Exhibit 4.1


 


 




 



 


SECOND AMENDED AND
RESTATED CREDIT AGREEMENT


 


Dated as of January 17,
2017


 


among


 


TRANS WORLD ENTERTAINMENT
CORPORATION,

as the Lead Borrower


 


For


 


The Borrowers Named Herein


 


The Guarantors Named Herein


 


WELLS FARGO BANK, NATIONAL
ASSOCIATION

as Administrative Agent and Collateral Agent, L/C Issuer and Swing Line Lender,


 


and


 


The Other Lenders Party
Hereto


 


WELLS FARGO CAPITAL
FINANCE, LLC,

as Documentation Agent


 


WELLS FARGO CAPITAL
FINANCE, LLC,

as Sole Lead Arranger and Sole Bookrunner


 


 


 






    	 



    	



    


TABLE OF CONTENTS


 


	Section	 	Page
	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS	 	2
	 	 	 
	1.01	Defined Terms	 	2
	1.02	Other Interpretive Provisions	 	54
	1.03	Accounting Terms	 	55
	1.04	Rounding	 	56
	1.05	Times of Day	 	56
	1.06	Letter of Credit Amounts	 	56
	 	 	 	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS	 	56
	 	 	 
	2.01	Committed Loans; Reserves	 	56
	2.02	Borrowings, Conversions and Continuations of Committed Loans	 	57
	2.03	Letters of Credit	 	59
	2.04	Swing Line Loans	 	67
	2.05	Prepayments	 	70
	2.06	Termination or Reduction of Commitments	 	71
	2.07	Repayment of Loans	 	72
	2.08	Interest	 	72
	2.09	Fees	 	73
	2.10	Computation of Interest and Fees	 	73
	2.11	Evidence of Debt	 	73
	2.12	Payments Generally; Agent’s Clawback	 	74
	2.13	Sharing of Payments by Lenders	 	76
	2.14	Settlement Amongst Lenders	 	76
	2.15	Increase in Commitments	 	77
	 	 	 	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY; APPOINTMENT OF LEAD BORROWER	 	78
	 	 	 
	3.01	Taxes	 	78
	3.02	Illegality	 	81
	3.03	Inability to Determine Rates	 	81
	3.04	Increased Costs; Reserves on LIBO Rate Loans	 	82
	3.05	Compensation for Losses	 	83
	3.06	Mitigation Obligations; Replacement of Lenders	 	84
	3.07	Survival	 	84
	3.08	Designation of Lead Borrower as Borrowers’ Agent	 	84
	 	 	 	 
	ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	 	85
	 	 	 
	4.01	Conditions of Initial Credit Extension	 	85
	4.02	Conditions to all Credit Extensions	 	88
	 	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES	 	88
	 	 	 
	5.01	Existence, Qualification and Power	 	89




    	 



    	



    


	5.02	Authorization; No Contravention	 	89
	5.03	Governmental Authorization; Other Consents	 	89
	5.04	Binding Effect	 	89
	5.05	Financial Statements; No Material Adverse Effect	 	90
	5.06	Litigation	 	90
	5.07	No Default	 	91
	5.08	Ownership of Property; Liens	 	91
	5.09	Environmental Compliance	 	92
	5.10	Insurance	 	92
	5.11	Taxes	 	92
	5.12	ERISA Compliance	 	93
	5.13	Subsidiaries; Equity Interests	 	94
	5.14	Margin Regulations; Investment Company Act	 	94
	5.15	Disclosure	 	94
	5.16	Compliance with Laws	 	94
	5.17	Intellectual Property; Licenses, Etc.	 	95
	5.18	Labor Matters	 	95
	5.19	Security Documents	 	96
	5.20	Solvency	 	96
	5.21	Deposit Accounts; Credit Card Arrangements	 	96
	5.22	Customer and Trade Relations	 	97
	5.23	Material Contracts; Amazon Agreement	 	97
	5.24	Casualty	 	97
	5.25	OFAC/Sanctions	 	97
	 	 	 	 
	ARTICLE VI AFFIRMATIVE COVENANTS	 	97
	 	 	 
	6.01	Financial Statements	 	98
	6.02	Certificates; Other Information	 	99
	6.03	Notices	 	102
	6.04	Payment of Obligations	 	103
	6.05	Preservation of Existence, Etc.	 	103
	6.06	Maintenance of Properties	 	103
	6.07	Maintenance of Insurance	 	104
	6.08	Compliance with Laws	 	105
	6.09	Books and Records; Accountants	 	105
	6.10	Inspection Rights	 	105
	6.11	Use of Proceeds	 	107
	6.12	Additional Loan Parties	 	107
	6.13	Cash Management	 	108
	6.14	Information Regarding the Collateral	 	109
	6.15	Physical Inventories	 	110
	6.16	Environmental Laws	 	111
	6.17	Further Assurances	 	111
	6.18	Compliance with Terms of Leaseholds	 	112
	6.19	Material Contracts; Amazon Agreement	 	112




    	(ii)



    	



    


	ARTICLE VII NEGATIVE COVENANTS	 	112
	 	 	 
	7.01	Liens	 	112
	7.02	Investments	 	112
	7.03	Indebtedness; Disqualified Stock	 	112
	7.04	Fundamental Changes	 	112
	7.05	Dispositions	 	113
	7.06	Restricted Payments	 	113
	7.07	Prepayments of Indebtedness	 	113
	7.08	Change in Nature of Business	 	114
	7.09	Transactions with Affiliates	 	114
	7.10	Burdensome Agreements	 	114
	7.11	Use of Proceeds	 	115
	7.12	Amendment of Material Documents	 	115
	7.13	Fiscal Year	 	115
	7.14	Deposit Accounts; Credit Card Processors	 	115
	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES	 	115
	 	 	 
	8.01	Events of Default	 	115
	8.02	Remedies Upon Event of Default	 	119
	8.03	Application of Funds	 	120
	 	 	 	 
	ARTICLE IX THE AGENT	 	122
	 	 	 
	9.01	Appointment and Authority	 	122
	9.02	Rights as a Lender	 	122
	9.03	Exculpatory Provisions	 	122
	9.04	Reliance by Agent	 	123
	9.05	Delegation of Duties	 	124
	9.06	Resignation of Agent	 	124
	9.07	Non-Reliance on Agent and Other Lenders	 	125
	9.08	No Other Duties, Etc.	 	125
	9.09	Agent May File Proofs of Claim	 	125
	9.10	Collateral and Guaranty Matters	 	126
	9.11	Notice of Transfer	 	126
	9.12	Reports and Financial Statements	 	126
	9.13	Agency for Perfection	 	127
	9.14	Indemnification of Agent	 	128
	9.15	Relation among Lenders	 	128
	9.16	Defaulting Lenders	 	128
	9.17	Co-Syndication Agent; Documentation Agent and Co-Lead Arrangers	 	130
	 	 	 	 
	ARTICLE X MISCELLANEOUS	 	131
	 	 	 
	10.01	Amendments, Etc.	 	131
	10.02	Notices; Effectiveness; Electronic Communications	 	133
	10.03	No Waiver; Cumulative Remedies	 	134
	10.04	Expenses; Indemnity; Damage Waiver	 	135
	10.05	Payments Set Aside	 	136



    	(iii)



    	



    

	10.06	Successors and Assigns	 	137
	10.07	Treatment of Certain Information; Confidentiality	 	141
	10.08	Right of Setoff	 	142
	10.09	Interest Rate Limitation	 	142
	10.10	Counterparts; Integration; Effectiveness	 	143
	10.11	Survival	 	143
	10.12	Severability	 	143
	10.13	Replacement of Lenders	 	143
	10.14	Governing Law; Jurisdiction; Etc.	 	144
	10.15	Waiver of Jury Trial	 	145
	10.16	No Advisory or Fiduciary Responsibility	 	145
	10.17	Patriot Act Notice	 	146
	10.18	Foreign Asset Control Regulations	 	146
	10.19	Time of the Essence	 	147
	10.20	Press Releases	 	147
	10.21	Additional Waivers	 	147
	10.22	No Strict Construction	 	149
	10.23	Attachments	 	149
	10.24	Keepwell	 	149
	10.25	Acknowledgment and Consent to Bail-in of EEA Financial Institutions	 	149
	10.26	Amendment and Restatement	 	150
	 	 	 	 
	SIGNATURES	 	S-1




    	(iv)



    	



    


	SCHEDULES	 
	 	 
	1.01	Borrowers
	1.02	Guarantors
	1.03	Existing Intercompany Agreements
	1.04	Existing Letters of Credit
	2.01	Commitments and Applicable Percentages
	5.01	Loan Parties Organizational Information
	5.05	Supplement to Interim Financial Statements
	5.06	Litigation
	5.08(b)(1)	Owned Real Estate
	5.08(b)(2)	Leased Real Estate
	5.09	Environmental Matters
	5.10	Insurance
	5.13	Subsidiaries; Other Equity Investments; Equity Interests in the Borrower
	5.18	Collective Bargaining Agreements
	5.21(a)	DDAs
	5.21(b)	Credit Card Arrangements
	5.23	Material Contracts
	6.02	Financial and Collateral Reporting
	7.01	Existing Liens
	7.02	Existing Investments
	7.03	Existing Indebtedness
	7.09	Affiliate Transactions
	10.02	Agent’s Office; Certain Addresses for Notices


 



	EXHIBITS	 
	 	 
	 	Form of
	 	 
	A	LIBO Rate Loan Notice
	B	Swing Line Loan Notice
	C	Note
	D	Compliance Certificate
	E	Assignment and Assumption
	F	Borrowing Base Certificate
	G	Credit Card Notification
	H	U.S. Tax Compliance Certificate




    	(v)



    	



    


SECOND AMENDED AND RESTATED
CREDIT AGREEMENT


 


This SECOND AMENDED
AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of January 17, 2017, among


 


TRANS WORLD ENTERTAINMENT
CORPORATION, a New York corporation (the “Lead Borrower”),


 


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


 


the Persons named on
Schedule 1.02 hereto (collectively, the “Guarantors”),


 


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


 


WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent, Collateral Agent, L/C Issuer and Swing Line Lender; and


 


WELLS FARGO CAPITAL
FINANCE, LLC, as Documentation Agent.


 


W I T N E S S E T H:


 


WHEREAS, prior to the
date of this Agreement, certain of the Loan Parties, on the one hand, and Wells Fargo Bank, National Association, as administrative
agent and collateral agent thereunder (as successor to Bank of America, N.A.), and the lenders party thereto, on the other hand,
previously entered into an Amended and Restated Credit Agreement dated as of April 15, 2010 (as amended and in effect, the “Existing
Credit Agreement”), pursuant to which the lenders party thereto provided the Borrowers with certain financial accommodations;


 


WHEREAS, the Borrowers
have requested that the Lenders make available to the Borrowers a revolving credit facility (including a letter of credit sub-facility)
in a maximum amount not to exceed $75,000,000, the proceeds of which, in each case, shall be used by the Borrowers for purposes
permitted under, and otherwise in accordance with and subject to the terms of, this Agreement;


 


WHEREAS, the Lenders
have indicated their willingness to lend and the L/C Issuer has indicated its willingness to issue Letters of Credit in accordance
with and subject to the terms of this Agreement; and


 


WHEREAS, in connection
with the foregoing and in accordance with Section 9.02 of the Existing Credit Agreement, the Loan Parties, the Lenders, and the
Agent desire to amend and restate the Existing Credit Agreement as provided herein.


 


NOW, THEREFORE, in consideration
of the mutual conditions and agreements set forth in this Agreement, and for good and valuable consideration, the receipt of which
is hereby acknowledged, the undersigned hereby agree that the Existing Credit Agreement shall be amended and restated in its entirety
to read as set forth herein (it being agreed that this Agreement shall not be deemed to evidence or result in a novation or repayment
and reborrowing



    	-1-



    	



    


of the Obligations under
the Existing Credit Agreement) and the parties hereto covenant and agree as follows:


 


ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS


 


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


 


“Accelerated
Borrowing Base Delivery Event” means either (i) the occurrence and continuance of any Event of Default, or (ii) any Loans
are outstanding at any time. For purposes of this Agreement, the occurrence of an Accelerated Borrowing Base Delivery Event shall
be deemed continuing at the Agent’s option (i) so long as such Event of Default has not been waived, and/or (ii) if the Accelerated
Borrowing Base Delivery Event arises as a result of any Loans being outstanding at any time, until no Loans are outstanding for
more than ninety (90) consecutive calendar days, in which case an Accelerated Borrowing Base Delivery Event shall no longer be
deemed to be continuing for purposes of this Agreement. The termination of an Accelerated Borrowing Base Delivery Event as provided
herein shall in no way limit, waive or delay the occurrence of a subsequent Accelerated Borrowing Base Delivery Event in the event
that the conditions set forth in this definition again arise.


 


“ACH” means
automated clearing house transfers.


 


“Accommodation
Payment” as defined in Section 10.21(d).


 


“Account”
means “accounts” as defined in the UCC, and also means a right to payment of a monetary obligation, whether or not
earned by performance, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (b)
for services rendered or to be rendered, (c) for a policy of insurance issued or to be issued, (d) for a secondary obligation incurred
or to be incurred, (e) for energy provided or to be provided, (f) for the use or hire of a vessel under a charter or other contract,
(g) arising out of the use of a credit or charge card or information contained on or for use with the card, or (h) as winnings
in a lottery or other game of chance operated or sponsored by a state, governmental unit of a state, or person licensed or authorized
to operate the game by a state or governmental unit of a state. The term “Account” includes health-care-insurance receivables.


 


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


 


“Adjusted LIBO
Rate” means:



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(a) for any Interest
Period with respect to any LIBO Borrowing, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of one percent)
equal to (i) the LIBO Rate for such Interest Period multiplied by (ii) the Statutory Reserve Rate; and


 


(b) for any interest
rate calculation with respect to any Base Rate Loan, an interest rate per annum (rounded upwards, if necessary, to the next 1/100
of one percent) equal to (i) the LIBO Rate for an Interest Period commencing on the date of such calculation and ending on the
date that is thirty (30) days thereafter multiplied by (ii) the Statutory Reserve Rate.


 


The Adjusted LIBO Rate
will be adjusted automatically as of the effective date of any change in the Statutory Reserve Rate.


 


“Adjustment Date”
means the first day of each Fiscal Quarter, commencing January 29, 2017.


 


“Administrative
Agent” means Wells Fargo in its capacity as administrative agent under any of the Loan Documents, or any successor thereto.


 


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


 


“Affiliate”
means, with respect to any Person, (i) another Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified and (ii) any director, officer, managing member, partner,
trustee, or beneficiary of that Person.


 


“Agent”
means Wells Fargo in its capacity as Administrative Agent and/or in its capacity as Collateral Agent.


 


“Agent Parties”
shall have the meaning specified in Section 10.02(c).


 


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


 


“Aggregate Commitments”
means the Commitments of all the Lenders. As of the Second Restatement Date, the Aggregate Commitments are $50,000,000.


 


“Agreement”
means this Credit Agreement.


 


“Allocable Amount”
has the meaning specified in Section 10.21(d).


 


“Amazon Agreement”
means the Amazon Business Services Solutions Agreement pursuant to which the Loan Parties sell Inventory through Amazon Services
International, Inc. and its affiliates.


 


“Applicable Commitment
Fee Percentage” means one-quarter of one percent (0.25%).



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


 


“Applicable Margin”
means: 


 


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


 


(b) From
and after the first Adjustment Date and on each Adjustment Date thereafter, the Applicable Margin shall be determined from the
following pricing grid based upon Average Availability for the most recent Fiscal Quarter ended immediately preceding such Adjustment
Date; provided that notwithstanding anything to the contrary set forth herein, upon the occurrence of an Event of Default,
the Agent may, and at the direction of the Required Lenders shall, immediately increase the Applicable Margin to that set forth
in Level II (even if the Average Availability requirements for a different Level have been met) and interest shall accrue at the
Default Rate; provided, further, if the financial statements delivered pursuant to Section 6.01 of this Agreement
or any Borrowing Base Certificates are at any time restated or otherwise revised (including as a result of an audit) or if the
information set forth in such financial statements or any Borrowing Base Certificates otherwise proves to be false or incorrect
such that the Applicable Margin would have been higher than was otherwise in effect during any period, without constituting a waiver
of any Default or Event of Default arising as a result thereof, interest due under this Agreement shall be immediately recalculated
at such higher rate for any applicable periods and shall be due and payable on demand.


 


	Level	 	Average

Availability	 	LIBOR

Margin	 	Base Rate

Margin	 	Letter of

Credit Fee
	I	 	Greater than or equal to 50% of the Loan Cap	 	1.75%	 	0.75%	 	1.75%
	 	 	 	 	 	 	 	 	 
	II	 	Less than 50% of the Loan Cap	 	2.00%	 	1.00%	 	2.00%


 


“Applicable Percentage”
means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments
represented by such Lender’s Commitment at such time. If the commitment of each Lender to make Loans and the obligation of
the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if the Aggregate Commitments
have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender
most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender is set forth
opposite the name of such Lender on Schedule 2.01 or in



    	-4-



    	



    

the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.


 


“Appraisal Percentage”
means 80%, subject to clause (ii) of the proviso set forth in the definition of “Borrowing Base.”


 


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


 


“Approved Fund”
means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing
in commercial loans and similar extensions of credit in the ordinary course of its business and that is administered or managed
by (a) a Lender, (b) an Affiliate of a Lender, (c) an entity or an Affiliate of an entity that administers or manages a Lender
or (d) the same investment advisor or an advisor under common control with such Lender, Affiliate or advisor, as applicable.


 


“Arranger”
means Wells Fargo Capital Finance, LLC, in its capacity as sole lead arranger and sole book manager.


 


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


 


“Assignment and
Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any
party whose consent is required by Section 10.06(b)), and accepted by the Agent, in substantially the form of Exhibit
E or any other form approved by the Agent.


 


“Audited Financial
Statements” means the audited consolidated balance sheet of the Lead Borrower and its Subsidiaries for the Fiscal Year ended
January 30, 2016, and the related consolidated statements of income or operations, Shareholders’ Equity and cash flows for
such Fiscal Year of the Lead Borrower and its Subsidiaries, including the notes thereto.


 


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


 


(a) The
Loan Cap


 


Minus


 


(b) The
Total Outstandings.


 


“Availability
Period” means the period from and including the Second Restatement Date to the earliest of (a) the Maturity Date, (b) the
date of termination of the Aggregate Commitments pursuant to Section 2.06, and (c) the date of termination of the commitment
of



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each Lender to make Loans
and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.


 


“Availability
Reserves” means, without duplication of any other Reserves or items to the extent such items are otherwise addressed or excluded
through eligibility criteria, such reserves as the Agent from time to time determines in its Permitted Discretion as being appropriate
(a) to reflect the impediments to the Agent’s ability to realize upon the Collateral, (b) to reflect claims and liabilities
that the Agent determines will need to be satisfied in connection with the realization upon the Collateral, (c) to reflect criteria,
events, conditions, contingencies or risks which adversely affect any component of the Borrowing Base, or the assets, business,
financial performance or financial condition of any Loan Party, or (d) to reflect that a Default or an Event of Default then exists.
Without limiting the generality of the foregoing, Availability Reserves may include, in the Agent’s Permitted Discretion,
(but are not limited to) reserves based on: (i) rent; (ii) customs duties, and other costs to release Inventory which is being
imported into the United States; (iii) outstanding Taxes and other governmental charges, including, without limitation, ad valorem,
real estate, personal property, sales, claims of the PBGC and other Taxes which may have priority over the interests of the Agent
in the Collateral; (iv) salaries, wages and benefits due to employees of any Borrower, (v) customer credit liabilities consisting
of the aggregate remaining value at such time of (a) outstanding gift certificates and gift cards of the Borrowers entitling the
holder thereof to use all or a portion of the certificate or gift card to pay all or a portion of the purchase price for any Inventory,
(b) outstanding merchandise credits of the Borrowers, and (c) liabilities in connection with frequent shopping programs of the
Borrowers, (vi) deposits made by customers with respect to the purchase of goods or the performance of services and layaway obligations
of the Borrowers, (vii) reserves for reasonably anticipated changes in the Appraised Value of Eligible Inventory between appraisals,
(viii) warehousemen’s or bailee’s charges and other Permitted Encumbrances which may have priority over the interests
of the Agent in the Collateral, (ix) amounts due to vendors on account of consigned goods, (x) Cash Management Reserves, (xi) Bank
Products Reserves and (xii) royalties payable in respect of licensed merchandise.


 


“Average Availability”
means the average daily Availability for the immediately preceding Fiscal Quarter.


 


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


 


“Bail-In Legislation”
shall mean, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and
of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in
the EU Bail-In Legislation Schedule.


 


“Bank Products”
means any services of facilities provided to any Loan Party by the Agent or any of its Affiliates (but excluding Cash Management
Services) including, without limitation, on account of (a) Swap Contracts, (b) merchant services constituting a line of credit,
(c) leasing, (d) Factored Receivables, (e) supply chain finance services including, without limitation, trade payable services
and supplier accounts receivable purchases, and (f) commercial



    	-6-



    	



    

equipment financing and
leasing, including vendor finance and chattel paper purchases and syndication.


 


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


 


“Base Rate”
 means, for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate, as in effect from time
to time, plus one-half of one percent (0.50%), (b) the Adjusted LIBO Rate plus one percent (1.00%), or (c) the rate of interest
in effect for such day as publicly announced from time to time by Wells Fargo as its “prime rate”; provided
that under no circumstances shall the Base Rate be less than zero. The “prime rate” is a rate set by Wells Fargo based
upon various factors including Wells Fargo’s costs and desired return, general economic conditions and other factors, and
is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in
such rate announced by Wells Fargo shall take effect at the opening of business on the day specified in the public announcement
of such change.


 


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


 


“Blocked Account”
has the meaning provided in Section 6.13(a).


 


“Blocked Account
Agreement” means with respect to an account established by a Loan Party, an agreement, in form and substance reasonably satisfactory
to the Agent, establishing control, pursuant to Section 9-104 of the UCC or other applicable section of the UCC, of such account
by the Agent.


 


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


 


“Borrower Materials”
has the meaning specified in Section 6.02.


 


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


 


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


 


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


 


(a) the
face amount of Eligible Credit Card Receivables multiplied by the Credit Card Advance Rate;


 


plus



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(b) the
Cost of Eligible Inventory, net of Inventory Reserves, multiplied by the product of Appraisal Percentage multiplied by the Appraised
Value of Eligible Inventory;


 


plus


 


(c) the
Receivables Advance Rate multiplied by the face amount of Eligible Trade Receivables (net of Receivables Reserves applicable thereto);


 


minus


 


(d) the
Borrowing Base Reserve;


 


minus


 


(e) the
then amount of all Availability Reserves;


 


provided,
however, that if, at any time, the Loan Parties are conducting going-out-of-business or other liquidation sales at five
(5) or more Stores, then (i) all inventory located in each Store in which a Loan Party is conducting the going-out-of-business
or other liquidation sales and related Store closures and inventory dispositions (without assistance from an independent professional
liquidation company reasonably acceptable to the Agent pursuant to a formal consulting arrangement reasonably acceptable to the
Agent) shall be excluded from Eligible Inventory for purposes of calculating the Borrowing Base, and (ii) the Appraisal Percentage
applicable to Eligible Inventory located in each Store in which an independent professional liquidation company reasonably acceptable
to Agent is conducting (or assisting the Loan Parties pursuant to a formal consulting arrangement reasonably acceptable to the
Agent) the going-out-of-business or other liquidation sales and related Store closures and Inventory dispositions (which Eligible
Inventory shall not be excluded for purposes of calculating the Borrowing Base) shall be subject to adjustment by the Agent in
the Agent’s reasonable discretion. Upon the determination by the Agent that the Appraisal Percentage should be adjusted,
the Agent shall thereupon adjust the Appraisal Percentage.


 


“Borrowing Base
Certificate” means a certificate substantially in the form of Exhibit F hereto (with such changes therein as may be
reasonably required by the Agent to reflect the components of and reserves against the Borrowing Base as provided for hereunder
from time to time), executed and certified as accurate and complete by a Responsible Officer of the Lead Borrower, which shall
include appropriate exhibits, schedules, supporting documentation, and additional reports as reasonably requested by the Agent.


 


“Borrowing Base
Reserve” means (i) during the Seasonal Period, to the extent a Committed Increase is implemented, ten percent (10%) of the
then Aggregate Commitments (after giving effect to such Committed Increase), and (ii) otherwise, $5,000,000.


 


“Business Day”
means any day other than a Saturday, Sunday or other day on which commercial banks are authorized or required to close under the
Laws of, or are in fact closed in, the state where the Agent’s Office is located and, if such day relates to any LIBO Rate
Loan,



    	-8-



    	



    

means any such day on
which dealings in Dollar deposits are conducted by and between banks in the London interbank market.


 


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


 


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


 


“Cash Collateral
Account” means a non-interest bearing account established by one or more of the Loan Parties with Wells Fargo, and in the
name of, the Agent (or as the Agent shall otherwise direct) and under the sole and exclusive dominion and control of the Agent,
in which deposits are required to be made in accordance with Section 2.03(k) or 8.02(c).


 


“Cash Collateralize”
has the meaning specified in Section 2.03(k). Derivatives of such term have corresponding meanings.


 


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


 


“Cash Management
Services” means any cash management services or facilities provided to any Loan Party by the Agent or any of its Affiliates,
including without limitation, Wells Fargo Merchant Services, L.L.C., including, without limitation: (a) ACH transactions, (b) controlled
disbursement services, treasury, depository, overdraft, and electronic funds transfer services, (c) credit or debit cards, (d)
any services related to the acceptance and/or processing of payment cards or devices, (e) purchase cards, and (f) Print Services.


 


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


 


“CFC Holdco”
means a Subsidiary of the Lead Borrower, substantially all of whose assets comprise Equity Interests (or Equity Interests and Indebtedness)
of one of more Subsidiaries that are CFCs.


 


“Change in Law”
means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law,
rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof



    	-9-



    	



    

by any Governmental Authority
or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental
Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank
Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection
therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities,
in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law,” regardless of the date enacted,
adopted or issued.


 


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


 


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


 


(b) during
any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of
the Lead Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first
day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred
to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent
governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board
or equivalent governing body; or


 


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


 


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



    	-10-



    	



    

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


 


“Collateral Access
Agreement” means an agreement reasonably satisfactory in form and substance to the Agent executed by (a) a bailee or other
Person in possession of Collateral, and (b) any landlord of Real Estate leased by any Loan Party.


 


“Collateral Agent”
means Wells Fargo in its capacity as collateral agent under any of the Loan Documents, or any successor thereto.


 


“Commercial Letter
of Credit” means any Letter of Credit issued for the purpose of providing the primary payment mechanism in connection with
the purchase of any materials, goods or services by a Loan Party in the ordinary course of business of such Loan Party.


 


“Commercial Letter
of Credit Agreement” means the Commercial Letter of Credit Agreement relating to the issuance of a Commercial Letter of Credit
in the form from time to time in use by the L/C Issuer.


 


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


 


“Committed Borrowing”
means a borrowing consisting of simultaneous Committed Loans of the same Type and, in the case of LIBO Rate Loans, having the same
Interest Period made by each of the Lenders pursuant to Section 2.01.


 


“Committed Increase”
has the meaning specified in Section 2.15(a).


 


“Committed Loan”
has the meaning specified in Section 2.01.


 


“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.


 


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


 


“Concentration
Account” has the meaning provided in Section 6.13(d).


 


“Confirmation
Agreement” means, collectively, (i) that certain Confirmation and Amendment of Ancillary Loan Documents, dated as April 15,
2010, among the Loan Parties and Bank of America, N.A., as predecessor in interest to the Agent, and (ii) that certain Confirmation
and Amendment of Ancillary Loan Documents, dated as of May 4, 2012, among the Loan Parties and the Agent, and (iii) that certain
Confirmation and Amendment of Ancillary Loan Documents, dated as of the Second Restatement Date, among the Loan Parties and the
Agent.



    	-11-



    	



    

“Consent”
means actual consent given by a Lender from whom such consent is sought; or the passage of seven (7) Business Days from receipt
of written notice to a Lender from the Agent of a proposed course of action to be followed by the Agent without such Lender’s
giving the Agent written notice of that Lender’s objection to such course of action.


 


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


 


“Contractual Obligation”
means, as to any Person, any provision of any agreement, instrument or other undertaking to which such Person is a party or by
which it or any of its property is bound.


 


“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.


 


“Cost” means
the lower of cost or market value of Inventory, based upon the Borrowers’ accounting practices, known to the Agent, which
practices are in effect on the Second Restatement Date as such calculated cost is determined from invoices received by the Borrowers,
the Borrowers’ purchase journals or the Borrowers’ stock ledger. “Cost” does not include (i) any fees,
commissions or purchase price mark-ups imposed, paid or incurred by any Borrowers pursuant to any Existing Intercompany Agreements,
including, but not limited to, the “Estimated Purchase Price” (as defined therein); or (ii) inventory capitalization
costs or other non-purchase price charges (other than freight-in) used in the Borrowers’ calculation of cost of goods sold.


 


“Credit Card Advance
Rate” means 80%.


 


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


 


“Credit Card Notification”
has the meaning provided in Section 6.13(a).


 


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



    	-12-



    	



    

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


 


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


 


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


 


“DDA Notification”
has the meaning provided therefor in Section 6.13(b).


 


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


 


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


 


“Default Rate”
means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus
(ii) the Applicable Margin, if any, applicable to Base Rate Loans, plus (iii) 2% per annum; provided, however, that with respect
to a LIBO Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Margin) otherwise
applicable to such Loan plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable
Margin for Standby Letters of Credit or Commercial Letters of Credit, as applicable, plus 2% per annum.


 


“Defaulting Lender”
means any Lender that (a) has failed to fund any amounts required to be funded by it under this Agreement on the date that it is
required to do so under this Agreement (including the failure to make available to the Agent amounts required pursuant to a Settlement
or to make a required payment in connection with a Letter of Credit Disbursement), (b) notified the Borrowers, the Agent, or any
Lender in writing that it does not intend to comply with all or any portion of its funding obligations under this Agreement, (c)
has made a public statement to the effect that it does not intend to comply with its funding obligations under the Agreement or
under other agreements generally (as reasonably determined by the Agent) under which it has committed to extend credit, (d) failed,
within one (1) Business Day after written request by the Agent, to confirm that it will comply with the terms of the Agreement
relating to its obligations to fund any amounts required to be funded by it under the Agreement, (e) otherwise failed to pay over
to the Agent or any other Lender any other amount required to be paid by it under the Agreement on the date that it is required
to do so under the Agreement, or (f) (i) becomes or is insolvent or has a parent company that has become or is insolvent or (ii)



    	-13-



    	



    

becomes the subject of
(x) a bankruptcy or insolvency proceeding or (y) a Bail-In Action, or has had a receiver, conservator, trustee, or custodian or
appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such
proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has
had a receiver, conservator, trustee, or custodian appointed for it, or has taken any action in furtherance of, or indicating its
consent to, approval of or acquiescence in any such proceeding or appointment.


 


“Defaulting Lender
Rate” means (a) for the first three (3) days from and after the date the relevant payment is due, the Base Rate, and (b)
thereafter, the interest rate then applicable to Committed Loans that are Base Rate Loans (inclusive of the Applicable Margin applicable
thereto).


 


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


 


“Disqualified
Stock” means any Equity Interest that, by its terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is
mandatorily redeemable (other than solely for Equity Interests that do not constitute Disqualified Stock), pursuant to a sinking
fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that
is ninety-one (91) days after the date on which the Loans mature; provided, however, that (i) only the portion of
such Equity Interests which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the
option of the holder thereof prior to such date shall be deemed to be Disqualified Stock and (ii) with respect to any Equity Interests
issued to any employee or to any plan for the benefit of employees of the Lead Borrower or its Subsidiaries or by any such plan
to such employees, such Equity Interest shall not constitute Disqualified Stock solely because it may be required to be repurchased
by the Lead Borrower or one of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result
of such employee’s termination, resignation, death or disability and if any class of Equity Interest of such Person that
by its terms authorizes such Person to satisfy its obligations thereunder by delivery of an Equity Interest that is not Disqualified
Stock, such Equity Interests shall not be deemed to be Disqualified Stock. Notwithstanding the preceding sentence, any Equity Interest
that would constitute Disqualified Stock solely because the holders thereof have the right to require a Loan Party to repurchase
such Equity Interest upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Stock. The amount
of Disqualified Stock deemed to be outstanding at any time for purposes of this Agreement will be the maximum amount that the Lead
Borrower and its Subsidiaries may become obligated to pay upon maturity of, or pursuant to any mandatory redemption provisions
of, such Disqualified Stock or portion thereof, plus accrued dividends.



    	-14-



    	



    

“Dividend Conditions”
means, at the time of determination with respect to any specified Restricted Payment, that (a) no Default or Event of Default then
exists or would arise as a result of the making of such Restricted Payment, (b) (i) at no time during the six (6) month period
ending on the date of the making of such Restricted Payment shall there have been any Loans outstanding, and (ii) after giving
effect to the making of such Restricted Payment, as projected on a pro forma basis for the six (6) month period following the making
of such Restricted Payment, there are no anticipated Loans projected to be outstanding, (c) after giving effect to the making of
such Restricted Payment, in the case of Restricted Payments by the Lead Borrower to its shareholders (including, without limitation,
for the purposes of repurchasing, redeeming, retiring, acquiring, cancelling or terminating any Equity Interests of any Borrower
or Guarantor), the aggregate amount of all such Restricted Payments made during the then current Fiscal Year does not exceed $5,000,000,
and (d) such Restricted Payment is made in cash utilizing the Loan Parties’ cash on hand not consisting of proceeds of any
Loan hereunder. Prior to making any Restricted Payment which is subject to the Dividend Conditions, the Borrowers shall deliver
to the Agent evidence of satisfaction of the conditions contained in clauses (b) and (c) above on a basis (including, without limitation,
giving due consideration to results for prior periods) reasonably satisfactory to the Agent.


 


“Documentation
Agent” means Wells Fargo Capital Finance, LLC, in its capacity as documentation agent.


 


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


 


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


 


“Drawing Document”
means any Letter of Credit or other document presented for purposes of drawing under any Letter of Credit.


 


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


 


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


 


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


 


“Eligible Assignee”
means (a) a Secured Party or any of its Affiliates; (b) a bank, insurance company, or company engaged in the business of making
commercial loans, which Person, together with its Affiliates, has a combined capital and surplus in excess of



    	-15-



    	



    

$250,000,000; (c) an
Approved Fund; (d) any Person to whom a Secured Party assigns its rights and obligations under this Agreement as part of an assignment
and transfer of such Secured Party’s rights in and to a material portion of such Secured Party’s portfolio of asset
based credit facilities, and (e) any other Person (other than a natural person) approved by (i) the Agent, the L/C Issuer and the
Swing Line Lender, and (ii) unless a Default or an Event of Default has occurred and is continuing, the Lead Borrower (each such
approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible Assignee”
shall not include a Loan Party or any of the Loan Parties’ Affiliates or Subsidiaries.


