an Excluded Asset. The applicable Lender shall  notify the Borrower Representative and the Administrative Agent promptly after any such set-off or  application, provided that any failure to give or any delay in giving such notice shall not affect the validity  of any such set-off or application under this Section. The rights of each Lender under this Section are in  addition to other rights and remedies (including other rights of setoff) which such Lender may have. In the  event that any Defaulting Lender shall exercise any right of setoff under this Section, (x) all amounts so set  off shall be paid over immediately to the Administrative Agent for further application in accordance with  the provisions in Section 2.20 and pending such payment, shall be segregated by such Defaulting Lender  from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Bank,  and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent and  Borrower Representative a statement describing in reasonable detail the Secured Obligations owing to such  Defaulting Lender as to which it exercised such right of setoff.  NOTWITHSTANDING THE  FOREGOING, NO LENDER, NO ISSUING BANK AND NO PARTICIPANT SHALL EXERCISE ANY  RIGHT OF SETOFF, BANKER’S LIEN, OR THE LIKE AGAINST ANY DEPOSIT ACCOUNT OR  PROPERTY OF ANY LOAN PARTY HELD OR MAINTAINED BY SUCH LENDER WITHOUT THE  WRITTEN CONSENT OF THE ADMINISTRATIVE AGENT.  SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of Process.  (a) The Loan Documents (other than those containing a contrary express choice of law  provision) shall be governed by and construed in accordance with the internal laws (and not the law of  conflicts) of the State of New York, but giving effect to federal laws applicable to national banks; provided,  however, that if the laws of any jurisdiction other than New York shall govern in regard to the validity,  perfection or effect of perfection of any lien or in regard to procedural matters affecting enforcement of any  liens in collateral, such laws of such other jurisdictions shall continue to apply to that extent.  (b) Each Loan Party hereby irrevocably and unconditionally submits, for itself and its property,  to the exclusive jurisdiction of any U.S. Federal or New York State court sitting in New York, New York  in any action or proceeding arising out of or relating to any 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 or any other  Loan Document shall affect any right that the Administrative Agent, the Issuing Bank or any Lender may  otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document  against any Loan Party or its properties in the courts of any jurisdiction.  (c) Each Loan Party hereby irrevocably and unconditionally waives, to the fullest extent it may  legally and effectively do so, any objection 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 any other Loan Document in  any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives,  to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such  action or proceeding in any such court.  (d) Each party to this Agreement irrevocably consents to service of process in the manner  provided for notices in Section 9.01. Nothing in this Agreement or any other Loan Document will affect  the right of any party to this Agreement to serve process in any other manner permitted by law.  





 






DB1/ 127789195.7 163  SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO  THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A  TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF  OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE  TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON  CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT  NO REPRESENTATIVE, OTHER AGENT (INCLUDING ANY ATTORNEY) OF ANY OTHER  PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY  WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER  AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN  INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL  WAIVERS AND CERTIFICATIONS IN THIS SECTION.  SECTION 9.11 Headings. Article and Section headings and the Table of Contents used herein are  for convenience of reference only, are not part of this Agreement and shall not affect the construction of,  or be taken into consideration in interpreting, this Agreement.  SECTION 9.12 Confidentiality. Each of the Administrative Agent, the Issuing Bank and the  Lenders agrees to maintain the confidentiality of the Information (as defined below), except that  Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents,  including accountants, legal counsel and other advisors (it being understood that the Persons to whom such  disclosure is made will be informed of the confidential nature of such Information and instructed to keep  such Information confidential), (b) to the extent requested by any regulatory authority purporting to have  jurisdiction over such Person (including any self-regulatory authority, such as the National Association of  Insurance Commissioners), (c) to the extent required by any Requirement of Law or by any subpoena or  similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of any  remedies under this Agreement or any other Loan Document or any suit, action or proceeding relating to  this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder,  (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any  assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations  under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or  derivative transaction relating to the Loan Parties and their obligations, (g) with the consent of the Borrower  Representative or (h) to the extent such Information (i) becomes publicly available other than as a result of  a breach of this Section or (ii) becomes available to the Administrative Agent, the Issuing Bank or any  Lender on a non-confidential basis from a source other than any Loan Party and, as far as such recipient is  aware, has not been made available as a result of a breach of any obligation of confidentiality of such source  with respect to such information; provided that, in the case of clause (c), the party disclosing such  information shall provide to the Borrower Representative prior written notice (except where prohibited by  applicable law or where not reasonably commercially practicable, in which case, prompt written notice  shall be provided) of such disclosure to the extent permitted by applicable law and, in the case of a  subpoena, the applicable Governmental Authority has not otherwise requested that the disclosing party  refrain from disclosing to the Borrower Representative the existence of such subpoena, and, in each case if  requested by the Borrower Representative in writing, such disclosing party shall cooperate with the  Borrower Representative to the extent commercially reasonable with respect to a protective order for, or  other confidential treatment of, such disclosure.  For the purposes of this Section, “Information” means all  information received from the Loan Parties relating to the Loan Parties or their business, other than any  such information that is available to the Administrative Agent, the Issuing Bank or any Lender on a non- confidential basis prior to disclosure by the Loan Parties under circumstances in which, as far as such  recipient is aware, such information has not been made available as a result of a breach of any obligation  of confidentiality of such source with respect to such information. Any Person required to maintain the  confidentiality of Information as provided in this Section shall be considered to have complied with its  





 






DB1/ 127789195.7 164  obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of  such Information as such Person would accord to its own confidential information.  EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12  FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON- PUBLIC INFORMATION CONCERNING THE COMPANY, AND ITS AFFILIATES AND THEIR  RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS  DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON- PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC  INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW,  INCLUDING FEDERAL AND STATE SECURITIES LAWS.  ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS,  FURNISHED BY THE LOAN PARTIES OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR  IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL  INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT  THE COMPANY, THE LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE  SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE LOAN PARTIES AND THE  ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE  QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY  CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS  COMPLIANCE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE  SECURITIES LAWS.  SECTION 9.13 Several Obligations; Nonreliance; Violation of Law. The respective obligations of  the Lenders hereunder are several and not joint and the failure of any Lender to make any Loan or perform  any of its obligations hereunder shall not relieve any other Lender from any of its obligations hereunder.  Each Lender hereby represents that it is not relying on or looking to any margin stock (as defined in  Regulation U of the Board) for the repayment of the Borrowings provided for herein. Anything contained  in this Agreement to the contrary notwithstanding, neither the Issuing Bank nor any Lender shall be  obligated to extend credit to the Borrowers in violation of any Requirement of Law.  SECTION 9.14 USA PATRIOT Act. Each Lender that is subject to the requirements of the USA  PATRIOT Act hereby notifies each Loan Party that pursuant to the requirements of the USA PATRIOT  Act, it is required to obtain, verify and record information that identifies such Loan Party, which information  includes the name and address of such Loan Party and other information that will allow such Lender to  identify such Loan Party in accordance with the USA PATRIOT Act.  SECTION 9.15 Canadian Anti-Money Laundering Legislation.  (a) Each Loan Party acknowledges that, pursuant to the Proceeds of Crime Act and other  applicable anti-money laundering, anti-terrorist financing, government sanction and “know your client”  laws, in each case in other jurisdictions in any jurisdiction in which any Loan Party or any of its Subsidiaries  is located or is doing material business (collectively, including any guidelines or orders thereunder, “AML  Legislation”), the Lenders may be required to obtain, verify and record information regarding the Loan  Parties and their respective directors, authorized signing officers, direct or indirect shareholders or other  Persons in control of the Loan Parties, and the transactions contemplated hereby. Each Loan Party shall  promptly provide all such information, including supporting documentation and other evidence, as may be  reasonably requested by any Lender or any prospective assignee or participant of a Lender, the  Administrative Agent or any Issuing Bank, in order to comply with any applicable AML Legislation,  whether now or hereafter in existence.  





