dillardssecondamendmentc






                                                                          Exhibit 10.1                                                           EXECUTION VERSION                               AMENDMENT NO. 2 TO                               CREDIT AGREEMENT          AMENDMENT  NO.  2  TO  CREDIT  AGREEMENT,  dated  as  of  April  30,  2020  (this   “Second  Amendment”),  to  the  Five-Year  Credit  Agreement,  dated  as  of  May  13,  2015  (as   amended by that certain Amendment No. 1 to Credit Agreement dated as of August 9, 2017 and   as further amended, restated, supplemented or otherwise modified prior to the date hereof, the   “Credit  Agreement”),  among DILLARD’S,  INC.,  a  Delaware  corporation  (the  “Parent   Borrower”), DILLARD STORE SERVICES, INC., an Arizona corporation (and, together with   the  Parent  Borrower,  the  “Existing  Borrowers”),  the SUBSIDIARY  GUARANTORS  party   thereto, the LENDERS party thereto and JPMORGAN CHASE BANK, N.A., a national banking   association, as administrative agent and collateral agent for the Lenders after giving effect to this   Second Amendment (in such capacities, the “Agent”).  Capitalized terms used but not defined   herein shall have the meanings given them in the Amended Credit Agreement (as defined below).                                    WITNESSETH         WHEREAS, the Parent Borrower has requested the amendments to the Credit Agreement  set forth herein;         WHEREAS, on the date hereof, the Parent Borrower, the Agent, each Lender required  under Section 10.02 of the Credit Agreement desire to (i) consent to the release of Condev Mission,  Inc.,  an  Arkansas  corporation  (“Mission”),  and  Dillard  Travel,  Inc.,  an  Arkansas  corporation   (“Travel”  and,  together  with  Mission,  collectively,  the  “Releasing  Guarantors”),  from  their   guarantee  obligations  under  Article  III  of  the  Credit  Agreement  and  (ii)  amend  the  Credit   Agreement  to  (x)  join  the  Subsidiary  Guarantors  (other  than  the  Releasing  Guarantors)  as   Borrowers  under  the  Amended  Credit  Agreement  (each  such  Subsidiary  Guarantor,  a  “New   Borrower” and, collectively, the “New Borrowers” and, together with the Existing Borrowers,   collectively, the “Borrowers”) and (y) make certain other amendments to the Credit Agreement   pursuant to this Second Amendment;           WHEREAS, the Agent, the Borrowers, and the Lenders signatory hereto are willing to so   agree pursuant to Section 10.02 of the Credit Agreement, subject to the conditions set forth herein;          NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants and   agreements  herein  contained and intending  to be legally  bound  hereby, covenant and agree as   follows:          1.    Amendment.   In  reliance  on  the  representations,  warranties,  covenants  and  agreements contained in this Second Amendment, but subject to the satisfaction of each condition   precedent set forth in Section 5 hereof, effective as of the Second Amendment Effective Date (as   defined below):                (a)   The  Credit  Agreement  is  hereby  amended  and  modified  to  read  in  its        entirety in the form attached as Exhibit A hereto (the “Amended Credit Agreement”);                (b)   The Exhibits to the Credit Agreement are hereby deleted in their entirety        and replaced with the Exhibits attached as Exhibit B hereto; and 





 