 


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


 


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


 


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


 


(c) Credit
Card Receivables (i) that are not subject to a perfected first-priority security interest in favor of the Agent, or (ii) with respect
to which a Borrower does not have good, valid and marketable title thereto, free and clear of any Lien (other than Liens granted
to the Agent pursuant to the Security Documents and other Liens permitted by Section 7.01 that arise by operation of law);


 


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



    	-16-



    	



    

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


 


(f) Credit
Card Receivables due from a Credit Card Issuer or Credit Card Processor which is the subject of any bankruptcy or insolvency proceedings;


 


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


 


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


 


(i) Credit
Card Receivables due to etailz Inc., unless and until the Agent (A) otherwise agrees in its Permitted Discretion that such Credit
Card Receivables shall be deemed Eligible Credit Card Receivables, and (B) has completed or received such other due diligence as
the Agent may require, all of the results of the foregoing to be reasonably satisfactory to the Agent; and


 


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


 


“Eligible Inventory”
means, as of the date of determination thereof, without duplication, items of Inventory of a Borrower that are finished goods,
merchantable and readily saleable to the public in the ordinary course of the Borrowers’ business and deemed by the Agent
in its Permitted Discretion to be eligible for inclusion in the calculation of the Borrowing Base, in each case that, except as
otherwise agreed by the Agent, (A) complies in all material respects with each of the representations and warranties respecting
Inventory made by the Borrowers in the Loan Documents, and (B) is not excluded as ineligible by virtue of one or more of the criteria
set forth below as determined by the Agent in its Permitted Discretion. Except as otherwise agreed by the Agent, in its Permitted
Discretion, the following items of Inventory shall not be included in Eligible Inventory:


 


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


 


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


 


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


 


(d) Inventory
that is not located at a location that is owned or leased by a Borrower, except (i) Inventory in transit between such owned or
leased locations or



    	-17-



    	



    

locations which
meet the criteria set forth in clause (ii) below, or (ii) to the extent that the Borrowers have furnished the Agent with (A) any
UCC financing statements or other documents that the Agent may determine to be necessary to perfect its security interest in such
Inventory at such location, and (B) a Collateral Access Agreement executed by the Person owning any such location on terms reasonably
acceptable to the Agent;


 


(e) Inventory
that is located in a distribution center or warehouse leased by a Borrower unless the applicable lessor has delivered to the Agent
a Collateral Access Agreement;


 


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


 


(g) Inventory
that is not subject to a perfected first-priority security interest in favor of the Agent (subject to Liens permitted by Section
7.01 that arise by operation of law);


 


(h) Inventory
that is not insured in compliance with the provisions of Section 5.10;


 


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


 


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


 


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


 


“Eligible Trade
Receivables” means Accounts deemed by the Agent in its Permitted Discretion to be eligible for
inclusion in the calculation of the Borrowing Base arising from the sale of the Borrowers’ Inventory (but excluding, for
the avoidance of doubt, Credit Card Receivables) that satisfies the following criteria at the time of creation and continues to
meet the



    	-18-



    	



    

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


 


(a) Accounts
that are not evidenced by an invoice;


 


(b) Accounts
that have been outstanding for more than such periods from the date of sale or past the due date, in each case as the Agent now
or hereafter establishes in its Permitted Discretion;


 


(c) Accounts
due from any account debtor which is obligated on any accounts described in clause (b), above.


 


(d) All
Accounts owed by an account debtor and/or its Affiliates together exceed, with respect to any such account debtor and/or its Affiliates,
such percentage or any other percentage now or hereafter established by the Agent in its Permitted Discretion for such account
debtor and/or its Affiliates of the amount of all Accounts at any one time (but the portion of the Accounts not in excess of the
applicable percentages may be deemed Eligible Trade Receivables, in the Agent’s discretion);


 


(e) Accounts
(i) that are not subject to a perfected first-priority security interest in favor of the Agent, or (ii) with respect to which a
Borrower does not have good, valid and marketable title thereto, free and clear of any Lien (other than Liens granted to the Agent
pursuant to the Security Documents and other Liens permitted by Section 7.01 that arise by operation of law);


 


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


 


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



    	-19-



    	



    

(h) Accounts
which are owed by any account debtor whose principal place of business is not within the continental United States;


 


(i) Accounts
which are owed by any Affiliate or any employee of a Loan Party;


 


(j) Accounts
for which all consents, approvals or authorizations of, or registrations or declarations with any Governmental Authority required
to be obtained, effected or given in connection with the performance of such Account by the account debtor or in connection with
the enforcement of such Account by the Agent have been duly obtained, effected or given and are in full force and effect;


 


(k) Accounts
due from an account debtor which is the subject of any bankruptcy or insolvency proceeding, has had a trustee or receiver appointed
for all or a substantial part of its property, has made an assignment for the benefit of creditors or has suspended its business;


 


(l) Accounts
due from any Governmental Authority except to the extent that the subject account debtor is the federal government of the United
States of America and has complied with the Federal Assignment of Claims Act of 1940 and any similar state legislation;


 


(m) Accounts
(i) owing from any Person that is also a supplier to or creditor of a Loan Party or any of its Subsidiaries or (ii) representing
any manufacturer’s or supplier’s credits, discounts, incentive plans or similar arrangements entitling a Loan Party
or any of its Subsidiaries to discounts on future purchase therefrom;


 


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


 


(o) Accounts
arising out of sales to account debtors outside the United States;


 


(p) Accounts
payable other than in Dollars or that are otherwise on terms other than those normal and customary in the Loan Parties’ business;


 


(q) Accounts
evidenced by a promissory note or other instrument;


 


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


 


(s) Accounts
which are in excess of the credit limit for such account debtor established by the Loan Parties in the ordinary course of business
and consistent with past practices;


 


(t) Accounts
which include extended payment terms (datings) beyond those generally furnished to other account debtors in the ordinary course
of business;



    	-20-



    	



    

(u) Accounts
with respect to which the Account Debtor is a Sanctioned Person or Sanctioned Entity; or


 


(v) Accounts
which the Agent determines in its discretion to be unacceptable for borrowing.


 


Notwithstanding
anything to the contrary, at no time shall any Accounts constitute Eligible Trade Receivables hereunder, unless and until the Agent
has completed or received (A) an appraisal of such Accounts from appraisers reasonably satisfactory to the Agent, if requested
by the Agent, and establishes an advance rate and Receivables Reserves (if applicable) therefor, and otherwise agrees that such
Accounts shall be deemed Eligible Trade Receivables, and (B) such other due diligence as the Agent may require, all of the results
of the foregoing to be reasonably satisfactory to the Agent.


 


“Environmental
Laws” means any and all applicable federal, state, local, and foreign Laws relating to pollution and the protection of the
environment or the release of any hazardous materials into the environment, including those related to hazardous substances or
wastes, air emissions and discharges to waste or public systems.


 


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


 


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


 


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


 


“ERISA”
means the Employee Retirement Income Security Act of 1974.


 


“ERISA Affiliate”
means any trade or business (whether or not incorporated) under common control with any Loan Party within the meaning of Section
414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 and 4971
of the Code).



    	-21-



    	



    

“ERISA Event”
means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Loan Party or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan; (d) the filing of a notice of intent to terminate,
the treatment of a plan amendment as a termination of a Pension Plan or a Multiemployer Plan under Sections 4041 or 4041A of ERISA,
or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) the imposition of any liability
under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Lead Borrower
or any ERISA Affiliate; or (f) the determination that any Pension Plan is considered to be an “at-risk” plan, or that
any Multiemployer Plan is considered to be in “endangered” or “critical” status within the meaning of Sections
430, 431 and 432 of the Code or Sections 303, 304 or 305 of ERISA.


 


“Etailz Acquisition”
means the Acquisition by the Lead Borrower of 100% of the issued and outstanding Equity Interests in etailz Inc., a Washington
corporation, pursuant to the Etailz Acquisition Agreement.


 


“Etailz Acquisition
Agreement” means that certain Share Purchase Agreement dated as of October 17, 2016, by and among etailz Inc., the Sellers
named therein, Thomas C. Simpson, as Sellers’ Representative, and the Lead Borrower, as the buyer.


 


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


 


“Event of Default”
has the meaning specified in Section 8.01. An Event of Default shall be deemed to be continuing unless and until that Event
of Default has been duly waived as provided in Section 10.01.


 


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


 


(a) Availability


 


Minus


 


(b) the
sum of (i) all checks then held by the Loan Parties (other than held checks drawn to pay accounts which are not more than thirty
(30) days beyond stated credit terms), (ii) accounts payable of the Loan Parties which are more than sixty (60) days beyond credit
terms then accorded the Loan Parties, and (iii) overdrafts by the Loan Parties.


 


“Excluded Accounts”
means any DDA, deposit account or securities account which satisfies one of the following: (i) any exclusive payroll, other employee
benefits, trust, fiduciary, customs, insurance deposits or tax withholding accounts funded in the ordinary course of business or
required by applicable law, (ii) any escrow, defeasance and redemption accounts in connection with transactions permitted by this
Agreement, (iii) any local petty cash accounts of



    	-22-



    	



    

any Loan Party funded
in the ordinary course of business the balances of which do not exceed in the aggregate the lesser of (x) the product of $5,000
multiplied by the number of Stores that routinely deposit cash receipts into such accounts in the ordinary course of business,
consistent with past practices, or (ii) $50,000, or (iv) those certain DDAs constituting store deposit accounts set forth on Schedule
5.21(a) hereof as “Excluded Accounts”, so long as the funds on deposit at such DDAs are swept to the Concentration
Account daily.


 


“Excluded Subsidiary”
means (i) any Subsidiary that is not a Domestic Subsidiary, (ii) any CFC or CFC Holdco, (iii) any non-wholly owned Subsidiary;
(iv) any Subsidiary that is prohibited by applicable law from guaranteeing the Obligations, or which would require governmental
(including regulatory) consent, approval, license or authorization to provide a guarantee unless, such consent, approval, license
or authorization has been received, (v) any Subsidiary that is prohibited from guaranteeing the Obligations by any contractual
obligation in existence on the Second Restatement Date (but not entered into in contemplation thereof) (or, in the case of any
newly-acquired Subsidiary, in existence at the time of acquisition thereof but not entered into in contemplation thereof), (vi)
not-for-profit subsidiaries, (vii) any other Subsidiary with respect to which, in the reasonable judgment of the Agent in consultation
with the Borrower, the cost or other consequences (including any adverse tax consequences) of guaranteeing the Obligations would
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 “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder
at the time the Guarantee of such Guarantor or the grant of such security interest becomes 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, with respect to the Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account
of any obligation of the Loan Parties hereunder or under any other Loan Document, (a) Taxes imposed on or measured by its net income
(however denominated), and franchise Taxes imposed on it (in lieu of net income Taxes), (i) by the jurisdiction (or any political
subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable Lending Office is located, or (ii) that are Other Connection Taxes, (b) any branch
profits Taxes imposed by the United States or any similar Taxes imposed by any other jurisdiction described in clause (a) above,
(c) in the case of a Foreign Lender (other than an assignee pursuant to a request by any Borrower under Section 10.13),
any withholding Taxes imposed on amounts payable to or for the account of such Foreign Lender with respect to an applicable interest
in a Commitment or Loan pursuant to a law in effect on the date on which (i) such Foreign Lender acquires such interest in the
Commitment (or, to the extent a Lender



    	-23-



    	



    

acquires an
interest in a Loan without acquiring an interest in the corresponding Commitment, the Loan) or (ii) such Lender designates a
new Lending Office, except in each case to the extent that such Foreign Lender (or its assignor, if any) was entitled,
immediately prior to the time of designation of a new Lending Office (or assignment), to receive additional amounts from the
Loan Parties with respect to such withholding Taxes pursuant to Section 3.01(a), (d) any Taxes attributable to a
Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 3.01(e),
(e) any U.S. federal, state or local backup withholding Taxes, and (f) any Taxes imposed under FATCA. For purposes of
clause (c)(i) of this definition, a participation acquired pursuant to Section 2.13 shall be treated as having been
acquired on the earlier date(s) on which the applicable Lender acquired the applicable interests in the Commitments or Loans
to which such participation relates.


 


“Executive Order”
has the meaning set forth in Section 10.18.


 


“Existing Credit
Agreement” has the meaning set forth in the recitals hereto.


 


“Existing Intercompany
Agreements” means the agreements specified on Schedule 1.03, in each case as amended and in effect as of the Second
Restatement Date.


 


“Existing Letters
of Credit” means the Letters of Credit identified on Schedule 1.04.


 


“Extraordinary
Receipt” means any cash received by or paid to or for the account of any Person not in the ordinary course of business, including
tax refunds, pension plan reversions, proceeds of insurance (other than proceeds of business interruption insurance to the extent
such proceeds constitute compensation for lost earnings), condemnation awards (and payments in lieu thereof), indemnity payments
and any purchase price adjustments.


 


“Facility Guaranty”
means any Guaranty made by any Guarantor in favor of the Agent and the other Secured Parties, in form reasonably satisfactory to
the Agent.


 


“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) and any current or future regulations or official interpretations thereof,
any agreements entered into pursuant to Section 1471(b)(1) of the Code, as of the date of this Agreement (or any amended or successor
version described above), and any intergovernmental agreements (or related laws, regulations or other official administrative guidance)
implementing the foregoing.


 


“Factored Receivables”
means any Accounts originally owed or owing by a Loan Party to another Person which have been purchased by or factored with Wells
Fargo or any of its Affiliates pursuant to a factoring arrangement or otherwise with the Person that sold the goods or rendered
the services to the Loan Party which gave rise to such Account.


 


“Family Group”
means (i) Robert J. Higgins and his/her spouse, parents, siblings, children, grandchildren, nephews, nieces, heirs, legatees, lineal
descendants, executors, administrators, and other representatives, and (ii) any trust, family partnership or similar investment
entity of which any of the foregoing Persons are trustee(s), managing member(s),



    	-24-



    	



    

managing partner(s) or
similar officer(s) and/or that is for the benefit of any of the foregoing Persons.


 


“Federal Funds
Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate
for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Wells Fargo
on such day on such transactions as determined by the Agent.


 


“Fee Letter”
means the amended and restated letter agreement, dated as of the Second Restatement Date, among the Borrowers, the Agent and the
Arranger.


 


“Fiscal Month”
means any fiscal month of any Fiscal Year, the end of which shall be determined in accordance with the Lead Borrower’s fiscal
calendar.


 


“Fiscal Quarter”
means any fiscal quarter of any Fiscal Year, the end of which shall be determined by reference to the National Retail Federation
Retail Sales Reporting Calendar.


 


“Fiscal Year”
means any period of 52 or 53 consecutive weeks, the end of which shall be determined by reference to the National Retail Federation
Retail Sales Reporting Calendar.


 


“Foreign Asset
Control Regulations” has the meaning set forth in Section 10.18.


 


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


 


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


 


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


 


“Governmental
Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national
bodies such as the European Union or the European Central Bank).



    	-25-



    	



    

“Guarantee”
means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect
of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”)
in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase
or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of
the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other
financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee
in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss
in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount
equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee
is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.


 


“Guarantor”
means each Subsidiary of the Lead Borrower that shall be required to execute and deliver a Facility Guaranty pursuant to Section
6.12.


 


“Hazardous Materials”
means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including
petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls or radon gas and all other
substances or wastes of any nature regulated pursuant to any Environmental Law.


 


“Increase Effective
Date” shall have the meaning provided therefor in Section 2.15(b).


 


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


 


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


 


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


 


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


 


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



    	-26-



    	



    

such trade account
payable was created or, if more than 60 days past due, are subject to a good faith dispute conducted in accordance with Section
6.04 hereof);


 


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


 


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


 


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


 


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


 


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


 


“Indemnified Taxes”
means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of
any Loan Party under any Loan Document, and (b) to the extent no otherwise described in (a), Other Taxes.


 


“Indemnitee”
has the meaning specified in Section 10.04(b).


 


“Information”
has the meaning specified in Section 10.07.


 


“Intellectual
Property” means all patents, trademarks, trade names, trade styles, brand names, service marks, logos, copyrights, and other
intellectual property.


 


“Intellectual
Property Security Agreement” means each security agreement (including, without limitation, each short-form grant of security
interest) in Intellectual Property among the Loan Parties and the Agent, granting a Lien in certain registered and applied for
the Intellectual Property of the Loan Parties.



    	-27-



    	



    

“Intercreditor
Provisions” has the meaning specified in Section 8.01(q).


 


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


 


“Interest Period”
means, as to each LIBO Rate Loan, the period commencing on the date such LIBO Rate Loan is disbursed or converted to or continued
as a LIBO Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Lead Borrower in its LIBO
Rate Loan Notice; 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) notwithstanding
the provisions of clause (iii), no Interest Period shall have a duration of less than one (1) month, and if any Interest Period
applicable to a LIBO Borrowing would be for a shorter period, such Interest Period shall not be available hereunder.


 


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


 


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


 


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



    	-28-



    	



    

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


 


(a) Obsolescence;


 


(b) Seasonality;


 


(c) Shrink;


 


(d) Imbalance;


 


(e) Change
in Inventory character;


 


(f) Change
in Inventory composition;


 


(g) Change
in Inventory mix;


 


(h) Markdowns
(both permanent and point of sale); and


 


(i) Retail
markons and markups inconsistent with prior period practice and performance, industry standards, current business plans or advertising
calendar and planned advertising events.


 


“Investment”
means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase
or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption
of debt of, or purchase or other acquisition of any other debt or interest in, another Person, or (c) any Acquisition, or (d) any
other investment of money or capital in order to obtain a profitable return. For purposes of covenant compliance, the amount of
any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of
such Investment.


 


“IRS” means
the United States Internal Revenue Service.


 


“ISP” means,
with respect to any Letter of Credit, the International Standby Practices 1998 (International Chamber of Commerce Publication No.
590) and any subsequent revision thereof adopted by the International Chamber of Commerce on the date such Letter of Credit is
issued.


 


“Issuer Documents”
means with respect to any Letter of Credit, the Letter Credit Application, the Standby Letter of Credit Agreement or Commercial
Letter of Credit Agreement, as applicable, and any other document, agreement and instrument entered into by the L/C Issuer



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and the Borrower (or
any Subsidiary) or in favor of the L/C Issuer and relating to any such Letter of Credit.


 


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


 


“Landlord Lien
State” means Washington, Virginia, Pennsylvania, and such other state(s) in which a landlord’s claim for rent has or
could reasonably be expected to have priority over the Lien of the Agent in any of the Collateral.


 


“Laws” means
each international, foreign, Federal, state and local statute, treaty, rule, guideline, regulation, ordinance, code and administrative
or judicial precedent or authority, including the interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and each applicable administrative order, directed duty, request,
license, authorization and permit of, and agreement with, any Governmental Authority, in each case whether or not having the force
of law.


 


“L/C Credit Extension”
means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof, or the renewal thereof.


 


“L/C Issuer”
means (a) Wells Fargo in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder
(which successor may only be a Lender selected by the Agent in its reasonable discretion), and (b) any other Lender selected by
the Agent in its discretion. The L/C Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates
of the L/C Issuer and/or for such Affiliate to act as an advising, transferring, confirming and/or nominated bank in connection
with the issuance or administration of any such Letter of Credit, in which case the term “L/C Issuer” shall include
any such Affiliate with respect to Letters of Credit issued by such Affiliate.


 


“L/C Obligations”
means, as at any date of determination, the aggregate undrawn amount available to be drawn under all outstanding Letters of Credit.
For purposes of computing the amounts available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall
be determined in accordance with Section 1.06. For all purposes of this Agreement, if on any date of determination a Letter
of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of any Rule under the
ISP or any article of the UCP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining
available to be drawn.


 


“Lead Borrower”
has the meaning assigned to such term in the preamble of this Agreement.


 


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



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


 


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


 


“Letter of Credit”
means each Standby Letter of Credit and each Commercial Letter of Credit issued hereunder and shall include the Existing Letters
of Credit.


 


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


 


“Letter of Credit
Disbursement” means a payment made by the L/C Issuer pursuant to a Letter of Credit.


 


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


 


“Letter of Credit
Fee” has the meaning specified in Section 2.03(l).


 


“Letter of Credit
Indemnified Costs” has the meaning specified in Section 2.03(f).


 


“Letter of Credit
Related Person” has the meaning specified in Section 2.03(f).


 


“Letter of Credit
Sublimit” means an amount equal to $7,500,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments. A permanent reduction of the Aggregate Commitments shall not require a corresponding pro rata reduction in the Letter
of Credit Sublimit; provided, however, that if the Aggregate Commitments are reduced to an amount less than the Letter of Credit
Sublimit, then the Letter of Credit Sublimit shall be reduced to an amount equal to (or, at Lead Borrower’s option, less
than) the Aggregate Commitments.


 


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


 


“LIBO Rate”
means for any Interest Period with respect to a LIBO Rate Loan, the rate per annum rate which appears on the Reuters Screen LIBOR01
page as of 11:00 a.m., London time, on the second London Business Day preceding the first day of such Interest Period (or if such
rate does not appear on the Reuters Screen LIBOR01 Page, then the rate as determined by the Agent from another recognized source
or interbank quotation), for a term, and in an amount, comparable to the Interest Period and the amount of the LIBO Rate Loan requested
(whether as an initial LIBO Rate Loan or as a continuation of a LIBO Rate Loan or as a conversion of a Base Rate Loan to a LIBO
Rate Loan) by Borrowers in accordance with this Agreement (and, if any such rate is below zero, the LIBO Rate shall be deemed to
be zero), which determination shall be made by Agent and shall be conclusive in the absence of manifest error. If such rate is
not available at such time for any reason, then the “LIBO Rate” for such Interest Period shall be the rate per annum
determined by the Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same
day funds in the approximate amount of the LIBO Rate Loan being made, continued or converted by Wells Fargo and with a term equivalent
to



    	-31-



    	



    

such Interest Period
would be offered to Wells Fargo by major banks in the London interbank eurodollar market in which Wells Fargo participates at their
request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period. Notwithstanding
anything to the contrary, under no circumstances shall the LIBO Rate be less than zero.


 


“LIBO Rate Loan”
means a Committed Loan that bears interest at a rate based on the Adjusted LIBO Rate.


 


“LIBO Rate Loan
Notice” means a notice for a LIBO Borrowing or continuation pursuant to Section 2.02(b), which shall be substantially
in the form of Exhibit A.


 


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


 


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


 


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


 


“Loan Account”
has the meaning assigned to such term in Section 2.11(a).


 


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


 


“Loan Documents”
means this Agreement, each Note, each Issuer Document, the Fee Letter, all Borrowing Base Certificates, the Blocked Account Agreements,
the Confirmation Agreement, the Security Documents, the Facility Guaranty, each Request for Credit Extension, and any other instrument
or agreement now or hereafter executed and delivered in connection herewith, provided by the Agent or any of its Affiliates, each
as amended and in effect from time to time.


 


“Loan Parties”
means, collectively, the Borrowers and the Guarantors.



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“London Business
Day” means a day on which commercial banks are open for general business (including dealings in foreign exchange and foreign
currency deposits) in London, England.


 


“Material Adverse
Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties,
assets or financial condition of the Lead Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the ability
of the Loan Parties, taken as a whole, to perform their obligations under the Loan Documents; or (c) a material impairment of the
rights and remedies of the Agent or any Lender under any Loan Document or a material adverse effect upon the legality, validity,
binding effect or enforceability against the Loan Parties, taken as a whole, of the Loan Documents. In
determining whether any individual event would result in a Material Adverse Effect, notwithstanding that such event in and of itself
does not have such effect, a Material Adverse Effect shall be deemed to have occurred if the cumulative effect of such event and
all other then existing events would result in a Material Adverse Effect.


 


“Material Contract”
means, with respect to any Person, each contract to which such Person is a party involving aggregate annual consideration payable
to or by such Person of $5,000,000 or more and that is material to the business, condition (financial or otherwise), operations,
performance, properties or prospects of such Person.


 


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


 


“Maturity Date”
means January 17, 2021.


 


“Maximum Rate”
has the meaning provided therefor in Section 10.09.


 


“Measurement Period”
means, at any date of determination, the most recently completed four Fiscal Quarters of the Lead Borrower.


 


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


 


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


 


“Net Proceeds”
means (a) with respect to any Disposition by any Loan Party or any of its Subsidiaries, or any Extraordinary Receipt received or
paid to the account of any Loan Party or any of its Subsidiaries, the excess, if any, of (i) the sum of cash and cash equivalents
received in connection with such transaction (including any cash or cash equivalents received by way of deferred payment pursuant
to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal
amount of, premium or penalty, if



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any, interest and other
amounts on any Indebtedness that is secured by the applicable asset by a Lien permitted hereunder which is senior to the Agent’s
Lien on such asset and that is required to be repaid (or to establish an escrow for the future repayment thereof) in connection
with such transaction (other than Indebtedness under the Loan Documents), (B) the reasonable and customary out-of-pocket expenses
incurred by such Loan Party or such Subsidiary in connection with such transaction (including, without limitation, appraisals,
and brokerage, legal, title and recording or transfer tax expenses and commissions) paid by any Loan Party to third parties (other
than Affiliates)) and (C) amounts provided as a reserve against any liabilities under any indemnification or purchase price adjustments
associated with such Disposition (provided that to the extent and at the time any such amounts are released from such reserve,
such amounts shall constitute Net Proceeds); and


 


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


 


“Non-Consenting
Lender” has the meaning provided therefor in Section 10.01.


 


“Non-Defaulting
Lender” means each Lender other than a Defaulting Lender.


 


“Note” means
a promissory note made by the Borrowers in favor of a Lender evidencing Committed Loans made by such Lender, substantially in the
form of Exhibit C.


 


“Obligations”
means (a) all advances to, and debts (including principal, interest, fees, costs, and expenses), liabilities, obligations, covenants,
indemnities, and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit
(including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral therefor),
whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing
or hereafter arising and including interest, fees, costs, expenses and indemnities that accrue after the commencement by or against
any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest, fees, costs, expenses and indemnities are allowed claims in such proceeding, and
(b) any Other Liabilities; provided that the Obligations shall not include any Excluded Swap Obligations.


 


“OFAC” means
the Office of Foreign Assets Control (OFAC) of the U.S. Department of Treasury.


 


“Organization
Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent
or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company,
the certificate or articles of formation or organization and operating agreement; (c) with respect to any partnership, joint venture,
trust or other form of business entity, the partnership, joint venture



    	-34-



    	



    

or other applicable agreement
of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its
formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and,
if applicable, any certificate or articles of formation or organization of such entity, and (d) in each case, all shareholder or
other equity holder agreements, voting trusts and similar arrangements to which such Person is a party or which is applicable to
its Equity Interests and all other arrangements relating to the Control or management of such Person.


 


“Other Liabilities”
means any obligation on account of (i) any Cash Management Services furnished to any of the Loan Parties or any of their Subsidiaries
and/or (ii) any transaction with the Agent or any of its Affiliates, which arises out of any Bank Product entered into with any
Loan Party and any such Person, as each may be amended from time to time.


 


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


 


“Other Taxes”
means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes arising from any payment
made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to,
this Agreement or any other 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 10.13).


 


“Outstanding Amount”
means (i) with respect to Committed Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof
after giving effect to any borrowings and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be,
occurring on such date; and (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date
after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date.


 


“Overadvance”
means a Credit Extension to the extent that, immediately after its having been made, Availability is less than zero.


 


“Participant”
has the meaning specified in Section 10.06(d).


 


“Participant Register”
has the meaning specified in Section 10.06(d).


 


“Patriot Act”
means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).



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“Payment Conditions”
means, at the time of determination with respect to any specified transaction, that (a) no Default or Event of Default then exists
or would arise as a result of entering into such transaction, (b) before and after giving effect to such transaction, Excess Availability
is greater than greater of forty percent (40%) of the Loan Cap or $20,000,000, and (c) at least fifteen
(15) Business Days prior to undertaking any transaction which is subject to the Payment Conditions, the Loan Parties shall have
delivered to the Agent (i) pro forma projections for the twelve (12) Fiscal Months immediately following the proposed transaction,
which projections give effect to such transaction, and (ii) evidence of satisfaction of the conditions
contained in clause (b) above on a basis (including, without limitation, giving due consideration to results for prior periods)
reasonably satisfactory to the Agent. The Payment Condition described in clause (b)(i) above shall not be deemed satisfied unless
the Agent shall have determined in its reasonable discretion that the Borrowers shall maintain sufficient Excess Availability
to maintain normal business operations for the period of the projections described therein.


 


“PBGC” means
the Pension Benefit Guaranty Corporation.


 


“PCAOB”
means the Public Company Accounting Oversight Board.


 


“Pension Plan”
means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer
Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Lead Borrower or any ERISA Affiliate or to which
the Lead Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer
or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan
years.


 


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


 


(a) No Default
or Event of Default then exists or would arise from the consummation of such Acquisition;


 


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


 


(c) The
Lead Borrower shall have furnished the Agent with at least fifteen (15) Business Days’ prior written notice of such intended
Acquisition and, in the event the total consideration paid or payable by any Loan Party in connection with such Acquisition (whether
in cash, tangible property, notes or other property) is equal to or greater than $2,500,000, shall have furnished the Agent with
(i) a current draft of the acquisition documents (and final copies thereof as and when executed), (ii) financial statements of
the Person which is the subject of such Acquisition, (iii) pro forma projected financial statements for the twelve (12) month period
following such Acquisition after giving effect to such Acquisition (including balance sheets, cash flows



    	-36-



    	



    

and income statements
by month for the acquired Person, individually, and on a Consolidated basis with all Loan Parties), and (iv) such other information
as the Agent may reasonably require, all of which shall be reasonably satisfactory to the Agent;


 


(d) If the
Acquisition is of Equity Interests in a Person and proceeds of Loans will be used to pay all or part of the consideration therefor,
the legal structure of the Acquisition shall be acceptable to the Agent in its reasonable discretion;


 


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


 


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


 


(g) If the
Person which is the subject of such Acquisition will be maintained as a Subsidiary of a Loan Party, or if the assets acquired in
an acquisition will be transferred to a Subsidiary which is not then a Loan Party, such Subsidiary shall have been joined as a
“Borrower” hereunder or as a Facility Guarantor, as the Agent shall determine after consultation with the Lead Borrower,
and the Agent shall have received a first priority security and/or mortgage interest in such Subsidiary’s Equity Interests,
Inventory, Accounts and other property of the same nature as constitutes Collateral under the Security Documents;


 


(h) (i)
The total consideration paid or payable in connection with all such Acquisitions (whether in cash, tangible property, notes or
other property) plus (i) the total consideration paid or payable in connection with all Permitted Minority Investments (whether
in cash, tangible property, notes or other property) after the Second Restatement Date shall not exceed in the aggregate the sum
of $12,500,000; and


 


(i) If the
total consideration paid or payable in connection with any such Acquisition or series of related Acquisitions (whether in cash,
tangible property, notes or other property) exceeds in the aggregate the sum of $2,500,000, the Loan Parties shall have delivered
to the Agent a certificate of a Responsible Officer of the Lead Borrower stating that the Payment Conditions have been satisfied,
together with supporting documentation demonstrating satisfaction of the Payment Conditions, which supporting documentation shall
be reasonably satisfactory to the Agent.


 


“Permitted Discretion”
means a determination made in good faith and in the exercise of reasonable business judgment from the perspective of an asset-based
lender.


 


“Permitted Disposition”
means any of the following:



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(a) (i)
Dispositions of inventory in the ordinary course of business, or (ii) returns of RTV Inventory in the ordinary course of business;


 


(b) bulk
sales of other Dispositions of the Inventory of a Loan Party not in the ordinary course of business in connection with Store closings,
at arm’s length; provided, such Store closures and related Inventory Dispositions shall not exceed (i) in any Fiscal
Year of the Lead Borrower and its Subsidiaries, thirty-five (35) Stores (net of new Store openings) and (ii) in the aggregate from
and after the Second Restatement Date, one hundred (100) Stores (net of new Store openings); provided, however, that
Store closures and related Inventory Dispositions that exceed the foregoing limits shall (A) require the consent of the Agent and
the Required Lenders (which consent shall not be unreasonably withheld or delayed), and (B) be in accordance with liquidation agreements
or formal consulting arrangements with professional liquidators or liquidation consultants, in each case reasonably acceptable
to the Agent;


 


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


 


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


 


(e) sales,
transfers and dispositions of leases, subleases, licenses or sublicenses on property in the ordinary course of business; provided
(x) no Default or Event of Default then exists or would arise therefrom, and (y) such sale, transfer or disposition could not reasonably
be expected to have a Material Adverse Effect;


 


(f) Dispositions
of Equipment in the ordinary course of business that is substantially worn, damaged, obsolete or, in the judgment of a Loan Party,
no longer useful or necessary in its business or that of any Subsidiary and is not replaced with similar property having at least
equivalent value;


 


(g) sale
or issuances by the Lead Borrower of any of its Equity Interests that does not result in a Change in Control;


 


(h) sales,
transfers and Dispositions among the Loan Parties or by any Subsidiary to a Loan Party;


 


(i) sales,
transfers and Dispositions by any Subsidiary which is not a Loan Party to another Subsidiary that is not a Loan Party;


 


(j) the
sale of certain Real Estate owned by Record Town Inc. and located at 3801 Hampton Street, St. Louis, Missouri 63109; provided
that (A) such sale is made for fair market value, and (B) the proceeds of such sale are utilized to repay the Obligations; and



    	-38-



    	



    

(k) other
sales, transfers or dispositions of assets (other than assets of the type included in the Borrowing Base) not in the ordinary course
of business; provided (x) no Default or Event of Default then exists or would arise therefrom, and (y) the aggregate amount
of such sales, transfers, or dispositions shall not exceed $5,000,000 during the term of this Agreement;


 


provided
all sales, transfers, leases and other dispositions permitted hereby shall be made at arm’s length and for fair value and
solely for cash consideration; and provided further that the Agent may, and upon the direction of the Required Lenders
shall, terminate the authority granted hereunder in whole or in part upon the occurrence and during the continuance of any Default
or Event of Default.


 


“Permitted Dividends”
means (a) dividends with respect to a Loan Party’s Capital Stock payable solely in additional shares of or warrants to purchase
its common stock, (b) splits or reclassifications of the Lead Borrower’s stock into additional or other shares of its common
stock, (c) cash dividends of any Subsidiary (including any Loan Party) to any Borrower, and (d) so long as the Dividend Conditions
have been satisfied, (i) cash dividends by the Lead Borrower to its shareholders and (ii) other dividends or distributions to shareholders
(whether cash, securities or other property) by the Lead Borrower to its Shareholders for the purposes of repurchasing, redeeming,
retiring, acquiring, cancelling or terminating any Equity Interests of any Loan Party.


 


“Permitted Encumbrances”
means:


 


(a) Liens
imposed by law for Taxes that are not yet due or are being contested in compliance with Section 6.04;


 


(b) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by applicable Law,
arising in the ordinary course of business and securing obligations that are not overdue by more than thirty (30) days or are being
contested in compliance with Section 6.04;


 


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


 


(d) deposits
to secure the performance of bids, trade contracts and leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of business;


 


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


 


(f) easements,
covenants, conditions, restrictions, building code laws, zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or materially interfere with the ordinary conduct of business of a Loan Party and
such



    	-39-



    	



    

other minor
title defects or survey matters that are disclosed by current surveys that, in each case, do not materially interfere with the
current use of the real property;


 


(g) Liens
existing on the Second Restatement Date and listed on Schedule 7.01 and any Permitted Refinancings thereof;


 


(h) Liens
on fixed or capital assets acquired by any Loan Party which are permitted under clause (c) of the definition of Permitted Indebtedness
so long as (i) such Liens and the Indebtedness secured thereby are incurred prior to or within ninety (90) days after such acquisition,
(ii) the Indebtedness secured thereby does not exceed the cost of acquisition of such fixed or capital assets and (iii) such Liens
shall not extend to any other property or assets of the Loan Parties;


 


(i) Liens
in favor of the Agent securing the Obligations;


 


(j) landlords’
and lessors’ Liens in respect of rent that is not overdue by more than thirty (30) days or which are being contested in compliance
with Section 6.04; provided the aggregate outstanding amount of the obligations secured by such Liens shall not exceed
$750,000 at any time;


 


(k) possessory
Liens in favor of brokers and dealers arising in connection with the acquisition or disposition of Investments owned as of the
Second Restatement Date and Permitted Investments; provided that such liens (a) attach only to such Investments and (b)
secure only obligations incurred in the ordinary course and arising in connection with the acquisition or disposition of such Investments
and not any obligation in connection with margin financing;


 


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


 


(m) (i)
leases, licenses, subleases or sublicenses granted to any other Person in the ordinary course of business which do not interfere
in any material respect with the business of the Loan Parties, or (ii) the rights reserved or vested in any Person by the terms
of any lease, license, franchise, grant or permit held by any Loan Party or its Subsidiaries or by a statutory provision, to terminate
any such lease, license, franchise, grant or permit, or require annual or periodic payments as a condition to the continuance thereof;


 


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


 


(o) voluntary
Liens on property (other than property of the type included in the Borrowing Base) in existence at the time such property is acquired
pursuant to a Permitted Acquisition or on such property of a Subsidiary of a Loan Party in existence at the time such Subsidiary
is acquired pursuant to a Permitted Acquisition; provided,



    	-40-



    	



    

that such Liens
are not incurred in connection with or in anticipation of such Permitted Acquisition and do not attach to any other assets of any
Loan Party or any Subsidiary;


 


(p) Liens
in favor of customs and revenues authorities imposed by applicable Law arising in the ordinary course of business in connection
with the importation of goods solely to the extent the following conditions are satisfied: (A) such Liens secure obligations that
are being contested in good faith by appropriate proceedings, (B) the applicable Loan Party or Subsidiary has set aside on its
books adequate reserves with respect thereto in accordance with GAAP and (C) such contest effectively suspends collection of the
contested obligation and enforcement of any Lien securing such obligation;


 


(q) Liens
consisting of (i) the escrow of not more than $14,600,000 (excluding interest) in a DDA with Wells Fargo, as Escrow Agent under
the Etailz Acquisition Agreement, which amounts constitute security for the Lead Borrower’s obligations in respect of the
Earnout Consideration (as defined in the Etailz Acquisition Agreement), and (ii) the escrow of not more than $1,500,000 (excluding
interest) in a DDA with Wells Fargo, as Escrow Agent under the Etailz Acquisition Agreement, which amounts constitute security
for the Lead Borrower’s contingent indemnification obligations under and as provided for in the Etailz Acquisition Agreement;
and


 


(r) other
Liens not securing Indebtedness that do not in the aggregate for all Loan Parties exceed $2,500,000 at any time outstanding.