 






DB1/ 127789195.7 165  (b) If the Administrative Agent has ascertained the identity of any Loan Party or any  authorized signatories of the Loan Parties for the purposes of applicable AML Legislation, then the  Administrative Agent:  (i) shall be deemed to have done so as an agent for each Lender, and this Agreement  shall constitute a “written agreement” in such regard between each Lender and the Administrative  Agent within the meaning of the applicable AML Legislation; and  (ii) shall provide to each Lender copies of all information obtained in such regard  without any representation or warranty as to its accuracy or completeness.  Notwithstanding the preceding sentence and except as may otherwise be agreed in writing, each of  the Lenders agrees that neither the Administrative Agent nor any other Agent has any obligation to ascertain  the identity of the Loan Parties or any authorized signatories of the Loan Parties on behalf of any Lender,  or to confirm the completeness or accuracy of any information it obtains from any Loan Party or any such  authorized signatory in doing so.  SECTION 9.16 Disclosure. Each Loan Party, each Lender and the Issuing Bank hereby  acknowledges and agrees that the Administrative Agent and/or its Affiliates from time to time may hold  investments in, make other loans to or have other relationships with any of the Loan Parties and their  respective Affiliates.  SECTION 9.17 Appointment for Perfection. Each Lender hereby appoints each other Lender as its  agent for the purpose of perfecting Liens, for the benefit of the Administrative Agent and the other Secured  Parties, in assets which, in accordance with Article 9 of the UCC, the PPSA or any other applicable law can  be perfected only by possession or control. Should any Lender (other than the Administrative Agent) obtain  possession or control of any such Collateral, such Lender shall notify the Administrative Agent thereof,  and, promptly upon the Administrative Agent’s request therefor shall deliver such Collateral to the  Administrative Agent or otherwise deal with such Collateral in accordance with the Administrative Agent’s  instructions.  SECTION 9.18 Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any  time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are  treated as interest on such Loan under applicable law (collectively the “Charges”), shall exceed the  maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or  reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in  respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the  Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect  of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the  interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not  above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Fed  Funds Rate to the date of repayment, shall have been received by such Lender.  SECTION 9.19 No Advisory or Fiduciary Responsibility. In connection with all aspects of each  transaction contemplated hereby (including in connection with any amendment, waiver or other  modification hereof or of any other Loan Document), each Loan Party acknowledges and agrees that:  (i) (A) the arranging and other services regarding this Agreement provided by the Lenders are arm’s-length  commercial transactions between such Borrower and its Affiliates, on the one hand, and the Lenders and  their Affiliates, on the other hand, (B) such Loan Party has consulted its own legal, accounting, regulatory  and tax advisors to the extent it has deemed appropriate, and (C) such Loan Party is capable of evaluating,  and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and  





 






DB1/ 127789195.7 166  by the other Loan Documents; (ii) (A) each of the Lenders and their Affiliates is and has been acting solely  as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and  will not be acting as an advisor, agent or fiduciary for such Loan Party or any of its Affiliates, or any other  Person and (B) no Lender or any of its Affiliates has any obligation to such Loan Party or any of its  Affiliates with respect to the transactions contemplated hereby except, in the case of a Lender, those  obligations expressly set forth herein and in the other Loan Documents; and (iii) each of the Lenders and  their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ  from those of such Loan Party and its Affiliates, and no Lender or any of its Affiliates has any obligation  to disclose any of such interests to such Loan Party or its Affiliates. To the fullest extent permitted by law,  each Loan Party hereby waives and releases any claims that it may have against each of the Lenders and  their Affiliates with respect to any breach or alleged breach of agency or fiduciary duty in connection with  any aspect of any transaction contemplated hereby.  SECTION 9.20 Reserved.  SECTION 9.21 Obligations of Foreign Subsidiaries. Notwithstanding anything in this Agreement  or any other Loan Document to the contrary, none of the Canadian Loan Parties, any Excluded Domestic  Subsidiary, nor any Foreign Subsidiary of the Company shall be liable or in any manner responsible for, or  be deemed to have guaranteed, directly or indirectly, whether as a primary obligor, guarantor, indemnitor,  or otherwise, and none of their assets shall secure, directly or indirectly, any obligations (including  principal, interest, fees, penalties, premiums, expenses, charges, reimbursements, indemnities or any other  U.S. Obligations) in respect of any U.S. Loan Party under this Agreement, any other Loan Document, any  document with respect to Banking Services Obligations or Swap Agreement Obligations or any other  agreement executed and/or delivered in connection with any of the foregoing (provided that, for the  avoidance of doubt, the U.S. Loan Parties shall be jointly and severally liable for the U.S. Obligations and  the Canadian Obligations).  SECTION 9.22 Judgment Currency. If for the purpose of obtaining judgment in any court it is  necessary to convert an amount due hereunder in the currency in which it is due (the “Original Currency”)  into another currency (the “Second Currency”), the rate of exchange applied shall be that at which, in  accordance with normal banking procedures, the Administrative Agent could purchase the Original  Currency with the Second Currency at the Spot Rate on the date two Business Days preceding that on which  judgment is given. Each Loan Party agrees that its obligation in respect of any Original Currency due from  it hereunder shall, notwithstanding any judgment or payment in such other currency, be discharged only to  the extent that, on the Business Day following the date the Administrative Agent receives payment of any  sum so adjudged to be due hereunder in the Second Currency, the Administrative Agent may, in accordance  with normal banking procedures, purchase, in the New York foreign exchange market, the Original  Currency with the amount of the Second Currency so paid; and if the amount of the Original Currency so  purchased or could have been so purchased is less than the amount originally due in the Original Currency  as a result of such judgment, each Loan Party agrees as a separate obligation and notwithstanding any such  payment or judgment to indemnify the Administrative Agent against such loss. The term “rate of exchange”  in this Section means the Spot Rate at which the Administrative Agent, in accordance with normal practices,  is able on the relevant date to purchase the Original Currency with the Second Currency, and includes any  premium and costs of exchange payable in connection with such purchase.  SECTION 9.23 Waiver of Immunity. To the extent that any Loan Party has, or hereafter may be  entitled to claim or may acquire, for itself, any Collateral or other assets of the Loan Parties, any immunity  (whether sovereign or otherwise) from suit, jurisdiction of any court or from any legal process (whether  through service of notice, attachment prior to judgment, attachment in aid of execution or otherwise) with  respect to itself, any Collateral or any other assets of the Loan Parties, such Loan Party hereby waives such  immunity in respect of its obligations hereunder and under any promissory notes evidencing the Loans  





 