                                                                                             (c)   The Schedules to the Credit Agreement are hereby deleted in their entirety        and replaced with the Schedules attached as Exhibit C hereto.         2.    Consent; Release of Releasing Guarantors.  The Agent and the Lenders signatory  hereto hereby consent to the release of the Releasing Guarantors as Subsidiary Guarantors under  the  Credit  Agreement.   Effective  as  of  the  Second  Amendment  Effective  Date,  the  Releasing  Guarantors  shall  automatically  cease  to  be  Loan  Guarantors  for  all  purposes  under  the  Loan  Documents.   In  connection  with  the  release  of  the  Releasing  Guarantors  described  in  the  immediately preceding sentence, at the Borrowers’ expense, the Agent shall execute and deliver  to the Releasing Guarantors all documents that the Releasing Guarantors shall reasonably request  to evidence such release.  Each of the Lenders party hereto hereby agrees that any execution and  delivery of documents pursuant to this Section shall be without recourse to or warranty by the  Agent.         3.    Joinder  of  the  New  Borrowers.   Each  New  Borrower  hereby  acknowledges,  agrees and confirms that, by its execution of this Second Amendment, such New Borrower will be  deemed  to  be  a  Borrower  under  the  Amended  Credit  Agreement  and  shall  have  all  of  the  obligations of a Borrower thereunder as if it had executed the Amended Credit Agreement.  Each  New Borrower hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms,  provisions and conditions contained in the Amended Credit Agreement and in each of the other  Loan Documents, including, without limitation, (a) all of the representations and warranties of the  Borrowers set forth in Article IV of the Amended Credit Agreement and (b) all of the covenants  set forth in Articles VI and VII of the Amended Credit Agreement.           4.    Representations and Warranties.  In order to induce the Agent and the Lenders  to enter into this Second Amendment, the Borrowers hereby jointly represent and warrant to the  Agent and the Lenders that as of the Second Amendment Effective Date, after giving effect to this  Second Amendment:               (a)   no Default or Event of Default has occurred and is continuing;               (b)   the  representations  and  warranties  of  the  Borrowers  set  forth  in  the        Amended  Credit Agreement  are true  and  correct in  all material  respects  (except  to  the        extent that any such representation and warranty is qualified by materiality or Material        Adverse Effect, in which case such representation and warranty is true and correct in all        respects) on and as of the date hereof, except to the extent that any such representation and        warranty relates to an earlier date (in which case such representation and warranty is true        and correct in all material respects (except to the extent that any such representation and        warranty  is  qualified  by  materiality  or  Material  Adverse  Effect,  in  which  case  such        representation and warranty is true and correct in all respects) as of such earlier date);               (c)   this  Second  Amendment  has  been  duly  executed  and  delivered  by  the        Borrowers,  and  the  Amended  Credit  Agreement  constitutes  a  legal,  valid  and  binding        obligation  of  the  Borrowers,  enforceable  in  accordance  with  its  terms,  except  as  such        enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium        or other laws of general applicability affecting the enforcement of creditors’ rights and (ii)                                          2 





 






                                                                                       the application of general principles of equity (regardless of whether such enforceability        considered in a proceeding in equity or at law); and               (d)   No Borrower has any defense to payment, counterclaim or rights of set-off        with respect to the Obligations on the date hereof.         5.    Conditions  Precedent.   The  effectiveness  of  this  Second  Amendment  and  the  obligations of the Lenders to make Loans and of the Issuing Lenders to issue Letters of Credit  under  the  Amended  Credit  Agreement  is  subject  to  satisfaction  (or  waiver  by  the  Required  Lenders) of the following conditions precedent (the date on which such conditions precedent are  satisfied, the “Second Amendment Effective Date”):               (a)   The conditions precedent set forth in Section 5.01 of the Amended Credit  Agreement.               (b)   The Borrowers shall have paid (or caused to be paid) to the Agent, for the  account of each Lender who consents to the Second Amendment on or prior to the date hereof, an  amendment fee in an amount equal to 20 basis points (0.20%) of the amount of such Lender’s  Commitment under the Amended Credit Agreement as of the date hereof.         6.    Reference to and Effect on Credit Agreement and Loan Documents.               (a)   On and after the Second Amendment Effective Date, each reference in the        Credit  Agreement  to  “this  Agreement,”  “hereunder,”  “hereof”  or  words  of  like  import        referring to the Credit Agreement will mean and be a reference to the Credit Agreement,        as amended by this Second Amendment (i.e., the Amended Credit Agreement).               (b)   The  Credit  Agreement  and  each  of  the  other  Loan  Documents,  as        specifically amended by this Second Amendment are and will continue to be in full force        and effect and are hereby in all respects ratified and confirmed and each Borrower reaffirms        its obligations under the Loan Documents to which it is party.               (c)   The execution, delivery and effectiveness of this Second Amendment will        not, except as expressly provided herein, operate as a waiver of any right, power or remedy        of any Lender or the Agent under any of the Loan Documents, nor constitute a waiver of        any  provision  of  any  of  the  Loan  Documents  or  serve  to  effect  a  novation  of  the        Obligations, and the failure of the Lenders at any time or times hereafter to require strict        performance by the Borrowers of any provision thereof shall not waive, affect or diminish        any right of the Lenders to thereafter demand strict compliance therewith.  The Agent and        the Lenders hereby reserve all rights granted under the Amended Credit Agreement, the        other  Loan  Documents,  this  Second  Amendment  and  any  other  contract  or  instrument        between the Borrowers and the Lenders.                (d)   On  and  after  the  Second  Amendment  Effective  Date,  this  Second        Amendment will for all purposes constitute a Loan Document.         7.    Counterparts.  This Second Amendment may be executed in counterparts (and by  different parties hereto on different counterparts), each of which shall constitute an original, but                                         3 