 


“Permitted Indebtedness”
means each of the following:


 


(a) Indebtedness
outstanding on the Second Restatement Date and listed on Schedule 7.03 and any Permitted Refinancing thereof;


 


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


 


(c)
purchase money Indebtedness of any Loan Party to finance the acquisition of any personal property consisting solely of fixed
or capital assets, including Capital Lease Obligations, and any Indebtedness assumed in connection with the acquisition of
any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof, provided, however,
that the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed $15,000,000 at any time
outstanding and further provided that, if requested by the Agent, the Loan Parties shall use commercially
reasonable efforts to cause the holders of such Indebtedness to enter into a Collateral Access Agreement on terms reasonably
satisfactory to the Agent;


 


(d) obligations
(contingent or otherwise) of any Loan Party or any Subsidiary thereof existing or arising under any Swap Contract, provided
that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly
mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation
or taking a “market view”;



    	-41-



    	



    

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


 


(f) Indebtedness
incurred for the construction or acquisition or improvement of, or to finance or to refinance, any Real Estate owned by any Loan
Party (including therein any Indebtedness incurred in connection with sale-leaseback transactions permitted hereunder and any Synthetic
Lease Obligations), provided that in the case of any sale-leaseback with respect to any such location that is a distribution
center, located in a Landlord Lien State, or at which books and records of the Loan Parties are stored, if requested by the Agent,
the Loan Parties shall use commercially reasonable efforts to cause the holders of such Indebtedness and the lessors under any
sale-leaseback transaction to enter into a Collateral Access Agreement on terms reasonably satisfactory to the Agent;


 


(g) Indebtedness
consisting of (i) the Lead Borrower’s obligations in respect of the Earnout Consideration (as defined in the Etailz Acquisition
Agreement), and (ii) the Lead Borrower’s contingent indemnification obligations pursuant to and as set forth in the Etailz
Acquisition Agreement;


 


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


 


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


 


(j) the
Obligations;


 


(k) Indebtedness
not otherwise specifically described herein in an aggregate principal amount not to exceed $12,500,000 at any time outstanding;
and


 


(l) Guarantees
of Indebtedness permitted in this definition.


 


“Permitted Investments”
means each of the following as long as no Default or Event of Default exists or would arise from the making of such Investment:


 


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



    	-42-



    	



    

(b) commercial
paper (i) issued by a Person (other than a Loan Party or an Affiliate of a Loan Party) organized under the laws of any state of
the United States or the District of Columbia maturing within 90 days from the date of acquisition thereof and having, at such
date of acquisition, a rating obtainable from a nationally recognized rating organization of at least A-1 or P-1 or the equivalent
thereof, or (ii) issued by a Lender maturing within 270 days from the date of acquisition thereof;


 


(c) time
deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) (A) is a Lender
or (B) is organized under the laws of the United States of America, any state thereof or the District of Columbia or is the principal
banking subsidiary of a bank holding company organized under the laws of the United States of America, any state thereof or the
District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper
rated as described in clause (c) of this definition and (iii) has combined capital and surplus of at least $500,000,000, in each
case with maturities of not more than 180 days from the date of acquisition thereof;


 


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


 


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


 


(f) Investments
existing on the Second Restatement Date, and set forth on Schedule 7.02, but not any increase in the amount thereof or any
other modification of the terms thereof;


 


(g) (i) Investments
by any Loan Party and its Subsidiaries in their respective Subsidiaries outstanding on the Second Restatement Date, (ii) additional
Investments by any Loan Party and its Subsidiaries in Loan Parties (other than the Lead Borrower), (iii) Loans or advances made
by a Loan Party to another Loan Party pursuant to the Existing Intercompany Agreements, and (iv) Permitted Minority Investments;


 


(h) Investments
consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and Investments received in satisfaction or partial satisfaction



    	-43-



    	



    

thereof from
financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;


 


(i) Guarantees
constituting Permitted Indebtedness;


 


(j) Investments
by any Loan Party in Swap Contracts entered into in the ordinary course of business and for bona fide business (and not speculative
purposes) to protect against fluctuations in interest rates in respect of the Obligations;


 


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


 


(l) advances
to officers, directors and employees of the Loan Parties and Subsidiaries in the ordinary course of business in an amount not to
exceed $250,000 to any individual at any time or in an aggregate amount not to exceed $1,000,000 at any time outstanding; and


 


(m) Investments
constituting Permitted Acquisitions;


 


provided, however,
that notwithstanding the foregoing, no new Investments of the type specified in clauses (a) through (e) shall be permitted unless
(i) either (A) no Loans, or, if then required to be Cash Collateralized, Letters of Credit are then outstanding, or (B) the Investment
is a temporary Investment pending expiration of an Interest Period for a LIBO Rate Loan, the proceeds of which Investment will
be applied to the Obligations after the expiration of such Interest Period, and (ii) to the extent not already subject to the perfected
security interest of the Agent under the Security Documents, such Investments shall be pledged to the Agent as additional collateral
for the Obligations pursuant to such agreements as may be reasonably required by the Agent.


 


“Permitted Minority
Investment” means an Investment in a Person which is not a Subsidiary and as to which each of the following conditions is
satisfied:


 


(a) No Default
or Event of Default then exists or would arise as a result of the making of such Investment;


 


(b) The
Lead Borrower shall have furnished the Agent with at least fifteen (15) Business Days prior written notice of such intended Investment
and, in the event the total consideration paid or payable by any Loan Party in connection with such Investment (whether in cash,
tangible property, notes or other property) is equal to or greater than $2,500,000, the Lead Borrower shall have furnished the
Agent with (i) a current draft of the joint venture or partnership agreement and other applicable documents, and (ii) such other
information as the Agent may reasonably request, each of which shall be reasonably satisfactory to the Agent;


 


(c) The
Investment shall be in a Person engaged in a business otherwise permitted to be engaged in by a Borrower pursuant to Section
7.08;



    	-44-



    	



    

(d) (i)
The total consideration paid or payable in connection with all such Investments (whether in cash, tangible property, notes or other
property) plus (ii) the total consideration paid or payable in connection with all Permitted Acquisitions (whether in cash,
tangible property, notes or other property) after the Second Restatement Date shall not exceed in the aggregate the sum of $12,500,000;
and


 


(e) If the
total consideration paid or payable in connection with any such Investment or series of related Investments (whether in cash, tangible
property, notes or other property) exceeds in the aggregate the sum of $2,500,000, the Loan Parties shall have delivered to the
Agent a certificate of a Responsible Officer of the Lead Borrower stating that the Payment Conditions have been satisfied, together
with supporting documentation demonstrating satisfaction of the Payment Conditions, which supporting documentation shall be reasonably
satisfactory to the Agent.


 


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


 


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


 


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


 


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


 


(d) Together
with all other Permitted Overadvances then outstanding, shall not (i) exceed ten percent (10%) of the Borrowing Base at any time
or (ii) unless a Liquidation is occurring, remain outstanding for more than ninety (90) consecutive days, unless in each case,
the Required Lenders otherwise agree;


 


provided, however,
that the foregoing shall not (i) modify or abrogate any of the provisions of Section 2.03 regarding the Lenders’ obligations
with respect to Letters of Credit or Section 2.04 regarding the Lenders’ obligations with respect to Swing Line Loans,
or (ii) result in any claim or liability against the Agent (regardless of the amount of any Overadvance) for Unintentional Overadvances
and such Unintentional Overadvances shall not reduce the amount of Permitted Overadvances allowed hereunder; and provided
that in no event shall the Agent make an Overadvance, if after giving effect thereto, the principal amount of the Credit Extensions
would exceed the Aggregate Commitments (as in effect prior to any termination of the Commitments pursuant to Section 2.06
or Section 8.02).


 


“Permitted Refinancing”
means, with respect to any Person, any modification, refinancing, refunding, renewal, replacement or
extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable)
thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded,
renewed, replaced or extended except by an amount equal to unpaid accrued interest and premium (including any customary tender
premiums) thereon plus other



    	-45-



    	



    

amounts paid, and fees
and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal, replacement or extension
and by an amount equal to any existing commitments unutilized thereunder, (b) such modification, refinancing, refunding, renewal,
replacement or extension has a final maturity date equal to or later than the final maturity date of, and has a weighted average
life to maturity equal to or greater than the weighted average life to maturity of, the Indebtedness being modified, refinanced,
refunded, renewed, replaced or extended, (c) at the time thereof, no Event of Default shall have occurred and be continuing, (d)
to the extent such Indebtedness being modified, refinanced, refunded, renewed, replaced or extended is subordinated in right of
payment to the Obligations, such modification, refinancing, refunding, renewal, replacement or extension is subordinated in right
of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the
Indebtedness being modified, refinanced, refunded, renewed, replaced or extended; provided that a certificate of a Responsible
Officer delivered to the Agent stating that the Lead Borrower has determined in good faith that such terms and conditions satisfy
the foregoing requirement shall be conclusive evidence absent manifest error that such terms and conditions satisfy the foregoing
requirement and (e) such modification, refinancing, refunding, renewal, replacement or extension is incurred by the Person who
is the obligor or guarantor of, and shall not have greater guarantees or security than, the Indebtedness being modified, refinanced,
refunded, renewed, replaced or extended.


 


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


 


“Plan” means
any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by any Loan Party or, with
respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate, other than a Multiemployer
Plan.


 


“Platform”
has the meaning specified in Section 6.02.


 


“Portal”
has the meaning specified in Section 2.02(b).


 


“Prepayment Event”
means:


 


(a) any
Disposition (including pursuant to a sale and leaseback transaction) of any property or asset of a Loan Party;


 


(b) any
casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of (and
payments in lieu thereof), any property or asset of a Loan Party;


 


(c) the
issuance by a Loan Party of any Equity Interests, other than any such issuance of Equity Interests (i) to a Loan Party, (ii) as
consideration for a Permitted Acquisition or (iii) as a compensatory issuance to any employee, director, or consultant (including
under any option plan);


 


(d) the
incurrence by a Loan Party of any Indebtedness for borrowed money; or



    	-46-



    	



    

(e) the
receipt by any Loan Party of any Extraordinary Receipts.


 


“Print Services”
means any print business provided to any Loan Party by the Agent or any of its Affiliates, including, but not limited to (a) mailing/postage
services; (b) copying services; (c) digital services, and (d) printing services.


 


“Public Lender”
has the meaning specified in Section 6.02.


 


“Qualified ECP
Guarantor” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time
the relevant Guarantee or grant of the relevant security interest becomes 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.


 


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


 


“Receivables Advance
Rate” means such advance rate as is determined in Agent’s Permitted Discretion in accordance with the last sentence
of the definition of “Eligible Trade Receivables.”


 


“Receivables Reserves”
means such Reserves as may be established from time to time by the Agent in the Agent’s Permitted Discretion with respect
to the determination of the collectability in the ordinary course of Eligible Trade Receivables, including, without limitation,
on account of dilution.


 


“Register”
has the meaning specified in Section 10.06(c).


 


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


 


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


 


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


 


“Reports”
has the meaning provided in Section 9.12(b).


 


“Request for Credit
Extension” means (a) with respect to a Committed Borrowing, conversion or continuation of Committed Loans, an electronic
notice via the Portal or LIBO Rate Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application and,
if



    	-47-



    	



    

required by the L/C Issuer,
a Standby Letter of Credit Agreement or Commercial Letter of Credit Agreement, as applicable, and (c) with respect to a Swing Line
Loan, a Swing Line Loan Notice.


 


“Required Lenders”
means, as of any date of determination, (a) if as of such date, there are two or fewer Lenders (that are not Defaulting Lenders),
all of such Lenders, and (b) if as of such date, there are three or more Lenders (that are not Defaulting Lenders), such Lenders
holding more than 50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the obligation of the
L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, such Lenders holding in the aggregate
more than 50% of the Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation
in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition); provided
that the Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded
for purposes of making a determination of Required Lenders.


 


“Reserves”
means all Inventory Reserves, Availability Reserves and Receivables Reserves.


 


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


 


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


 


“Reuters Screen
LIBOR01 Page” means the display page LIBOR01 on the Reuters service or any successor display page, other published source,
information vendor or provider that has been designated by the sponsor of Reuters Screen LIBOR01 page.


 


“RTV Inventory”
means Inventory that is being held for return to the respective vendors thereof within the applicable time periods and in all other
respects in conformity with the return privileges granted by the respective vendors thereof.


 


“S&P”
means S&P Global Ratings, a division of S&P Global, and any successor thereto.



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


 


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


 


“Sanctions”
means individually and collectively, respectively, any and all economic, trade, financial or other sanctions laws, regulations
or embargoes imposed, administered or enforced from time to time by: (a) the United States of America, including, without limitation,
those administered by OFAC or the U.S. Department of State, (b) the United Nations Security Council, (c) the European Union or
any European Union member state, (d) Her Majesty’s Treasury of the United Kingdom, or (d) any other governmental authority
in any jurisdiction in which any Loan Party or any of its Subsidiaries is located or doing business.


 


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


 


“Seasonal Period”
means the period commencing October 1 and ending December 31 of each year.


 


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


 


“Second Restatement
Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with
Section 10.01.


 


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


 


“Secured Party
Expenses” means, without limitation, (a) all reasonable and documented out-of-pocket expenses incurred by the Agent and its
Affiliates in connection with this Agreement and the other Loan Documents, including without limitation (i) the reasonable and
documented fees, charges and disbursements of (A) counsel for the Agent, (B) outside consultants for the Agent, (C) appraisers,
(D) commercial finance examinations, and (E) all such out-of-pocket expenses incurred during any workout, restructuring or negotiations
in respect of the Obligations, (ii) in connection with (A) the preparation, negotiation, administration, management, execution
and delivery of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions thereof
(whether or not the transactions



    	-49-



    	



    

contemplated hereby or
thereby shall be consummated), (B) the enforcement or protection of their rights in connection with this Agreement or the Loan
Documents or efforts to preserve, protect, collect, or enforce the Collateral, or (C) any workout, restructuring or negotiations
in respect of any Obligations, and (iii) all customary fees and charges (as adjusted from time to time) of the Agents with respect
to the disbursement of funds (or the receipt of funds) to or for the account of Borrowers (whether by wire transfer or otherwise),
together with any reasonable and documented out-of-pocket costs and expenses incurred in connection therewith, and (b) with respect
to the L/C Issuer, and its Affiliates, all reasonable and documented out-of-pocket expenses incurred in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder; and (c) all reasonable and documented
out-of-pocket expenses incurred by the Secured Parties who are not the Agent, the L/C Issuer or any Affiliate of any of them, after
the occurrence and during the continuance of an Event of Default, provided that such Secured Parties shall be entitled to
reimbursement for no more than one counsel representing all such Secured Parties (absent a conflict of interest in which case the
Secured Parties may engage and be reimbursed for one firm of additional counsel).


 


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


 


“Security Agreement”
means the Second Amended and Restated Security Agreement dated as of the Second Restatement Date among the Loan Parties and the
Agent, as the same now exists or may hereafter be amended, modified, supplemented, renewed, restated or replaced.


 


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


 


“Settlement Date”
has the meaning provided in Section 2.14(a).


 


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


 


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


 


“Shrink Reserve”
means an amount reasonably estimated by the Agent to be equal to that amount which is required in order that the Shrink reflected
in Borrowers’ stock ledger would be reasonably equivalent to the Shrink calculated as part of the Borrowers’ most recent
physical inventory.


 


“Solvent”
and “Solvency” means, with respect to any Person as of any date of determination, that (a) at fair valuations, including
“fair value” and “fair saleable value”, as applicable within the meanings given those terms under applicable
laws, the sum of such Person’s debts (including subordinated, and other contingent liabilities) is less than all of such



    	-50-



    	



    

Person’s assets,
(b) such Person is not engaged or about to engage in a business or transaction for which the remaining assets of such Person are
unreasonably small in relation to the business or transaction or for which the property remaining with such Person is an unreasonably
small capital, and (c) such Person has not incurred and does not intend to incur, or reasonably believe that it will incur, debts
beyond its ability to pay such debts as they become due (whether at maturity or otherwise), and (d) such Person is “solvent”
or not “insolvent,” as applicable within the meaning given those terms and similar terms under applicable laws relating
to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall
be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the
criteria for accrual under Statement of Financial Accounting Standard No. 5).


 


“Standard Letter
of Credit Practice” means, for the L/C Issuer, any domestic or foreign Law or letter of credit practices applicable in the
city in which the L/C Issuer issued the applicable Letter of Credit or, for its branch or correspondent, such Laws and practices
applicable in the city in which it has advised, confirmed or negotiated such Letter of Credit, as the case may be, in each case,
(a) which letter of credit practices are of banks that regularly issue letters of credit in the particular city, and (b) which
laws or letter of credit practices are required or permitted under ISP or UCP, as chosen in the applicable Letter of Credit.


 


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


 


“Standby Letter
of Credit Agreement” means the Standby Letter of Credit Agreement relating to the issuance of a Standby Letter of Credit
in the form from time to time in use by the L/C Issuer.


 


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


 


“Statutory Reserve
Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is
the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the FRB to which the Agent is subject with respect to the Adjusted LIBO Rate, for
eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D. LIBO Rate Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may
be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall
be adjusted automatically on and as of the effective date of any change in any reserve percentage.



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“Store”
means any retail store (which may include any real property, fixtures, equipment, inventory and other property related thereto)
operated, or to be operated, by any Loan Party.


 


“Subordinated
Indebtedness” means Indebtedness which is expressly subordinated in right of payment to the prior payment in full of the
Obligations pursuant to subordination terms and provisions approved in writing by the Agent.


 


“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority
of the Equity Interests having ordinary voting power for the election of directors or other governing body are at the time beneficially
owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries”
shall refer to a Subsidiary or Subsidiaries of a Loan Party.


 


“Swap Contract”
means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate
swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any
master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any
related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.


 


“Swap 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.


 


“Swap Termination
Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out
and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date
referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based
upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which
may include a Lender or any Affiliate of a Lender).


 


“Swing Line Borrowing”
means a borrowing of a Swing Line Loan pursuant to Section 2.04.



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


 


“Swing Line Loan”
has the meaning specified in Section 2.04(a).


 


“Swing Line Loan
Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which, if in writing, shall be substantially
in the form of Exhibit B.


 


“Swing Line Sublimit”
means an amount equal to the lesser of (a) $7,500,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part of, and
not in addition to, the Aggregate Commitments.


 


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


 


“Taxes”
means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed
by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.


 


“Termination Date”
means the earliest to occur of (i) the Maturity Date, (ii) the date on which the maturity of the Obligations is accelerated (or
deemed accelerated) and the Commitments are irrevocably terminated (or deemed terminated) in accordance with Article VIII,
or (iii) the termination of the Commitments in accordance with the provisions of Section 2.06(a).


 


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


 


“Trading with
the Enemy Act” has the meaning set forth in Section 10.18.


 


“Type” means,
with respect to a Committed Loan, its character as a Base Rate Loan or a LIBO Rate Loan.


 


“UCC” or
“Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the State of New York;
provided, however, that if a term is defined in Article 9 of the Uniform Commercial Code differently than in another Article thereof,
the term shall have the meaning set forth in Article 9; provided further that, if by reason of mandatory provisions of law, perfection,
or the effect of perfection or non-perfection, of a security interest in any Collateral or the availability of any remedy hereunder
is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “Uniform Commercial
Code” means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating
to such perfection or effect of perfection or non-perfection or availability of such remedy, as the case may be.



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“UCP” means,
with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits 2007 Revision, International Chamber
of Commerce Publication No. 600 and any subsequent revision thereof adopted by the International Chamber of Commerce on the date
such Letter of Credit is issued.


 


“UFCA” has
the meaning specified in Section 10.21(d).


 


“UFTA” has
the meaning specified in Section 10.21(d).


 


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


 


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


 


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


 


“U.S. Tax Compliance
Certificate ” has the meaning specified in Section 3.01(e).


 


“Wells Fargo”
means Wells Fargo Bank, National Association and its successors.


 


“Write-Down and
Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA
Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and
conversion powers are described in the EU Bail-In Legislation Schedule.


 


1.02 Other Interpretive
Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other
Loan Document:


 


(a) The
definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
The word “will” shall be construed to have the same meaning and effect as the word “shall.”
Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including
any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth
herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s
successors and assigns, (iii) the words “herein,” “hereof” and “hereunder,”
and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and
not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall
be construed to refer to Articles and Sections of,



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and Exhibits
and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and
regulatory provisions consolidating, amending replacing or interpreting such law and any reference to any law or regulation shall,
unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the
words “asset” and “property” shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.


 


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


 


(c) Section
headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation
of this Agreement or any other Loan Document.


 


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


 


1.03 Accounting
Terms.


 


(a) Generally.
All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared
in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that
used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein and without including
the effect of any changes to Lease accounting that requires the assets and liabilities arising under operating Leases to be recognized
in any statement of financial position.



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(b) Changes
in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in
any Loan Document, and either the Lead Borrower or the Required Lenders shall so request, the Agent, the Lenders and the Lead Borrower
shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change
in GAAP (subject to the approval of the Required Lenders); provided, until so amended, (i) such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such change therein and (ii) the Lead Borrower shall provide to the Agent
and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in
GAAP.


 


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


 


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


 


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


 


ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01 Committed Loans;
Reserves.


 


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


 


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


 


(ii) after
giving effect to any Committed Borrowing, the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such



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Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and


 


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


 


Within the limits of
each Lender’s Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section
2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Committed Loans may be Base Rate Loans
or LIBO Rate Loans, as further provided herein.


 


(b) The
Inventory Reserves and Availability Reserves as of the Second Restatement Date are set forth in the Borrowing Base Certificate
delivered pursuant to Section 4.01(c).


 


(c) The
Agent shall have the right, at any time and from time to time after the Second Restatement Date in its Permitted Discretion to
establish, modify or eliminate Reserves. The Agent shall not establish any Reserve which is duplicative of any other Reserve or
any eligibility criteria whether or not such Reserve falls under more than one Reserve category or eligibility criteria.


 


2.02 Borrowings,
Conversions and Continuations of Committed Loans.


 


(a) Committed
Loans (other than Swing Line Loans) shall be either Base Rate Loans or LIBO Rate Loans as the Lead Borrower may request subject
to and in accordance with this Section 2.02. All Swing Line Loans shall be only Base Rate Loans. Subject to the other provisions
of this Section 2.02, Committed Borrowings of more than one Type may be incurred at the same time.


 


(b) Each
request for a Committed Borrowing consisting of a Base Rate Loan shall be made by electronic request of the Lead Borrower through
Administrative Agent’s Commercial Electronic Office Portal or through such other electronic portal provided by Administrative
Agent (the “Portal”). The Borrowers hereby acknowledge and agree that any request made through the Portal shall be
deemed made by a Responsible Officer of the Borrowers. Each request for a Committed Borrowing consisting of a LIBO Rate Loan shall
be made pursuant to the Lead Borrower’s submission of a LIBO Rate Loan Notice, which must be received by the Agent not later
than 11:00 a.m. three (3) Business Days prior to the requested date of any Borrowing or continuation of LIBO Rate Loans. Each LIBO
Rate Loan Notice shall specify (i) the requested date of the Borrowing or continuation, as the case may be (which shall be a Business
Day), (ii) the principal amount of LIBO Rate Loans to be borrowed or continued (which shall be in a principal amount of $1,000,000
or a whole multiple of $500,000 in excess thereof), and (iii) the duration of the Interest Period with respect thereto. If the
Lead Borrower fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. On the
requested date of any LIBO Rate Loan, (i) in the event that Base Rate Loans are outstanding in an amount equal to or greater than
the requested LIBO Rate Loan, all or a portion of such Base Rate Loans shall be automatically converted to a LIBO Rate Loan in
the amount requested by the Lead Borrower, and (ii) if Base Rate Loans are not outstanding in an amount at



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least equal to the requested
LIBO Rate Loan, the Lead Borrower shall make an electronic request via the Portal for additional Base Rate Loans in an such amount,
when taken with the outstanding Base Rate Loans (which shall be converted automatically at such time), as is necessary to satisfy
the requested LIBO Rate Loan. If the Lead Borrower fails to make such additional request via the Portal as required pursuant to
clause (ii) of the foregoing sentence, then the Borrowers shall be responsible for all amounts due pursuant to Section 3.05
arising on account of such failure. If the Lead Borrower fails to give a timely notice with respect to any continuation of a LIBO
Rate Loan, then the applicable Committed Loans shall be converted to Base Rate Loans, effective as of the last day of the Interest
Period then in effect with respect to the applicable LIBO Rate Loans.


 


(c) The
Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Committed Loans, and if no
timely notice of a conversion or continuation is provided by the Lead Borrower, the Agent shall notify each Lender of the details
of any automatic conversion to Base Rate Loans described in Section 2.02(b). In the case of a Committed Borrowing, each
Lender shall make the amount of its Committed Loan available to the Agent in immediately available funds at the Agent’s
Office not later than 1:00 p.m. on the Business Day specified in the applicable notice. Upon satisfaction of the applicable conditions
set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the Agent shall
use reasonable efforts to make all funds so received available to the Borrowers in like funds by no later than 4:00 p.m. on the
day of receipt by the Agent either by (i) crediting the account of the Lead Borrower on the books of Wells Fargo with the amount
of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable
to) the Agent by the Lead Borrower.


 


(d) The
Agent, without the request of the Lead Borrower, may advance any interest, fee, service charge (including direct wire fees), Secured
Party Expenses, or other payment to which any Secured Party is entitled from the Loan Parties pursuant hereto or any other Loan
Document and may charge the same to the Loan Account notwithstanding that an Overadvance may result thereby. The Agent shall advise
the Lead Borrower of any such advance or charge promptly after the making thereof. Such action on the part of the Agent shall not
constitute a waiver of the Agent’s rights and the Borrowers’ obligations under Section 2.05(c). Any amount which
is added to the principal balance of the Loan Account as provided in this Section 2.02(d) shall bear interest at the interest
rate then and thereafter applicable to Base Rate Loans.


 


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


 


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



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(g) After
giving effect to all Committed Borrowings, all conversions of Committed Loans from one Type to the other, and all continuations
of Committed Loans as the same Type, there shall not be more than eight (8) Interest Periods in effect with respect to LIBO Rate
Loans.


 


(h) The
Agent, the Lenders, the Swing Line Lender and the L/C Issuer shall have no obligation to make any Loan or to provide any Letter
of Credit if an Overadvance would result. The Agent may, in its Permitted Discretion, make Permitted Overadvances without the consent
of the Borrowers, the Lenders, the Swing Line Lender and the L/C Issuer and the Borrowers and each Lender and L/C Issuer shall
be bound thereby. Any Permitted Overadvance may constitute a Swing Line Loan. A Permitted Overadvance is for the account of the
Borrowers and shall constitute a Base Rate Loan and an Obligation and shall be repaid by the Borrowers in accordance with the provisions
of Section 2.05(c). The making of any such Permitted Overadvance on any one occasion shall not obligate the Agent or any
Lender to make or permit any Permitted Overadvance on any other occasion or to permit such Permitted Overadvances to remain outstanding.
The making by the Agent of a Permitted Overadvance shall not modify or abrogate any of the provisions of Section 2.03 regarding
the Lenders’ obligations to purchase participations with respect to Letter of Credits or of Section 2.04 regarding
the Lenders’ obligations to purchase participations with respect to Swing Line Loans. The Agent shall have no liability for,
and no Loan Party or Secured Party shall have the right to, or shall, bring any claim of any kind whatsoever against the Agent
with respect to Unintentional Overadvances regardless of the amount of any such Overadvance(s).


 


2.03 Letters
of Credit.


 


(a) Subject
to the terms and conditions of this Agreement, upon the request of the Lead Borrower made in accordance herewith, and prior to
the Maturity Date, the L/C Issuer agrees to issue a requested Letter of Credit for the account of the Loan Parties. By submitting
a request to the L/C Issuer for the issuance of a Letter of Credit, the Borrowers shall be deemed to have requested that the L/C
Issuer issue the requested Letter of Credit. Each request for the issuance of a Letter of Credit, or the amendment, renewal, or
extension of any outstanding Letter of Credit, shall be irrevocable and shall be made in writing pursuant to a Letter of Credit
Application by a Responsible Officer and delivered to the L/C Issuer and the Agent via telefacsimile or other electronic method
of transmission reasonably acceptable to the L/C Issuer not later than 11:00 a.m. at least two Business Days (or such other date
and time as the Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the requested date
of issuance, amendment, renewal, or extension. Each such request shall be in form and substance reasonably satisfactory to the
L/C Issuer and (i) shall specify (A) the amount of such Letter of Credit, (B) the date of issuance, amendment, renewal, or extension
of such Letter of Credit, (C) the proposed expiration date of such Letter of Credit, (D) the name and address of the beneficiary
of the Letter of Credit, and (E) such other information (including, the conditions to drawing, and, in the case of an amendment,
renewal, or extension, identification of the Letter of Credit to be so amended, renewed, or extended) as shall be necessary to
prepare, amend, renew, or extend such Letter of Credit, and (ii) shall be accompanied by such Issuer Documents as the Agent or
the L/C Issuer may request or require, to the extent that such requests or requirements are consistent with the Issuer Documents
that the L/C Issuer generally requests



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for Letters of Credit
in similar circumstances. The Agent’s records of the content of any such request will be conclusive.


 


(b) The
L/C Issuer shall have no obligation to issue a Letter of Credit if, after giving effect to the requested issuance, (i) the Total
Outstandings would exceed the Loan Cap, (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans would exceed such Lender’s Commitment, or (iii) the Outstanding
Amount of the L/C Obligations would exceed the Letter of Credit Sublimit;


 


(c) In
the event there is a Defaulting Lender as of the date of any request for the issuance of a Letter of Credit, the L/C Issuer shall
not be required to issue or arrange for such Letter of Credit to the extent (i) the Defaulting Lender’s participation with
respect to such Letter of Credit may not be reallocated pursuant to Section 9.16(b), or (ii) the L/C Issuer has not otherwise
entered into arrangements reasonably satisfactory to it and the Borrowers to eliminate the L/C Issuer’s risk with respect
to the participation in such Letter of Credit of the Defaulting Lender, which arrangements may include the Borrowers cash collateralizing
such Defaulting Lender’s participation with respect to such Letter of Credit in accordance with Section 9.16(b). Additionally,
the L/C Issuer shall have no obligation to issue and/or extend a Letter of Credit if (A) any order, judgment, or decree of any
Governmental Authority or arbitrator shall, by its terms, purport to enjoin or restrain the L/C Issuer from issuing such Letter
of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of Law) from any
Governmental Authority with jurisdiction over the L/C Issuer shall prohibit or request that the L/C Issuer refrain from the issuance
of letters of credit generally or such Letter of Credit in particular, or (B) the issuance of such Letter of Credit would violate
one or more policies of the L/C Issuer applicable to letters of credit generally, or (C) if the expiry date of such requested Letter
of Credit would occur after the Letter of Credit Expiration Date, unless either such Letter of Credit is Cash Collateralized on
or prior to the date of issuance of such Letter of Credit (or such later date as to which the Agent may agree) or all the Lenders
have approved such expiry date.


 


(d) Any
L/C Issuer (other than Wells Fargo or any of its Affiliates) shall notify the Agent in writing no later than the Business Day immediately
following the Business Day on which such L/C Issuer issued any Letter of Credit; provided that (i) until the Agent advises
any such L/C Issuer that the provisions of Section 4.02 are not satisfied, or (ii) unless the aggregate amount of the Letters
of Credit issued in any such week exceeds such amount as shall be agreed by the Agent and such L/C Issuer, such L/C Issuer shall
be required to so notify the Agent in writing only once each week of the Letters of Credit issued by such L/C Issuer during the
immediately preceding week as well as the daily amounts outstanding for the prior week, such notice to be furnished on such day
of the week as the Agent and such L/C Issuer may agree. The Borrowers and the Secured Parties hereby acknowledge and agree that
all Existing Letters of Credit shall constitute Letters of Credit under this Agreement on and after the Second Restatement Date
with the same effect as if such Existing Letters of Credit were issued by L/C Issuer at the request of the Borrowers on the Second
Restatement Date. Each Letter of Credit shall be in form and substance reasonably acceptable to the L/C Issuer, including the requirement
that the amounts payable thereunder must be payable in Dollars. If the L/C Issuer makes a



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payment under a Letter
of Credit, the Borrowers shall pay to Agent an amount equal to the applicable Letter of Credit Disbursement on the Business Day
such Letter of Credit Disbursement is made and, in the absence of such payment, the amount of the Letter of Credit Disbursement
immediately and automatically shall be deemed to be a Committed Loan hereunder (notwithstanding any failure to satisfy any condition
precedent set forth in Section 4.02) and, initially, shall bear interest at the rate then applicable to Committed Loans
that are Base Rate Loans. If a Letter of Credit Disbursement is deemed to be a Committed Loan hereunder, the Borrowers’ obligation
to pay the amount of such Letter of Credit Disbursement to the L/C Issuer shall be automatically converted into an obligation to
pay the resulting Committed Loan. Promptly following receipt by the Agent of any payment from the Borrowers pursuant to this paragraph,
the Agent shall distribute such payment to the L/C Issuer or, to the extent that the Lenders have made payments pursuant to Section
2.03(e) to reimburse the L/C Issuer, then to such Lenders and the L/C Issuer as their interests may appear.


 


(e) Promptly
following receipt of a notice of a Letter of Credit Disbursement pursuant to Section 2.03(d), each Lender agrees to fund
its Applicable Percentage of any Committed Loan deemed made pursuant to Section 2.03(d) on the same terms and conditions
as if the Borrowers had requested the amount thereof as a Committed Loan and the Agent shall promptly pay to the L/C Issuer the
amounts so received by it from the Lenders. By the issuance of a Letter of Credit (or an amendment, renewal, or extension of a
Letter of Credit) and without any further action on the part of the L/C Issuer or the Lenders, the L/C Issuer shall be deemed to
have granted to each Lender, and each Lender shall be deemed to have purchased, a participation in each Letter of Credit issued
by the L/C Issuer, in an amount equal to its Applicable Percentage of such Letter of Credit, and each such Lender agrees to pay
to the Agent, for the account of the L/C Issuer, such Lender’s Applicable Percentage of any Letter of Credit Disbursement
made by the L/C Issuer under the applicable Letter of Credit. In consideration and in furtherance of the foregoing, each Lender
hereby absolutely and unconditionally agrees to pay to the Agent, for the account of the L/C Issuer, such Lender’s Applicable
Percentage of each Letter of Credit Disbursement made by the L/C Issuer and not reimbursed by Borrowers on the date due as provided
in Section 2.03(d), or of any reimbursement payment that is required to be refunded (or that the Agent or the L/C Issuer
elects, based upon the advice of counsel, to refund) to the Borrowers for any reason. Each Lender acknowledges and agrees that
its obligation to deliver to the Agent, for the account of the L/C Issuer, an amount equal to its respective Applicable Percentage
of each Letter of Credit Disbursement pursuant to this Section 2.03(e) shall be absolute and unconditional and such remittance
shall be made notwithstanding the occurrence or continuation of a Default or Event of Default or the failure to satisfy any condition
set forth in Section 4.02. If any such Lender fails to make available to the Agent the amount of such Lender’s Applicable
Percentage of a Letter of Credit Disbursement as provided in this Section, such Lender shall be deemed to be a Defaulting Lender
and the Agent (for the account of the L/C Issuer) shall be entitled to recover such amount on demand from such Lender together
with interest thereon at the Defaulting Lender Rate until paid in full.