DB1/ 127789195.7 167  hereunder and any other Loan Document to the fullest extent permitted by applicable law and, without  limiting the generality of the foregoing, agrees that the waivers set forth in this Section shall be effective to  the fullest extent now or hereafter permitted under the Foreign Sovereign Immunities Act of 1976 (as  amended, and together with any successor legislation) and are, and are intended to be, irrevocable for  purposes thereof.  SECTION 9.24 Process Agent. Each Canadian Loan Party hereby irrevocably designates and  appoints the Borrower Representative, in the case of any suit, action or proceeding brought in the United  States as its designee, appointee and agent to receive, accept and acknowledge for and on its behalf, and in  respect of its property, service of any and all legal process, summons, notices and documents that may be  served in any action or proceeding arising out of or in connection with this Agreement or any other Loan  Document. Such service may be made by mailing (by registered or certified mail, postage prepaid) or  delivering a copy of such process to such Canadian Loan Party in care of the Borrower Representative at  the Borrower Representative’s address set forth in Section 9.01, and each such Canadian Loan Party hereby  irrevocably authorizes and directs the Borrower Representative to accept such service on its behalf. As an  alternative method of service, each Canadian Loan Party irrevocably consents to the service of any and all  process in any such action or proceeding by the mailing (by registered or certified mail, postage prepaid)  of copies of such process to the Borrower Representative or such Canadian Loan Party at its address  specified in Section 9.01. Each Canadian Loan Party 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.  SECTION 9.25 Termination and Release of Collateral.    (a) Liens in Collateral will be released, and applicable Loan Parties shall be released of their  obligations under the Loan Documents, in accordance with the terms of Section 9.02(c) hereof.  (b) In connection with the termination of all Commitments, payment and satisfaction in full in  cash of all Obligations (other than Unliquidated Obligations) and the Cash Collateralization (or, at the  discretion of the Administrative Agent, the providing of a backup standby letter of credit satisfactory to the  Administrative Agent and the Issuing Banks) of all outstanding Letters of Credit, the Administrative Agent,  on behalf of the Lenders, agrees to negotiate in good faith with the Borrower Representative, and to execute  and deliver, a customary payoff letter in form and substance reasonably satisfactory to the Administrative  Agent and the Borrower Representative, which payoff letter shall provide for, among other things, (i) an  acknowledgment of the termination of all Loan Documents, other than any terms thereunder that expressly  survive termination, (ii) delivery to the Borrower Representative or its designee of all property pledged to  the Administrative Agent or any Lender (including without limitation stock or other certificates, notes  receivable, certificates of title, change of address forms and other instruments) or, if applicable, lost  collateral affidavits with respect thereto, (iii) delivery to the Borrower Representative of the original  promissory notes executed in connection with the Obligations marked “CANCELLED”, (iv) delivery to the  Borrower Representative or its designee of mortgage or deed of trust releases against any real property of  any Loan Party or property subject to any title laws and other like releases, revocations of direct pay notices  to account debtors, Credit Card Notifications, releases of deposit account control agreements, Collateral  Access Agreements and similar instruments or documents, (v) delivery to the Borrower Representative or  its designee of UCC-3 termination statements with respect to the UCC and PPSA discharge filings made  by the Administrative Agent in respect of each Loan Party, as applicable, and (vi) a release of liability from  the Loan Parties in favor of the Secured Parties.  SECTION 9.26 Publicity.  Each Loan Party and each Lender hereby authorizes the Administrative  Agent, at its sole expense, after providing prior notice thereof to the Borrower Representative, to reference  this Agreement and the syndication and arrangement of the loan facility contemplated herein (but not the  





 






DB1/ 127789195.7 168  individual Lenders, bookrunners or arrangers) in connection with marketing, press release or other  transactional announcements or updates; provided that the content of any such marketing, press release or  other transactional announcements or updates shall be reasonably acceptable to the Borrower  Representative (it being understood that tombstones used in pitchbooks by Administrative Agent (as  opposed to public announcements) referencing the syndication and arrangement of this Agreement and the  loan facility contemplated herein, or inclusion of same on lists or in other formats (other than public  announcements), in each case providing the same information as is typically included on tombstones, shall  not require prior notice thereof to, or acceptance by, the Borrower Representative).  SECTION 9.27 Acknowledgement and Consent to Bail-In of Affected Financial Institutions.   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 Affected  Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be  subject to the write-down and conversion powers of an Affected 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 the applicable Resolution  Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an  Affected 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 Affected Financial Institution, its parent  undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares  or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such  liability under this Agreement or any other Loan Document or (iii) the variation of the terms of such liability  in connection with the exercise of the write-down and conversion powers of the applicable Resolution  Authority.  SECTION 9.28 Certain ERISA Matters.  Each Lender (x) represents and warrants, as of the date  such Person became a Lender party hereto, and (y) covenants, from the date such Person became a Lender  party hereto to the date such Person ceases being a Lender party hereto, to and for the benefit of the  Administrative Agent and its Affiliates, and not, for the avoidance of doubt, to or for the benefit of the  Borrowers 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 U.S. Benefit Plans in connection with the Loans, the Letters of Credit  or the Commitments,  (ii) the transaction exemption set forth in one or more prohibited transaction  exceptions (or “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, and the conditions for  exemptive relief thereunder are and will continue to be satisfied in connection therewith,  





 






DB1/ 127789195.7 169  (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.  SECTION 9.29 Acknowledgement Regarding Any Supported QFCs.  To the extent that the Loan  Documents provide support, through a guarantee or otherwise, for Swap Agreement Obligations or any  other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a  “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of  the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the  Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated  thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit  Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported  QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States  or any other state of the United States):  (a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”)  becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported  QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported  QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC  Credit Support) from such Covered Party will be effective to the same extent as the transfer would be  effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support  (and any such interest, obligation and rights in property) were governed by the laws of the United States or  a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes  subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents  that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against  such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be  exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were  governed by the laws of the United States or a state of the United States. Without limitation of the foregoing,  it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall  in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit  Support.  (b) As used in this Section 9.29, the following terms have the following meanings:  “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under,  and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.  “Covered Entity” means any of the following:  a “covered entity” as that term is defined in, and interpreted in  accordance with, 12 C.F.R. §252.82(b);  





 






DB1/ 127789195.7 170  a “covered bank” as that term is defined in, and interpreted in  accordance with, 12 C.F.R. §47.3(b); or  a “covered FSI” as that term is defined in, and interpreted in  accordance with, 12 C.F.R. §382.2(b).  “Default Right” has the meaning assigned to that term in, and shall be interpreted  in accordance with, 12 C.F.R. §§252.81, 47.2 or 382.1, as applicable.  “QFC” has the meaning assigned to the term “qualified financial contract” in, and  shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).  ARTICLE X.  U.S. LOAN GUARANTY  SECTION 10.01 Guaranty. Each U.S. Loan Party hereby agrees that it is jointly and  severally liable for, and, as a primary obligor and not merely as surety, absolutely, unconditionally and  irrevocably guarantees to the Secured Parties, the prompt payment and performance when due, whether at  stated maturity, upon acceleration or otherwise, and at all times thereafter, of the Secured Obligations and  all reasonable and documented costs and expenses, including, without limitation, all court costs and  attorneys’ and paralegals’ fees (subject to the limitations set forth in Section 9.03) and expenses paid or  incurred by the Administrative Agent, the Issuing Bank and the Lenders in endeavoring to collect all or any  part of the Secured Obligations from, or in prosecuting any action against, any Borrower, any Loan Party  or any other guarantor of all or any part of the Secured Obligations (such costs and expenses, together with  the Secured Obligations, collectively the “U.S. Guaranteed Obligations”; provided, however, that the  definition of “U.S. Guaranteed Obligations” shall not create any guarantee by any U.S. Loan Party of (or  grant of security interest by any U.S. Loan Party to support, as applicable) any Excluded Swap Obligations  of such U.S. Loan Party for purposes of determining any obligations of any U.S. Loan Party). Each U.S.  Loan Party further agrees that the U.S. Guaranteed Obligations may be extended or renewed in whole or in  part without notice to or further assent from it, and that it remains bound upon its guarantee notwithstanding  any such extension or renewal. All terms of this U.S. Guaranty apply to and may be enforced by or on  behalf of any domestic or foreign branch or Affiliate of any Lender or Issuing Bank that extended any  portion of the U.S. Guaranteed Obligations.  SECTION 10.02 Guaranty of Payment. This U.S. Guaranty is a guaranty of payment and  not of collection. Each U.S. Loan Party waives any right to require the Administrative Agent, the Issuing  Bank or any Lender to sue any other Loan Party, any other guarantor of, or any other Person obligated for,  all or any part of the U.S. Guaranteed Obligations (each, a “U.S. Obligated Party”), or to enforce its rights  against any collateral securing all or any part of the U.S. Guaranteed Obligations.  SECTION 10.03 No Discharge or Diminishment of Loan Guaranty. (a) Except as otherwise  provided for herein, the obligations of each U.S. Loan Party hereunder are unconditional and absolute and  not subject to any reduction, limitation, impairment or termination for any reason (other than the  indefeasible payment in full in cash of the U.S. Guaranteed Obligations), including: (i) any claim of waiver,  release, extension, renewal, settlement, surrender, alteration or compromise of any of the U.S. Guaranteed  Obligations, by operation of law or otherwise; (ii) any change in the corporate existence, structure or  ownership of any Loan Party or any other Obligated Party liable for any of the U.S. Guaranteed Obligations;  (iii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting any U.S. Obligated  Party or their assets or any resulting release or discharge of any obligation of any U.S. Obligated Party; or  (iv) the existence of any claim, setoff or other rights which any U.S. Loan Party may have at any time  