 






                                                                                 all  of  which  when  taken  together  shall  constitute  a  single  contract.   Delivery  of  an  executed  counterpart  of  a  signature  page  of  this  Second  Amendment  by  telecopy  or  other  electronic  transmission  shall  be  effective  as  delivery  of  a  manually  executed  counterpart  of  this  Second  Amendment.           8.    Severability.  Any provision of this Second Amendment held to be invalid, illegal  or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of  such  invalidity,  illegality  or  unenforceability  without  affecting  the  validity,  legality  and  enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a  particular jurisdiction shall not invalidate such provision in any other jurisdiction.         9.    Headings.  Section headings used herein are for convenience of reference only, are  not  part  of  this  Second  Amendment  and  shall  not  affect  the  construction  of,  or  be  taken  into  consideration in interpreting, this Second Amendment.         10.   Review and Construction of Documents.  Each Borrower hereby acknowledges,  and represents and warrants to the Agent and the Lenders, that  (a) such Borrower has had the  opportunity to consult with legal counsel of its own choice and has been afforded an opportunity  to review this Second Amendment with its legal counsel, (b) such Borrower has reviewed this  Second  Amendment  and  fully  understands  the  effects  thereof  and  all  terms  and  provisions  contained herein, (c) such Borrower has executed this Second Amendment of its own free will and  volition, and (d) this Second Amendment shall be construed as if jointly drafted by the Borrowers  and the Lenders.           11.   Arms-Length/Good Faith.  This Second Amendment has been negotiated at arms- length and in good faith by the parties hereto.         12.   Fees  and  Expenses.   As  provided  in  Section  10.04  of  the  Amended  Credit  Agreement and subject to the limitations expressly set forth therein, the Borrowers hereby agree  to pay all reasonable and documented out-of-pocket fees, costs and expenses incurred by the Agent  in connection with the negotiation, preparation, and execution of this Second Amendment and all  related documents (including the reasonable fees and expenses of counsel to the Agent).         13.   Successors and Assigns.  This Second Amendment is binding upon and shall inure  to the benefit of the Credit Parties and the Borrowers and their respective successors and assigns.   For the avoidance of doubt, nothing hereunder shall constitute an assignment or transfer by the  Parent Borrower of any of its rights or obligations under the Existing Credit Agreement and the  New Borrowers shall be jointly and severally liable for the Obligations under the Amended Credit  Agreement with the Existing Borrowers.         14.   Effect of Consent.  No consent or waiver, express or implied, by the Agent to or  for any breach of or deviation from any covenant, condition or duty by the Borrowers shall be  deemed a consent or waiver to or of any other breach of the same or any other covenant, condition  or duty.                                          4 





 






                                                                                       15.   Governing Law; Jurisdiction.               (a)   THIS  SECOND  AMENDMENT  SHALL  BE  GOVERNED  BY,  AND        CONSTRUED  IN  ACCORDANCE  WITH,  THE  LAW  OF  THE  STATE  OF  NEW        YORK.               (b)   Each of the parties hereto agrees that any suit for the enforcement of this        Second Amendment may be brought in any New York state or federal court sitting in the        Borough of Manhattan in New York City and consents to the non-exclusive jurisdiction of        such courts.  Each of the parties hereto hereby waives any objection which they may now        or hereafter have to the venue of any such suit or any such court or that such suit is brought        in an inconvenient forum.         16.   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 SECOND AMENDMENT 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 SECOND AMENDMENT BY, AMONG OTHER THINGS,  THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.                   [SIGNATURES APPEAR ON FOLLOWING PAGES]                                             5 





 