 


(f) Each
Borrower agrees to indemnify, defend and hold harmless each Secured Party (including the L/C Issuer and its branches, Affiliates,
and correspondents) and each such Person’s respective directors, officers, employees, attorneys and agents (each, including
the L/C Issuer, a “Letter of Credit Related Person”) (to the fullest extent permitted by Law) from and against any
and all claims, demands, suits, actions, investigations, proceedings,



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liabilities, fines, costs,
penalties, and damages, and all reasonable fees and disbursements of attorneys, experts, or consultants and all other reasonable
and documented costs and expenses actually incurred in connection therewith or in connection with the enforcement of this indemnification
(as and when they are incurred and irrespective of whether suit is brought), which may be incurred by or awarded against any such
Letter of Credit Related Person (other than Taxes, which shall be governed by Section 3.01) (the “Letter of Credit
Indemnified Costs”), and which arise out of or in connection with, or as a result of:


 


(i) any
Letter of Credit or any pre-advice of its issuance;


 


(ii) any
transfer, sale, delivery, surrender or endorsement of any Drawing Document at any time(s) held by any such Letter of Credit Related
Person in connection with any Letter of Credit;


 


(iii) any
action or proceeding arising out of, or in connection with, any Letter of Credit (whether administrative, judicial or in connection
with arbitration), including any action or proceeding to compel or restrain any presentation or payment under any Letter of Credit,
or for the wrongful dishonor of, or honoring a presentation under, any Letter of Credit;


 


(iv) any
independent undertakings issued by the beneficiary of any Letter of Credit;


 


(v) any
unauthorized instruction or request made to the L/C Issuer in connection with any Letter of Credit or requested Letter of Credit
or error in computer or electronic transmission;


 


(vi) an
adviser, confirmer or other nominated person seeking to be reimbursed, indemnified or compensated;


 


(vii) any
third party seeking to enforce the rights of an applicant, beneficiary, nominated person, transferee, assignee of Letter of Credit
proceeds or holder of an instrument or document;


 


(viii) the
fraud, forgery or illegal action of parties other than the Letter of Credit Related Person;


 


(ix) the
L/C Issuer’s performance of the obligations of a confirming institution or entity that wrongfully dishonors a confirmation;
or


 


(x) the
acts or omissions, whether rightful or wrongful, of any present or future de jure or de facto governmental or regulatory authority
or cause or event beyond the control of the Letter of Credit Related Person;


 


in each case, including
that resulting from the Letter of Credit Related Person’s own negligence; provided, however, that such indemnity
shall not be available to any Letter of Credit Related Person claiming indemnification under clauses (i) through (x) above to the
extent that such Letter of Credit Indemnified Costs may be finally determined in a final, non-appealable



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judgment of a court of
competent jurisdiction to have resulted directly from the gross negligence or willful misconduct of the Letter of Credit Related
Person claiming indemnity. The Borrowers hereby agree to pay the Letter of Credit Related Person claiming indemnity promptly from
time to time all amounts owing under this Section 2.03(f). If and to the extent that the obligations of the Borrowers under
this Section 2.03(f) are unenforceable for any reason, the Borrowers agree to make the maximum contribution to the Letter
of Credit Indemnified Costs permissible under applicable Law. This indemnification provision shall survive termination of this
Agreement and all Letters of Credit.


 


(g) The
liability of the L/C Issuer (or any other Letter of Credit Related Person) under, in connection with or arising out of any Letter
of Credit (or pre-advice), regardless of the form or legal grounds of the action or proceeding, shall be limited to direct damages
suffered by the Borrowers that are caused directly by the L/C Issuer’s gross negligence or willful misconduct in (i) honoring
a presentation under a Letter of Credit that on its face does not at least substantially comply with the terms and conditions of
such Letter of Credit, (ii) failing to honor a presentation under a Letter of Credit that strictly complies with the terms and
conditions of such Letter of Credit or (iii) retaining Drawing Documents presented under a Letter of Credit. The L/C Issuer shall
be deemed to have acted with due diligence and reasonable care if the L/C Issuer’s conduct is in accordance with Standard
Letter of Credit Practice or in accordance with this Agreement. The Borrowers’ aggregate remedies against the L/C Issuer
and any Letter of Credit Related Person for wrongfully honoring a presentation under any Letter of Credit or wrongfully retaining
honored Drawing Documents shall in no event exceed the aggregate amount paid by the Borrowers to the L/C Issuer in respect of the
honored presentation in connection with such Letter of Credit under Section 2.03(d), plus interest at the rate then applicable
to Base Rate Loans hereunder. The Borrowers shall take action to avoid and mitigate the amount of any damages claimed against the
L/C Issuer or any other Letter of Credit Related Person, including by enforcing its rights against the beneficiaries of the Letters
of Credit. Any claim by the Borrowers under or in connection with any Letter of Credit shall be reduced by an amount equal to the
sum of (x) the amount (if any) saved by the Borrowers as a result of the breach or alleged wrongful conduct complained of; and
(y) the amount (if any) of the loss that would have been avoided had the Borrowers taken all reasonable steps to mitigate any loss,
and in case of a claim of wrongful dishonor, by specifically and timely authorizing the L/C Issuer to effect a cure.


 


(h) The
Borrowers shall be responsible for preparing or approving the final text of the Letter of Credit as issued by the L/C Issuer, irrespective
of any assistance the L/C Issuer may provide such as drafting or recommending text or by the L/C Issuer’s use or refusal
to use text submitted by the Borrowers. The Borrowers are solely responsible for the suitability of the Letter of Credit for the
Borrowers’ purposes. With respect to any Letter of Credit containing an “automatic amendment” to extend the expiration
date of such Letter of Credit, the L/C Issuer, in its sole and absolute discretion, may give notice of nonrenewal of such Letter
of Credit and, if the Borrowers do not at any time want such Letter of Credit to be renewed, the Borrowers will so notify the Agent
and the L/C Issuer at least 15 calendar days before the L/C Issuer is required to notify the beneficiary of such Letter of Credit
or any advising bank of such nonrenewal pursuant to the terms of such Letter of Credit.



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(i) The
Borrowers’ reimbursement and payment obligations under this Section 2.03 are absolute, unconditional and irrevocable
and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever, including:


 


(i) any
lack of validity, enforceability or legal effect of any Letter of Credit or this Agreement or any term or provision therein or
herein;


 


(ii) payment
against presentation of any draft, demand or claim for payment under any Drawing Document that does not comply in whole or in part
with the terms of the applicable Letter of Credit or which proves to be fraudulent, forged or invalid in any respect or any statement
therein being untrue or inaccurate in any respect, or which is signed, issued or presented by a Person or a transferee of such
Person purporting to be a successor or transferee of the beneficiary of such Letter of Credit;


 


(iii) the
L/C Issuer or any of its branches or Affiliates being the beneficiary of any Letter of Credit;


 


(iv) the
L/C Issuer or any correspondent honoring a drawing against a Drawing Document up to the amount available under any Letter of Credit
even if such Drawing Document claims an amount in excess of the amount available under the Letter of Credit;


 


(v) the
existence of any claim, set-off, defense or other right that the Lead Borrower or any of its Subsidiaries may have at any time
against any beneficiary, any assignee of proceeds, the L/C Issuer or any other Person;


 


(vi) any
other event, circumstance or conduct whatsoever, whether or not similar to any of the foregoing that might, but for this Section
2.03(i), constitute a legal or equitable defense to or discharge of, or provide a right of set-off against, any Borrower’s
or any of its Subsidiaries’ reimbursement and other payment obligations and liabilities, arising under, or in connection
with, any Letter of Credit, whether against the L/C Issuer, the beneficiary or any other Person; or


 


(vii) the
fact that any Default or Event of Default shall have occurred and be continuing;


 


provided, however,
that subject to Section 2.03(g) above, the foregoing shall not release the L/C Issuer from such liability to the Borrowers
as may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction against the L/C Issuer following
reimbursement or payment of the obligations and liabilities, including reimbursement and other payment obligations, of the Borrowers
to the L/C Issuer arising under, or in connection with, this Section 2.03 or any Letter of Credit.


 


(j) Without
limiting any other provision of this Agreement, the L/C Issuer and each other Letter of Credit Related Person (if applicable) shall
not be responsible to the Borrowers for, and the L/C Issuer’s rights and remedies against the Borrowers and the obligation



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of the Borrowers to reimburse
the L/C Issuer for each drawing under each Letter of Credit shall not be impaired by:


 


(i) honor
of a presentation under any Letter of Credit that on its face substantially complies with the terms and conditions of such Letter
of Credit, even if the Letter of Credit requires strict compliance by the beneficiary;


 


(ii) honor
of a presentation of any Drawing Document that appears on its face to have been signed, presented or issued (A) by any purported
successor or transferee of any beneficiary or other Person required to sign, present or issue such Drawing Document or (B) under
a new name of the beneficiary;


 


(iii) acceptance
as a draft of any written or electronic demand or request for payment under a Letter of Credit, even if nonnegotiable or not in
the form of a draft or notwithstanding any requirement that such draft, demand or request bear any or adequate reference to the
Letter of Credit;


 


(iv) the
identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness or legal effect of
any Drawing Document (other than the L/C Issuer’s determination that such Drawing Document appears on its face substantially
to comply with the terms and conditions of the Letter of Credit);


 


(v) acting
upon any instruction or request relative to a Letter of Credit or requested Letter of Credit that the L/C Issuer in good faith
believes to have been given by a Person authorized to give such instruction or request;


 


(vi) any
errors, omissions, interruptions or delays in transmission or delivery of any message, advice or document (regardless of how sent
or transmitted) or for errors in interpretation of technical terms or in translation or any delay in giving or failing to give
notice to the Borrowers;


 


(vii) any
acts, omissions or fraud by, or the insolvency of, any beneficiary, any nominated person or entity or any other Person or any breach
of contract between any beneficiary and any Borrower or any of the parties to the underlying transaction to which the Letter of
Credit relates;


 


(viii) assertion
or waiver of any provision of the ISP or UCP that primarily benefits an issuer of a letter of credit, including any requirement
that any Drawing Document be presented to it at a particular hour or place;


 


(ix) payment
to any paying or negotiating bank (designated or permitted by the terms of the applicable Letter of Credit) claiming that it rightfully
honored or is entitled to reimbursement or indemnity under Standard Letter of Credit Practice applicable to it;


 


(x) acting
or failing to act as required or permitted under Standard Letter of Credit Practice applicable to where the L/C Issuer has issued,
confirmed, advised or negotiated such Letter of Credit, as the case may be;



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(xi) honor
of a presentation after the expiration date of any Letter of Credit notwithstanding that a presentation was made prior to such
expiration date and dishonored by the L/C Issuer if subsequently the L/C Issuer or any court or other finder of fact determines
such presentation should have been honored;


 


(xii) dishonor
of any presentation that does not strictly comply or that is fraudulent, forged or otherwise not entitled to honor; or


 


(xiii) honor
of a presentation that is subsequently determined by the L/C Issuer to have been made in violation of international, federal, state
or local restrictions on the transaction of business with certain prohibited Persons.


 


(k) Upon
the request of the Agent, (i) if the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and
such drawing has resulted in an L/C Obligation that remains outstanding, or (ii) if, as of the Letter of Credit Expiration Date,
any L/C Obligation for any reason remains outstanding, the Borrowers shall, in each case, immediately Cash Collateralize the then
Outstanding Amount of all L/C Obligations. Sections 2.05 and 8.02(c) set forth certain
additional requirements to deliver Cash Collateral hereunder. For purposes of this Section 2.03, Section 2.05
and Section 8.02(c), “Cash Collateralize” means to pledge and deposit
with or deliver to the Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash or
deposit account balances in an amount equal to 103% of the Outstanding Amount of all L/C Obligations, pursuant to documentation
in form and substance reasonably satisfactory to the Agent and the L/C Issuer (which documents are hereby Consented to by the Lenders).
The Borrowers hereby grant to the Agent a security interest in all such cash, deposit accounts and all balances therein and all
proceeds of the foregoing. Cash Collateral shall be maintained in blocked, non-interest bearing deposit accounts at Wells Fargo.
If at any time the Agent determines that any funds held as Cash Collateral are subject to any right or claim of any Person other
than the Agent or that the total amount of such funds is less than the aggregate Outstanding Amount of all L/C Obligations, the
Borrowers will, forthwith upon demand by the Agent, pay to the Agent, as additional funds to be deposited as Cash Collateral, an
amount equal to the excess of (x) such aggregate Outstanding Amount over (y) the total amount of funds, if any, then held as Cash
Collateral that the Agent determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit
for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable Laws,
to reimburse the L/C Issuer and, to the extent not so applied, shall thereafter be applied to satisfy other Obligations.


 


(l) The
Borrowers shall pay to the Agent for the account of each Lender in accordance with its Applicable Percentage a Letter of Credit
fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Margin times the daily Stated
Amount under each such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit). For
purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of the Letter of Credit shall
be determined in accordance with Section 1.06. Letter of Credit Fees shall be (i) due and payable on the first day after
the end of each quarter commencing with the first such date to occur after the issuance of such Letter of Credit, and after the
Letter of Credit Expiration Date, on demand, and (ii) computed on a quarterly basis in



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arrears. Notwithstanding
anything to the contrary contained herein, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default
Rate as provided in Section 2.08(b).


 


(m) In
addition to the Letter of Credit Fees as set forth in Section 2.03(l) above, the Borrowers shall pay immediately upon demand
to the Agent for the account of the L/C Issuer as non-refundable fees, commissions, and charges (it being acknowledged and agreed
that any charging of such fees, commissions, and charges to the Loan Account pursuant to the provisions of Section 2.02(d)
shall be deemed to constitute a demand for payment thereof for the purposes of this Section 2.03(m)): (i) a fronting fee
which shall be imposed by the L/C Issuer upon the issuance of each Letter of Credit of 0.25% per annum of the face amount thereof,
plus (ii) any and all other customary commissions, fees and charges then in effect imposed by, and any and all reasonable
and documented expenses incurred by, the L/C Issuer, or by any adviser, confirming institution or entity or other nominated person,
relating to Letters of Credit, at the time of issuance of any Letter of Credit and upon the occurrence of any other activity with
respect to any Letter of Credit (including transfers, assignments of proceeds, amendments, drawings, renewals or cancellations).


 


(n) Unless
otherwise expressly agreed by the L/C Issuer and the Borrowers when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), (i) the rules of the ISP and the UCP shall apply to each Standby Letter of Credit,
and (ii) the rules of the UCP shall apply to each Commercial Letter of Credit.


 


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


 


(p) In
the event of a direct conflict between the provisions of this Section 2.03 and any provision contained in any Issuer Document,
it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible,
to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the
terms and provisions of this Section 2.03 shall control and govern.


 


2.04 Swing
Line Loans.


 


(a) The
Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender may, in reliance upon the agreements
of the other Lenders set forth in this Section 2.04, make loans (each such loan, a “Swing Line Loan”)
to the Borrowers from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any
time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with
the Applicable Percentage of the Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender,
may exceed the amount of such Lender’s Commitment; provided, however, that after giving effect to any Swing
Line Loan, (i) the Total Outstandings shall not exceed Loan Cap, and (ii) the



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aggregate Outstanding
Amount of the Committed Loans of any Lender at such time, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all L/C Obligations at such time, plus such Lender’s Applicable Percentage of the Outstanding Amount of
all Swing Line Loans at such time shall not exceed such Lender’s Commitment, and provided, further, that the
Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing
limits, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.04, prepay under
Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall bear interest only at the rate applicable
to Base Rate Loans. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal
to the product of such Lender’s Applicable Percentage times the amount of such Swing Line Loan. The Swing Line Lender
shall have all of the benefits and immunities (A) provided to the Agent in Article IX with respect to any acts taken or
omissions suffered by the Swing Line Lender in connection with Swing Line Loans made by it or proposed to be made by it as if the
term “Agent” as used in Article IX included the Swing Line Lender with respect to such acts or omissions, and
(B) as additionally provided herein with respect to the Swing Line Lender.


 


(b) Borrowing
Procedures. Each Swing Line Borrowing shall be made upon the Lead Borrower’s irrevocable notice to the Swing Line Lender
and the Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and the Agent not later
than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000,
and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by
delivery to the Swing Line Lender and the Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible
Officer of the Lead Borrower. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing
Line Lender will confirm with the Agent (by telephone or in writing) that the Agent has also received such Swing Line Loan Notice
and, if not, the Swing Line Lender will notify the Agent (by telephone or in writing) of the contents thereof. Unless the Swing
Line Lender has received notice (by telephone or in writing) from the Agent at the request of the Required Lenders prior to 2:00
p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a
result of the limitations set forth in the proviso to the first sentence of Section 2.04(a), or (B) that one or more of
the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof,
the Swing Line Lender may, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount
of its Swing Line Loan available to the Borrowers at its office by crediting the account of the Lead Borrower on the books of the
Swing Line Lender in immediately available funds.


 


(c) Refinancing
of Swing Line Loans.


 


(i) The Swing Line
Lender at any time in its sole and absolute discretion may request, on behalf of the Borrowers (which hereby irrevocably authorize
the Swing Line Lender to so request on their behalf), that each Lender make a Base Rate Loan in an amount equal to such Lender’s
Applicable Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in accordance with the requirements
of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base



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Rate Loans, but subject
to the unutilized portion of the Loan Cap and the conditions set forth in Section 4.02. Each Lender shall make an amount
equal to its Applicable Percentage of the amount of such outstanding Swing Line Loan available to the Agent in immediately available
funds for the account of the Swing Line Lender at the Agent’s Office not later than 1:00 p.m. on the day specified by the
Swing Line Lender, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed
to have made a Base Rate Loan to the Borrowers in such amount. The Agent shall remit the funds so received to the Swing Line Lender.


 


(ii) If for any
reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing in accordance with Section 2.04(c)(i), the
request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing
Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender’s payment
to the Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect
of such participation.


 


(iii) If any Lender
fails to make available to the Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant
to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender
shall be entitled to recover from such Lender (acting through the Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender
at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance
with banking industry rules on interbank compensation plus any administrative, processing or similar fees customarily charged by
the Swing Line Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid),
the amount so paid shall constitute such Lender’s Committed Loan included in the relevant Committed Borrowing or funded participation
in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any Lender (through the
Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.


 


(iv) Each Lender’s
obligation to make Committed Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section
2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrowers or any other Person
for any reason whatsoever, (B) the occurrence or continuance of a Default or an Event of Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender’s obligation
to make Committed Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02.
No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrowers to repay Swing Line Loans,
together with interest as provided herein.



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(d) Repayment
of Participations.


 


(i) At any time
after any Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment
on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage of such payment
(appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s risk
participation was funded) in the same funds as those received by the Swing Line Lender.


 


(ii) If any payment
received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the
Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered
into by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its Applicable Percentage thereof
on demand of the Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum
equal to the Federal Funds Rate. The Agent will make such demand upon the request of the Swing Line Lender. The obligations of
the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.


 


(e) Interest
for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Borrowers for interest on the
Swing Line Loans. Until each Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance
such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely
for the account of the Swing Line Lender.


 


(f) Payments
Directly to Swing Line Lender. The Borrowers shall make all payments of principal and interest in respect of the Swing Line
Loans directly to the Swing Line Lender.


 


2.05 Prepayments.


 


(a) The
Borrowers may, upon irrevocable notice from the Lead Borrower to the Agent, at any time or from time to time voluntarily prepay
Committed Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Agent
not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of LIBO Rate Loans and (B) on the date of prepayment
of Base Rate Loans; and (ii) any prepayment of LIBO Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple
of $100,000 in excess thereof, or, if less, the entire principal amount thereof then outstanding. Each such notice shall specify
the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if LIBO Rate Loans, the Interest Period(s) of
such Loans. The Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s
Applicable Percentage of such prepayment. If such notice is given by the Lead Borrower, the Borrowers shall make such prepayment
and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a LIBO
Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant
to Section 3.05. Each such prepayment shall be applied to the Committed Loans of the Lenders in accordance with their respective
Applicable Percentages.



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(b) The
Borrowers may, upon irrevocable notice from the Lead Borrower to the Swing Line Lender (with a copy to the Agent), at any time
or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that
(i) such notice must be received by the Swing Line Lender and the Agent not later than 1:00 p.m. on the date of the prepayment,
and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount
of such prepayment. If such notice is given by the Lead Borrower, the Borrowers shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.


 


(c) If
for any reason the Total Outstandings at any time exceed the Loan Cap as then in effect, the Borrowers shall immediately prepay
Loans, Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided,
however, that the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section
2.05(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the Loan Cap as then in effect.


 


(d) The
Borrowers shall prepay the Loans and Cash Collateralize the L/C Obligations with the proceeds and collections received by the Loan
Parties to the extent so required under the provisions of Section 6.13.


 


(e) The
Borrowers shall prepay the Loans and Cash Collateralize the L/C Obligations in an amount equal to the Net Cash Proceeds received
by a Loan Party on account of a Prepayment Event.


 


(f) Prepayments
made pursuant to Section 2.05(c), (d) and (e) above, first, shall be applied to the Swing Line Loans,
second, shall be applied ratably to the outstanding Committed Loans, third, shall be used to Cash Collateralize the
remaining L/C Obligations; and, fourth, the amount remaining, if any, after the prepayment in full of all Swing Line Loans
and Committed Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained
by the Borrowers for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized,
the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrowers or any other
Loan Party) to reimburse the L/C Issuer or the Lenders, as applicable.


 


2.06 Termination
or Reduction of Commitments.


 


(a) The
Borrowers may, upon irrevocable notice from the Lead Borrower to the Agent, terminate the Aggregate Commitments, the Letter of
Credit Sublimit or the Swing Line Sublimit or from time to time permanently reduce the Aggregate Commitments, the Letter of Credit
Sublimit or the Swing Line Sublimit; provided that (i) any such notice shall be received by the Agent not later than 11:00
a.m. five Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate
amount of $1,000,000 or any whole multiple of $500,000 in excess thereof, (iii) the Borrowers shall not terminate or reduce (A)
the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would
exceed the Aggregate Commitments, (B) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of
L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit,



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and (C) the Swing Line
Sublimit if, after giving effect thereto, and to any concurrent payments hereunder, the Outstanding Amount of Swing Line Loans
hereunder would exceed the Swing Line Sublimit.


 


(b) If,
after giving effect to any reduction of the Aggregate Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds
the amount of the Aggregate Commitments, such Letter of Credit Sublimit or Swing Line Sublimit shall be automatically reduced by
the amount of such excess.


 


(c) The
Agent will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit, Swing Line Sublimit or
the Aggregate Commitments under this Section 2.06. Upon any reduction of the Aggregate Commitments, the Commitment of each
Lender shall be reduced by such Lender’s Applicable Percentage of such reduction amount. All fees (including, without limitation,
commitment fees and Letter of Credit Fees) and interest in respect of the Aggregate Commitments accrued until the effective date
of any termination of the Aggregate Commitments shall be paid on the effective date of such termination.


 


2.07 Repayment
of Loans.


 


(a) The
Borrower shall repay to the Lenders on the Termination Date the aggregate principal amount of Committed Loans outstanding on such
date.


 


(b) To
the extent not previously paid, the Borrower shall repay the outstanding balance of the Swing Line Loans on the Termination Date.


 


2.08 Interest.


 


(a) Subject
to the provisions of Section 2.08(b), (i) each LIBO Rate Loan shall bear interest on the outstanding principal amount thereof
for each Interest Period at a rate per annum equal to the Adjusted LIBO Rate for such Interest Period plus the Applicable
Margin; (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing
date at a rate per annum equal to the Base Rate plus the Applicable Margin; and (iii) each Swing Line Loan shall bear interest
on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Margin.


 


(b) (i) If
any amount payable under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by applicable Laws.


 


(ii) If any other
Event of Default exists, then the Agent may, and upon the request of the Required Lenders shall, notify the Lead Borrower that
all outstanding Obligations shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default
Rate and thereafter such Obligations shall bear interest at the Default Rate to the fullest extent permitted by applicable Laws.



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(iii) Accrued and
unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.


 


(c) Interest
on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may
be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment,
and before and after the commencement of any proceeding under any Debtor Relief Law.


 


2.09 Fees. In
addition to certain fees described in subsections (l) and (m) of Section 2.03:


 


(a) Commitment
Fee. The Borrowers shall pay to the Agent for the account of each Lender in accordance with its Applicable Percentage, a commitment
fee calculated on a per annum basis equal to the Applicable Commitment Fee Percentage times the actual daily amount by which
the Aggregate Commitments exceed the Total Outstandings. The commitment fee shall accrue at all times during the Availability Period,
including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable
quarterly in arrears on the first day after the end of each quarter, commencing with the first such date to occur after the Second
Restatement Date, and on the last day of the Availability Period. The commitment fee shall be calculated quarterly in arrears.


 


(b) Other
Fees. The Borrower shall pay to the Arranger and the Agent for their own respective accounts fees in the amounts and at the
times specified in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.


 


2.10 Computation
of Interest and Fees. All computations of fees and interest shall be made on the basis of a
360-day year and actual days elapsed. Interest shall accrue on each outstanding Loan beginning, and including the day, such Loan
is made and until (but not including) the day on which such Loan (or such portion thereof) is paid; provided that any Loan
that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day. Each determination
by the Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.


 


2.11 Evidence
of Debt.


 


(a) The
Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by the Agent (the “Loan
Account”) in the ordinary course of business. In addition, each Lender may record in such Lender’s internal records,
an appropriate notation evidencing the date and amount of each Loan from such Lender, each payment and prepayment of principal
of any such Loan, and each payment of interest, fees and other amounts due in connection with the Obligations due to such Lender.
The accounts or records maintained by the Agent and each Lender shall be conclusive absent manifest error of the amount of the
Credit Extensions made by the Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any error
in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with
respect to the Obligations. In the event of any conflict between the accounts and records maintained by



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any Lender and the accounts
and records of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest
error. Upon the request of any Lender made through the Agent, the Borrowers shall execute and deliver to such Lender (through the
Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules
to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
Upon receipt of an affidavit of a Lender as to the loss, theft, destruction or mutilation of such Lender’s Note and upon
cancellation of such Note, the Borrowers will issue, in lieu thereof, a replacement Note in favor of such Lender, in the same principal
amount thereof and otherwise of like tenor.


 


(b) In
addition to the accounts and records referred to in Section 2.11(a), each Lender and the Agent shall maintain in accordance
with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit
and Swing Line Loans. In the event of any conflict between the accounts and records maintained by the Agent and the accounts and
records of any Lender in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest
error.


 


2.12 Payments
Generally; Agent’s Clawback.


 


(a) General.
All payments to be made by the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment
or setoff. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder shall be made to the Agent, for
the account of the respective Lenders to which such payment is owed, at the Agent’s Office
in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. Subject to Section 2.14,
the Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such
payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Agent after
2:00 p.m., at the option of the Agent, shall be deemed received on the next succeeding Business Day and any applicable interest
or fee shall continue to accrue. If any payment to be made by the Borrowers shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or
fees, as the case may be.


 


(b) (i) Funding
by Lenders; Presumption by Agent. Unless the Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing of LIBO Rate Loans (or in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing)
that such Lender will not make available to the Agent such Lender’s share of such Borrowing, the Agent may assume that such
Lender has made such share available on such date in accordance with Section 2.02 (or in the case of a Borrowing of Base
Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02)
and may, in reliance upon such assumption, make available to the Borrowers a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Committed Borrowing available to the Agent, then the applicable Lender and the Borrowers
severally agree to pay to the Agent forthwith on demand such corresponding amount in immediately available funds with interest
thereon, for each day from and including the date such amount is made available to the Borrowers to but excluding the date of payment
to the Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate



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and a rate determined
by the Agent in accordance with banking industry rules on interbank compensation plus any administrative processing or similar
fees customarily charged by the Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowers,
the interest rate applicable to Base Rate Loans. If the Borrowers and such Lender shall pay such interest to the Agent for the
same or an overlapping period, the Agent shall promptly remit to the Borrowers the amount of such interest paid by the Borrowers
for such period. If such Lender pays its share of the applicable Committed Borrowing to the Agent, then the amount so paid shall
constitute such Lender’s Committed Loan included in such Committed Borrowing. Any payment by the Borrowers shall be without
prejudice to any claim the Borrowers may have against a Lender that shall have failed to make such payment to the Agent.


 


(ii) Payments
by Borrowers; Presumptions by Agent. Unless the Agent shall have received notice from the Lead Borrower prior to the time at
which any payment is due to the Agent for the account of the Lenders or the L/C Issuer hereunder that the Borrowers will not make
such payment, the 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 L/C Issuer, 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 L/C Issuer, as the case may be, severally agrees to repay to
the Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in immediately available funds 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
Agent, at the greater of the Federal Funds Rate and a rate determined by the Agent in accordance with banking industry rules on
interbank compensation.


 


A notice of the Agent
to any Lender or the Lead Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest
error.


 


(c) Failure
to Satisfy Conditions Precedent. If any Lender makes available to the Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrowers by the Agent
because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance
with the terms hereof (subject to the provisions of the last paragraph of Section 4.02), the Agent shall return such funds
(in like funds as received from such Lender) to such Lender, without interest.


 


(d) Obligations
of Lenders Several. The obligations of the Lenders hereunder to make Committed Loans, to fund participations in Letters of
Credit and Swing Line Loans and to make payments hereunder are several and not joint. The failure of any Lender to make any Committed
Loan, to fund any such participation or to make any payment hereunder on any date required hereunder shall not relieve any other
Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender
to so make its Committed Loan, to purchase its participation or to make its payment hereunder.


 


(e) Funding
Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner
or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place
or manner.



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2.13 Sharing of
Payments by Lenders. If any Secured Party shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of, interest on, or other amounts with respect to, any of the Obligations resulting in
such Lender’s receiving payment of a proportion of the aggregate amount of such Obligations greater than its pro rata
share thereof as provided herein (including as in contravention of the priorities of payment set forth in Section
8.03), then the Secured Party receiving such greater proportion shall (a) notify the Agent of such fact, and (b)
purchase (for cash at face value) participations in the Obligations of the other Secured Parties, or make such other
adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Secured Parties ratably
and in the priorities set forth in Section 8.03; provided that:


 


(i) if any
such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered,
such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without
interest; and


 


(ii) the
provisions of this Section shall not be construed to apply to (x) any payment made by the Loan Parties pursuant to and in accordance
with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale
of a participation in any of its Committed Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or
participant, other than to the Borrowers or any Subsidiary thereof (as to which the provisions of this Section shall apply).


 


Each Loan Party consents
to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.


 


2.14 Settlement
Amongst Lenders.


 


(a) The
amount of each Lender’s Applicable Percentage of outstanding Loans (including outstanding Swing Line Loans) shall be computed
weekly (or more frequently in the Agent’s discretion) and shall be adjusted upward or downward based on all Loans (including
Swing Line Loans) and repayments of Loans (including Swing Line Loans) received by the Agent as of 3:00 p.m. on the first Business
Day (such date, the “Settlement Date”) following the end of the period specified by the Agent.


 


(b) The
Agent shall deliver to each of the Lenders promptly after a Settlement Date a summary statement of the amount of outstanding Committed
Loans and Swing Line Loans for the period and the amount of repayments received for the period. As reflected on the summary statement,
(i) the Agent shall transfer to each Lender its Applicable Percentage of repayments, and (ii) each Lender shall transfer to the
Agent (as provided below) or the Agent shall transfer to each Lender, such amounts as are necessary to insure that, after giving
effect to all such transfers, the amount of Committed Loans made by each Lender shall be equal to such Lender’s Applicable
Percentage of all Committed Loans outstanding as of such Settlement Date.



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If the summary statement
requires transfers to be made to the Agent by the Lenders and is received prior to 1:00 p.m. on a Business Day, such transfers
shall be made in immediately available funds no later than 3:00 p.m. that day; and, if received after 1:00 p.m., then no later
than 3:00 p.m. on the next Business Day. The obligation of each Lender to transfer such funds is irrevocable, unconditional and
without recourse to or warranty by the Agent. If and to the extent any Lender shall not have so made its transfer to the Agent,
such Lender agrees to pay to the Agent, forthwith on demand such amount, together with interest thereon, for each day from such
date until the date such amount is paid to the Agent, equal to the greater of the Federal Funds Rate and a rate determined by the
Agent in accordance with banking industry rules on interbank compensation plus any administrative, processing, or similar fees
customarily charged by the Agent in connection with the foregoing.


 


2.15 Increase
in Commitments.


 


(a) Committed
Increase. Provided no Default or Event of Default then exists or would arise therefrom, upon notice to the Agent, the Lead
Borrower may on a one-time basis in respect of each Seasonal Period, request an increase in the Aggregate Commitments by an amount
not exceeding $25,000,000 (the “Committed Increase”); provided that (i) any such Committed Increase shall
be in a minimum amount of $10,000,000 and (ii) the amount of the Aggregate Commitments, as the same may be increased pursuant to
any Committed Increase, shall not exceed $75,000,000 at any time. Any such Committed Increase in respect of a Seasonal Period shall
be effectuated as soon as reasonably practicable after the request of the Lead Borrower therefor, but in no event prior to the
commencement of such Seasonal Period. Any such Committed Increase shall be provided solely by Wells Fargo (or any Eligible Assignee
or Participant of Wells Fargo) and shall otherwise be on the same terms as the existing facility under this Agreement. Upon the
effective date of any such Committed Increase (i) the Aggregate Commitments under, and for all purposes of, this Agreement shall
be increased by the aggregate amount of such Committed Increase, and (ii) Schedule 2.01 shall be deemed modified, without
further action, to reflect the revised Commitments and Applicable Percentages of the Lenders. In the event any Committed Increase
occurs in respect of any Seasonal Period, at the end of such Seasonal Period, (i) the Aggregate Commitments under, and for all
purposes of, this Agreement shall be automatically reduced, without further action by any Person, to the amount of such Aggregate
Commitments as in effect immediately prior to the commencement of such Seasonal Period (but in no event greater than $50,000,000),
and (ii) Schedule 2.01 shall be deemed modified, without further action, to reflect the reduced Commitments and Applicable
Percentages of the Lenders.


 


(b) Conditions
to Effectiveness of Commitment Increase. As a condition precedent to any Committed Increase, (i) the Lead Borrower shall deliver
to the Agent a certificate of each Loan Party dated as of the proposed effective date of such Committed Increase (the “Increase
Effective Date”) signed by a Responsible Officer of such Loan Party (A) certifying and attaching the resolutions adopted
by such Loan Party approving or consenting to such Committed Increase, and (B) in the case of the Borrowers, certifying that, before
and after giving effect to such Committed Increase, (1) the representations and warranties contained in Article V and the
other Loan Documents are true and correct in all material respects (subject to any materiality qualifiers contained therein) on
and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier
date, in which



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case they are true and
correct as of such earlier date, and except that for purposes of this Section 2.15, the representations and warranties contained
in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 6.01, and (2) no Default or Event of Default exists or would arise therefrom;
(ii) the Borrowers shall have paid such upfront fees in connection with such Committed Increase as are required pursuant to the
Fee Letter; and (iii) no Default or Event of Default exists or would arise therefrom. If required by the Agent, the Borrowers shall
prepay any Committed Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section
2.05) to the extent necessary to keep the outstanding Committed Loans ratable with any revised Applicable Percentages arising
from any nonratable increase in the Commitments under this Section.


 


(c) Conflicting
Provisions. This Section shall supersede any provisions in Sections 2.13 or 10.01 to the contrary.