 






DB1/ 127789195.7 171  against any U.S. Obligated Party, the Administrative Agent, the Issuing Bank, any Lender or any other  Person, whether in connection herewith or in any unrelated transaction.  (b) The obligations of each U.S. Loan Party hereunder are not subject to any defense or setoff,  counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or  unenforceability of any of the U.S. Guaranteed Obligations or otherwise, or any provision of applicable law  or regulation purporting to prohibit payment by any U.S. Obligated Party, of the U.S. Guaranteed  Obligations or any part thereof.  (c) Further, the obligations of any U.S. Loan Party hereunder are not discharged or impaired  or otherwise affected by: (i) the failure of the Administrative Agent, the Issuing Bank or any Lender to  assert any claim or demand or to enforce any remedy with respect to all or any part of the U.S. Guaranteed  Obligations; (ii) any waiver or modification of or supplement to any provision of any agreement relating to  the U.S. Guaranteed Obligations; (iii) any release, non- perfection or invalidity of any indirect or direct  security for the obligations of any Loan Party for all or any part of the U.S. Guaranteed Obligations or any  obligations of any other U.S. Obligated Party liable for any of the U.S. Guaranteed Obligations; (iv) any  action or failure to act by the Administrative Agent, the Issuing Bank or any Lender with respect to any  collateral securing any part of the U.S. Guaranteed Obligations; or (v) any default, failure or delay, willful  or otherwise, in the payment or performance of any of the U.S. Guaranteed Obligations, or any other  circumstance, act, omission or delay that might in any manner or to any extent vary the risk of such U.S.  Loan Party or that would otherwise operate as a discharge of any U.S. Loan Party as a matter of law or  equity (other than the indefeasible payment in full in cash of the U.S. Guaranteed Obligations).  SECTION 10.04 Defenses Waived. To the fullest extent permitted by applicable law, each  U.S. Loan Party hereby waives any defense based on or arising out of any defense of any U.S. Loan Party  or the unenforceability of all or any part of the U.S. Guaranteed Obligations from any cause, or the cessation  from any cause of the liability of any U.S. Loan Party or any other U.S. Obligated Party, other than the  indefeasible payment in full in cash of the Guaranteed Obligations. Without limiting the generality of the  foregoing, each U.S. Loan Party irrevocably waives acceptance hereof, presentment, demand, protest and,  to the fullest extent permitted by law, any notice not provided for herein, as well as any requirement that at  any time any action be taken by any Person against any U.S. Obligated Party or any other Person. Each  U.S. Loan Party confirms that it is not a surety under any state law and shall not raise any such law as a  defense to its obligations hereunder. The Administrative Agent may, at its election, foreclose on any  Collateral securing all or a part of the U.S. Guaranteed Obligations and held by it by one or more judicial  or nonjudicial sales, accept an assignment of any such Collateral in lieu of foreclosure or otherwise act or  fail to act with respect to any such Collateral, compromise or adjust any part of the U.S. Guaranteed  Obligations, make any other accommodation with any U.S. Obligated Party or exercise any other right or  remedy available to it against any U.S. Obligated Party, without affecting or impairing in any way the  liability of such U.S. Loan Party under this U.S. Guaranty except to the extent the U.S. Guaranteed  Obligations have been fully and indefeasibly paid in cash. To the fullest extent permitted by applicable law,  each U.S. Loan Party waives any defense arising out of any such election even though that election may  operate, pursuant to applicable law, to impair or extinguish any right of reimbursement or subrogation or  other right or remedy of any U.S. Loan Party against any U.S. Obligated Party or any security. SECTION 10.05 Rights of Subrogation. No U.S. Loan Party will assert any right, claim or  cause of action, including, without limitation, a claim of subrogation, contribution or indemnification, that  it has against any U.S. Obligated Party or any Collateral, until the Loan Parties have fully performed all  their obligations to the Administrative Agent, the Issuing Bank, the Lenders, and the other Secured Parties.  SECTION 10.06 Reinstatement; Stay of Acceleration. If at any time any payment of any  portion of the U.S. Guaranteed Obligations (including a payment effected through exercise of a right of  





 






DB1/ 127789195.7 172  setoff) is rescinded, or must otherwise be restored or returned upon the insolvency, bankruptcy or  reorganization of any Loan Party or otherwise (including pursuant to any settlement entered into by a  Secured Party in its discretion), each U.S. Loan Party’s obligations under this U.S. Guaranty with respect  to that payment shall be reinstated at such time as though the payment had not been made and whether or  not the Administrative Agent, the Issuing Bank, the Lenders, or the other Secured Parties are in possession  of this U.S. Guaranty. If acceleration of the time for payment of any of the U.S. Guaranteed Obligations is  stayed upon the insolvency, bankruptcy or reorganization of any Loan Party, all such amounts otherwise  subject to acceleration under the terms of any agreement relating to the U.S. Guaranteed Obligations shall  nonetheless be payable by the U.S. Loan Parties forthwith on demand by the Administrative Agent.  SECTION 10.07 Information. Each U.S. Loan Party assumes all responsibility for being  and keeping itself informed of each Loan Party’s financial condition and assets, and of all other  circumstances bearing upon the risk of nonpayment of the U.S. Guaranteed Obligations and the nature,  scope and extent of the risks that each U.S. Loan Party assumes and incurs under this U.S. Guaranty, and  agrees that none of the Administrative Agent, the Issuing Bank or any Lender shall have any duty to advise  any U.S. Loan Party of information known to it regarding those circumstances or risks.  SECTION 10.08 [Reserved.]  SECTION 10.09 [Reserved.]  SECTION 10.10 Maximum Liability. The provisions of this U.S. Guaranty are severable,  and in any action or proceeding involving any state corporate law, or any state, federal or foreign  bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the  obligations of any U.S. Loan Party under this U.S. Guaranty would otherwise be held or determined to be  avoidable, invalid or unenforceable on account of the amount of such U.S. Loan Party’s liability under this  U.S. Guaranty, then, notwithstanding any other provision of this U.S. Guaranty to the contrary, the amount  of such liability shall, without any further action by the U.S. Loan Party or the Lenders, be automatically  limited and reduced to the highest amount that is valid and enforceable as determined in such action or  proceeding (such highest amount determined hereunder being the relevant U.S. Loan Party’s “Maximum  U.S. Liability”). This Section with respect to the Maximum U.S. Liability of each U.S. Loan Party is  intended solely to preserve the rights of the Lenders to the maximum extent not subject to avoidance under  applicable law, and no U.S. Loan Party nor any other Person or entity shall have any right or claim under  this Section with respect to such Maximum U.S. Liability, except to the extent necessary so that the  obligations of any U.S. Loan Party hereunder shall not be rendered voidable under applicable law. Each  U.S. Loan Party agrees that the U.S. Guaranteed Obligations may at any time and from time to time exceed  the Maximum U.S. Liability of each U.S. Loan Party without impairing this U.S. Guaranty or affecting the  rights and remedies of the Lenders hereunder; provided that nothing in this sentence shall be construed to  increase any U.S. Loan Party’s obligations hereunder beyond its Maximum U.S. Liability.  SECTION 10.11 Contribution. In the event any U.S. Loan Party (a “Paying U.S. Loan  Party”) shall make any payment or payments under this U.S. Guaranty or shall suffer any loss as a result of  any realization upon any collateral granted by it to secure its obligations under this U.S. Guaranty, each  other U.S. Loan Party (each a “Non-Paying U.S. Loan Party”) shall contribute to such Paying U.S. Loan  Party an amount equal to such Non-Paying U.S. Loan Party’s Applicable Share of such payment or  payments made, or losses suffered, by such Paying U.S. Loan Party. For purposes of this Section, each  Non-Paying U.S. Loan Party’s “Applicable Share” with respect to any such payment or loss by a Paying  U.S. Loan Party shall be determined as of the date on which such payment or loss was made by reference  to the ratio of (a) such Non-Paying U.S. Loan Party’s Maximum U.S. Liability as of such date (without  giving effect to any right to receive, or obligation to make, any contribution hereunder) or, if such Non- Paying U.S. Loan Party’s Maximum U.S. Liability has not been determined, the aggregate amount of all  