                                                                                       IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly authorized,  have executed this Second Amendment as of the day and year first above written.                                       PARENT BORROWER:                                                                              DILLARD’S, INC.                                                                              By:     /s/ Alex Dillard                                       Name: Alex Dillard                                       Title:   President                                                                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           SUBSIDIARY BORROWERS:                                    600 CARNAHAN DRIVE OPERATIONS, LLC                                    By:     /s/ Chris Johnson                  Name: Chris Johnson                  Title:   Vice President                                                                                                                 [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                                                                 600 CARNAHAN DRIVE PROPERTY, LLC                                                                                       By:    /s/ Chris Johnson  Name: Chris Johnson                                     Title:   Vice President                       [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           BTK DEVELOPMENT, L.L.C.                                                    By:     /s/ Jim Northup                  Name: Jim Northup                  Title:   President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           CONDEV NEVADA, INC.                                                    By:     /s/ Mike Dillard                  Name: Mike Dillard                  Title:   President                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           CONSTRUCTION DEVELOPERS, LLC                                                    By:     /s/ Bill Dillard, III                  Name: Bill Dillard, III                  Title:   President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           DILLARD INTERNATIONAL, LLC                                                    By:     /s/ Dean Worley                  Name: Dean Worley                  Title:   President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           DILLARD INVESTMENT CO. INC.                                                    By:     /s/ Andrea Armstrong                  Name: Andrea Armstrong                  Title:   Vice President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           DILLARD STORE SERVICES, INC.                                                    By:     /s/ Leslie Argo                  Name: Leslie Argo                  Title:   President                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           DILLARD TENNESSEE OPERATING LIMITED                 PARTNERSHIP                                                    By:     /s/ Donna Moye                  Name: Donna Moye                  Title:   President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           DILLARD TEXAS CENTRAL, LLC                                                    By:     /s/ Brett Gunn                  Name: Brett Gunn                  Title:   President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           DILLARD TEXAS EAST, LLC                                                    By:     /s/ Gary Borofsky                  Name: Gary Borofsky                  Title:   President                                             [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           DILLARD TEXAS FOUR-POINT, LLC                                                    By:     /s/ Drue Matheny                  Name: Drue Matheny                  Title:   President                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           DILLARD TEXAS SOUTH, LLC                                                    By: /s/ Michael Draper                  Name: Michael Draper                  Title:   President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           DILLARD TEXAS, LLC                                                    By:     /s/ Drue Matheny                  Name: Drue Matheny                  Title:   President                                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           DILLARD’S UTAH, INC.                                                    By:     /s/ Dean Worley                  Name: Dean Worley                  Title:   Vice President and Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           DILLARD’S DOLLARS, INC.                                   By:     /s/ Tom Bolin                  Name: Tom Bolin                  Title:   President                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           D-SERF COMPANY, LLC                                   By:     /s/ Jim Northup                  Name: Jim Northup                  Title:   President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           DSS NEIL OPERATIONS, LLC                                                    By:     /s/ Armando Gonzalez                  Name: Armando Gonzalez                  Title:   President                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           DSS UNITER, LLC                                                    By:     /s/ Julie Taylor                  Name: Julie Taylor                  Title:   President                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           FORT WORTH BORROWER LLC                                                    By:     /s/ Chris Johnson                  Name: Chris Johnson                  Title:   Vice President                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           FREMAUX HOLDINGS, LLC                                  By: Dillard’s, Inc., as its member                                   By:     /s/ Amy Carrasquillo                  Name: Amy Carrasquillo                  Title:   Vice President, Treasurer and Assistant                              Secretary                                                          [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           GAK GP, LLC                                                    By:     /s/ Phillip Watts                  Name: Phillip Watts                  Title:   President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           GAK INVESTCO, LLC                                                    By:     /s/ Phillip Watts                  Name: Phillip Watts                  Title:   President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           HIGBEE GAK, LP                                                    By:     /s/ Phillip Watts                  Name: Phillip Watts                  Title:   President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           HIGBEE INVESTCO, LLC                                                    By:     /s/ Gene Heil                  Name: Gene Heil                  Title:   President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           HIGBEE LANCOMS, LP                                                    By:     /s/ Brant Musgrave                  Name: Brant Musgrave                  Title:   President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           HIGBEE LOUISIANA, LLC                                                    By:     /s/ Brad Baker                  Name: Brad Baker                  Title:   President                                                            [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           HIGBEE SALVA, LP                                                    By:     /s/ Amy Carrasquillo                  Name: Amy Carrasquillo                  Title:   President and Assistant Secretary                                                            [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           HIGBEE WEST MAIN, LP                                                    By:     /s/ Scott Bartels                  Name: Scott Bartels                  Title:   President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           LANCOMS GP, LLC                                                    By:     /s/ Brant Musgrave                  Name: Brant Musgrave                  Title:   President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           LITTLE ROCK BORROWER LLC                                                    By:     /s/ Chris Johnson                  Name: Chris Johnson                  Title:   Vice President                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           CALIFORNIA DSS, INC.                                                    By:     /s/ Alex Dillard                  Name: Alex Dillard                  Title:   President                                                             [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           PULASKI REALTY COMPANY                                                    By:     /s/ Chris Johnson                  Name: Chris Johnson                  Title:   Vice President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           SALVA GP, LLC                                                    By:     /s/ Amy Carrasquillo                  Name: Amy Carrasquillo                  Title:   President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           THE HIGBEE COMPANY, LLC                                                    By:     /s/ Jim Northup                  Name: Jim Northup                  Title:   President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           TNLP INVESTCO, LLC                                                    By:     /s/ Donna Moye                  Name: Donna Moye                  Title:   President                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           U.S. ALPHA, INC.                                                    By:     /s/ Mark Galvan                  Name: Mark Galvan                  Title:   President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           WEST MAIN GP, LLC                                                    By:     /s/ Scott Bartels                  Name: Scott Bartels                  Title:   President and Assistant Secretary                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           HIGBEE KYG, LP                                                    By:     /s/ Phillip Watts                  Name: Phillip Watts                  Title:   President and Assistant Secretary                                                            [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           JPMORGAN CHASE BANK, N.A., individually                 and as Administrative Agent, Collateral Agent, a                 Lender and an Issuing Lender                                                    By:     /s/ Gregory T. Martin                  Name:   Gregory T. Martin                  Title:   Authorized Officer                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           Wells Fargo Bank, N.A., as a Lender                                                    By:     /s/ William Chan                  Name: William Chan                  Title:   Director                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           REGIONS BANK, as a Lender                                                    By:     /s/ Ankur Shah                  Name: Ankur Shah                  Title:   Director                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           Citizens Bank, N.A., as a Lender                                                    By:     /s/ Anita Philip                  Name: Anita Philip                  Title:   Director                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           TRUIST BANK (as successor by merger to                 SunTrust Bank), as a Lender                                                    By:     /s/ Mark Bohntinsky                  Name: Mark Bohntinsky                  Title:   Managing Director                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           Bank of America, N.A., as a Lender                                                    By:     /s/ Nicole Cangelosi                  Name: Nicole Cangelosi                  Title:   SVP                                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           Citibank N.A., as a Lender                                                    By:     /s/ Doug Barnell                  Name: Doug Barnell                  Title:   Authorized Signatory                    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                           Simmons Bank, as a Lender                                                    By:     /s/ Bill Yee                  Name: Bill Yee                  Title:   Senior Vice President    [Dillard’s - Amendment No. 2 Signature Page] 