 


ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY;

APPOINTMENT OF LEAD BORROWER


 


3.01 Taxes.


 


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


 


(b) Payment
of Other Taxes by the Borrowers. Without limiting the provisions of subsection (a) above, the Borrowers shall timely pay any
Other Taxes to the relevant Governmental Authority in accordance with applicable law.


 


(c) Indemnification
by the Loan Parties. The Loan Parties shall indemnify the Agent and each Lender, 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 3.01) paid by the Agent or such Lender, as the case may be, and any penalties, interest and reasonable
and documented expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered
to the Lead Borrower by a Lender (with a copy to the Agent), or by the Agent on its own behalf or on behalf of a Lender, shall
be conclusive absent manifest error.



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(d) Evidence
of Payments. As soon as practicable after any payment of Indemnified Taxes by the Borrowers to a Governmental Authority, the
Lead Borrower shall deliver to the 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 Agent.


 


(e) Status
of Lenders. Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments hereunder
or under any other Loan Document shall deliver to the Lead Borrower and the Agent, at the time or times prescribed by applicable
law or reasonably requested by the Lead Borrower or the Agent, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without withholding or at a reduced rate of withholding. Such delivery shall
be provided on or before the Second Restatement Date and on or before such documentation expires or becomes obsolete or after the
occurrence of any event requiring a change in the documentation most recently delivered. In addition, any Lender, if requested
by the Lead Borrower or the Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested
by the Lead Borrower or the Agent as will enable the Lead Borrower or the Agent to determine whether or not such Lender is subject
to backup withholding or information reporting requirements.


 


Without limiting the
generality of the foregoing,


 


(A) any Lender that
is a U.S. Person shall deliver to the Lead Borrower and the 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 Lead Borrower or the Agent, two duly
completed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding Tax;


 


(B) any Foreign Lender
shall deliver to the Lead Borrower and the Agent, on or prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the request of the Lead Borrower or the Agent, but only if such Foreign Lender
is legally entitled to do so), whichever of the following is applicable:


 


(i) two
duly completed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, claiming eligibility for benefits of an income tax
treaty to which the United States is a party,


 


(ii) two
duly completed copies of IRS Form W-8ECI,


 


(iii) in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x)
two duly completed certificates to the effect that such Foreign Lender is not (A) a “bank” within the meaning of Section
881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B)
of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S.
Tax Compliance Certificate”) and (y) two duly completed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable,
or



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(iv) to
the extent a Foreign Lender is not the beneficial owner for U.S. federal income tax purposes, two duly completed copies of IRS
Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially
in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial
owner, as applicable, provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of
such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate
substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;


 


(C) any Foreign Lender
shall, to the extent it is legally eligible to do so, deliver to the Lead Borrower and the 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 Lead Borrower or the Agent), duly completed 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, together
with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Agent to determine the
withholding or deduction required to be made;


 


(D) if a payment
made to a Lender under any Loan Document would be subject to 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 Lead Borrower and the Agent at the time or times prescribed by law and at such time or times reasonably requested by the
Lead Borrower or the 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 Lead Borrower or the Agent as may be necessary for the
Lead Borrower and the Agent to comply with their obligations under FATCA and to determine whether 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; and


 


(E) each Lender hereby
authorizes the Agent to deliver to the Loan Parties and to any successor Agent any documentation provided by such Lender to the
Agent pursuant to this Section 3.01(e).


 


(f) Status
of the Agent. On or prior to the date the Agent becomes a party to this Agreement, the Agent shall, in the event the Agent
is a U.S. Person, deliver an IRS Form W-9 to the Lead Borrower, and in the event that the Agent is not a U.S. Person, deliver (i)
with respect to amounts payable to the Agent for its own account, an IRS Form W-8ECI and (ii) with respect to amounts payable to
the Agent on behalf of a Lender, an IRS Form W-8IMY certifying that the Agent agrees to be treated as a U.S. Person for purposes
of U.S. federal withholding taxes; provided that no Agent shall be required to provide any documentation pursuant to this
Section 3.01(f) that such Agent is unable to deliver as a result of a Change in Law after the date of this Agreement.



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(g) Treatment
of Certain Refunds. If the Agent or any 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 by the Borrowers or with respect to which the Borrowers have paid additional
amounts pursuant to this Section 3.01, it shall pay to the Borrowers an amount equal to such refund (but only to the extent
of indemnity payments made, or additional amounts paid, by the Loan Parties under this Section 3.01 with respect to the
Taxes giving rise to such refund), net of all out-of-pocket expenses of the Agent or such Lender, as the case may be, and without
interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that
the Borrowers, upon the request of the Agent or such Lender, as applicable, agree to repay the amount paid over to the Borrowers
(plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Agent or such Lender, as
applicable, in the event the Agent or such Lender, as applicable, is required to repay such refund to such Governmental Authority.
This Section 3.01(g) shall not be construed to require the Agent or any Lender or to make available its tax returns (or
any other information relating to its taxes that it deems confidential) to the Borrowers or any other Person.


 


(h) For
the avoidance of doubt, for purposes of this Section 3.01, the term “Lender” shall include any L/C Issuer and
any Swing Line Lender.


 


3.02 Illegality.
If any Lender determines that any Law 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 LIBO Rate Loans, or to determine or charge interest
rates based upon the LIBO Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender
to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to
the Lead Borrower through the Agent, any obligation of such Lender to make or continue LIBO Rate Loans or to convert Base Rate
Loans to LIBO Rate Loans shall be suspended until such Lender notifies the Agent and the Lead Borrower that the circumstances
giving rise to such determination no longer exist. Upon receipt of such notice, the Borrowers shall, upon demand from such Lender
(with a copy to the Agent), prepay or, if applicable, convert all LIBO Rate Loans of such Lender to Base Rate Loans, either on
the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBO Rate Loans to such day,
or immediately, if such Lender may not lawfully continue to maintain such LIBO Rate Loans. Upon any such prepayment or conversion,
the Borrowers shall also pay accrued interest on the amount so prepaid or converted.


 


3.03 Inability to
Determine Rates. If the Required Lenders determine that for any reason in connection with any request for a LIBO Rate Loan
or a conversion to or continuation thereof that (a) Dollar deposits are not being offered to banks in the London interbank market
for the applicable amount and Interest Period of such LIBO Rate Loan, (b) adequate and reasonable means do not exist for determining
the LIBO Rate for any requested Interest Period with respect to a proposed LIBO Rate Loan , or (c) the LIBO Rate for any requested
Interest Period with respect to a proposed LIBO Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding
such Loan, the Agent will promptly so notify the Lead Borrower and each Lender. Thereafter, the obligation of the Lenders to make
or maintain LIBO Rate Loans shall be suspended until the Agent (upon the instruction of the Required Lenders) revokes such notice.
Upon receipt of such notice, the Lead Borrower may revoke any pending request for a Borrowing of, conversion to or continuation
of LIBO Rate Loans or, failing that, will be deemed



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to have converted such
request into a request for a Committed Borrowing of Base Rate Loans in the amount specified therein.


 


3.04 Increased
Costs; Reserves on LIBO Rate Loans.


 


(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 (except any reserve requirement reflected
in the LIBO Rate) or the L/C Issuer;


 


(ii) subject
any Lender or the L/C Issuer to any Tax (other than Indemnified Taxes covered by Section 3.01 and any Excluded Tax payable)
with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any LIBO Rate Loan made by it,
or change the basis of taxation of payments to such Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes covered
by Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or the L/C
Issuer); or


 


(iii) impose
on any Lender or the L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or
LIBO Rate 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 of making or maintaining any LIBO Rate Loan (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer 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 the L/C Issuer hereunder (whether of principal, interest or any other amount)
then, upon request of such Lender or the L/C Issuer, the Borrowers will pay to such Lender or the L/C Issuer, as the case may be,
such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs
incurred or reduction suffered.


 


(b) Capital
Requirements. If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or
any Lending Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements
has or would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on the
capital of such Lender’s or the L/C Issuer’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 the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding
company could have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s
policies and the policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy), then
from time to time the Borrowers will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts
as



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will compensate such
Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction suffered.


 


(c) Certificates
for Reimbursement. A certificate of a Lender or the L/C Issuer setting forth the amount or amounts necessary to compensate
such Lender or the L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section
and delivered to the Lead Borrower shall be conclusive absent manifest error. The Borrowers shall pay such Lender or the L/C Issuer,
as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.


 


(d) Delay
in Requests. Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing
provisions of this Section shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such
compensation; provided that the Borrowers shall not be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the
date that such Lender or the L/C Issuer, as the case may be, notifies the Lead Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the L/C Issuer’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).


 


(e) Reserves
on LIBO Rate Loans. The Borrowers shall pay to each Lender, as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each LIBO Rate Loan equal to the actual costs of such
reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive),
which shall be due and payable on each date on which interest is payable on such Loan; provided the Lead Borrower shall
have received at least 10 days’ prior notice (with a copy to the Agent) of such additional interest from such Lender. If
a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such additional interest shall be due and payable
10 days from receipt of such notice.


 


3.05 Compensation
for Losses. Upon demand of any Lender (with a copy to the 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, payment or prepayment of any Loan other than a Base 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);


 


(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 Loan other than a Base Rate Loan on the date or in the amount notified by the Lead Borrower; or



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(c) any
assignment of a LIBO Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the
Lead Borrower pursuant to Section 10.13;


 


including any loss of
anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such
Loan or from fees payable to terminate the deposits from which such funds were obtained. The Borrowers shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.


 


For purposes of calculating
amounts payable by the Borrowers to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each
LIBO Rate Loan made by it at the LIBO Rate for such Loan by a matching deposit or other borrowing in the London interbank market
for a comparable amount and for a comparable period, whether or not such LIBO Rate Loan was in fact so funded.


 


3.06 Mitigation
Obligations; Replacement of Lenders.


 


(a) Designation
of a Different Lending Office. If any Lender requests compensation under Section 3.04, or the Borrowers are required
to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender gives a notice pursuant to Section 3.02, 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 judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice
pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrowers hereby agree to pay all reasonable and documented
costs and expenses incurred by any Lender in connection with any such designation or assignment.


 


(b) Replacement
of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrowers are required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrowers
may replace such Lender in accordance with Section 10.13.


 


3.07 Survival. All
of the Borrowers’ obligations under this Article III shall survive termination of the Aggregate Commitments and repayment
of all other Obligations hereunder.


 


3.08 Designation
of Lead Borrower as Borrowers’ Agent.


 


(a) Each
Borrower hereby irrevocably designates and appoints the Lead Borrower as such Borrower’s agent to obtain Credit Extensions,
the proceeds of which shall be available to each Borrower for such uses as are permitted under this Agreement. As the disclosed
principal for its agent, each Borrower shall be obligated to each Secured Party on account of Credit Extensions so made as if made
directly by the applicable Secured Party to such Borrower, notwithstanding the manner by which such Credit Extensions are recorded
on the books and records of the Lead Borrower and of any other Borrower. In addition, each Loan



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Party other than the
Borrowers hereby irrevocably designates and appoints the Lead Borrower as such Loan Party’s agent to represent such Loan
Party in all respects under this Agreement and the other Loan Documents.


 


(b) Each
Borrower recognizes that credit available to it hereunder is in excess of and on better terms than it otherwise could obtain on
and for its own account and that one of the reasons therefor is its joining in the credit facility contemplated herein with all
other Borrowers. Consequently, each Borrower hereby assumes and agrees to discharge all Obligations of each of the other Borrowers.


 


(c) The
Lead Borrower shall act as a conduit for each Borrower (including itself, as a “Borrower”) on whose behalf the Lead
Borrower has requested a Credit Extension. Neither the Agent nor any other Secured Party shall have any obligation to see to the
application of such proceeds therefrom.


 


ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


4.01 Conditions
of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make Loans hereunder shall not become effective
until the date on which each of the following conditions is satisfied:


 


(a) The
Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic
image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party or the Lenders, as applicable, each
dated the Second Restatement Date (or, in the case of certificates of governmental officials, a recent date before the Second Restatement
Date) and each in form and substance reasonably satisfactory to the Agent:


 


(i) executed
counterparts of this Agreement sufficient in number for distribution to the Agent, each Lender and the Lead Borrower;


 


(ii) a Note
executed by the Borrowers in favor of each Lender requesting a Note;


 


(iii) such
certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each
Loan Party as the Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other
Loan Documents to which such Loan Party is a party or is to become a party and (B) the identity, authority and capacity of each
Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents
to which such Loan Party is a party or is to become a party;


 


(iv) copies
of each Loan Party’s Organization Documents and such other documents and certifications as the Agent may reasonably require
to evidence that each Loan Party is duly organized or formed, and that each Loan



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Party is validly
existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such
jurisdiction could not reasonably be expected to have a Material Adverse Effect;


 


(v) favorable
opinions of Cahill Gordon & Reindel LLP, counsel to the Loan Parties, Stearns Weaver Miller
Weissler Alhadeff & Sitterson, P.A., special Florida counsel to the Loan Parties, and Paine Hamblen LLP, special Washington
counsel to the Loan Parties, in each case addressed to the Agent and each Lender, as to such matters concerning the Loan Parties
and the Loan Documents as the Agent may reasonably request;


 


(vi) a certificate
signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in Sections 4.01, 4.02(a)
and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements
that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to
the Solvency of the Loan Parties, on a Consolidated basis, as of the Second Restatement Date after giving effect to the transactions
contemplated hereby, and (D) either that (1) no material governmental consents or approvals, and no third party consents, are required
in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan
Documents to which it is a party, or (2) that all such consents and approvals have been obtained and are in full force and effect;


 


(vii) evidence
that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Agent required
under the Loan Documents have been obtained and are in effect;


 


(viii) the
Security Agreement and certificates evidencing any stock and indebtedness constituting Collateral and required to be delivered
to the Agent thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;


 


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


 


(x) to the
extent not delivered prior to the date hereof, Uniform Commercial Code financing statements and Intellectual Property Security



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Agreement, required
by law or reasonably requested by the Agent to be filed, registered or recorded to create or perfect the first priority Liens intended
to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded
to the satisfaction of the Agent; and


 


(xi) such
other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.


 


(b) On and
as of the Second Restatement Date, Excess Availability shall be not less than $35,000,000.


 


(c) The
Agent shall have received a Borrowing Base Certificate dated the Second Restatement Date, relating to the month ended on December
31, 2016, and executed by a Responsible Officer of the Lead Borrower.


 


(d) The
Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition
of the Loan Parties and that there has been no Material Adverse Effect since January 30, 2016.


 


(e) The
Agent shall have received and be satisfied with copies of satisfactory interim unaudited financial statements of the Loan Parties
for each monthly period since the last financial statements through the most recent month end that is not more than 30 days prior
to the Second Restatement Date.


 


(f) All
fees and expenses required to be paid to the Agent or the Arranger on or before the Second Restatement Date shall have been paid
in full, and all fees and expenses required to be paid to the Lenders on or before the Second Restatement Date shall have been
paid in full.


 


(g) The
Borrowers shall have paid all fees, charges and disbursements of counsel to the Agent to the extent invoiced prior to or on the
Second Restatement Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable
estimate of such fees, charges and disbursements incurred or to be incurred by it through the Second Restatement Date (provided
that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Agent).


 


(h) The
Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable
“know your customer” and anti-money laundering rules and regulations (including without limitation, the Patriot Act
and money service business and high risk country requirements), in each case, the results of which are reasonably satisfactory
to the Agent.


 


Without limiting the
generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this
Section 4.01, each Lender 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 approved by or



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acceptable or satisfactory
to a Lender unless the Agent shall have received notice from such Lender prior to the proposed Second Restatement Date specifying
its objection thereto.


 


4.02 Conditions
to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a LIBO Rate
Loan Notice requesting only a continuation of LIBO Rate Loans) and each L/C Issuer to issue each Letter of Credit is subject to
the following conditions precedent:


 


(a) The
representations and warranties of each Loan Party contained in Article V or in any other Loan Document shall be true and
correct in all material respects on and as of the date of such Credit Extension, except (i) in the case of any representation and
warranty qualified by materiality, they shall be true and correct in all respects, (ii) to the extent that such representations
and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or
in all respects, as applicable) as of such earlier date, and (iii) for purposes of this Section 4.02, the representations
and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01;


 


(b) No Default
or Event of Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof;


 


(c) The
Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension or an updated
Borrowing Base Certificate, as applicable, in accordance with the requirements hereof; and


 


(d) No Overadvance
shall result from such Credit Extension.


 


Each Request for Credit
Extension (other than a LIBO Rate Loan Notice requesting only a continuation of LIBO Rate Loans) submitted by the Borrower shall
be deemed to be a representation and warranty by the Borrowers that the conditions specified in Sections 4.02(a) and (b)
have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 4.02
are for the sole benefit of the Secured Parties but until the Required Lenders otherwise direct the Agent to cease making Loans
and issuing Letters of Credit, the Lenders will fund their Applicable Percentage of all Loans and participate in all Swing Line
Loans and Letters of Credit whenever made or issued, which are requested by the Lead Borrower and which, notwithstanding the failure
of the Loan Parties to comply with the provisions of this Article IV, agreed to by the Agent, provided, however, the making
of any such Loans or the issuance of any Letters of Credit shall not be deemed a modification or waiver by any Secured Party of
the provisions of this Article IV on any future occasion or a waiver of any rights or the Secured Parties as a result of
any such failure to comply.


 


ARTICLE V

REPRESENTATIONS AND WARRANTIES


 


To induce the Secured
Parties to enter into this Agreement and to make Loans and to issue Letters of Credit hereunder, each Loan Party represents and
warrants to the Agent and the other Secured Parties that:



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5.01 Existence,
Qualification and Power. Each Loan Party and each Subsidiary
thereof (a) is a corporation, limited liability company, partnership or limited partnership, duly incorporated, organized or formed,
validly existing and, where applicable, in good standing under the Laws of the jurisdiction of its incorporation, organization,
or formation, (b) has all requisite power and authority and all requisite governmental licenses, permits, authorizations, consents
and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under
the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, where applicable, in good standing under
the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such
qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect. Schedule 5.01 annexed hereto sets forth, as of the Second
Restatement Date, each Loan Party’s name as it appears in official filings in its state of
incorporation or organization, its state of incorporation or organization, organization type, organization number, if any, issued
by its state of incorporation or organization, and its federal employer identification number.


 


5.02 Authorization;
No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document
to which such Person is or is to be a party, has been duly authorized by all necessary corporate or other organizational action,
and does not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or
result in any breach, termination, or contravention of, or constitute a default under, or require any payment to be made under
(i) any Material Contract or any Material Indebtedness to which such Person is a party or affecting such Person or the properties
of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral
award to which such Person or its property is subject; (c) result in or require the creation of any Lien upon any asset of any
Loan Party (other than Liens in favor of the Agent under the Security Documents); or (d) violate any Law, except, in the case
of clause (d), to the extent it would not reasonably be expected to have a Material Adverse Effect.


 


5.03 Governmental
Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, except for (a) the perfection or maintenance
of the Liens created under the Security Documents (including the first priority nature thereof) or (b) such as have been
obtained or made and are in full force and effect.


 


5.04 Binding Effect.
This Agreement has been, and each other Loan Document, when delivered, will have been, duly executed and delivered by each
Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute,
a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at
law.



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5.05 Financial
Statements; No Material Adverse Effect.


 


(a) The
Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein and (ii) fairly present in all material respects the financial condition of the Lead
Borrower and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance
with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein.


 


(b) The
unaudited Consolidated balance sheets of the Lead Borrower and its Subsidiaries dated each of April 30, 2016, July 30, 2016 and
October 31, 2016, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for
the Fiscal Quarter ended on each such date (i) were prepared in accordance with GAAP consistently applied throughout the periods
covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the financial condition
of the Lead Borrower and its Subsidiaries as of each such date and their results of operations for the period covered thereby,
subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments. Schedule
5.05 sets forth all Material Indebtedness and other liabilities, direct or contingent, of the Loan Parties and their Consolidated
Subsidiaries as of the date of such financial statements, including liabilities for taxes, material commitments and Material Indebtedness.


 


(c) Since
the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate,
that has had or could reasonably be expected to have a Material Adverse Effect.


 


(d) To
the best knowledge of the Lead Borrower, no Internal Control Event exists or has occurred since the date of the Audited Financial
Statements that has resulted in or could reasonably be expected to result in a misstatement in any material respect, (i) in any
financial information delivered or to be delivered to the Agent or the Lenders, (ii) of the Borrowing Base, (iii) of covenant compliance
calculations provided hereunder or (iv) of the assets, liabilities, financial condition or results of operations of the Lead Borrower
and its Subsidiaries on a Consolidated basis.


 


(e) The Consolidated
forecasted balance sheet and statements of income and cash flows of the Lead Borrower and its Subsidiaries delivered pursuant to
Section 6.01(d) were prepared in good faith on the basis of the assumptions stated therein, which assumptions were reasonably
believed in light of the conditions existing at the time of preparation of such forecasts, and represented, at the time of delivery,
the Loan Parties’ good faith estimate of its future financial performance (it being understood that such forecasted financial
information is subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties,
that no assurance is given that any particular forecasts will be realized, that actual results may differ and that such differences
may be material).


 


5.06 Litigation.
There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Loan Parties after due and
diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by
or



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against
any Loan Party or any of its Subsidiaries or against any of its properties or revenues that (a) purport to affect or pertain to
this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (b) except as specifically disclosed
in Schedule 5.06, either individually or in the aggregate, if determined adversely, could reasonably be expected to have
a Material Adverse Effect. Since the Second Restatement Date, there has been no adverse change
in the status, or financial effect on any Loan Party or any Subsidiary thereof, of the matters described on Schedule 5.06
that, individually or in the aggregate, has resulted in, or could reasonably be expected to result in, a Material Adverse Effect.


 


5.07 No Default.
No Loan Party or any Subsidiary is in default under or with respect to, or party to, any Material Contract or any Material Indebtedness.
No Default or Event of Default has occurred and is continuing or would result from the consummation of the transactions contemplated
by this Agreement or any other Loan Document.


 


5.08 Ownership
of Property; Liens.


 


(a) Each
of the Loan Parties and each Subsidiary thereof has good record and marketable title in fee simple to or valid leasehold interests
in, all Real Estate necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each of the Loan Parties and each Subsidiary has
good and marketable title to, valid leasehold interests in, or valid licenses to use all personal property and assets material
to the ordinary conduct of its business.


 


(b) Schedule
5.08(b)(1) sets forth the address (including street address, county and state) of all Real Estate that is owned by the Loan
Parties, together with a list of the holders of any mortgage or other Lien thereon as of the Second Restatement Date. Each Loan
Party and each of its Subsidiaries has good and marketable fee simple title to the Real Estate owned by such Loan Party or such
Subsidiary, free and clear of all Liens, other than Permitted Encumbrances. Schedule 5.08(b)(2) sets forth the address (including
street address, county and state) of all Leases of the Loan Parties, together with a list of the lessor and its contact information
with respect to each such Lease as of the Second Restatement Date. Each of such Leases is in full force and effect and the Loan
Parties are not in default in any material respect of the terms thereof (other than defaults arising from the failure to pay (i)
rent escalation payments that have not been invoiced or (ii) amounts that are being contested by a Loan Party in accordance with
Section 6.04).


 


(c) Schedule
7.01 sets forth a complete and accurate list of all Liens on the property or assets of each Loan Party and each of its Subsidiaries,
showing as of the Second Restatement Date the lienholder thereof, the principal amount of the obligations secured thereby and the
property or assets of such Loan Party or such Subsidiary subject thereto. The property of each Loan Party and each of its Subsidiaries
is subject to no Liens, other than Permitted Encumbrances.


 


(d) Schedule
7.02 sets forth a complete and accurate list of all Investments held by any Loan Party or any Subsidiary of a Loan Party on
the Second Restatement Date, showing as of the Second Restatement Date the amount, obligor or issuer and maturity, if any, thereof.



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(e) Schedule
7.03 sets forth a complete and accurate list of all Indebtedness of each Loan Party or any Subsidiary of a Loan Party on the
Second Restatement Date, showing as of the Second Restatement Date the amount, obligor or issuer and maturity thereof.


 


5.09 Environmental
Compliance


 


(a) Except
as specifically disclosed in Schedule 5.09 as could not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect, no Loan Party or any Subsidiary thereof (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received written notice of any claim alleging liability under Environmental Laws or (iv)
knows of any basis for any liability under Environmental Laws.


 


(b) Except
as otherwise set forth in Schedule 5.09 as could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, there are no underground or above-ground storage tanks or any surface impoundments, septic tanks, pits,
sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned
by any Loan Party or any Subsidiary thereof; there is no asbestos or asbestos-containing material on any property currently owned
by any Loan Party or Subsidiary thereof; and Hazardous Materials have not been released, discharged or disposed of on any property
currently owned by any Loan Party or any Subsidiary thereof.


 


(c) Except
as otherwise set forth on Schedule 5.09 as could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, no Loan Party or any Subsidiary thereof is undertaking, and no Loan Party or any Subsidiary thereof has
completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial
or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any property currently
owned by any Loan Party or Subsidiary thereof, either voluntarily or pursuant to the order of any Governmental Authority or the
requirements of any Environmental Law.


 


5.10 Insurance.
The properties of the
Loan Parties and their Subsidiaries are insured with financially sound and reputable insurance companies which are not Affiliates
of the Loan Parties, in such amounts (after giving effect to any self-insurance programs that are reasonably acceptable to the
Administrative Agent), with such deductibles and covering such risks (including, without limitation, workmen’s compensation,
public liability, business interruption and property damage insurance) as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Loan Parties or the applicable Subsidiary
operates. Schedule 5.10 sets forth a description of all insurance maintained by or on behalf of the Loan Parties as of
the Second Restatement Date. Each insurance policy listed on Schedule 5.10 is in full
force and effect and all premiums in respect thereof that are due and payable have been paid.


 


5.11 Taxes.
The Loan Parties and their Subsidiaries have filed all Federal
tax returns, and except as would not reasonably be expected to have a Material Adverse Effect, have filed all state and other
tax returns and reports required to be filed, and have paid all Taxes levied or



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imposed upon them or
their properties, income or assets otherwise due and payable, except those Taxes that are being contested in compliance with Section
6.04. There is no proposed tax assessment against any Loan Party or any Subsidiary that would, if made, have a Material Adverse
Effect. No Loan Party or any Subsidiary thereof is a party to any tax sharing agreement with any Person that is not a Loan Party
or a Subsidiary of a Loan Party.


 


5.12 ERISA
Compliance.


 


(a) Each
Plan, and the Lead Borrower and each of its ERISA Affiliates with respect to each Plan, is in compliance with the applicable provisions
of ERISA, the Code and other Federal or state Laws, except as would not reasonably be expected to have a Material Adverse Effect.
Each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter or is entitled
to rely on an opinion letter from the IRS or an application for such a letter is currently being processed by the IRS with respect
thereto and, to the best knowledge of the Lead Borrower, nothing has occurred which would prevent, or cause the loss of, such qualification
that would reasonably be expected to have a Material Adverse Effect. The Loan Parties and each ERISA Affiliate have made all required
contributions to each Plan subject to Sections 412 or 430 of the Code and to each Multiemployer Plan, and 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, except in either case as would not reasonably be expected to have a Material Adverse Effect. No Lien imposed under
the Code or ERISA exists or is likely to arise on account of any Plan or Multiemployer Plan that would reasonably be expected to
have a Material Adverse Effect.


 


(b) There
are no pending or, to the best knowledge of the Lead Borrower, threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that would reasonably be expected to have a Material Adverse Effect. There has been no prohibited
transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or would reasonably be
expected to result in a Material Adverse Effect.


 


(c) No
ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, would reasonably be expected to result in a Material Adverse Effect. Neither any Loan
Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect
to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA) that would reasonable be expected
to have a Material Adverse Effect. Neither any Loan Party nor any ERISA Affiliate 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 Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan) that would reasonable be expected to have a Material
Adverse Effect. Neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069
or 4212(c) of ERISA) that would reasonable be expected to have a Material Adverse Effect.



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5.13 Subsidiaries;
Equity Interests.


 


The Loan Parties have
no Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13, which Schedule sets forth the legal
name, jurisdiction of incorporation or formation and authorized Equity Interests of each such Subsidiary. All of the outstanding
Equity Interests in such Subsidiaries have been validly issued, are fully paid and non-assessable and are owned by a Loan Party
(or a Subsidiary of a Loan Party) in the amounts specified on Part (a) of Schedule 5.13 free and clear of all Liens except
for those created under the Security Documents and Permitted Encumbrances that do not have priority over the Liens of the Agent.
Except as set forth in Schedule 5.13, there are no outstanding rights to purchase any Equity Interests in any Subsidiary.
The Loan Parties have no equity investments in any other corporation or entity other than those specifically disclosed in Part
(b) of Schedule 5.13. The copies of the Organization Documents of each Loan Party and each amendment thereto provided pursuant
to Section 4.01 are true and correct copies of each such document, each of which is valid and in full force and effect.


 


5.14 Margin
Regulations; Investment Company Act.


 


(a) No
Loan Party is engaged or will be engaged, principally or as one of its important activities, in the business of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock. None of the proceeds of the Credit Extensions shall be used directly or indirectly for the purpose of purchasing
or carrying any margin stock, for the purpose of reducing or retiring any Indebtedness that was originally incurred to purchase
or carry any margin stock or for any other purpose that might cause any of the Credit Extensions to be considered a “purpose
credit” within the meaning of Regulations T, U, or X issued by the FRB.


 


(b) None
of the Loan Parties, any Person Controlling any Loan Party, or any Subsidiary is or is required to be registered as an “investment
company” under the Investment Company Act of 1940.


 


5.15 Disclosure.
Each Loan Party has disclosed to the Agent and the Lenders all agreements, instruments and corporate or other restrictions to
which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. No report, financial statement, certificate or other information
furnished in writing by or on behalf of any Loan Party to the Agent or any Lender in connection with the transactions contemplated
hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case, as modified
or supplemented by other information so furnished), taken as a whole, contains any material misstatement of fact or omits to state
any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not
misleading in any material purpose; provided that, with respect to projected financial information, the Loan Parties represent
only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.


 


5.16 Compliance
with Laws. Each of the Loan Parties and each Subsidiary is
in compliance (A) in all material respects with the requirements of all Laws and all orders, writs,



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injunctions and decrees
applicable to it or to its properties, except in such instances in which (i) such requirement of Law or order, writ, injunction
or decree is being contested in good faith by appropriate proceedings diligently conducted or (ii) the failure to comply therewith,
either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect and (B) with Sections
10.17 and 10.18.


 


5.17 Intellectual
Property; Licenses, Etc. The Loan Parties and
their Subsidiaries own, or possess the right to use, all of the Intellectual Property that are reasonably necessary for the operation
of their respective businesses, without conflict with the rights of any other Person, except as could not reasonably be expected
to have a Material Adverse Effect. To the best knowledge of the Lead Borrower, no slogan or other advertising device, product,
process, method, substance, part or other material now employed, or now contemplated to be employed, by any Loan Party or any Subsidiary
infringes upon any rights held by any other Person except to the extent such infringement could not reasonably be expected to result
in a Material Adverse Effect.


 


5.18 Labor
Matters.


 


There are no strikes,
lockouts, slowdowns or other material labor disputes against any Loan Party or any Subsidiary thereof pending or, to the knowledge
of any Loan Party, threatened. The hours worked by and payments made to employees of the Loan Parties comply with the Fair Labor
Standards Act and any other applicable federal, state, local or foreign Law dealing with such matters except to the extent that
any such violation could not reasonably be expected to have a Material Adverse Effect. No Loan Party or any of its Subsidiaries
has incurred any liability or obligation under the Worker Adjustment and Retraining Act or similar state Law. All payments due
from any Loan Party and its Subsidiaries, or for which any claim may be made against any Loan Party or any of its Subsidiaries,
on account of wages and employee health and welfare insurance and other benefits, have been paid or properly accrued in accordance
with GAAP as a liability on the books of such Loan Party, except to the extent the failure to pay or accrue such payment could
not reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule 5.18, no Loan Party or any
Subsidiary is a party to or bound by any collective bargaining agreement, management agreement, employment agreement, bonus, restricted
stock, stock option, or stock appreciation plan or agreement or any similar plan, agreement or arrangement. There are no representation
proceedings pending or, to any Loan Party’s knowledge, threatened to be filed with the National Labor Relations Board, and
no labor organization or group of employees of any Loan Party or any Subsidiary has made a pending demand for recognition. There
are no complaints, unfair labor practice charges, grievances, arbitrations, unfair employment practices charges or any other claims
or complaints against any Loan Party or any Subsidiary pending or, to the knowledge of any Loan Party, threatened to be filed with
any Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment
or termination of employment of any employee of any Loan Party or any of its Subsidiaries. The consummation of the transactions
contemplated by the Loan Documents will not give rise to any right of termination or right of renegotiation on the part of any
union under any collective bargaining agreement to which any Loan Party or any of its Subsidiaries is bound.



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5.19 Security
Documents.


 


(a) The
Security Agreement creates in favor of the Agent, for the benefit of the Secured Parties referred to therein, a legal, valid, continuing
and enforceable security interest in the Collateral (as defined in the Security Agreement), the enforceability of which is subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and
subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law. The financing statements,
releases and other filings are in appropriate form and have been or will be filed in the offices specified in Schedule II of the
Security Agreement. Upon such filings, the Agent will have a perfected Lien on, and security interest in, to and under all right,
title and interest of the grantors thereunder in all Collateral that may be perfected by filing, recording or registering a financing
statement with the secretary of state of the state of incorporation or formation of each such Loan Party (including without limitation
the proceeds of such Collateral subject to the limitations relating to such proceeds in the UCC), under the UCC (in effect on the
date this representation is made) in each case prior and superior in right to any other Person (except for Permitted Encumbrances).


 


(b) When
the Security Agreement (or a short form thereof) is filed in the United States Patent and Trademark Office and the United States
Copyright Office and when financing statements, releases and other filings in appropriate form are filed in the offices specified
in Schedule II of the Security Agreement, the Agent shall have a fully perfected Lien on, and security interest in, all right,
title and interest of the applicable Loan Parties in the Intellectual Property (as defined in the Security Agreement) in which
a security interest may be perfected by filing, recording or registering a security agreement, financing statement or analogous
document in the United States Patent and Trademark Office or the United States Copyright Office, as applicable, in each case prior
and superior in right to any other Person (it being understood that subsequent recordings in the United States Patent and Trademark
Office and the United States Copyright Office may be necessary to perfect a Lien on registered and applied for Intellectual Property
acquired by the Loan Parties after the Second Restatement Date).


 


5.20 Solvency


 


After giving effect
to the transactions contemplated by this Agreement, and before and after giving effect to each Credit Extension, the Loan Parties,
on a Consolidated basis, are Solvent. No transfer of property has been or will be made by any Loan Party and no obligation has
been or will be incurred by any Loan Party in connection with the transactions contemplated by this Agreement or the other Loan
Documents with the intent to hinder, delay, or defraud either present or future creditors of any Loan Party.


 


5.21 Deposit
Accounts; Credit Card Arrangements.


 


(a) Annexed
hereto as Schedule 5.21(a) is a list of all DDAs, other than Excluded Accounts, maintained by the Loan Parties as of the
Second Restatement Date, which Schedule includes, with respect to each DDA (i) the name and address of the depository; (ii) the
account number(s) maintained with such depository and (iii) the identification of each Blocked Account Bank.



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(b) Annexed
hereto as Schedule 5.21(b) is a list describing all arrangements as of the Second Restatement Date 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 and debit
card charges for sales made by such Loan Party.


 


5.22 Customer and
Trade Relations. There exists no actual or, to the knowledge of any Loan Party, threatened, termination or cancellation of,
or any material adverse modification or change in the business relationship of any Loan Party with any supplier material to its
operations.


 


5.23 Material Contracts;
Amazon Agreement. Schedule 5.23 sets forth all Material Contracts to which any Loan Party
is a party or is bound as of the Second Restatement Date. The Loan Parties have delivered
true, correct and complete copies of such Material Contracts to the Agent on or before the Second Restatement Date.
The Loan Parties are not in breach or in default in any material respect of or under any Material Contract. The Loan Parties have
not received any notice of (i) the intention of any other party thereto to terminate any Material Contract or (ii) the intention
of Amazon Services International, Inc. or its affiliates to terminate the Amazon Agreement.