 






DB1/ 127789195.7 173  monies received by such Non-Paying U.S. Loan Party from the other U.S. Loan Parties after the date hereof  (whether by loan, capital infusion or by other means) to (b) the aggregate Maximum U.S. Liability of all  U.S. Loan Party hereunder (including such Paying U.S. Loan Party) as of such date (without giving effect  to any right to receive, or obligation to make, any contribution hereunder), or to the extent that a Maximum  U.S. Liability has not been determined for any U.S. Loan Party, the aggregate amount of all monies received  by such U.S. Loan Parties from the other Loan Parties after the date hereof (whether by loan, capital infusion  or by other means). Nothing in this provision shall affect any U.S. Loan Party’s several liability for the  entire amount of the U.S. Guaranteed Obligations (up to such U.S. Loan Party’s Maximum U.S. Liability).  Each of the U.S. Loan Parties covenants and agrees that its right to receive any contribution under this U.S.  Guaranty from a Non-Paying U.S. Loan Party shall be subordinate and junior in right of payment to the  payment in full in cash of the U.S. Guaranteed Obligations. This provision is for the benefit of both the  Administrative Agent, the Issuing Banks, the Lenders and the U.S. Loan Parties and may be enforced by  any one, or more, or all of them in accordance with the terms hereof.  SECTION 10.12 Liability Cumulative. The liability of each Loan Party as a U.S. Loan Party  under this Article X is in addition to and shall be cumulative with all liabilities of each Loan Party to the  Administrative Agent, the Issuing Bank and the Lenders under this Agreement and the other Loan  Documents to which such Loan Party is a party or in respect of any obligations or liabilities of the other  Loan Parties, without any limitation as to amount, unless the instrument or agreement evidencing or creating  such other liability specifically provides to the contrary.  SECTION 10.13 Keepwell. Each Qualified ECP Guarantor that is a U.S. Loan Party hereby  jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other  support as may be needed from time to time by each other Loan Party to honor all of its obligations under  this U.S. Guaranty in respect of a Swap Obligation (provided, however, that each such Qualified ECP  Guarantor shall only be liable under this Section 10.13 for the maximum amount of such liability that can  be hereby incurred without rendering its obligations under this Section 10.13 or otherwise under this U.S.  Guaranty voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not  for any greater amount). Except as otherwise provided herein, the obligations of each such Qualified ECP  Guarantor under this Section 10.13 shall remain in full force and effect until the termination of all Swap  Obligations. Each such Qualified ECP Guarantor intends that this Section 10.13 constitute, and this Section  10.13 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other  Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.  SECTION 10.14 Common Enterprise.  Each U.S. Loan Party represents and warrants that  the successful operation and condition of each of the Loan Parties is dependent on the continued successful  performance of the functions of the group of the Loan Parties as a whole and the successful operation of  each of the Loan Parties is dependent on the successful performance and operation of each other Loan Party.  Each U.S. Loan Party expects to derive benefit (and its board of directors or other governing body has  determined that it may reasonably be expected to derive benefit), directly and indirectly, from (i) successful  operations of each of the other Loan Parties and (ii) the credit extended by the Lenders to the Borrowers  hereunder, both in their separate capacities and as members of the group of companies. Each U.S. Loan  Party has determined that execution, delivery, and performance of this Agreement and any other Loan  Documents to be executed by such Loan Party is within its purpose, in furtherance of its direct and/or  indirect business interests, will be of direct and/or indirect benefit to such Loan Party, and is in its best  interest.  





 






DB1/ 127789195.7 174  ARTICLE XI.  CANADIAN LOAN GUARANTY  SECTION 11.01 Guaranty.  Each Canadian Loan Party hereby agrees that it is jointly and  severally liable for, and absolutely and unconditionally guarantees to the Secured Parties, the prompt  payment and performance when due, whether at stated maturity, upon acceleration or otherwise, and at all  times thereafter, of the Canadian Secured Obligations and all reasonable costs and expenses, including,  without limitation, all reasonable and documented court costs and attorneys’ fees and expenses paid or  incurred by the Administrative Agent, any Issuing Bank and any Lender in endeavoring to collect all or any  part of the Canadian Secured Obligations from, or in prosecuting any action against, the Canadian  Borrower, any Canadian Guarantor or any other guarantor of all or any part of the Canadian Secured  Obligations (such costs and expenses, together with the Canadian Secured Obligations, collectively the  “Canadian Guaranteed Obligations”). Each Canadian Loan Party further agrees that the Canadian  Guaranteed Obligations may be extended or renewed in whole or in part without notice to or further assent  from it, and that it remains bound upon its guarantee notwithstanding any such extension or renewal. All  terms of this Canadian Guaranty apply to and may be enforced by or on behalf of any domestic or foreign  branch or Affiliate of any Lender or Issuing Bank that extended any portion of the Canadian Guaranteed  Obligations.  SECTION 11.02 Guarantee of Payment. This Canadian Guaranty is a Guarantee of payment  and not of collection. Each Canadian Loan Party waives any right to require the Administrative Agent, any  Issuing Bank or any Lender or any other Secured Party to sue any other Loan Party, any other guarantor,  or any other Person obligated for all or any part of the Canadian Guaranteed Obligations (each, a “Canadian  Obligated Party”), or otherwise to enforce its payment against any collateral securing all or any part of the  Canadian Guaranteed Obligations. In addition, as an original and independent obligation under this  Canadian Guaranty, each Canadian Loan Party shall:  (a) indemnify each Canadian Obligated Party and its successors, endorsees, transferees and  assigns and keep the Canadian Obligated Parties indemnified against all costs, losses, expenses and  liabilities of whatever kind resulting from the failure by the Loan Parties or any of them, to make due and  punctual payment of any of the Canadian Secured Obligations or resulting from any of the Canadian  Secured Obligations being or becoming void, voidable, unenforceable or ineffective against any Loan Party  (including, but without limitation, all legal and other costs, charges and expenses incurred by each Canadian  Obligated Party, or any of them, in connection with preserving or enforcing, or attempting to preserve or  enforce, its rights under this Canadian Guaranty); and  (b) pay on demand the amount of such costs, losses, expenses and liabilities whether or not  any of the Canadian Obligated Parties has attempted to enforce any rights against any Loan Party or any  other Person or otherwise.  SECTION 11.03 No Discharge or Diminishment of Canadian Guaranty.  (a) Except as otherwise provided for herein, the obligations of each Canadian Loan Party  hereunder are unconditional and absolute and not subject to any reduction, limitation, impairment or  termination for any reason (other than the payment in full in cash of the Canadian Guaranteed Obligations),  including: (i) any claim of waiver, release, extension, renewal, settlement, surrender, alteration or  compromise of any of the Canadian Guaranteed Obligations, by operation of law or otherwise; (ii) any  change in the corporate existence, structure or ownership of the Canadian Loan Party or any other Canadian  Obligated Party liable for any of the Canadian Guaranteed Obligations; (iii) any insolvency, bankruptcy,  winding-up, liquidation, reorganization or other similar proceeding affecting any Canadian Obligated Party  





 






DB1/ 127789195.7 175  or their assets or any resulting release or discharge of any obligation of any Canadian Obligated Party; or  (iv) the existence of any claim, setoff or other rights which any Canadian Loan Party may have at any time  against any Canadian Obligated Party, the Administrative Agent, each Issuing Bank, any Lender or any  other person, whether in connection herewith or in any unrelated transactions.  (b) The obligations of each Canadian Loan Party hereunder are not subject to any defense or  setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or  unenforceability of any of the Canadian Guaranteed Obligations or otherwise, or any provision of applicable  law or regulation purporting to prohibit payment by any Canadian Obligated Party, of the Canadian  Guaranteed Obligations or any part thereof.  (c) Further, the obligations of any Canadian Loan Party hereunder are not discharged or  impaired or otherwise affected by: (i) the failure of the Administrative Agent, any Issuing Bank or any  Lender or any other Secured Party to assert any claim or demand or to enforce any remedy with respect to  all or any part of the Canadian Guaranteed Obligations; (ii) any waiver or modification of or supplement to  any provision of any agreement relating to the Canadian Guaranteed Obligations; (iii) any release, non- perfection or invalidity of any indirect or direct security for the obligations of any Canadian Loan Party for  all or any part of the Canadian Guaranteed Obligations or any obligations of any other Canadian Obligated  Party liable for any of the Canadian Guaranteed Obligations; (iv) any action or failure to act by the  Administrative Agent, any Issuing Bank or any Lender or any other Secured Party with respect to any  collateral securing any part of the Canadian Guaranteed Obligations; or (v) any default, failure or delay,  willful or otherwise, in the payment or performance of any of the Canadian Guaranteed Obligations, or any  other circumstance, act, omission or delay that might in any manner or to any extent vary the risk of such  Canadian Loan Party or that would otherwise operate as a discharge of any Canadian Loan Party as a matter  of law or equity (other than the payment in full in cash of the Canadian Guaranteed Obligations).  SECTION 11.04 Defenses Waived. To the fullest extent permitted by applicable law, each  Canadian Loan Party hereby waives any defense based on or arising out of any defense of any Canadian  Loan Party or the unenforceability of all or any part of the Canadian Guaranteed Obligations from any  cause, or the cessation from any cause of the liability of any Canadian Loan Party, other than the payment  in full in cash of the Canadian Guaranteed Obligations. Without limiting the generality of the foregoing,  each Canadian Loan Party irrevocably waives acceptance hereof, presentment, demand, protest and, to the  fullest extent permitted by law, any notice not provided for herein, as well as any requirement that at any  time any action be taken by any Person against any Canadian Obligated Party, or any other Person. Each  Canadian Loan Party confirms that it is not a surety under any state law and shall not raise any such law as  a defense to its obligations hereunder. The Administrative Agent may, at its election, foreclose on, or  otherwise enforce against, any securing all or a part of the Canadian Guaranteed Obligations and held by it  by one or more judicial or nonjudicial sales, accept an assignment of any such Collateral in lieu of  foreclosure or otherwise act or fail to act with respect to any such Collateral, compromise or adjust any part  of the Canadian Guaranteed Obligations, make any other accommodation with any Canadian Obligated  Party or exercise any other right or remedy available to it against any Canadian Obligated Party, without  affecting or impairing in any way the liability of such Canadian Loan Party under this Canadian Guaranty  except to the extent the Canadian Guaranteed Obligations have been fully paid in cash. To the fullest extent  permitted by applicable law, each Canadian Loan Party waives any defense arising out of any such election  even though that election may operate, pursuant to applicable law, to impair or extinguish any right of  reimbursement or subrogation or other right or remedy of any Canadian Loan Party against any Canadian  Obligated Party or any security.  SECTION 11.05 Rights of Subrogation. No Canadian Loan Party will assert any right, claim  or cause of action, including, without limitation, a claim of subrogation, contribution or indemnification,  





 






DB1/ 127789195.7 176  that it has against any Canadian Obligated Party, or any Collateral, until the Loan Parties have fully  performed all their obligations to the Administrative Agent, the Issuing Banks and the Lenders.  SECTION 11.06 Reinstatement; Stay of Acceleration. If at any time any payment of any  portion of the Canadian Guaranteed Obligations is rescinded or must otherwise be restored or returned upon  the insolvency, bankruptcy or reorganization of any Canadian Loan Party or otherwise, each Canadian Loan  Party’s obligations under this Canadian Guaranty with respect to that payment shall be reinstated at such  time as though the payment had not been made and whether or not the Administrative Agent, any Issuing  Bank and the Lenders or other Secured Parties are in possession of this Canadian Guaranty. If acceleration  of the time for payment of any of the Canadian Guaranteed Obligations is stayed upon the insolvency,  bankruptcy or reorganization of any Canadian Loan Party, all such amounts otherwise subject to  acceleration under the terms of any agreement relating to the Canadian Guaranteed Obligations shall  nonetheless be payable by the Canadian Loan Parties promptly on demand by the Administrative Agent.  SECTION 11.07 Information. Each Canadian Loan Party assumes all responsibility for  being and keeping itself informed of the other Canadian Loan Party’s financial condition and assets, and of  all other circumstances bearing upon the risk of nonpayment of the Canadian Guaranteed Obligations and  the nature, scope and extent of the risks that each Canadian Loan Party assumes and incurs under this  Canadian Guaranty, and agrees that neither the Administrative Agent, any Issuing Bank nor any Lender  shall have any duty to advise any Canadian Loan Party of information known to it regarding those  circumstances or risks.  SECTION 11.08 Maximum Canadian Liability. In any action or proceeding involving any  corporate law, or any provincial, territorial, state, federal or foreign bankruptcy, insolvency, reorganization  or other law affecting the rights of creditors generally, if the obligations of any Canadian Loan Party under  this Canadian Guaranty would otherwise be held or determined to be void, voidable, avoidable, invalid or  unenforceable on account of the amount of such Canadian Loan Party’s liability under this Canadian  Guaranty, then, notwithstanding any other provision of this Canadian Guaranty to the contrary, the amount  of such liability shall, without any further action by the Canadian Loan Parties or the Administrative Agent,  any Issuing Bank or any Lender, be automatically limited and reduced to the highest amount that is valid  and enforceable as determined in such action or proceeding (such highest amount determined hereunder  being the relevant Canadian Loan Party’s “Maximum Canadian Liability”). This Section with respect to  the Maximum Canadian Liability of each Canadian Loan Party is intended solely to preserve the rights of  the Administrative Agent, the Issuing Banks and the Lenders to the maximum extent not subject to  avoidance under applicable law, and no Canadian Loan Party nor any other Person shall have any right or  claim under this Section with respect to such Maximum Canadian Liability, except to the extent necessary  so that the obligations of any Canadian Loan Party hereunder shall not be rendered voidable under  applicable law. Each Canadian Loan Party agrees that the Canadian Guaranteed Obligations may at any  time and from time to time exceed the Maximum Canadian Liability of each Canadian Loan Party without  impairing this Canadian Guaranty or affecting the rights and remedies of the Administrative Agent, the  Issuing Banks or the Lenders hereunder, provided that, nothing in this sentence shall be construed to  increase any Canadian Loan Party’s obligations hereunder beyond its Maximum Canadian Liability.  SECTION 11.09 Contribution. In the event any Canadian Loan Party (a “Paying Canadian  Loan Party”) shall make any payment or payments under this Canadian Guaranty or shall suffer any loss as  a result of any realization upon any collateral granted by it to secure its obligations under this Canadian  Guaranty, each other Canadian Loan Party (each a “Non-Paying Canadian Loan Party”) shall contribute to  such Paying Canadian Loan Party an amount equal to such Non-Paying Canadian Loan Party’s “Applicable  Percentage” of such payment or payments made, or losses suffered, by such Paying Canadian Loan Party.  For purposes of this Article XI, each Non-Paying Canadian Loan Party’s “Applicable Percentage” with  respect to any such payment or loss by a Paying Canadian Loan Party shall be determined as of the date on  