 


5.24 Casualty.
Neither the businesses nor the properties of any Loan Party or any of its Subsidiaries are affected by any fire, explosion, accident,
act of God or other casualty (whether or not covered by insurance) that, either individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.


 


5.25 OFAC/Sanctions.
No Loan Party nor any of its Subsidiaries is in violation of any Sanctions. No Loan Party nor any of its Subsidiaries nor, to
the knowledge of such Loan Party, any director, officer, employee, agent or Affiliate of such Loan Party or such Subsidiary (a)
is a Sanctioned Person or a Sanctioned Entity, (b) has any assets located in Sanctioned Entities, or (c) derives revenues from
investments in, or transactions with Sanctioned Persons or Sanctioned Entities. Each of the Loan Parties and its Subsidiaries
has implemented and maintains in effect policies and procedures designed to ensure compliance by the Loan Parties and their Subsidiaries
and their respective directors, officers, employees, agents and Affiliates with the Anti-corruption Laws. Each of the Loan Parties
and its Subsidiaries, and to the knowledge of each such Loan Party, each director, officer, employee, agent and Affiliate of each
such Loan Party and each such Subsidiary, is in compliance with the Anti-corruption Laws in all material respects. No proceeds
of any loan made or Letter of Credit issued hereunder will be used to fund any operations in, finance any investments or activities
in, or make any payments to, a Sanctioned Person or a Sanctioned Entity, or otherwise used in any manner that would result in
a violation of any applicable sanction by any Person (including any Secured Party or other
individual or entity participating in any transaction).


 


ARTICLE VI

AFFIRMATIVE COVENANTS


 


So long as any Lender
shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than contingent
indemnification obligations for which a claim has not been asserted and obligations and liabilities with respect to



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Other Liabilities), or
any Letter of Credit shall remain outstanding (other than Letters of Credit that have been Cash Collateralized), the Loan Parties
shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02, and 6.03) cause each
Subsidiary to:


 


6.01 Financial
Statements. Deliver to the Agent, in form and detail reasonably
satisfactory to the Agent:


 


(a) as soon
as available, but in any event within 90 days after the end of each Fiscal Year of the Lead Borrower (commencing with the Fiscal
Year ended on or about January 28, 2017), a Consolidated and consolidating balance sheet of the Lead Borrower and its Subsidiaries
as at the end of such Fiscal Year, and the related consolidated and consolidating statements of income or operations, Shareholders’
Equity and cash flows for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal
Year, all in reasonable detail and prepared in accordance with GAAP, such Consolidated statements to be audited and accompanied
by a report and unqualified opinion of a Registered Public Accounting Firm of nationally recognized standing reasonably acceptable
to the Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not
be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope
of such audit, and such consolidating statements to be certified by a Responsible Officer of the Lead Borrower to the effect that
such statements are fairly stated in all material respects when considered in relation to the consolidated financial statements
of the Lead Borrower and its Subsidiaries;


 


(b) as soon
as available, but in any event within 45 days (or such earlier date that is five (5) days after the then current filing deadline
for the Lead Borrower’s Quarterly Report on Form 10-Q) after the end of each of the Fiscal Quarters of each Fiscal Year of
the Lead Borrower (commencing with the Fiscal Quarter ended on or about April 29, 2017), a Consolidated and consolidating balance
sheet of the Lead Borrower and its Subsidiaries as at the end of such Fiscal Quarter, and the related consolidated and consolidating
statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the
Lead Borrower’s Fiscal Year then ended, setting forth in each case in comparative form the figures for (A) such period set
forth in the projections delivered pursuant to Section 6.01(d), (B) the corresponding Fiscal Quarter of the previous Fiscal
Year and (C) the corresponding portion of the previous Fiscal Year, all in reasonable detail, such Consolidated statements to be
certified by a Responsible Officer of the Lead Borrower as fairly presenting in all material respects the financial condition,
results of operations, Shareholders’ Equity and cash flows of the Lead Borrower and its Subsidiaries as of the end of such
Fiscal Quarter in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes, and such
consolidating statements to be certified by a Responsible Officer of the Lead Borrower to the effect that such statements are fairly
stated in all material respects when considered in relation to the consolidated financial statements of the Lead Borrower and its
Subsidiaries;


 


(c) as soon
as available, but in any event within 30 days after the end of each of the Fiscal Months of each Fiscal Year of the Lead Borrower
(commencing with the



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Fiscal Month
ended December 31, 2016), a consolidated and consolidating balance sheet of the Lead Borrower and its Subsidiaries as at the end
of such Fiscal Month, and the related consolidated and consolidating statements of income or operations, Shareholders’ Equity
and cash flows for such Fiscal Month, and for the portion of the Lead Borrower’s Fiscal Year then ended, setting forth in
each case in comparative form the figures for (A) such period set forth in the projections delivered pursuant to Section 6.01(d)
hereof, (B) the corresponding Fiscal Month of the previous Fiscal Year and (C) the corresponding portion of the previous Fiscal
Year, all in reasonable detail, such consolidated statements to be certified by a Responsible Officer of the Lead Borrower as fairly
presenting in all material respects the financial condition, results of operations, Shareholders’ Equity and cash flows of
the Lead Borrower and its Subsidiaries as of the end of such Fiscal Month in accordance with GAAP, subject only to normal year-end
audit adjustments and the absence of footnotes and such consolidating statements to be certified by a Responsible Officer of the
Lead Borrower to the effect that such statements are fairly stated in all material respects when considered in relation to the
consolidated financial statements of the Lead Borrower and its Subsidiaries; and


 


(d) as soon
as available, but in any event no more than 30 days after the end of each Fiscal Year of the Lead Borrower, forecasts prepared
by management of the Lead Borrower, in form reasonably satisfactory to the Agent, of consolidated balance sheets and statements
of income or operations and cash flows of the Lead Borrower and its Subsidiaries on a monthly basis for the immediately following
Fiscal Year (including the Fiscal Year in which the Maturity Date occurs), and as soon as available, any significant revisions
to such forecast with respect to such Fiscal Year.


 


6.02 Certificates;
Other Information. Deliver to the Agent, in form and detail
reasonably satisfactory to the Agent:


 


(a) concurrently
with the delivery of the financial statements referred to in Section 6.01(a), a certificate of its Registered Public Accounting
Firm certifying such financial statements;


 


(b) concurrently
with the delivery of the financial statements referred to in Sections 6.01(a), (b) and (c) (commencing
with the delivery of the financial statements for the Fiscal Year ended January 28, 2017), a duly completed Compliance Certificate
signed by a Responsible Officer of the Lead Borrower, and in the event of any change in generally accepted accounting principles
used in the preparation of such financial statements, the Lead Borrower shall also provide: (i) a statement of reconciliation conforming
such financial statements to GAAP, and (ii) a copy of management’s discussion and analysis with respect to such financial
statements;


 


(c) on the
tenth (10th) day of each Fiscal Month (or, if such day is not a Business Day, on the next succeeding Business Day),
a Borrowing Base Certificate showing the Borrowing Base as of the close of business as of the last day of the immediately preceding
Fiscal Month (provided the Appraised Value applied to the Eligible Inventory set forth in each Borrowing Base Certificate
shall be the Appraised Value set forth in the most recent appraisal obtained by the Agent pursuant to Section



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6.10
for the applicable month to which such Borrowing Base Certificate relates), each Borrowing Base Certificate to be certified as
complete and correct by a Responsible Officer of the Lead Borrower; provided that at any time that an Accelerated Borrowing
Base Delivery Event has occurred and is continuing, at the election of the Agent, such Borrowing Base Certificate shall be delivered
on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day), as of the close of business
on the immediately preceding Saturday;


 


(d) promptly
upon receipt, copies of any material detailed audit reports, management letters or recommendations submitted to the board of directors
(or the audit committee of the board of directors) of any Loan Party by its Registered Public Accounting Firm in connection with
the accounts or books of the Loan Parties or any Subsidiary, or any audit of any of them, including, without limitation, specifying
any Internal Control Event;


 


(e) promptly
after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent
to the stockholders of the Loan Parties, and copies of all annual, regular, periodic and special reports and registration statements
which any Loan Party may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934
or with any national securities exchange, and in any case not otherwise required to be delivered to the Agent pursuant hereto;


 


(f) the
financial and collateral reports described on Schedule 6.02, at the times set forth in such Schedule;


 


(g) promptly
after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party or
any Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to
be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;


 


(h) as soon
as available, but in any event within 30 days after the end of each Fiscal Year of the Loan Parties, a report summarizing the insurance
coverage (specifying type, amount and carrier) in effect for each Loan Party and its Subsidiaries and containing such additional
information as the Agent, or any Lender through the Agent, may reasonably specify;


 


(i) promptly
after the Agent’s request therefor, copies of all Material Contracts and documents evidencing Material Indebtedness;


 


(j) promptly,
and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice
or other correspondence received from any Governmental Authority (including, without limitation, the SEC (or comparable agency
in any applicable non-U.S. jurisdiction)) concerning any proceeding with, or investigation or possible investigation or other inquiry
by such Governmental Authority regarding material financial or other



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operational
results of any Loan Party or any Subsidiary thereof or any other matter which, if adversely determined, could reasonably be expected
to have a Material Adverse Effect; and


 


(k) promptly,
such additional information regarding the business affairs, financial condition or operations of any Loan Party or any Subsidiary,
or compliance with the terms of the Loan Documents, as the Agent or any Lender may from time to time reasonably request.


 


Documents required to
be delivered pursuant to Section 6.01(a), (b), or (c) or Section 6.02(d) (to the extent any such documents
are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which the Lead Borrower posts such documents, or provides a link thereto on the Lead Borrower’s
website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the
Lead Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agent have access (whether
a commercial, third-party website or whether sponsored by the Agent); provided that: (i) the Lead Borrower shall deliver
paper copies of such documents to the Agent or any Lender that requests the Lead Borrower to deliver such paper copies until a
written request to cease delivering paper copies is given by the Agent or such Lender and (ii) the Lead Borrower shall notify the
Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agent by electronic
mail electronic versions (i.e., soft copies) of such documents. The Agent shall have no obligation to request the delivery
or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by
the Loan Parties with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it
or maintaining its copies of such documents.


 


The Loan Parties hereby
acknowledge that (a) the Agent and/or the Arranger will make available to the Lenders and the L/C Issuer materials and/or information
provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower
Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders
may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with
respect to the Loan Parties or their securities) (each, a “Public Lender”). The Loan Parties hereby agree that
they will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the
Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at
a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower
Materials “PUBLIC,” the Loan Parties shall be deemed to have authorized the Agent, the Arranger, the L/C Issuer and
the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive
and proprietary) with respect to the Loan Parties or their securities for purposes of United States Federal and state securities
laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated
as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available
through a portion of the Platform designated “Public Investor”; and (z) the Agent and the Arranger shall be entitled
to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the
Platform not designated “Public Investor.”



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6.03 Notices.
Promptly notify the Agent:


 


(a) of the
occurrence of any Default or Event of Default;


 


(b) of any
matter that has resulted or could reasonably be expected to result in a Material Adverse Effect;


 


(c) of any
monetary or other material breach or non-performance of, or any default under, a Material Contract or with respect to Material
Indebtedness of any Loan Party or any Subsidiary thereof;


 


(d) of the
termination of the Amazon Agreement or any change to the terms thereof that has resulted or could reasonably be expected to result
in a Material Adverse Effect;


 


(e) of any
dispute, litigation, investigation, proceeding or suspension between any Loan Party or any Subsidiary thereof and any Governmental
Authority or the commencement of, or any material development in, any litigation or proceeding affecting any Loan Party or any
Subsidiary thereof, including pursuant to any Environmental Laws which, if adversely determined, could reasonably be expected to
have a Material Adverse Effect;


 


(f) of the
occurrence of any ERISA Event that has resulted or would reasonably be expected to result in a Material Adverse Effect;


 


(g) of any
material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary thereof;


 


(h) of any
change in any Loan Party’s senior executive officers;


 


(i) of the
discharge by any Loan Party of its present Registered Public Accounting Firm or any withdrawal or resignation by such Registered
Public Accounting Firm;


 


(j) of any
collective bargaining agreement or other labor contract to which a Loan Party becomes a party, or the application for the certification
of a collective bargaining agent;


 


(k) of the
filing of any Lien for unpaid Taxes against any Loan Party in excess of $500,000;


 


(l) of any
casualty or other insured damage to any material portion of the Collateral or the commencement of any action or proceeding for
the taking of any interest in a material portion of the Collateral under power of eminent domain or by condemnation or similar
proceeding or if any material portion of the Collateral is damaged or destroyed;


 


(m) of any
transaction of the nature contained in Article VII hereof; and



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(n) of any
failure by any Loan Party to pay rent or such other amounts due at (i) any distribution centers or warehouses; or (ii) ten percent
(10%) or more of such Loan Party’s locations (other than rent escalation payments that have not been invoiced and payments
that are being contested by the Borrowers in good faith consistent with the provisions of Section 6.04 hereof), which failure
continues for more than ten (10) days (or such shorter cure period as provided in the lease for such location) following the day
on which such rent first came due.


 


Each notice pursuant
to this Section shall be accompanied by a statement of a Responsible Officer of the Lead Borrower setting forth details of the
occurrence referred to therein and stating what action the Lead Borrower has taken and proposes to take with respect thereto. Each
notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other
Loan Document that have been breached.


 


6.04 Payment
of Obligations. Pay and discharge as the same shall become
due and payable, all its obligations and liabilities, including (a) all Tax liabilities imposed upon it or its properties or assets,
(b) all lawful claims (including, without limitation, claims of landlords, warehousemen, customs brokers, freight forwarders,
consolidators and carriers) which, if unpaid, would by law become a Lien upon its property; and (c) all Indebtedness, as and when
due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness,
except, in each case, where (i) the validity or amount thereof is being contested in good faith by appropriate proceedings, (ii)
such Loan Party has set aside on its books adequate reserves with respect thereto in accordance with GAAP, (iii) such contest
effectively suspends collection of the contested obligation and enforcement of any Lien securing such obligation and (iv) the
failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect. Nothing
contained herein shall be deemed to limit the rights of the Agent with respect to determining Reserves pursuant to this Agreement.


 


6.05 Preservation
of Existence, Etc.


 


(a) Preserve,
renew and maintain in full force and effect its legal existence (and, except to the extent the failure to do so could not reasonably
be expected to have a Material Adverse Effect, good standing) under the Laws of the jurisdiction of its organization or formation
except in a transaction permitted by Section 7.04 or 7.05; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent
that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its
Intellectual Property, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect
or except to the extent such Intellectual Property is no longer used or useful in the conduct of the
business of the Loan Parties.


 


6.06 Maintenance
of Properties


 


(a) Maintain,
preserve and protect all of its material tangible properties and equipment necessary in the operation of its business in good working
order and condition, ordinary wear and tear excepted; and (b) make all necessary repairs thereto and renewals and



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replacements thereof
except in the case of clauses (a) and (b) where the failure to do so could not reasonably be expected to have a Material Adverse
Effect.


 


6.07 Maintenance
of Insurance.


 


(a) Maintain
with financially sound and reputable insurance companies not Affiliates of the Loan Parties, insurance with respect to its properties
and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business
and operating in the same or similar locations or as is required by applicable Law, of such types and in such amounts (after giving
effect to any self-insurance compatible with the following standards) as are customarily carried under similar circumstances by
such other Persons.


 


(b) Cause
fire and extended coverage policies maintained with respect to any Collateral to be endorsed or otherwise amended to include (i)
a non-contributing mortgage clause (regarding improvements to Real Estate) and lenders’ loss payable clause (regarding personal
property), in form and substance reasonably satisfactory to the Agent, which endorsements or amendments shall provide that the
insurer shall pay all proceeds otherwise payable to the Loan Parties under the policies directly to the Agent, (ii) a provision
to the effect that none of the Loan Parties, Secured Parties or any other Person shall be a co-insurer and (iii) such other provisions
as the Agent may reasonably require from time to time to protect the interests of the Secured Parties.


 


(c) Cause
commercial general liability policies to be endorsed to name the Agent as an additional insured.


 


(d) Maintain
for themselves and their Subsidiaries, business interruption policies with responsible companies in such amounts as are customarily
carried by business entities engaged in similar businesses similarly situated, and will upon request by the Agent furnish the Agent
certificates evidencing renewal of each such policy.


 


(e) Cause
each such policy referred to in this Section 6.07 to also 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 Agent (giving the Agent the right to cure defaults in the payment of premiums) or (ii) for any other reason except upon
not less than thirty (30) days’ prior written notice thereof by the insurer to the Agent.


 


(f) Deliver
to the Agent a copy of a renewal or replacement policy (or other evidence of renewal of a policy previously delivered to the Agent,
including an insurance binder) together with evidence reasonably satisfactory to the Agent of payment of the premium therefor.


 


(g) Maintain
for themselves and their Subsidiaries, a Directors and Officers insurance policy, and a “Blanket Crime” policy including
employee dishonesty, forgery or alteration, theft, disappearance and destruction, robbery and safe burglary, property, and computer
fraud coverage with responsible companies in such amounts as are customarily carried by business entities engaged in similar businesses
similarly situated, and will upon request by the Agent furnish the Agent certificates evidencing renewal of each such policy.



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(h) Permit
any representatives that are designated by the Agent to inspect the insurance policies maintained by or on behalf of the Loan Parties
and to inspect books and records related thereto and any properties covered thereby.


 


None of the Secured
Parties, or their agents or employees shall be liable for any loss or damage insured by the insurance policies required to be maintained
under this Section 6.07. Each Loan Party shall look solely to its insurance companies or any other parties other than the
Secured Parties for the recovery of such loss or damage and such insurance companies shall have no rights of subrogation against
any Secured Party or its agents or employees. If, however, the insurance policies do not provide waiver of subrogation rights against
such parties, as required above, then the Loan Parties hereby agree, to the extent permitted by law, to waive their right of recovery,
if any, against the Secured Parties and their agents and employees. The designation of any form, type or amount of insurance coverage
by any Secured Party under this Section 6.07 shall in no event be deemed a representation, warranty or advice by such Secured
Party that such insurance is adequate for the purposes of the business of the Loan Parties or the protection of their properties.


 


6.08 Compliance
with Laws. Comply (a) in all material respects with the requirements
of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances
in which (i) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted and with respect to which adequate reserves have been set aside and maintained by the Loan Parties in accordance
with GAAP; (ii) such contest effectively suspends enforcement of the contested Laws, and (iii) the failure to comply therewith
could not reasonably be expected to have a Material Adverse Effect, and (b) with Sections 10.17 and 10.18.


 


6.09 Books and
Records; Accountants.


 


(a) Maintain
proper books of record and account, in which full, true and correct, in all material respects, entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters involving the assets and business of the Loan Parties
or such Subsidiary, as the case may be; and (ii) maintain such books of record and account in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over the Loan Parties or such Subsidiary, as the case
may be.


 


(b) At
all times retain a Registered Public Accounting Firm which is reasonably satisfactory to the Agent and shall instruct such Registered
Public Accounting Firm to cooperate with, and be available to, the Agent or its representatives to discuss the Loan Parties’
financial performance, financial condition, operating results, controls, and such other matters, within the scope of the retention
of such Registered Public Accounting Firm, as may be raised by the Agent.


 


6.10 Inspection
Rights.


 


(a) Permit
representatives and independent contractors of the Agent to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts
with



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its directors, officers,
and Registered Public Accounting Firm, and permit the Agent or professionals (including investment bankers, consultants, accountants,
and lawyers) retained by the Agent to conduct evaluations of the Loan Parties’ business plan, forecasts and cash flows at
such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to
the Lead Borrower; provided, however, that when a Default or Event of Default exists, the Agent (or any of its representatives
or independent contractors) may do any of the foregoing at the expense of the Loan Parties at any time during normal business hours
and without advance notice.


 


(b) Upon
the request of the Agent after reasonable prior notice, permit the Agent or professionals (including investment bankers, consultants,
accountants, and lawyers) retained by the Agent to conduct commercial finance examinations and other evaluations, including, without
limitation, of (i) the Lead Borrower’s practices in the computation of the Borrowing Base and (ii) the assets included in
the Borrowing Base and related financial information such as, but not limited to, sales, gross margins, payables, accruals and
reserves. The Loan Parties shall pay the reasonable and documented out-of-pocket fees and expenses of the Agent and such professionals
with respect to such examinations and evaluations. Without limiting the foregoing, the Loan Parties acknowledge that the Agent
may, in its discretion, undertake one (1) commercial finance examinations each Fiscal Year at the Loan Parties’ expense if
(i) any Loans are outstanding at any time, or (ii) Letters of Credit having an aggregate Stated Amount in excess of $5,000,000
are outstanding at any time; provided that (a) if (i) any Loans are outstanding for thirty (30) or more consecutive days,
or (ii) Loans in excess of $10,000,000 in the aggregate are outstanding for three (3) or more consecutive Business Days, then,
in either case, the Agent may, in its discretion, undertake up to two (2) commercial finance examinations during the subsequent
twelve (12) month period, in each case at the Loan Parties’ expense; (b) if Availability falls below the greater of forty
percent (40%) of the Loan Cap or $16,000,000 for three (3) or more consecutive Business Days, the Agent may, in its discretion,
undertake up to three (3) commercial finance examinations during the subsequent twelve (12) month period, in each case at the Loan
Parties’ expense; and (c) if Availability falls below the greater of twenty percent (20%) of the Loan Cap or $8,000,000 for
three (3) or more consecutive Business Days, the Agent may, in its discretion, undertake up to four (4) commercial finance examinations
during the subsequent twelve (12) month period, in each case at the Loan Parties’ expense; provided, further,
that no more than four (4) commercial finance examinations in the aggregate pursuant to clauses (a) through (c). Notwithstanding
the foregoing, the Agent may cause additional commercial finance examinations to be undertaken (i) as it in its discretion deems
necessary or appropriate, at its own expense or, (ii) if required by Law or if a Default or Event of Default shall have occurred
and be continuing, at the expense of the Loan Parties and without advance notice. The Loan Parties acknowledge that the Agent may,
in its discretion and at the Loan Parties’ expense, undertake a commercial finance examination in connection with the Etailz
Acquisition following the Second Restatement Date, which commercial finance examination shall be in addition to, and not constitute
one of, the commercial finance examinations otherwise described in this clause (b).


 


(c) Upon
the request of the Agent after reasonable prior notice, permit the Agent or professionals (including appraisers) retained by the
Agent to conduct appraisals of the Collateral, including, without limitation, the assets included in the Borrowing Base. The Loan
Parties shall pay the reasonable and documented out-of-pocket fees and expenses of the Agent



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and such professionals
with respect to such appraisals. Without limiting the foregoing, the Loan Parties acknowledge that the Agent may, in its discretion,
undertake one (1) inventory appraisal each Fiscal Year at the Loan Parties’ expense; provided that (a) if (i) any
Loans are outstanding for thirty (30) or more consecutive days, (ii) Loans in excess of $10,000,000 in the aggregate are outstanding
for three (3) or more consecutive Business Days, or (iii) Letters of Credit having an aggregate Stated Amount in excess of $5,000,000
are outstanding at any time, then, in any such case, the Agent may, in its discretion, undertake up to two (2) inventory appraisals
during the subsequent twelve (12) month period, in each case at the Loan Parties’ expense; (b) if Availability falls below
the greater of forty percent (40%) of the Loan Cap or $16,000,000 for three (3) or more consecutive Business Days, the Agent may,
in its discretion, undertake up to three (3) inventory appraisals during the subsequent twelve (12) month, in each case at the
Loan Parties’ expense; and (c) if Availability falls below the greater of twenty percent (20%) of the Loan Cap or $8,000,000
for three (3) or more consecutive Business Days, the Agent may, in its discretion, undertake up to four (4) inventory appraisals
during the subsequent twelve (12) month period, in each case at the Loan Parties’ expense; provided, further,
that no more than four (4) inventory appraisals in the aggregate may be undertaken pursuant to clauses (a) through (c). Notwithstanding
the foregoing, the Agent may cause additional appraisals to be undertaken (i) as it in its discretion deems necessary or appropriate,
at its own expense or, (ii) if required by Law or if a Default or Event of Default shall have occurred and be continuing, at the
expense of the Loan Parties and without advance notice. The Loan Parties acknowledge that the Agent may, in its discretion and
at the Loan Parties’ expense, undertake an inventory appraisal in connection with the Etailz Acquisition following the Second
Restatement Date, which inventory appraisal shall be in addition to, and not constitute one of, the inventory appraisals otherwise
described in this clause (c).


 


6.11 Use
of Proceeds. Use the proceeds of the Credit Extensions (a)
to finance the acquisition of working capital assets of the Borrowers, including the purchase of inventory and equipment, in each
case in the ordinary course of business, (b) to finance Capital Expenditures of the Borrowers, and (c) for general corporate purposes
of the Loan Parties, in each case to the extent expressly permitted under applicable Law and the Loan Documents.


 


6.12 Additional
Loan Parties. Notify the Agent at the time that any Person
becomes a Subsidiary, and promptly thereafter (and in any event within thirty (30) days or such longer period as the Agent may
agree), cause any such Person (a) which is not an Excluded Subsidiary, to (i) become a Loan Party by executing and delivering
to the Agent a Joinder to this Agreement or a Joinder to the Facility Guaranty or such other documents as the Agent shall deem
appropriate for such purpose, (ii) grant a Lien to the Agent on such Person’s assets of the same type that constitute Collateral
(subject to the exclusions and limitations set forth in the Loan Documents) to secure the Obligations, and (iii deliver to the
Agent documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a) and, if requested by the Agent in
its reasonable discretion, favorable opinions of counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to in clause (a)), and (b) if any Equity Interests or
Indebtedness of such Person are owned by or on behalf of any Loan Party, to pledge such Equity Interests and promissory notes
evidencing such Indebtedness (except that, if such Subsidiary is a CFC Holdco or a Foreign Subsidiary that is not joined as a
Loan Party and constitute Collateral, the Equity Interests of such Subsidiary to be pledged may be limited to 65% of the outstanding
voting Equity Interests



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of such Subsidiary and
100% of the non-voting Equity Interests of such Subsidiary and such time period may be extended based on local law or practice),
in each case in form, content and scope reasonably satisfactory to the Agent. In no event shall compliance with this Section
6.12 waive or be deemed a waiver or Consent to any transaction giving rise to the need to comply with this Section 6.12
if such transaction was not otherwise expressly permitted by this Agreement or constitute or be deemed to constitute, with respect
to any Subsidiary, an approval of such Person as a Borrower or permit the inclusion of any acquired assets in the computation of
the Borrowing Base.


 


6.13 Cash
Management.


 


(a) To
the extent not previously delivered to the Agent, within ninety (90) days after the Second Restatement Date (or such longer period
as the Agent may reasonably agree):


 


(i) deliver
to the Agent copies of notifications (each, a “Credit Card Notification”) substantially in the form attached
hereto as Exhibit G which have been executed on behalf of such Loan Party and delivered to such Loan Party’s Credit
Card Issuers and Credit Card Processors listed on Schedule 5.21(b); and


 


(ii) enter
into a Blocked Account Agreement reasonably satisfactory in form and substance to the Agent with respect to each DDA maintained
with each Blocked Account Bank (collectively, the “Blocked Accounts”); provided that Blocked Accounts
shall not include any Excluded Accounts.


 


(b) At
the request of the Agent upon the occurrence and during the continuance of an Event of Default, the Loan Parties shall deliver
to the Agent copies of notifications (each, a “DDA Notification”) substantially in the form attached hereto
as Exhibit H which have been executed on behalf of such Loan Party and delivered to each depository institution listed on
Schedule 5.21(a).


 


(c) The
Loan Parties shall ACH or wire transfer no less frequently than once each Business Day (and whether or not there are then any outstanding
Obligations) to a Blocked Account all cash receipts and collections received by each Loan Party from all sources, including, without
limitation, the following:


 


(i) all
available cash receipts from the sale of Inventory and other assets (whether or not constituting Collateral);


 


(ii) all
proceeds of collections of Accounts;


 


(iii) all
Net Proceeds, and all other cash payments received by a Loan Party from any Person or from any source or on account of any Disposition
or other transaction or event, including, without limitation, any Prepayment Event;


 


(iv) the
then contents of each DDA (net of any minimum balance, not to exceed the lesser of (i) the product of $5,000 multiplied by the
number of Stores that routinely deposit cash receipts into such DDA in the ordinary course of business,



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consistent with
past practices, or (ii) $50,000, which lesser amount may remain on deposit in each DDA (unless the Agent is exercising its rights
and remedies under the Security Documents with respect to a substantial portion of the Collateral, in which case the entire contents
of each DDA shall be swept daily), as may be required to be kept in the subject DDA by the depository institution at which such
DDA is maintained);


 


(v) the
then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $2,500.00, as may be required to
be kept in the subject Blocked Account by the Blocked Account Bank); and


 


(vi) the
proceeds of all credit card charges.


 


(d) Each
Blocked Account Agreement shall require upon notice from Agent the ACH or wire transfer no less frequently than daily (and whether
or not there are then any outstanding Obligations) to the concentration account maintained by the Agent at Wells Fargo (the “Concentration
Account”), of all amounts contained in such Blocked Account.


 


(e) The
Concentration Account shall at all times be under the sole dominion and control of the Agent. The Loan Parties hereby acknowledge
and agree that (i) the Loan Parties have no right of withdrawal from the Concentration Account, (ii) the funds on deposit in the
Concentration Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the
Concentration Account shall be applied to the Obligations as provided in this Agreement. In the event that, notwithstanding the
provisions of this Section 6.13, any Loan Party receives or otherwise has dominion and control of any such cash receipts
or collections, such receipts and collections shall be held in trust by such Loan Party for the Agent, shall not be commingled
with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business
Day after receipt thereof, be deposited into the Concentration Account or dealt with in such other fashion as such Loan Party may
be instructed by the Agent.


 


(f) Upon
the request of the Agent after the occurrence and during the continuance of an Event of Default, the Loan Parties shall cause bank
statements and/or other reports to be delivered to the Agent not less often than monthly, accurately setting forth all amounts
deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.


 


6.14 Information
Regarding the Collateral.


 


(a) Furnish
to the Agent within thirty (30) days following such change (or such longer period as the Agent may agree) written notice of any
change in: (i) any Loan Party’s name; (ii) the location of any Loan Party’s chief executive office, its principal place
of business, any office in which it maintains books or records relating to a material portion of Collateral owned by it or any
office or facility at which a material portion of Collateral owned by it is located (including the establishment of any such new
office or facility but excluding in-transit Collateral); (iii) any Loan Party’s organizational structure or jurisdiction
of incorporation or formation; or (iv) any Loan Party’s Federal Taxpayer Identification Number or organizational identification
number assigned to it by its state of organization. The Loan Parties agree not to



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effect or permit any
change referred to in the preceding sentence unless the Loan Parties have undertaken all such action, if any, reasonably requested
by the Administrative Agent under the UCC or otherwise that are required in order for the Agent to continue at all times following
such change to have a valid, legal and perfected first priority security interest in all the Collateral for its own benefit and
the benefit of the other Secured Parties.


 


(b) From
time to time as may be reasonably requested by the Agent, the Lead Borrower shall supplement each Schedule hereto, or any representation
herein or in any other Loan Document, with respect to any matter arising after the Second Restatement Date that, if existing or
occurring on the Second Restatement Date, would have been required to be set forth or described in such Schedule or as an exception
to such representation or that is necessary to correct any information in such Schedule or representation which has been rendered
inaccurate thereby (and, in the case of any supplements to any Schedule, such Schedule shall be appropriately marked to show the
changes made therein). Notwithstanding the foregoing, no supplement or revision to any Schedule or representation shall be deemed
the Secured Parties’ consent to the matters reflected in such updated Schedules or revised representations nor permit the
Loan Parties to undertake any actions otherwise prohibited hereunder or fail to undertake any action required hereunder from the
restrictions and requirements in existence prior to the delivery of such updated Schedules or such revision of a representation;
nor shall any such supplement or revision to any Schedule or representation be deemed the Secured Parties’ waiver of any
Default or Event of Default resulting from the matters disclosed therein.


 


6.15 Physical
Inventories.


 


(a) Cause
not less than one (1) physical inventory to be undertaken, at the expense of the Loan Parties, in each twelve (12) month period,
and periodic cycle counts consistent with past practices, conducted by such inventory takers as are reasonably satisfactory to
the Agent and following such methodology as is consistent with the methodology used in the immediately preceding inventory or as
otherwise may be reasonably satisfactory to the Agent. The Agent, at the expense of the Loan Parties, may participate in and/or
observe each scheduled physical count of Inventory which is undertaken on behalf of any Loan Party. If an Event of Default has
occurred and is continuing, the Agent may, in its discretion, cause such additional inventories to be taken as the Agent determines
(each, at the expense of the Borrowers); provided, however, that in no event shall more than three (3) such additional
inventories be conducted during any Fiscal Year at the expense of the Borrowers. The Lead Borrower, within forty-five (45) days
following the end of each Fiscal Quarter, shall provide the Agent with a reconciliation of the results of all physical inventories
and cycle counts of the Inventory of the Loan Parties conducted during such Fiscal Quarter and shall post such results to the Loan
Parties’ stock ledgers and general ledgers, as applicable.


 


(b) Permit
the Agent, in its discretion, if any Default or Event of Default exists, to cause additional such inventories to be taken as the
Agent determines (each, at the expense of the Loan Parties).



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6.16 Environmental
Laws.


 


(a) Conduct
its operations and keep and maintain its Real Estate in material compliance with all Environmental Laws; (b) obtain and renew all
environmental permits necessary for its operations and properties; and (c) implement any and all investigation, remediation, removal
and response actions that are appropriate or necessary to maintain the value and marketability of the Real Estate or to otherwise
comply with Environmental Laws pertaining to the presence, generation, treatment, storage, use, disposal, transportation or release
of any Hazardous Materials on, at, in, under, above, to, from or about any of its Real Estate, provided, however,
that neither a Loan Party nor any of its 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.


 


6.17 Further
Assurances.


 


(a) Execute
any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the
filing and recording of financing statements and other documents), that may be required under any applicable Law, or which the
Agent may reasonably request, to effectuate the transactions contemplated by the Loan Documents or to grant, preserve, protect
or perfect the Liens created or intended to be created by the Security Documents or the validity or priority of any such Lien,
all at the expense of the Loan Parties.


 


(b) If
any assets of the type constituting Collateral and with a value in excess of $1,000,000 are acquired by any Loan Party after the
Second Restatement Date (other than assets constituting Collateral under the Security Documents that become subject to the perfected
first-priority Lien (subject to Liens permitted by Section 7.01) under the Security Documents upon acquisition thereof),
notify the Agent thereof, and within thirty (30) days after such acquisition (or such longer period as the Agent may reasonable
agree) the Loan Parties will cause such assets to be subjected to a Lien securing the Obligations and will take such actions as
shall be reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (a) of this
Section 6.17, all at the expense of the Loan Parties. In no event shall compliance with this Section 6.17(b) waive
or be deemed a waiver or Consent to any transaction giving rise to the need to comply with this Section 6.17(b) if such
transaction was not otherwise expressly permitted by this Agreement or constitute or be deemed to constitute Consent to the inclusion
of any acquired assets in the computation of the Borrowing Base.


 


(c) Upon
the request of the Agent with respect to any such location that is a distribution center leased by the Loan Parties or at which
books and records of the Loan Parties are stored, use commercially reasonable efforts to cause any landlord with respect to such
location to deliver a Collateral Access Agreement to the Agent in such form as the Agent may reasonably require.



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(d) Within
thirty (30) days following the Second Restatement Date, delivery of insurance endorsements with respect to the property and liability
insurance policies of the Loan Parties in form and substance reasonably satisfactory to the Agent.


 


6.18 Compliance
with Terms of Leaseholds


 


Except as otherwise
expressly permitted hereunder, (a) make all payments and otherwise perform all obligations in respect of all Leases to which any
Loan Party or any of its Subsidiaries is a party, keep such Leases in full force and effect, (b) not allow such Leases to lapse
or be terminated or any rights to renew such Leases to be forfeited or cancelled, (c) notify the Agent of any default by any party
with respect to such Leases and cooperate with the Agent in all respects to cure any such default, and (d) cause each of its Subsidiaries
to do the foregoing.