 






DB1/ 127789195.7 177  which such payment or loss was made by reference to the ratio of (i) such Non-Paying Canadian Loan  Party’s Maximum Canadian Liability as of such date (without giving effect to any right to receive, or  obligation to make, any contribution hereunder) or, if such Non-Paying Canadian Loan Party’s Maximum  Canadian Liability has not been determined, the aggregate amount of all monies received by such Non- Paying Canadian Loan Party from the other Canadian Loan Parties after the date hereof (whether by loan,  capital infusion or by other means) to (ii) the aggregate Maximum Canadian Liability of all Canadian Loan  Parties hereunder (including such Paying Canadian Loan Party) as of such date (without giving effect to  any right to receive, or obligation to make, any contribution hereunder), or to the extent that a Maximum  Canadian Liability has not been determined for any Canadian Loan Party, the aggregate amount of all  monies received by such Canadian Loan Parties from the other Canadian Loan Parties after the date hereof  (whether by loan, capital infusion or by other means). Nothing in this provision shall affect any Canadian  Loan Party’s several liability for the entire amount of the Canadian Guaranteed Obligations (up to such  Canadian Loan Party’s Maximum Canadian Liability). Each of the Canadian Loan Parties covenants and  agrees that its right to receive any contribution under this Canadian Guaranty from a Non-Paying Canadian  Loan Party shall be subordinate and junior in right of payment to the payment in full in cash of the Canadian  Guaranteed Obligations. This provision is for the benefit of all of the Administrative Agent, the Issuing  Banks, the Lenders and the Canadian Loan Parties and may be enforced by any one, or more, or all of them  in accordance with the terms hereof.  SECTION 11.10 Liability Cumulative. The liability of each Canadian Loan Party under this  Article XI is in addition to and shall be cumulative with all liabilities of each Canadian Loan Party to the  Administrative Agent, the Issuing Banks and the Lenders under this Agreement and the other Loan  Documents to which such Canadian Loan Party is a party or in respect of any obligations or liabilities of  the other Canadian Loan Parties, without any limitation as to amount, unless the instrument or agreement  evidencing or creating such other liability specifically provides to the contrary.  SECTION 11.11 Common Enterprise.  Each Canadian Loan Party represents and warrants  that the successful operation and condition of each of the Loan Parties is dependent on the continued  successful performance of the functions of the group of the Loan Parties as a whole and the successful  operation of each of the Loan Parties is dependent on the successful performance and operation of each  other Loan Party. Each Canadian Loan Party expects to derive benefit (and its board of directors or other  governing body has determined that it may reasonably be expected to derive benefit), directly and indirectly,  from (i) successful operations of each of the other Loan Parties and (ii) the credit extended by the Lenders  to the Borrowers hereunder, both in their separate capacities and as members of the group of companies.  Each Canadian Loan Party has determined that execution, delivery, and performance of this Agreement and  any other Loan Documents to be executed by such Loan Party is within its purpose, in furtherance of its  direct and/or indirect business interests, will be of direct and/or indirect benefit to such Loan Party, and is  in its best interest.  ARTICLE XII.  THE BORROWER REPRESENTATIVE  SECTION 12.01 Appointment; Nature of Relationship. The Company is hereby appointed  by each of the Borrowers as its contractual representative (herein referred to as the “Borrower  Representative”) hereunder and under each other Loan Document, and each of the Borrowers irrevocably  authorizes the Borrower Representative to act as the contractual representative of such Borrower with the  rights and duties expressly set forth herein and in the other Loan Documents. The Borrower Representative  agrees to act as such contractual representative upon the express conditions contained in this Article XII.  Additionally, the Borrowers hereby appoint the Borrower Representative as their agent to receive all of the  proceeds of the Loans in the Funding Account(s), at which time the Borrower Representative shall promptly  





 






DB1/ 127789195.7 178  disburse such Loans to the appropriate Borrower(s), provided that, in the case of a Revolving Loan, such  amount shall not result in a violation of the Revolving Exposure Limitations. The Administrative Agent  and the Lenders, and their respective officers, directors, agents or employees, shall not be liable to the  Borrower Representative or any Borrower for any action taken or omitted to be taken by the Borrower  Representative or the Borrowers pursuant to this Section 12.01.  SECTION 12.02 Powers. The Borrower Representative shall have and may exercise such  powers under the Loan Documents as are specifically delegated to the Borrower Representative by the  terms of each thereof, together with such powers as are reasonably incidental thereto. The Borrower  Representative shall have no implied duties to the Borrowers, or any obligation to the Lenders to take any  action thereunder except any action specifically provided by the Loan Documents to be taken by the  Borrower Representative.  SECTION 12.03 Employment of Agents. The Borrower Representative may execute any of  its duties as the Borrower Representative hereunder and under any other Loan Document by or through  Responsible Officers.  SECTION 12.04 Notices. Each Loan Party shall promptly notify the Borrower  Representative of the occurrence of any Default or Event of Default hereunder referring to this Agreement  describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event  that the Borrower Representative receives such a notice, the Borrower Representative shall give notice  thereof to the Administrative Agent and the Lenders pursuant to Section 5.02.    SECTION 12.05 Successor Borrower Representative.  Upon the prior written consent of the  Administrative Agent, the Borrower Representative may resign at any time, such resignation to be effective  upon the appointment of a successor Borrower Representative (it being understood that such successor must  be a Borrower). The Administrative Agent shall give prompt written notice of such resignation to the  Lenders.  SECTION 12.06 Execution of Loan Documents; Borrowing Base Certificate. The  Borrowers hereby empower and authorize the Borrower Representative, on behalf of the Borrowers, to  execute and deliver to the Administrative Agent and the Lenders the Loan Documents and all related  agreements, certificates, documents, or instruments as shall be necessary or appropriate to effect the  purposes of the Loan Documents, including, without limitation, the Borrowing Base Certificates and the  Compliance Certificates. Each Borrower agrees that any action taken by the Borrower Representative or  the Borrowers in accordance with the terms of this Agreement or the other Loan Documents, and the  exercise by the Borrower Representative of its powers set forth therein or herein, together with such other  powers that are reasonably incidental thereto, shall be binding upon all of the Borrowers.  SECTION 12.07 Reporting. Each Borrower hereby agrees that such Borrower shall furnish  promptly after each fiscal month to the Borrower Representative a copy of its Borrowing Base Certificate  and any other certificate or report required hereunder or requested by the Borrower Representative on which  the Borrower Representative shall rely to prepare the Borrowing Base Certificates and Compliance  Certificate required pursuant to the provisions of this Agreement.  (Signature Pages Follow)  





 






  [Signature Page to Credit Agreement]     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by  their respective authorized officers as of the day and year first above written.  BORROWERS:    DESIGNER BRANDS INC.        By: /s/ Marla Walters  Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer    DESIGNER BRANDS CANADA INC.       By: /s/ Marla Walters  Name: Marla Walters  Title: Senior Vice President, Tax      





 






  [Signature Page to Credit Agreement]     OTHER LOAN PARTIES:    DSW SHOE WAREHOUSE, INC.         By: /s/ Marla Walters  Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer      BRAND CARD SERVICES LLC      By: /s/ Marla Walters  Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer        DSW INFORMATION TECHNOLOGY LLC        By: /s/ Marla Walters  Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer      ETAILDIRECT LLC        By: /s/ Marla Walters  Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer      EBUYS, INC.       By: /s/ Marla Walters  Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer                





 