 


6.19 Material
Contracts; Amazon Agreement. (a) Perform and observe all the
terms and provisions of each Material Contract to be performed or observed by it, (b) maintain each such Material Contract and
the Amazon Agreement in full force and effect, and (c) enforce each such Material Contract in accordance with its terms.


 


ARTICLE VII

NEGATIVE COVENANTS


 


So long as any Lender
shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding (other than Letters of Credit that have been Cash Collateralized), no Loan Party shall, nor shall
it permit any Subsidiary to, directly or indirectly:


 


7.01 Liens.
Create, incur, assume or suffer to exist any Lien upon any
of its property, assets or revenues, whether now owned or hereafter acquired; sign or suffer to exist any security agreement authorizing
any Person thereunder to file such financing statement; sell any of its property or assets subject to an understanding or agreement
(contingent or otherwise) to repurchase such property or assets with recourse to it or any of its Subsidiaries; or assign or otherwise
transfer any accounts or other rights to receive income, other than, as to all of the above, Permitted Encumbrances.


 


7.02 Investments.
Make any Investments, except Permitted Investments.


 


7.03 Indebtedness;
Disqualified Stock


 


(a) Create,
incur, assume, guarantee, suffer to exist or otherwise become or remain liable with respect to, any Indebtedness, except Permitted
Indebtedness; or (b) issue Disqualified Stock.


 


7.04 Fundamental
Changes. Merge, dissolve, liquidate, consolidate with or into
another Person, (or agree to do any of the foregoing), except that, so long as no Default or Event of Default shall have occurred
and be continuing prior to or immediately after giving effect to any action described below or would result therefrom:



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(a) any
Subsidiary which is not a Loan Party may merge with (i) a Loan Party; provided that the Loan Party shall be the continuing
or surviving Person, or (ii) any one or more other Subsidiaries which are not Loan Parties, provided that when any wholly-owned
Subsidiary is merging with another Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving Person;


 


(b) any
Subsidiary which is a Loan Party may merge into any Subsidiary which is a Loan Party or into a Borrower; provided that in
any merger involving a Borrower, such Borrower shall be the continuing or surviving Person;


 


(c) Movie
Plus, Inc. may be dissolved or merged into a Loan Party; provided that any such dissolution or merger shall occur within
sixty (60) days following the Second Restatement Date;


 


(d) in connection
with a Permitted Acquisition, any Subsidiary of a Loan Party may merge with or into or consolidate with any other Person or permit
any other Person to merge with or into or consolidate with it; provided that (i) the Person surviving such merger shall
be a wholly-owned Subsidiary of a Loan Party and such Person shall become a Loan Party in accordance with the provisions of Section
6.12, and (ii) in the case of any such merger to which any Loan Party is a party, such Loan Party is the surviving Person;
and


 


(e) any
CFC or CFC Holdco that is not a Loan Party may merge into any other CFC or CFC Holdco that is not a Loan Party.


 


7.05 Dispositions.
Make any Disposition or enter into any agreement to make any Disposition, except Permitted Dispositions. To the extent any Collateral
is Disposed of in a Permitted Disposition to any Person other than any Loan Party, such Collateral shall be sold free and clear
of all Liens created by the Loan Documents.


 


7.06 Restricted
Payments. Declare or make, directly
or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity
Interests or accept any capital contribution, except that, so long as no Default or Event of Default exists or would arise therefrom:
(i) the Loan Parties may declare and pay Permitted Dividends; and (ii) the Lead Borrower may make Restricted Payments pursuant
to the Trans World Entertainment Corporation 2005 Long Term and Incentive Share Award Plan and any other plans of the Loan Parties
existing on the Second Restatement Date and described in the Lead Borrower’s Form 10-K for Fiscal Year ended January 30,
2016 each as in effect as of the Second Restatement Date.


 


7.07 Prepayments
of Indebtedness. Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled
maturity thereof in any manner any Indebtedness, or make any payment in violation of any subordination terms of any Subordinated
Indebtedness, except (a) as long as no Default or Event of Default then exists, regularly scheduled or mandatory repayments, repurchases,
redemptions or defeasances of (i) Permitted Indebtedness (other than Subordinated Indebtedness), and (ii) Subordinated Indebtedness
in accordance with the subordination terms thereof or the applicable subordination agreement relating thereto, (b) voluntary prepayments,



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repurchases, redemptions
or defeasances of (i) Permitted Indebtedness (but excluding on account of any Subordinated Indebtedness) as long as the Payment
Conditions are satisfied, and (ii) Subordinated Indebtedness in accordance with the subordination terms thereof or the applicable
subordination agreement relating thereto, and as long as the Payment Conditions are satisfied, (c) payment of the Earnout Consideration
(as defined in the Etailz Acquisition Agreement), as and when due pursuant to the Etailz Acquisition Agreement; provided
that the sole source of payment shall be the funds maintained in escrow as the Earnout Escrow Amount with the Escrow Agent (as
each such term is defined in the Etailz Acquisition Agreement), and (d) Permitted Refinancings of any such Indebtedness.


 


7.08 Change
in Nature of Business. Engage to any material extent in any
business other than businesses of the type conducted by the Loan Parties on the Second Restatement Date and businesses reasonably
related or complementary thereto, except that a Loan Party other than a Borrower may withdraw from any business activity which
such Person’s board of directors reasonably deems unprofitable or unsound; provided promptly after such withdrawal,
the Lead Borrower shall provide the Agent with written notice thereof.


 


7.09 Transactions
with Affiliates. Enter into, renew, extend or be a party
to any transaction of any kind with any Affiliate of any Loan Party, whether or not in the ordinary course of business, other
than on fair and reasonable terms substantially as favorable to the Loan Parties or such Subsidiary as would be obtainable by
the Loan Parties or such Subsidiary at the time in a comparable arm’s length transaction with a Person other than an
Affiliate; provided that the foregoing restriction shall not apply to (a) a transaction between or among the Loan
Parties, (b) transactions described on Schedule 7.09, (c) advances for commissions, travel and other similar purposes
in the ordinary course of business to directors, officers and employees, (d) the issuance of Equity Interests in the Lead
Borrower to any officer, director, employee or consultant of the Lead Borrower or any of its Subsidiaries, (e) the payment of
reasonable fees and out-of-pocket costs to directors, and compensation and employee benefit arrangements paid to, and
indemnities provided for the benefit of, directors, officers or employees of the Lead Borrower or any of its Subsidiaries,
(f) transactions in accordance with the terms and conditions of the Existing Intercompany Agreements, (g) the leases with
Robert J. Higgins for the Lead Borrower’s offices at 38 Corporate Circle, Albany, New York 12203 and the equipment
therein, as such leases are in effect as of the Second Restatement Date and any payments thereunder, and (h) any issuances of
securities of the Lead Borrower (other than Disqualified Stock and other Equity Interests not permitted hereunder) or other
payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements, stock
options and stock ownership plans (in each case in respect of Equity Interests in the Lead Borrower) of the Lead Borrower or
any of its Subsidiaries.


 


7.10 Burdensome
Agreements. Enter into or permit to exist any Contractual
Obligation (other than this Agreement or any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make Restricted
Payments or other distributions to any Loan Party or to otherwise transfer property to or invest in a Loan Party, (ii) of any
Subsidiary to Guarantee the Obligations, (iii) of any Subsidiary to make or repay loans to a Loan Party, or (iv) of the Loan Parties
or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person in favor of the Agent; provided,
however, that this clause (iv) shall not prohibit any negative pledge incurred or provided in favor of any holder of Indebtedness
permitted under



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clauses (c) or (f) of
the definition of Permitted Indebtedness solely to the extent any such negative pledge relates to the property financed by or the
subject of such Indebtedness; or (b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to
secure another obligation of such Person.


 


7.11 Use
of Proceeds. Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, (a) to purchase or carry margin stock (within the
meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to
refund Indebtedness originally incurred for such purpose; (b) to make any payments to a Sanctioned Entity or a Sanctioned Person,
to finance any investments in a Sanctioned Entity or a Sanctioned Person, to fund any operations of a Sanctioned Entity or a Sanctioned
Person), or in any other manner that would result in a violation of Sanctions by any Person; or (c) for purposes other than those
permitted under this Agreement.


 


7.12 Amendment
of Material Documents.


 


Amend, modify or waive
any of a Loan Party’s rights under (a) its Organization Documents in a manner materially adverse to the Secured Parties,
or (b) any Material Contract or Material Indebtedness (other than on account of any refinancing thereof otherwise permitted hereunder),
in each case to the extent that such amendment, modification or waiver would result in a Default or Event of Default under any
of the Loan Documents, would be materially adverse to the Secured Parties or otherwise would be reasonably likely to have a Material
Adverse Effect.


 


7.13 Fiscal
Year.


 


Change (i) the Fiscal
Year of any Loan Party, except as required by GAAP or with the prior written consent of the Agent (which shall not be unreasonably
withheld or delayed), or (ii) the accounting policies or reporting practices of the Loan Parties, except as required by GAAP.


 


7.14 Deposit
Accounts; Credit Card Processors.


 


Open new DDAs or Blocked
Accounts unless the Loan Parties shall have delivered to the Agent appropriate DDA Notifications (to the extent requested by Agent
pursuant to the provisions of Section 6.13(b)) or Blocked Account Agreements consistent with the provisions of Section
6.13 and otherwise reasonably satisfactory to the Agent. No Loan Party shall maintain any bank accounts or enter into any agreements
with Credit Card Issuers or Credit Card Processors other than the ones expressly contemplated herein or in Section 6.13.
Without the prior written consent of the Agent (such consent not to be unreasonably withheld or delayed), no Loan Party shall modify
or amend the instructions pursuant to any Credit Card Notifications, Blocked Account Agreements or other Control Agreements (as
defined in the Security Agreement).


 


ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES


 


8.01 Events
of Default. Any of the following shall constitute an Event
of Default:



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(a) Non-Payment.
The Borrowers or any other Loan Party fails to pay when and as required to be paid herein, (i) any amount of principal of any Loan
or any L/C Obligation, or deposit any funds as Cash Collateral in respect of L/C Obligations, or (ii) any interest on any Loan
or on any L/C Obligation, or any fee due hereunder, and such failure continues for three (3) Business Days, or (iii) any other
amount payable hereunder or under any other Loan Document, and such failure continues for three (3) Business Days; or


 


(b) Specific
Covenants. Any Loan Party fails to perform or observe any term, covenant or agreement contained in any of Section 6.01,
6.02, 6.03(a), 6.05, 6.07 (with respect to any portion of the Collateral), 6.10, 6.11,
6.12, 6.13 or 6.14 or Article VII; or


 


(c) Other
Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b)
above) contained in any Loan Document on its part to be performed or observed and such failure continues for ten (10) Business
Days after the earlier of: (i) any Loan Party’s knowledge thereof; or (ii) notice thereof from the Agent to the Lead Borrower;
or


 


(d) Representations
and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any
Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith
(including, without limitation, any Borrowing Base Certificate), or in completing any request for a Borrowing via the Portal, shall
be incorrect or misleading in any material respect (or, in the case of any representation and warranty qualified by materiality,
in any respect) when made or deemed made; or


 


(e) Cross-Default.
(i) Any Loan Party or any Subsidiary thereof (A) fails to make any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise but after giving effect to any applicable grace periods) in respect of any Material Indebtedness
(including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated
credit arrangement), or (B) fails to observe or perform any other agreement or condition relating to any such Material Indebtedness
or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of
which default or other event is to cause, or to permit the holder or holders of such Material Indebtedness or the beneficiary or
beneficiaries of any Guarantee thereof (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries)
to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be
made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or
(ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event
of default under such Swap Contract as to which a Loan Party or any Subsidiary thereof is the Defaulting Party (as defined in such
Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which a Loan



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Party or any
Subsidiary thereof is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Loan Party
or such Subsidiary as a result thereof is greater than $1,500,000; or


 


(f) Insolvency
Proceedings, Etc. Any Loan Party or any of its Subsidiaries institutes, consents to the institution of or declares its
intention to institute any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its property; or a proceeding shall be commenced or a petition
filed, without the application or consent of such Person, seeking or requesting the appointment of any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar officer is appointed and the appointment continues undischarged,
undismissed or unstayed for 30 calendar days or an order or decree approving or ordering any of the foregoing shall be
entered; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its
property is instituted without the consent of such Person and continues undismissed or unstayed for 30 calendar days, or an
order for relief is entered in any such proceeding; or


 


(g) Inability
to Pay Debts; Attachment. (i) Any Loan Party or any Subsidiary thereof becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due in the ordinary course of business, or (ii) any writ or warrant of attachment
or execution or similar process is issued or levied against all or any material part of the property of any such Person and is
not released, vacated or fully bonded within 10 days after its issuance or levy; or


 


(h) Judgments.
There is entered against any Loan Party or any Subsidiary thereof (i) one or more judgments or orders for the payment of money
in an aggregate amount (as to all such judgments and orders) exceeding $5,000,000 (to the extent not covered by independent third-party
insurance as to which the insurer is rated at least “A” by A.M. Best Company, has been notified of the potential claim
and does not dispute coverage), or (ii) any one or more non-monetary judgments that have, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any
creditor upon such judgment or order, or (B) there is a period of (x) 45 consecutive days (in the case of judgments described in
the foregoing clause (i)), or (y) 30 consecutive days (in the case of judgments described in the foregoing clause (ii)), during
which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, is not in effect; or


 


(i) ERISA.
(i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or would reasonably be expected
to result in liability of any Loan Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate
amount which would reasonably likely result in a Material Adverse Effect, or (ii) a Loan Party or any ERISA Affiliate fails to
pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer



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Plan in an aggregate
amount which would reasonably likely result in a Material Adverse Effect; or


 


(j) Invalidity
of Loan Documents. (i) Any material provision of any Loan Document, at any time after its execution and delivery and for any
reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations (other than contingent
indemnification obligations for which a claim has not been asserted and obligations and liabilities with respect to Other Liabilities),
ceases to be in full force and effect; or any Loan Party or any Governmental Authority contests in any manner the validity or enforceability
of any material provision of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under
any material provision of any Loan Document, or purports to revoke, terminate or rescind any material provision of any Loan Document
or seeks to avoid, limit or otherwise adversely affect any Lien purported to be created under any Security Document; or (ii) any
Lien purported to be created under any Security Document (other than pursuant to the terms hereof or thereof) shall cease to be,
or shall be asserted by any Loan Party, any Subsidiary thereof or any Governmental Authority not to be, a valid and perfected Lien
on any Collateral (other than an immaterial portion of the Collateral not of the type included in the Borrowing Base, with the
priority required by the applicable Security Document, except to the extent (i) expressly permitted hereunder or thereunder or
satisfaction in full of all the Obligations (other than contingent indemnification obligations as to which no claim has been asserted
and obligations and liabilities with respect to Other Liabilities, (ii) that any such perfection or priority is not required pursuant
to the Loan Documents or results from the failure of the Agent to maintain possession of Collateral actually delivered to it or
(iii) with respect to Collateral consisting of real property, such losses are covered by a lender’s title insurance policy
and such insurers have not denied or failed to acknowledge coverage; or


 


(k) Change
of Control. There occurs any Change of Control; or


 


(l) Cessation
of Business. Except as otherwise expressly permitted hereunder, any Loan Party shall take any action, or
shall make a determination, whether or not yet formally approved by any Loan Party’s management or board of directors,
to (i) suspend the operation of all or a material portion of its business in the ordinary course, (ii) suspend the payment of any
material obligations in the ordinary course or suspend the performance under material contracts in the ordinary course, (iii) solicit
proposals for the liquidation of, or undertake to liquidate, all or a material portion of its assets or Store locations, or (iv)
solicit proposals for the employment of, or employ, an agent or other third party to conduct a program of closings, liquidations,
or “Going-Out-Of-Business” sales of any material portion of its business; or


 


(m) Loss
of Collateral. There occurs any uninsured loss to any material portion of the Collateral included in the Borrowing Base or
necessary to sell the assets included in the Borrowing Base; or



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(n) Guaranty.
The termination or attempted termination of any Facility Guaranty except as expressly permitted hereunder or under any other Loan
Document; or


 


(o) Subordination.
(i) The subordination provisions of the documents evidencing or governing any Subordinated Indebtedness, or the provisions of any
intercreditor agreement entered into by the Agent after the date hereof (any such subordination or intercreditor provisions being
referred to as the “Intercreditor Provisions”), shall, in whole or in part, terminate, cease to be effective
or cease to be legally valid, binding and enforceable against any holder of the applicable Indebtedness; or (ii) any Borrower or
any other Loan Party shall, directly or indirectly, disavow or contest in any manner (A) the effectiveness, validity or enforceability
of any of the Intercreditor Provisions, (B) that the Intercreditor Provisions exist for the benefit of the Secured Parties, or
(C) in the case of Subordinated Indebtedness, that all payments of principal of or premium and interest on the applicable Subordinated
Indebtedness, or realized from the liquidation of any property of any Loan Party, shall be subject to any of the Intercreditor
Provisions.


 


8.02 Remedies
Upon Event of Default. If any Event of Default occurs and
is continuing, the Agent may, or, at the request of the Required Lenders shall, take any or all of the following actions:


 


(a) declare
the Commitments of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated,
whereupon such Commitments and obligation shall be terminated;


 


(b) declare
the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other Obligations (other
than Obligations under any Swap Contract) to be immediately due and payable, without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by the Loan Parties;


 


(c) require
that the Loan Parties Cash Collateralize the L/C Obligations; and


 


(d) whether
or not the maturity of the Obligations shall have been accelerated pursuant hereto, proceed to protect, enforce and exercise all
rights and remedies of the Secured Parties under this Agreement, any of the other Loan Documents
or applicable Law, including, but not limited to, by suit in equity, action at law or other appropriate proceeding, whether for
the specific performance of any covenant or agreement contained in this Agreement and the other Loan Documents or any instrument
pursuant to which the Obligations are evidenced, and, if such amount shall have become due, by declaration or otherwise, proceed
to enforce the payment thereof or any other legal or equitable right of the Secured Parties;


 


provided, however,
that upon the occurrence of any Event of Default with respect to any Loan Party or any Subsidiary thereof under Section 8.01(f),
the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically



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terminate, the unpaid
principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable,
and the obligation of the Loan Parties to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective,
in each case without further act of the Agent or any Lender.


 


No remedy herein is
intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of Law.


 


Each of the Lenders
agrees that it shall not, unless specifically requested to do so in writing by Agent, take or cause to be taken any action, including,
the commencement of any legal or equitable proceedings to enforce any Loan Document against any Loan Party or to foreclose any
Lien on, or otherwise enforce any security interest in, or other rights to, any of the Collateral.


 


8.03 Application
of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically
been required to be Cash Collateralized as set forth in the proviso to Section 8.02), any amounts received on account of
the Obligations shall be applied by the Agent in the following order:


 


First,
to payment of that portion of the Obligations (excluding the Other Liabilities) constituting fees, indemnities, Secured Party Expenses
and other amounts (including fees, charges and disbursements of counsel to the Agent and amounts payable under Article III)
payable to the Agent;


 


Second,
to payment of that portion of the Obligations (excluding the Other Liabilities) constituting indemnities, Secured Party Expenses,
and other amounts (other than principal, interest and fees) payable to the Lenders and the L/C Issuer (including fees, charges
and disbursements of counsel to the respective Lenders and the L/C Issuer and amounts payable under Article III), ratably
among them in proportion to the amounts described in this clause Second payable to them;


 


Third,
to the extent not previously reimbursed by the Lenders, to payment to the Agent of that portion of the Obligations constituting
principal and accrued and unpaid interest on any Permitted Overadvances;


 


Fourth,
to the extent that Swing Line Loans have not been refinanced by a Committed Loan, payment to the Swing Line Lender of that portion
of the Obligations constituting accrued and unpaid interest on the Swing Line Loans;


 


Fifth,
to payment of that portion of the Obligations constituting accrued and unpaid interest on the Committed Loans and other Obligations,
and fees (including Letter of Credit Fees), ratably among the Lenders and the L/C Issuer in proportion to the respective amounts
described in this clause Fifth payable to them;


 




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Sixth,
to the extent that Swing Line Loans have not been refinanced by a Committed Loan, to payment to the Swing Line Lender of that portion
of the Obligations constituting unpaid principal of the Swing Line Loans;


 


Seventh,
to payment of that portion of the Obligations constituting unpaid principal of the Committed Loans, ratably among the Lenders in
proportion to the respective amounts described in this clause Seventh held by them;


 


Eighth,
to the Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit;


 


Ninth, to
payment of all other Obligations (including without limitation the cash collateralization of unliquidated indemnification obligations,
but excluding any Other Liabilities), ratably among the Secured Parties in proportion to the respective amounts described in this
clause Ninth held by them;


 


Tenth,
to payment of that portion of the Obligations arising from Cash Management Services to the extent secured under the Security Documents,
ratably among the Secured Parties in proportion to the respective amounts described in this clause Tenth held by them;


 


Eleventh,
to payment of all other Obligations arising from Bank Products to the extent secured under the Security Documents, ratably among
the Secured Parties in proportion to the respective amounts described in this clause Eleventh held by them; and


 


Last,
the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Loan Parties or as otherwise required
by Law.


 


Subject to Section
2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Eighth
above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash
Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other
Obligations, if any, in the order set forth above.



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ARTICLE IX

THE AGENT


 


9.01 Appointment
and Authority. Each of the Lenders and the Swing Line Lender
hereby irrevocably appoints Wells Fargo to act on its behalf as the Administrative Agent and the Collateral Agent hereunder and
under the other Loan Documents (other than the Swap Contracts) and authorizes the Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Agent by the terms hereof or thereof (including, without limitation, acquiring,
holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations), together
with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of
the Agent, the Lenders and the L/C Issuer, and no Loan Party or any Subsidiary thereof shall have rights as a third party beneficiary
of any of such provisions.


 


9.02 Rights
as a Lender. The Person serving as the 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 they were
not the Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless
the context otherwise requires, include the Person serving as the Agent hereunder in its individual capacity. Such Person and
its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and
generally engage in any kind of business with the Loan Parties or any Subsidiary or other Affiliate thereof as if such Person
were not the Agent hereunder and without any duty to account therefor to the Lenders.


 


9.03 Exculpatory
Provisions. The Agent shall not have any duties or obligations
except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, the
Agent:


 


(a) shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is
continuing;


 


(b) shall
not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the 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 expressly provided for herein or in the other Loan
Documents); provided that the Agent shall not be required to take any action that, in its opinion or the opinion of its
counsel, may expose the Agent to liability or that is contrary to any Loan Document or applicable law; and


 


(c) shall
not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for
the failure to disclose, any information relating to the Loan Parties or any of its Affiliates that is communicated to or obtained
by the Person serving as the Agent or any of its Affiliates in any capacity.



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The Agent shall not be
liable for any action taken or not taken by it (i) with the Consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary, or as the Agent shall believe in good faith shall be necessary, under the circumstances
as provided in Sections 10.01 and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct
as determined by a final and non-appealable judgment of a court of competent jurisdiction.


 


The Agent shall not
be deemed to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default
is given to the Agent by the Loan Parties, a Lender or the L/C Issuer. Upon the occurrence of a Default
or Event of Default, the Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed
by the Applicable Lenders. Unless and until the Agent shall have received such direction, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to any such Default or Event of Default as it shall deem
advisable in the best interest of the Secured Parties. In no event shall the Agent be required
to comply with any such directions to the extent that the Agent believes that its compliance with such directions would be unlawful.


 


The 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 this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder
or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or
other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document
or the creation, perfection or priority of any Lien purported to be created by the Security Documents, (v) the value or the sufficiency
of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Agent.


 


9.04 Reliance
by Agent.


 


The 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 (including, but not limited to, any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and
shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan,
or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Agent shall have received written
notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit.
The Agent may consult with legal counsel (who may be counsel for any Loan Party), 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.



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9.05 Delegation
of Duties. The Agent may perform any and all of its duties
and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed
by the Agent. The Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to
the Related Parties of the 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 Agent.


 


9.06 Resignation
of Agent. The Agent may at any time give written notice
of its resignation to the Lenders and the Lead Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Lead Borrower, to appoint a successor, which shall be an Eligible Assignee. If
no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30
days after the retiring Agent gives notice of its resignation, then the retiring Agent may on behalf of the Lenders and the
L/C Issuer, appoint a successor Agent meeting the qualifications set forth above; provided that if the Agent shall
notify the Lead Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents (except that in the case of any Collateral held by the Agent on
behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring Agent shall continue to hold such
collateral security until such time as a successor Agent is appointed) and (2) all payments, communications and
determinations provided to be made by, to or through the Agent shall instead be made by or to each Lender and the L/C Issuer
directly, until such time as the Required Lenders (in consultation with the Lead Borrower) appoint a successor Agent as
provided for above in this Section. Upon the acceptance of a successor’s appointment as Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Agent,
and the retiring Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents
(if not already discharged therefrom as provided above in this Section). The fees payable by the Borrowers to a successor
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Lead Borrower and such
successor. After the retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions of this
Article and Section 10.04 shall continue in effect for the benefit of such retiring 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 the retiring
Agent was acting as Agent hereunder.


 


Any resignation by Wells
Fargo as Agent pursuant to this Section shall also constitute its resignation as Swing Line Lender and the resignation of Wells
Fargo as L/C Issuer. Upon the acceptance of a successor’s appointment as Agent hereunder, (a) such successor shall succeed
to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender, (b)
the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder
or under the other Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters
of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory



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to the retiring L/C Issuer
to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.


 


9.07 Non-Reliance
on Agent and Other Lenders. Each
Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon the Agent or any other Lender or any
of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement. Each Lender and the L/C Issuer also acknowledges that it will, independently and without
reliance upon the Agent or any other Lender or any of their Related Parties and based on such documents and information as it
shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon
this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Except as
provided in Section 9.12, the Agent shall not have any duty or responsibility to provide any Secured
Party with any other credit or other information concerning the affairs, financial condition or business of any Loan Party that
may come into the possession of the Agent.


 


9.08 No Other Duties,
Etc. Anything herein to the contrary notwithstanding, none of the Bookrunners, Arrangers, Syndication Agent or Documentation
Agent listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other
Loan Documents, except in its capacity as the Agent, a Lender or the L/C Issuer hereunder.


 


9.09 Agent
May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Agent (irrespective of whether the
principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective
of whether the Agent shall have made any demand on the Loan Parties) shall be entitled and empowered, by intervention in such
proceeding or otherwise


 


(a) to file
and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations
and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order
to have the claims of the Lenders, the L/C Issuer, the Agent and the other Secured Parties (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer, the Agent, such Secured Parties and their respective
agents and counsel and all other amounts due the Lenders, the L/C Issuer the Agent and such Secured Parties under Sections 2.03(k),
2.03(l), 2.03(m), 2.09 and 10.04) allowed in such judicial proceeding; and


 


(b) to collect
and receive any monies or other property payable or deliverable on any such claims and to distribute the same;


 


and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each
Lender and the L/C Issuer to make such payments to the Agent and, if the Agent shall consent to the making of such payments directly
to the Lenders and the L/C Issuer, to pay to the Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Agent and its agents and counsel, and any other amounts due the Agent under Sections 2.09 and 10.04.



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Nothing contained herein
shall be deemed to authorize the Agent to authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer
any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the
L/C Issuer or to authorize the Agent to vote in respect of the claim of any Lender or the L/C Issuer in any such proceeding.


 


9.10 Collateral
and Guaranty Matters. The
Secured Parties irrevocably authorize the Agent, and the Agent shall,


 


(a) release
any Lien on any property granted to or held by the Agent under any Loan Document (i) upon termination of the Aggregate Commitments
and payment in full of all Obligations (other than contingent indemnification obligations for which no claim has been asserted
and obligations and liabilities with respect to Other Liabilities) and the expiration, termination or Cash Collateralization of
all Letters of Credit, (ii) that is disposed or to be disposed as part of or in connection with any disposition permitted hereunder
or under any other Loan Document, or (iii) if approved, authorized or ratified in writing by the Applicable Lenders in accordance
with Section 10.01;


 


(b) subordinate
any Lien on any property granted to or held by the Agent under any Loan Document to the holder of any Lien on such property that
is permitted by clause (h) or (o) of the definition of Permitted Encumbrances; and


 


(c) release
any Guarantor from its obligations under the Facility Guaranty and each other Loan Document if such Person ceases to be a Subsidiary
as a result of a transaction permitted hereunder or becomes an Excluded Subsidiary.


 


Upon request by the Agent
at any time, the Applicable Lenders will confirm in writing the Agent’s authority to release or subordinate its interest
in particular types or items of property, or to release any Guarantor from its obligations under the Facility Guaranty and each
other Loan Document pursuant to this Section 9.10. In each case as specified in this Section 9.10, the Agent will,
at the Loan Parties’ expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably
request to evidence the release of such item of Collateral from the assignment and security interest granted under the Security
Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Facility Guaranty
and each other Loan Document, in each case in accordance with the terms of the Loan Documents and this Section 9.10.


 


9.11 Notice
of Transfer.


 


The Agent may deem and
treat a Lender party to this Agreement as the owner of such Lender’s portion of the Obligations for all purposes, unless
and until, and except to the extent, an Assignment and Acceptance shall have become effective as set forth in Section 10.06.


 


9.12 Reports
and Financial Statements.


 


By signing this Agreement,
each Lender:



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(a) agrees
to furnish the Agent, at such frequency as the Agent may reasonably request, with a summary of all Other Liabilities due or to
become due to such Lender. In connection with any distributions to be made hereunder, the Agent shall be entitled to assume that
no amounts are due to any Lender on account of Other Liabilities unless the Agent has received written notice thereof from such
Lender;


 


(b) is deemed
to have requested that the Agent furnish such Lender, promptly after they become available, copies of all Borrowing Base Certificates
and financial statements required to be delivered by the Lead Borrower hereunder and all commercial finance examinations and appraisals
of the Collateral received by the Agent (collectively, the “Reports”);


 


(c) expressly
agrees and acknowledges that the Agent makes no representation or warranty as to the accuracy of the Reports, and shall not be
liable for any information contained in any Report;


 


(d) expressly
agrees and acknowledges that the Reports are not comprehensive audits or examinations, that the Agent or any other party performing
any audit or 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;


 


(e) agrees
to keep all Reports confidential in accordance with the provisions of Section 10.07 hereof; and


 


(f) without
limiting the generality of any other indemnification provision contained in this Agreement, agrees: (i) to hold the Agent and any
such other Lender 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 Credit Extensions that the indemnifying Lender has made or may make to
the Borrowers, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a Loan or Loans;
and (ii) to pay and protect, and indemnify, defend, and hold the Agent and any such other Lender preparing a Report harmless from
and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including attorney costs) incurred
by the Agent and any such other Lender preparing a Report as the direct or indirect result of any third parties who might obtain
all or part of any Report through the indemnifying Lender.


 


9.13 Agency
for Perfection.


 


Each Lender hereby appoints
each other Lender as agent for the purpose of perfecting Liens for the benefit of the Agent and the Lenders, in assets which, in
accordance with Article 9 of the UCC or any other applicable Law of the United States can be perfected only by possession. Should
any Lender (other than the Agent) obtain possession of any such Collateral, such Lender shall notify the Agent thereof, and, promptly
upon the Agent’s request therefor shall deliver such Collateral to the Agent or otherwise deal with such Collateral in accordance
with the Agent’s instructions.



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9.14 Indemnification
of Agent. Without limiting the obligations of the Loan Parties
hereunder, the Lenders hereby agree to indemnify the Agent, the L/C Issuer and any Related Party, as the case may be, ratably
according to their Applicable Percentages, from and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Agent, the L/C Issuer and their Related Parties in any way relating to or arising out of this Agreement
or any other Loan Document or any action taken or omitted to be taken by the Agent, the L/C Issuer and their Related Parties in
connection therewith; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Agent’s, the L/C Issuer’s
and their Related Parties’ gross negligence or willful misconduct as determined by a final and nonappealable judgment of
a court of competent jurisdiction.


 


9.15 Relation among
Lenders. 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 Agent) authorized to act for, any other Lender.


 


9.16 Defaulting
Lenders.


 


(a) Notwithstanding
the provisions of Section 2.14, the Agent shall not be obligated to transfer to a Defaulting Lender any payments made by
the Borrowers to the Agent for the Defaulting Lender’s benefit or any proceeds of Collateral that would otherwise be remitted
hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, the Agent shall transfer any
such payments (i) first, to the Swing Line Lender to the extent of any Swing Line Loans that were made by the Swing Line Lender
and that were required to be, but were not, paid by the Defaulting Lender, (ii) second, to the L/C Issuer, to the extent of the
portion of a Letter of Credit Disbursement that was required to be, but was not, paid by the Defaulting Lender, (iii) third, to
each Non-Defaulting Lender ratably in accordance with their Commitments (but, in each case, only to the extent that such Defaulting
Lender’s portion of a Loan (or other funding obligation) was funded by such other Non-Defaulting Lender), (iv) to the Cash
Collateral Account, the proceeds of which shall be retained by the Agent and may be made available to be re-advanced to or for
the benefit of the Borrowers (upon the request of the Lead Borrower and subject to the conditions set forth in Section 4.02)
as if such Defaulting Lender had made its portion of the Loans (or other funding obligations) hereunder, and (v) from and after
the date on which all other Obligations have been paid in full, to such Defaulting Lender. Subject to the foregoing, the Agent
may hold and, in its discretion, re-lend to the Borrowers for the account of such Defaulting Lender the amount of all such payments
received and retained by the Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to
matters with respect to the Loan Documents (including the calculation of Applicable Percentages in connection therewith) and for
the purpose of calculating the fee payable under Section 2.09(a), such Defaulting Lender shall be deemed not to be a “Lender”
and such Lender’s Commitment shall be deemed to be zero; provided that the foregoing shall not apply to any of the
matters governed by Section 10.01(a) through (c). The provisions of this Section 9.16 shall remain effective
with respect to such Defaulting Lender until the earlier of (y) the date on which all of the Non-Defaulting Lenders, the Agent,
the L/C Issuer, and the Borrowers shall have waived, in writing, the application of this Section 9.16 to such Defaulting
Lender, or (z) the date on which such Defaulting Lender pays to the Agent all amounts owing by



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such Defaulting Lender
in respect of the amounts that it was obligated to fund hereunder, and, if requested by the Agent, provides adequate assurance
of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred
and is continuing, any remaining cash collateral held by the Agent pursuant to Section 9.16(b) shall be released to the
Borrowers). The operation of this Section 9.16 shall not be construed to increase or otherwise affect the Commitment of
any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder,
or to relieve or excuse the performance by any Borrower of its duties and obligations hereunder to the Agent, the L/C Issuer, the
Swing Line Lender, or to the Lenders other than such Defaulting Lender. Any failure by a Defaulting Lender to fund amounts that
it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle
the Borrowers, at their option, upon written notice to the Agent, to arrange for a substitute Lender to assume the Commitment of
such Defaulting Lender, such substitute Lender to be reasonably acceptable to the Agent. In connection with the arrangement of
such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and
deliver a completed form of Assignment and Assumption in favor of the substitute Lender (and agrees that it shall be deemed to
have executed and delivered such document if it fails to do so) subject only to being paid its share of the outstanding Obligations
(other than any Other Liabilities, but including (1) all interest, fees (except any Commitment Fees or Letter of Credit Fees not
due to such Defaulting Lender in accordance with the terms of this Agreement), and other amounts that may be due and payable in
respect thereof, and (2) an assumption of its Applicable Percentage of its participation in the Letters of Credit); provided
that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Secured
Parties’ or the Loan Parties’ rights or remedies against any such Defaulting Lender arising out of or in relation to
such failure to fund. In the event of a direct conflict between the priority provisions of this Section 9.16 and any other
provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions
be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable
conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 9.16 shall control and govern.


 


(b) If
any Swing Line Loan or Letter of Credit is outstanding at the time that a Lender becomes a Defaulting Lender then:


 


(i) such
Defaulting Lender’s participation interest in any Swing Line Loan or Letter of Credit shall be reallocated among the Non-Defaulting
Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the Outstanding Amount sum of all
Non-Defaulting Lenders’ Credit Extensions after giving effect to such reallocation does not exceed the total of all Non-Defaulting
Lenders’ Commitments and (y) the conditions set forth in Section 4.02 are satisfied at such time;


 


(ii) if
the reallocation described in clause (b)(i) above cannot, or can only partially, be effected, the Borrowers shall within one Business
Day following notice by the Agent (x) first, prepay such Defaulting Lender’s participation in any outstanding Swing Line
Loans (after giving effect to any partial reallocation pursuant to clause (b)(i) above) and (y) second, cash collateralize such
Defaulting Lender’s participation in Letters of Credit (after giving effect to any partial reallocation pursuant to clause
(b)(i)



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above), pursuant
to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Agent, for so long
as such L/C Obligations are outstanding; provided that the Borrowers shall not be obligated to cash collateralize any Defaulting
Lender’s participations in Letters of Credit if such Defaulting Lender is also the L/C Issuer;


 


(iii) if
the Borrowers cash collateralize any portion of such Defaulting Lender’s participation in Letters of Credit Exposure pursuant
to this Section 9.16(b), the Borrowers shall not be required to pay any Letter of Credit Fees to the Agent for the account
of such Defaulting Lender pursuant to Section 2.03 with respect to such cash collateralized portion of such Defaulting Lender’s
participation in Letters of Credit during the period such participation is cash collateralized;


 


(iv) to
the extent the participation by any Non-Defaulting Lender in the Letters of Credit is reallocated pursuant to this Section 9.16(b),
then the Letter of Credit Fees payable to the Non-Defaulting Lenders pursuant to Section 2.03 shall be adjusted in accordance
with such reallocation;


 


(v) to the
extent any Defaulting Lender’s participation in Letters of Credit is neither cash collateralized nor reallocated pursuant
to this Section 9.16(b), then, without prejudice to any rights or remedies of the L/C Issuer or any Lender hereunder, all
Letter of Credit Fees that would have otherwise been payable to such Defaulting Lender under Section 2.03 with respect to
such portion of such participation shall instead be payable to the L/C Issuer until such portion of such Defaulting Lender’s
participation is cash collateralized or reallocated;


 


(vi) so
long as any Lender is a Defaulting Lender, the Swing Line Lender shall not be required to make any Swing Line Loan and the L/C
Issuer shall not be required to issue, amend, or increase any Letter of Credit, in each case, to the extent (x) the Defaulting
Lender’s Applicable Percentage of such Swing Line Loans or Letter of Credit cannot be reallocated pursuant to this Section
9.16(b) or (y) the Swing Line Lender or the L/C Issuer, as applicable, has not otherwise entered into arrangements reasonably
satisfactory to the Swing Line Lender or the L/C Issuer, as applicable, and the Borrowers to eliminate the Swing Line Lender’s
or L/C Issuer’s risk with respect to the Defaulting Lender’s participation in Swing Line Loans or Letters of Credit;
and


 


(vii) the
Agent may release any cash collateral provided by the Borrowers pursuant to this Section 9.16(b) to the L/C Issuer and the
L/C Issuer may apply any such cash collateral to the payment of such Defaulting Lender’s Applicable Percentage of any Letter
of Credit Disbursement that is not reimbursed by the Borrowers pursuant to Section 2.03.


 


9.17 Co-Syndication
Agent; Documentation Agent and Co-Lead Arrangers.


 


Notwithstanding the
provisions of this Agreement or any of the other Loan Documents, no Person who is or becomes a Co-Syndication Agent or a Documentation
Agent nor the Co-



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Lead Arrangers shall
have any powers, rights, duties, responsibilities or liabilities with respect to this Agreement and the other Loan Documents.


 


ARTICLE X

MISCELLANEOUS


 


10.01 Amendments,
Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document (other than Swap Contracts),
and no Consent to any departure by any Loan Party therefrom, shall be effective unless in writing signed by the Agent, with the
Consent of the Required Lenders, and the Lead Borrower or the applicable Loan Party, as the case may be, and acknowledged by the
Agent, and each such waiver or Consent shall be effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such amendment, waiver or consent shall:


 


(a) increase
the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written Consent
of such Lender;


 


(b) as to
any Lender, postpone any date fixed by this Agreement or any other Loan Document for (i) any scheduled payment (including the Maturity
Date) or mandatory prepayment of principal, interest, fees or other amounts due hereunder or under any of the other Loan Documents
without the written Consent of such Lender entitled to such payment, or (ii) any scheduled or mandatory reduction or termination
of the Aggregate Commitments hereunder or under any other Loan Document without the written Consent of such Lender;


 


(c) as to
any Lender, reduce the principal of, or the rate of interest specified herein on, any Loan held by such Lender, or (subject to
clause (iv) of the second proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other
Loan Document to or for the account of such Lender, without the written Consent of each Lender entitled to such amount; provided,
however, that only the Consent of the Required Lenders shall be necessary to amend the definition of “Default Rate”
or to waive any obligation of the Borrowers to pay interest or Letter of Credit Fees at the Default Rate;


 


(d) as to
any Lender, change Section 2.13 or Section 8.03 in a manner that would alter the pro rata sharing of payments required
thereby without the written Consent of such Lender;


 


(e) change
any provision of this Section or the definition of “Required Lenders,” or any other provision hereof specifying the
number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or
grant any consent hereunder, without the written Consent of each Lender;


 


(f) except
as expressly permitted hereunder or under any other Loan Document, release, or limit the liability of, any Loan Party without the
written Consent of each Lender;



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(g) except
for Permitted Dispositions or as provided by Section 9.10, release all or substantially all of the Collateral from the Liens
of the Security Documents without the written Consent of each Lender;


 


(h) except
as provided in Section 2.15, increase the Aggregate Commitments without the written Consent of each Lender;


 


(i)
change the definition of the term “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 Lender; provided
that the foregoing shall not limit the discretion of the Agent to change, establish or eliminate any Reserves;


 


(j) modify
the definition of Permitted Overadvance so as to increase the amount thereof or, except as provided in such definition, the time
period for which a Permitted Overadvance may remain outstanding without the written Consent of each Lender; and


 


(k) 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 (i) no amendment, waiver or Consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required
above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit
issued or to be issued by it; (ii) no amendment, waiver or Consent shall, unless in writing and signed by the Swing Line Lender
in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no
amendment, waiver or Consent shall, unless in writing and signed by the Agent in addition to the Lenders required above, affect
the rights or duties of the Agent under this Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights
or privileges thereunder waived, in a writing executed only by the parties thereto.


 


Notwithstanding anything
to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services
shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder
of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required
(other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents,
including as to any matter relating to the Collateral or the release of Collateral or any Loan Party.


 


If any Lender does not
Consent (a “Non-Consenting Lender”) to a proposed amendment, waiver, consent or release with respect to any
Loan Document that requires the Consent of each Lender and that has been approved by the Required Lenders, the Lead Borrower may
replace such Non-Consenting Lender in accordance with Section 10.13; provided that such amendment, waiver, consent
or release can be effected as a result of the assignment contemplated by such



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Section (together with
all other such assignments required by the Lead Borrower to be made pursuant to this paragraph).


 


10.02 Notices;
Effectiveness; Electronic Communications.


 


(a) Notices
Generally. Except as provided in subsection (b) below, all notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier
as follows:


 


(i) if to
the Loan Parties, the Agent, the L/C Issuer or the Swing Line Lender, to the address, telecopier number, electronic mail address
specified for such Person on Schedule 10.02; and


 


(ii) if
to any other Lender, to the address, telecopier number, electronic mail address specified in its Administrative Questionnaire.


 


Notices sent by hand
or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices
sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered
through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection
(b).


 


(b) Electronic
Communications. Notices and other communications to the Loan Parties, the Lenders and the L/C Issuer hereunder may be delivered
or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by
the Agent; provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to Article
II if such Lender or the L/C Issuer, as applicable, has notified the Agent that it is incapable of receiving notices under
such Article by electronic communication. The Agent may, in its discretion, agree to accept notices and other communications to
it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures
may be limited to particular notices or communications.


 


Unless the Agent otherwise
prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt
of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice 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 for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification
that such notice or communication is available and identifying the website address therefor.


 


(c) The
Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW)
DO NOT WARRANT THE



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ACCURACY OR COMPLETENESS
OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. 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 BORROWER MATERIALS OR THE PLATFORM. In no event shall the Agent or any of its Related Parties
(collectively, the “Agent Parties”) have any liability to any Loan Party, any Lender, the L/C Issuer or any
other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising
out of the Loan Parties’ or the Agent’s transmission of Borrower Materials through the Internet, except to the extent
that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Agent Party, or breach in bad faith of such Agent
Party’s obligations hereunder or any other Loan Document; provided, however, that in no event shall any Agent
Party have any liability to any Loan Party, any Lender, the L/C Issuer or any other Person for indirect, special, incidental, consequential
or punitive damages (as opposed to direct or actual damages).


 


(d) Change
of Address, Etc. Each of the Loan Parties, the Agent, the L/C Issuer and the Swing Line Lender may change its address or telecopier
for notices and other communications hereunder, or, solely with respect to communications, may change its telephone number, by
notice to the other parties hereto. Each other Lender may change its address or telecopier number for notices and other communications
hereunder by notice to the Lead Borrower, the Agent, the L/C Issuer and the Swing Line Lender. In addition, each Lender agrees
to notify the Agent from time to time to ensure that the Agent has on record (i) an effective address, contact name, telephone
number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire
instructions for such Lender.


 


(e) Reliance
by Agent, L/C Issuer and Lenders. The Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices
(including, without limitation, all Requests for Credit Extensions) purportedly given by or on behalf of the Loan Parties even
if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form
of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The
Loan Parties shall indemnify the Agent, the L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Loan
Parties (including, without limitation, pursuant to any Requests for Credit Extensions). All telephonic communications with the
Agent may be recorded by the Agent, and each of the parties hereto hereby consents to such recording.


 


10.03 No
Waiver; Cumulative Remedies. No
failure by any Secured Party to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder or under any other Loan Document preclude any other or further



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exercise
thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges provided herein
and in the other Loan Documents are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
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 or Event of Default, regardless of whether any Secured Party may
have had notice or knowledge of such Default or Event of Default at the time.


 


10.04 Expenses;
Indemnity; Damage Waiver.


 


(a) Costs
and Expenses. The Borrowers shall pay all Secured Party Expenses (excluding any Taxes, the payment of which shall be governed
by Section 3.01 of this Agreement).


 


(b) Indemnification
by the Loan Parties. The Loan Parties shall indemnify the Agent (and any sub-agent thereof), each other Secured Party, and
each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against,
and hold each Indemnitee harmless (on an after tax basis) from, any and all losses, claims, causes of action, damages, liabilities,
settlement payments, costs, and related reasonable and documented expenses (including the fees, charges and disbursements of any
counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by any Borrower
or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement,
any other Loan Document 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 contemplated hereby or thereby, or,
in the case of the Agent (and any sub-agents thereof) and their Related Parties only, the administration of this Agreement and
the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the L/C Issuer 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, any bank advising or confirming a Letter of Credit
or any other nominated person with respect to a Letter of Credit seeking to be reimbursed or indemnified or compensated, and any
third party seeking to enforce the rights of a Borrower, beneficiary, nominated person, transferee, assignee of Letter of Credit
proceeds, or holder of an instrument or document related to any Letter of Credit), (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property owned or operated by any Loan Party or any of its Subsidiaries, or any Environmental
Liability related in any way to any Loan Party or any of its Subsidiaries, (iv) any claims of, or amounts paid by any Secured Party
to, a Blocked Account Bank or other Person which has entered into a control agreement with any Secured Party hereunder, or (v)
any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract,
tort or any other theory, whether brought by a third party or by any Borrower or any other Loan Party or any of the Loan Parties’
directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto, in all cases, whether or not
caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence of the Indemnitee; 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



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judgment to have resulted
from the gross negligence or willful misconduct of such Indemnitee, (y) result from a claim brought by a Borrower or any other
Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan
Document, if the Borrowers or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined
by a court of competent jurisdiction or (z) arise out of, or in connection with, any dispute between or among the Indemnitees.
This Section 10.04(b) shall not apply to any Taxes, except any Taxes that represent losses, claims, clauses of actions,
damages, liabilities, settlement payments, costs, and related expenses to the extent reasonable and documented arising from a non-Tax
claim.


 


(c) Reimbursement
by Lenders. Without limiting their obligations under Section 9.14, to the extent that the Loan Parties for any reason
fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it, each Lender severally
agrees to pay to the Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s
Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense,
as the case may be, was incurred by or asserted against the Agent (or any such sub-agent) or the L/C Issuer in its capacity as
such, or against any Related Party of any of the foregoing acting for the Agent (or any such sub-agent) or L/C Issuer in connection
with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d).


 


(d) Waiver
of Consequential Damages, Etc. To the fullest extent permitted by applicable Law, the Loan Parties shall not assert, and
hereby waive, any claim against any Indemnitee, 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, the transactions contemplated hereby or thereby, any
Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the
use by unintended recipients of any information or other materials distributed to such unintended recipients by such
Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement
or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages
resulting from the gross negligence or willful misconduct of such Indemnitee, or breach in bad faith of such
Indemnitee’s obligations hereunder or under any other Loan Document, as determined by a final and nonappealable
judgment of a court of competent jurisdiction.


 


(e) Payments.
All amounts due under this Section shall be payable on demand therefor.


 


(f) Survival.
The agreements in this Section shall survive the resignation of the Agent and the L/C Issuer, the assignment of any Commitment
or Loan by any Lender, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction
or discharge of all the other Obligations.


 


10.05 Payments
Set Aside. To
the extent that any payment by or on behalf of the Loan Parties is made to any Secured Party,
or any Secured Party exercises its right of setoff, and such



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payment
or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by such Secured Party
in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief
Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall
be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b)
each Lender and the L/C Issuer severally agrees to pay to the Agent upon demand its Applicable Percentage (without duplication)
of any amount so recovered from or repaid by the Agent, plus interest thereon from the date of such demand to the date such payment
is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the
L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination
of this Agreement.


 


10.06 Successors
and Assigns.


 


(a) Successors
and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of
its rights or obligations hereunder or under any other Loan Document without the prior written Consent of the Agent and each Lender
and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of Section 10.06(b), (ii) by way of participation in accordance with the provisions of Section
10.06(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.06(f)
(and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated
hereby, the Related Parties of each of the Secured Parties) any legal or equitable right, remedy or claim under or by reason of
this Agreement.


 


(b) Assignments
by Lenders. Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment(s) and the Loans (including for purposes of this Section
10.06(b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that any such
assignment shall be subject to the following conditions:


 


(i) Minimum
Amounts.


 


(A) in
the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing
to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, no
minimum amount need be assigned; and


 


(B) in
any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose
includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans
of the assigning Lender subject to each such



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assignment,
determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Agent or, if “Trade
Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each
of the Agent and, so long as no Default or Event of Default has occurred and is continuing, the Lead Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed and shall be deemed given if the Lead Borrower has not responded
to a request for such consent within seven (7) Business Days); provided, however, that concurrent assignments to
members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to
an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether
such minimum amount has been met;


 


(ii) Proportionate
Amounts. 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 with respect to the Loans or the Commitment assigned, except that this clause (ii)
shall not apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans;


 


(iii) Required
Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section
and, in addition:


 


(A) the
consent of the Lead Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) a Default or
Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate
of a Lender or an Approved Fund; and


 


(B) the
consent of the Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of
any Commitment if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect
to such Lender; and


 


(C) the
consent of the L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases
the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding);
and


 


(D) the
consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment
in respect of the assignment of any Commitment.


 


(iv) Assignment
and Assumption. The parties to each assignment shall execute and deliver to the Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500; provided, however, that the Agent may, in its sole discretion, elect
to waive such processing and recordation fee in the case of any assignment. The assignee, if it shall not be a Lender, shall deliver
to the Agent an Administrative Questionnaire.



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Subject to acceptance
and recording thereof by the Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each
Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement 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 3.01, 3.04, 3.05, and 10.04 with respect to facts and circumstances occurring prior to
the effective date of such assignment. Upon request, the Borrowers (at their expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection
shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance
with Section 10.06(d).


 


(c) Register.
The Agent, acting solely for this purpose as an agent of the Borrowers, shall maintain at the Agent’s Office 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
Commitments of, and principal amounts (and stated interest) of the Loans and L/C Obligations 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 Loan Parties, the Agent and the Lenders shall treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Lead Borrower and any Lender (solely with respect to its own Loans and Commitments)
at any reasonable time and from time to time upon reasonable prior notice.


 


(d) Participations.
Any Lender may at any time, without the consent of, or notice to, the Loan Parties or the Agent, sell participations to any Person
(other than a natural person or the Loan Parties or any of the Loan Parties’ Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment
and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided
that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible
to the other parties hereto for the performance of such obligations and (iii) the Loan Parties, the Agent, the Lenders and the
L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement. Any Participant shall agree in writing to comply with all confidentiality obligations set forth in Section
10.07 as if such Participant was a Lender hereunder.


 


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, waiver or
other modification described in the first proviso to Section 10.01 that affects such Participant. Subject to subsection
(e) of this Section, the Loan Parties agree that each Participant shall be entitled to the benefits of Sections 3.01, 3.04
and 3.05



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(subject to the obligations
and limitations of such Sections, including Section 3.01(e)) to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to Section 10.06(b) (it being understood that the documentation required under Section
3.01(e) shall be delivered by the Participant solely to the participating Lender). To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 10.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.13 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 complying
with the requirements of Sections 163(f), 871(h) and 881(c)(2) of the Code and the Treasury regulations promulgated thereunder
on which is entered the name and address of each Participant, the Commitments of, and principal amounts (and stated interest) of
the Loans, L/C Obligations or other obligations under any Loan Document owing to, such Participant (the “Participant Register”).
The entries in the Participant Register shall be conclusive, absent manifest error, and the Loan Parties, the Agent 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 notice to the contrary; provided that no Lender shall have any obligation to disclose
all or a portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s
interest in any Commitment, Loan, L/C Obligation, or other obligation under any Loan Document) to any Person except to the extent
that such disclosure is necessary to establish that any such obligations are in registered form for U.S. federal income tax purposes.


 


(e) Limitations
upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04
than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Lead Borrower’s prior written consent.


 


(f) Certain
Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations
to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.


 


(g) Electronic
Execution of Assignments. The words “execution,” “signed,” “signature,” and words of like
import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of
a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the
Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or
any other similar state laws based on the Uniform Electronic Transactions Act.


 


(h) Resignation
as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at any time
Wells Fargo assigns all of its Commitment and Loans pursuant to subsection (b) above, Wells Fargo may, (i) upon 30 days’
notice to the Lead Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’



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notice to the Lead Borrower,
Wells Fargo may resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing Line Lender, the Lead
Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Lead Borrower to appoint any such successor shall affect the resignation of Wells Fargo
as L/C Issuer or Swing Line Lender, as the case may be. If Wells Fargo resigns as L/C Issuer, it shall retain all the rights, powers,
privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of
its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make
Committed Loans pursuant to Section 2.03(e)). If Wells Fargo resigns as Swing Line Lender, it shall retain all the rights
of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective
date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding
Swing Line Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a)
such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer
or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Wells Fargo to
effectively assume the obligations of Wells Fargo with respect to such Letters of Credit.


 


10.07 Treatment
of Certain Information; Confidentiality. Each
of the Secured Parties agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners,
directors, officers, employees, agents, funding sources, attorneys, advisors and representatives (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 it
(including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required
by applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection
with the exercise of any remedies hereunder or under any other Loan Document or any 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
at least as favorable to the Loan Party 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 any Loan Party and its obligations, (g) with the consent of
the Lead Borrower (such consent not to be unreasonably withheld or delayed) or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y) becomes available to any Secured
Party or any of their respective Affiliates on a non-confidential basis from a source other than the Loan Parties.


 


For purposes of this
Section 10.07, “Information” means all information received from the Loan Parties or any Subsidiary thereof
relating to the Loan Parties or any Subsidiary thereof or their respective businesses, other than any such information that is
available to any Secured Party on a non-confidential basis prior to disclosure by the Loan Parties or any Subsidiary thereof, provided
that, in the case of information received from any Loan Party or any Subsidiary



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after the Second Restatement
Date, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality
of Information as provided in this Section shall be considered to have complied with its 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 of the Secured
Parties acknowledges that (a) the Information may include material non-public information concerning the Loan Parties or a Subsidiary,
as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it
will handle such material non-public information in accordance with applicable Law, including Federal and state securities Laws.


 


10.08 Right
of Setoff. If an Event of Default shall have occurred and
be continuing or if any Lender shall have been served with a trustee process or similar attachment relating to property of a Loan
Party, each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time,
after obtaining the prior written consent of the Agent or the Required Lenders (such consent not to be unreasonably withheld or
delayed), to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time
or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time
owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of the Borrowers or any other Loan
Party against any and all of the Obligations now or hereafter existing under this Agreement or any other Loan Document to such
Lender or the L/C Issuer, regardless of the adequacy of the Collateral, and irrespective of whether or not such Lender or the
L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrowers
or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender or the L/C Issuer different
from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender, the L/C Issuer and
their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff)
that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify the
Lead Borrower and the Agent promptly after any such setoff and application; provided that the failure to give such notice
shall not affect the validity of such setoff and application.


 


10.09 Interest
Rate Limitation. Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall
not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the
Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to
the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrowers. In determining whether the interest
contracted for, charged, or received by the Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted
by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b)
exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts
the total amount of interest throughout the contemplated term of the Obligations hereunder.



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10.10 Counterparts;
Integration; Effectiveness. This Agreement may be executed
in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire
contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Agent and when the Agent shall have received counterparts hereof that, when
taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy, pdf or other electronic transmission shall be as effective as delivery of a manually executed counterpart
of this Agreement.


 


10.11 Survival.
All representations and
warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been
or will be relied upon by the Secured Parties, regardless of any investigation made by any
Secured Party or on their behalf and notwithstanding that any Secured Party
may have had notice or knowledge of any Default or Event of Default at the time of any Credit Extension, and shall continue in
full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of
Credit shall remain outstanding. Further, the provisions of Sections 3.01, 3.04, 3.05 and 10.04
and Article IX shall survive and remain in full force and effect regardless of the repayment of the Obligations, the
expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.
In connection with the termination of this Agreement and the release and termination of the security interests in the Collateral,
the Agent may require such indemnities and collateral security as they shall reasonably deem necessary or appropriate to protect
the Secured Parties against (x) loss on account of credits previously applied to the Obligations
that may subsequently be reversed or revoked, (y) any obligations that may thereafter arise with respect to the Other Liabilities
and (z) any Obligations that may thereafter arise under Section 10.04.


 


10.12 Severability.
If any provision of this Agreement or the other Loan Documents
is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of
this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good
faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.


 


10.13 Replacement
of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 3.01, or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrowers
may, at their sole expense and effort, upon notice to such Lender and the Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06), all
of its interests, rights and obligations under this



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Agreement and the related
Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that:


 


(a) the
Borrowers shall have paid to the Agent the assignment fee specified in Section 10.06(b);


 


(b) such
Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05)
from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of
all other amounts);


 


(c) in the
case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant
to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter; and


 


(d) such
assignment does not conflict with applicable Laws.


 


A Lender shall not be
required to make any such assignment or 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.


 


10.14 Governing
Law; Jurisdiction; Etc.


 


(a) GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


(b) SUBMISSION
TO JURISDICTION. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE
SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
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 COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE 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 IN ANY OTHER LOAN DOCUMENT SHALL AFFECT
ANY RIGHT THAT ANY SECURED PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS



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AGREEMENT OR ANY OTHER
LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.


 


(c) WAIVER
OF VENUE. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY 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 APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE
OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.


 


(d) SERVICE
OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02.
NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.


 


(e) ACTIONS
COMMENCED BY LOAN PARTIES. EACH LOAN PARTY AGREES THAT ANY ACTION COMMENCED BY ANY SUCH PARTY ASSERTING ANY CLAIM OR COUNTERCLAIM
ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT SOLELY IN A COURT OF THE STATE OF
NEW YORK SITTING IN THE BOROUGH OF MANHATTAN OR ANY FEDERAL COURT SITTING THEREIN AS THE AGENT MAY ELECT IN ITS SOLE DISCRETION
AND CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS WITH RESPECT TO ANY SUCH ACTION.


 


10.15 Waiver
of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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 AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


10.16 No
Advisory or Fiduciary Responsibility. In connection with all
aspects of each transaction contemplated hereby, the Loan Parties each acknowledge and agree that: (i) the credit facility provided
for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment,
waiver or other modification hereof or



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of
any other Loan Document) are an arm’s-length commercial transaction between the Loan Parties, on the one hand, and the Secured
Parties, on the other hand, and each of the Loan Parties is capable of evaluating and understanding and understands and accepts
the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment,
waiver or other modification hereof or thereof); (ii) in connection with the process leading to such transaction, the each Secured
Party is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for the Loan Parties or
any of their respective Affiliates, stockholders, creditors or employees or any other Person; (iii) none of the Secured Parties
has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Loan Parties with respect to any of
the transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification
hereof or of any other Loan Document (irrespective of whether any of the Secured Parties has advised or is currently advising any
Loan Party or any of its Affiliates on other matters) and none of the Secured Parties has any obligation to any Loan Party or any
of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and
in the other Loan Documents; (iv) the Secured Parties and their respective Affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Loan Parties and their respective Affiliates, and none of the Secured Parties
has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Secured
Parties have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions
contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and each of the
Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. Each
of the Loan Parties hereby waives and releases, to the fullest extent permitted by law, any claims that it may have against each
of the Secured Parties with respect to any breach or alleged breach of agency or fiduciary duty.


 


10.17 Patriot Act
Notice. Each Lender that is subject to the Patriot Act and the Agent (for itself and not on behalf of any Lender) hereby notifies
the Loan Parties that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information
that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that
will allow such Lender or the Agent, as applicable, to identify each Loan Party in accordance with the Patriot Act. Each Loan
Party is in compliance, in all material respects, with the Patriot Act. No part of the proceeds of the Loans will be used by the
Loan Parties, directly or indirectly, for any payments to any governmental official or employee, political party, official of
a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or
direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as
amended.


 


10.18 Foreign Asset
Control Regulations. Neither of the advance of the Loans nor the use of the proceeds of any thereof will violate the Trading
With the Enemy Act (50 U.S.C. § 1 et seq., as amended) (the “Trading With the Enemy Act”) or any of the
foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) (the “Foreign
Assets Control Regulations”) or any enabling legislation or executive order relating thereto (which for the avoidance
of doubt shall include, but shall not be limited to (a) Executive Order 13224 of September 21, 2001 Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed.



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Reg. 49079 (2001)) (the
“Executive Order”) and (b) the Patriot Act. Furthermore, none of the Borrowers or their Affiliates (a) is or
will become a “blocked person” as described in the Executive Order, the Trading With the Enemy Act or the Foreign Assets
Control Regulations or (b) engages or will engage in any dealings or transactions, or be otherwise associated, with any such “blocked
person” or in any manner violative of any such order.


 


10.19 Time
of the Essence. Time is of the essence of the Loan Documents.


 


10.20 Press
Releases.


 


(a) Each
Secured Party executing this Agreement agrees that neither it nor its Affiliates will in the future issue any press releases or
other public disclosure using the name of the Agent or its Affiliates or referring to this Agreement or the other Loan Documents
without at least two (2) Business Days’ prior notice to the Agent and without the prior written consent of the Agent unless
(and only to the extent that) such Secured Party or Affiliate is required to do so under applicable Law and then, in any event,
such Secured Party or Affiliate will consult with the Agent before issuing such press release or other public disclosure.


 


(b) Each
Loan Party consents to the publication by the Agent, any Lender or their respective representatives of advertising material, including
any “tombstone,” press release or comparable advertising, on its website or in other marketing materials of Agent,
relating to the financing transactions contemplated by this Agreement using any Loan Party’s name, product photographs, logo,
trademark or other insignia. The Agent or such Lender shall provide a draft reasonably in advance of any advertising material,
“tomb stone” or press release to the Lead Borrower for review and comment prior to the publication thereof. The Agent
reserves the right to provide to industry trade organizations and loan syndication and pricing reporting services information necessary
and customary for inclusion in league table measurements.


 


10.21 Additional
Waivers.


 


(a) The
Obligations are the joint and several obligation of each Loan Party. To the fullest extent permitted by Applicable Law, the obligations
of each Loan Party shall not be affected by (i) the failure of any Secured Party to assert any claim or demand or to enforce or
exercise any right or remedy against any other Loan Party under the provisions of this Agreement, any other Loan Document or otherwise,
(ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement
or any other Loan Document, or (iii) the failure to perfect any security interest in, or the release of, any of the Collateral
or other security held by or on behalf of the Agent or any other Secured Party.


 


(b) The
obligations of each Loan Party shall not be subject to any reduction, limitation, impairment or termination for any reason (other
than the indefeasible payment in full in cash of the Obligations after the termination of the Commitments), including any claim
of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations
or otherwise. Without limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged
or impaired or otherwise affected by the failure of the Agent or any other Secured



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Party to assert any claim
or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification
of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Obligations,
or by any other act or omission that may or might in any manner or to any extent vary the risk of any Loan Party or that would
otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the indefeasible payment in full in
cash of all the Obligations after the termination of the Commitments).


 


(c) To
the fullest extent permitted by applicable Law, each Loan Party waives any defense based on or arising out of any defense of any
other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations and the termination
of the Commitments. The Agent and the other Secured Parties may, at their election upon the occurrence and during the continuance
of an Event of Default, foreclose on any security held by one or more of them by one or more judicial or non-judicial sales, accept
an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation
with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting
or impairing in any way the liability of any Loan Party hereunder except to the extent that all the Obligations have been indefeasibly
paid in full in cash and the Commitments have been terminated. Each Loan Party waives any defense arising out of any such election
even though such election operates, pursuant to applicable Law, to impair or to extinguish any right of reimbursement or subrogation
or other right or remedy of such Loan Party against any other Loan Party, as the case may be, or any security.


 


(d) Each
Borrower is obligated to repay the Obligations as joint and several obligors under this Agreement. Upon payment by any Loan Party
of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation,
contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the
prior indefeasible payment in full in cash of all the Obligations and the termination of the Commitments. In addition, any indebtedness
of any Loan Party now or hereafter held by any other Loan Party is hereby subordinated in right of payment to the prior indefeasible
payment in full of the Obligations and no Loan Party will demand, sue for or otherwise attempt to collect any such indebtedness.
If any amount shall erroneously be paid to any Loan Party on account of (i) such subrogation, contribution, reimbursement, indemnity
or similar right or (ii) any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the Secured
Parties and shall forthwith be paid to the Agent to be credited against the payment of the Obligations, whether matured or unmatured,
in accordance with the terms of this Agreement and the other Loan Documents. Subject to the foregoing, to the extent that any Borrower
shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Loans made to another Borrower
hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”),
then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed
by, each of the other Borrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment,
the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the
Allocable Amounts of all of the Borrowers. As of any date of



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determination, the “Allocable
Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be
asserted against such Borrower hereunder without (a) rendering such Borrower “insolvent” within the meaning of Section
101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the
Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets,
within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such
Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the
UFTA, or Section 5 of the UFCA.


 


10.22 No
Strict Construction.


 


The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.


 


10.23 Attachments.


 


The exhibits, schedules
and annexes attached to this Agreement are incorporated herein and shall be considered a part of this Agreement for the purposes
stated herein, except that in the event of any conflict between any of the provisions of such exhibits and the provisions of this
Agreement, the provisions of this Agreement shall prevail.


 


10.24 Keepwell.


 


Each Qualified ECP Guarantor
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 the Facility Guaranty in respect of
Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 10.24 for
the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 10.24,
or otherwise under the Facility Guaranty, voidable under applicable Law relating to fraudulent conveyance or fraudulent transfer,
and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section shall remain in full force
and effect until payment in full of the Obligations. Each Qualified ECP Guarantor intends that this Section 10.24 constitute,
and this Section 10.24 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.


 


10.25 Acknowledgment
and Consent to Bail-in of EEA 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 Lender that is an EEA Financial Institution arising under any Loan Document, to the
extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees
and consents to, and acknowledges and agrees to be bound by:



    	-149-



    	



    

(a) the
application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which
may be payable to it by any Lender that is an EEA Financial Institution; and


 


(b) the
effects of any Bail-in Action on any such liability, including, if applicable:


 


(i) a reduction
in full or in part or cancellation of any such liability;


 


(ii) a conversion
of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent
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 any EEA Resolution
Authority.


 


10.26 Amendment
and Restatement.


 


This Agreement is an
amendment and restatement of the Existing Credit Agreement, it being acknowledged and agreed that as of the Second Restatement
Date all obligations outstanding under or in connection with the Existing Credit Agreement and any of the other Loan Documents
(such obligations, collectively, the “Existing Obligations”) constitute obligations under this Agreement. This Agreement
is in no way intended to constitute a novation of the Existing Credit Agreement or the Existing Obligations. With respect to (i)
any date or time period occurring and ending prior to the Second Restatement Date, the Existing Credit Agreement and the other
Loan Documents shall govern the respective rights and obligations of any party or parties hereto also party thereto and shall for
such purposes remain in full force and effect; and (ii) any date or time period occurring or ending on or after the Second Restatement
Date, the rights and obligations of the parties hereto shall be governed by this Agreement (including, without limitation, the
exhibits and schedules hereto) and the other Loan Documents. From and after the Second Restatement Date, any reference to the Existing
Credit Agreement in any of the other Loan Documents executed or issued by and/or delivered to any one or more parties hereto pursuant
to or in connection therewith shall be deemed to be a reference to this Agreement, and the provisions of this Agreement shall prevail
in the event of any conflict or inconsistency between such provisions and those of the Existing Credit Agreement.


 


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left blank]



    	-150-



    	



    





IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the date first
above written.


 


	 	TRANS WORLD ENTERTAINMENT CORPORATION, as Lead Borrower and as a Borrower
	 	 	 	 
	 	By:	/s/ John Anderson	 
	 	Name:  	John Anderson	 
	 	Title:	Chief Financial Officer	 
	 	 	 	 
	 	RECORD TOWN, INC., as a Borrower
	 	 	 	 
	 	By:	/s/ John Anderson	 
	 	Name:	John Anderson	 
	 	Title:	Chief Financial Officer	 
	 	 	 	 
	 	RECORD TOWN USA, LLC, as a Borrower
	 	 	 	 
	 	By:	/s/ John Anderson	 
	 	Name:	John Anderson	 
	 	Title:	Chief Financial Officer	 
	 	 	 	 
	 	TRANS WORLD NEW YORK, LLC, as a Borrower
	 	 	 	 
	 	By:	/s/ John Anderson	 
	 	Name:	John Anderson	 
	 	Title:	Chief Financial Officer	 
	 	 	 	 
	 	TRANS WORLD FLORIDA, LLC, as a Borrower
	 	 	 	 
	 	By:	/s/ John Anderson	 
	 	Name:	John Anderson	 
	 	Title:	Chief Financial Officer	 


 


Signature Page to Second Amended and Restated
Credit Agreement



    	 



    	



    


	 	RECORD TOWN UTAH, LLC, as a Borrower
	 	 	 	 
	 	By:	/s/ John Anderson	 
	 	Name:  	John Anderson	 
	 	Title:	Chief Financial Officer	 
	 	 	 	 
	 	ETAILZ INC., as a Borrower
	 	 	 	 
	 	By:	/s/ John Anderson	 
	 	Name:	John Anderson	 
	 	Title:	Chief Financial Officer	 


 


Signature Page to Second Amended and Restated
Credit Agreement



    	 



    	



    


	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Agent, as L/C Issuer, as a Lender and as Swing Line Lender
	 	 	 	 
	 	By:	/s/ Lauren Murphy	 
	 	Name:  	Lauren Murphy	 
	 	Title:	Vice President	 


 


2034089.8

 


Signature Page to Second Amended and Restated
Credit Agreement