    [Signature Page to Credit Agreement]      DSW MS LLC      By: /s/ Marla Walters  Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer        DSW LEASED BUSINESS DIVISION LLC  AKA AFFILIATED BUSINESS GROUP        By: /s/ Marla Walters   Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer        810 AC LLC      By: /s/ Marla Walters   Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer        RETAIL VENTURES SERVICES, INC.         By: /s/ Marla Walters  Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer        CAMUTO LLC      By: /s/ Marla Walters   Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer            





 






    [Signature Page to Credit Agreement]    DESIGNER BRAND LICENSING LLC        By: /s/ Marla Walters  Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer    VCJS LLC      By: /s/ Marla Walters  Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer      VCS GROUP LLC      By: /s/ Marla Walters  Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer    VINCENT CAMUTO LLC      By: /s/ Marla Walters   Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer      CCI OPERATIONS LLC        By: /s/ Marla Walters   Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer    VC FOOTWEAR LLC        By: /s/ Marla Walters  Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer            





 






    [Signature Page to Credit Agreement]    VC LINE BUILDING SERVICES LLC          By: /s/ Marla Walters  Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer    HOT ON TIME LLC          By: /s/ Marla Walters  Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer      SOLE SOCIETY GROUP, INC.       By: /s/ Marla Walters  Name: Marla Walters  Title:   Senior Vice President, Tax and Treasurer          





 






  [Signature Page to Credit Agreement]     THE HUNTINGTON NATIONAL BANK,  Individually as a Lender and as Administrative  Agent, an Issuing Bank and Swingline Lender      By: /s/ Lynsey Sausaman  Name:  Lynsey Sausaman  Title:    Assistant Vice President    





 






  [Signature Page to Credit Agreement]     BANK OF AMERICA, N.A., as a Lender and as  an Issuing Bank      By: /s/ Jennifer Cann  Name: Jennifer Cann   Title: Senior Vice President     





 






  [Signature Page to Credit Agreement]     WELLS FARGO BANK, NATIONAL  ASSOCIATION, as a Lender and as an Issuing  Bank      By: /s/ Danielle Baldinelli  Name: Danielle Baldinelli   Title: Managing Director       WELLS FARGO CAPITAL FINANCE  CORPORATION CANADA, as a Lender       By: /s/ Carmela Massari  Name: Carmela Massari  Title: Senior Vice President      





 






  [Signature Page to Credit Agreement]     BANK OF MONTREAL, as a Lender and as an  Issuing Bank      By: /s/ Sonja Filipovic  Name: Sonja Filipovic  Title: Assistant Vice President, Chicago Branch 





 






  [Signature Page to Credit Agreement]     BANK OF MONTREAL, as a Lender and as an  Issuing Bank      By: /s/ Helen Alvarez-Hernandez  Name: Helen Alvarez-Hernandez  Title: Managing Director 





 






  [Signature Page to Credit Agreement]       PNC BANK, NATIONAL ASSOCIATION, as a  Lender       By: /s/ Sari Garrick  Name: Sari Garrick   Title: Senior Vice President 





 






  [Signature Page to Credit Agreement]     REGIONS BANK, as a Lender      By: /s/ Jonathan Green  Name: Jonathan Green   Title: Director  





 






SCHEDULE 1.01(a)   COMMITMENTS  Lender Commitment Applicable Percentage  The Huntington National Bank $135,000,000.00 24.545455%  Bank of America, N.A. $115,000,000.00 20.909091%  Bank of Montreal $115,000,000.00 20.909091%  PNC Bank, National Association $80,000,000.00 14.545455%  Regions Bank $60,000,000.00 10.909091%  Wells Fargo Bank, National Association $45,000,000.00 8.181818%  TOTALS $550,000,000.00 100.000000%  LC INDIVIDUAL SUBLIMITS  Issuing Bank LC Individual Sublimit  The Huntington National Bank No LC Individual Sublimit  applies for The Huntington  National Bank as Issuing  Bank  Bank of America, N.A. $15,000,000.00  Bank of Montreal $15,000,000.00  Wells Fargo Bank, National  Association  $15,000,000.00  





 






SCHEDULE 1.01(b)   EXISTING LETTERS OF CREDIT  Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See schedule title for identification of the contents of this schedule  that have been omitted.  





 






SCHEDULE 1.01(d)   IMMATERIAL SUBSIDIARIES  None.  





 






SCHEDULE 3.02   CAPITALIZATION; SUBSIDIARIES; JOINT VENTURES  Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See schedule title for identification of the contents of this schedule  that have been omitted.  





 






SCHEDULE 3.10(a)   REAL PROPERTY  Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See schedule title for identification of the   contents of this schedule that have been omitted.  





 






SCHEDULE 3.10(b)   INTELLECTUAL PROPERTY          Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See schedule title for identification of the   contents of this schedule that have been omitted.  





 






  SCHEDULE 3.10(b)I  CAMUTO LICENSES    Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See schedule title for identification of the   contents of this schedule that have been omitted.  





 






    SCHEDULE 3.10(b)II  JLO LICENSES  Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See schedule title for identification of the   contents of this schedule that have been omitted.  





 






  SCHEDULE 3.11   INSURANCE  Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See schedule title for identification of the contents of this schedule  that have been omitted.  





 






  SCHEDULE 3.12  CANADIAN PENSION PLANS  None.  





 






  SCHEDULE 3.19  CREDIT CARD ARRANGEMENTS  Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See schedule title for identification of the   contents of this schedule that have been omitted.  





 






    SCHEDULE 5.17    CERTAIN POST-CLOSING OBLIGATIONS        Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See schedule title for identification of the   contents of this schedule that have been omitted.  





 






  SCHEDULE 6.01  EXISTING INDEBTEDNESS  Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See schedule title for identification of the contents of this schedule  that have been omitted.  





 






SCHEDULE 6.02  EXISTING INVESTMENTS  Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See schedule title for identification of the contents of this schedule  that have been omitted.  





 






  SCHEDULE 6.03  EXISTING CONTRACTUAL ENCUMBRANCES AND RESTRICTIONS    None. 





 






  SCHEDULE 6.05  EXISTING AFFILIATE TRANSACTIONS    None. 





 






  SCHEDULE 6.07  EXISTING LIENS  Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See schedule title for identification of the contents of this schedule  that have been omitted.  





 






EXHIBIT A  [FORM OF] ASSIGNMENT AND ASSUMPTION  1 Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See exhibit title for identification of the    contents of this exhibit that have been omitted.  





 






EXHIBIT B  [FORM OF] BORROWING BASE CERTIFICATE    Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See exhibit title for identification of the    contents of this exhibit that have been omitted.  





 






EXHIBIT C  [FORM OF] BORROWING REQUEST  Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See exhibit title for identification of the    contents of this exhibit that have been omitted.  





 






  EXHIBIT D  [FORM OF] COMPLIANCE CERTIFICATE1  Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See exhibit title for identification of the    contents of this exhibit that have been omitted.  





 






EXHIBIT E  [FORM OF] INTEREST ELECTION REQUEST  Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See exhibit title for identification of the    contents of this exhibit that have been omitted.  





 






EXHIBIT F  [FORM OF] JOINDER AGREEMENT  Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See exhibit title for identification of the    contents of this exhibit that have been omitted.  





 






EXHIBIT G-1  [FORM OF]  U.S. TAX COMPLIANCE CERTIFICATE  Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See exhibit title for identification of the    contents of this exhibit that have been omitted.  





 






EXHIBIT G-2  [FORM OF]  U.S. TAX COMPLIANCE CERTIFICATE  Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See exhibit title for identification of the    contents of this exhibit that have been omitted.  





 






EXHIBIT G-3  [FORM OF]  U.S. TAX COMPLIANCE CERTIFICATE  Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See exhibit title for identification of the    contents of this exhibit that have been omitted.  





 






EXHIBIT G-4  [FORM OF]  U.S. TAX COMPLIANCE CERTIFICATE Contents have been omitted pursuant to Item 601(a)(5) of Regulation S-K. See exhibit title for identification of the    contents of this exhibit that have been omitted.