 






                                                                      EXHIBIT A   AMENDED CREDIT AGREEMENT              [See attached]                  





 






                                          EXECUTION VERSION            FIVE-YEAR CREDIT AGREEMENT                       dated as of                     May 13, 2015,  as amended as of August 9, 2017 and as of April 30, 2020                         among                   DILLARD’S, INC.,          as Parent Borrower for the Borrowers,         The Other BORROWERS Party Hereto,              The LENDERS Party Hereto,           JPMORGAN CHASE BANK, N.A.,      as Administrative Agent and as Collateral Agent            JPMORGAN CHASE BANK, N.A.,              WELLS FARGO BANK, N.A.,            REGIONS CAPITAL MARKETS                         and                CITIZENS BANK, N.A.,            as Second Amendment Arrangers                WELLS FARGO BANK, N.A.                          and            REGIONS CAPITAL MARKETS,        as Second Amendment Syndication Agents                  CITIZENS BANK, N.A.,        as Second Amendment Documentation Agent 





 






                               TABLE OF CONTENTS                                                                             Page   ARTICLE I DEFINITIONS ........................................................................................................... 1        Section 1.01 Defined Terms ............................................................................................ 1        Section 1.02 Terms Generally........................................................................................ 43        Section 1.03 Accounting Terms; GAAP ........................................................................ 44        Section 1.04 Classification of Loans, Commitments and Borrowings .......................... 44        Section 1.05 Status of Obligations ................................................................................. 44        Section 1.06 Divisions ................................................................................................... 44        Section 1.07 Interest Rates; LIBOR Notification .......................................................... 45  ARTICLE II AMOUNT AND TERMS OF CREDIT .................................................................. 45        Section 2.01 Commitment of the Lenders ..................................................................... 45        Section 2.02 Reserves; Changes to Reserves ................................................................. 46        Section 2.03 Making of Loans ....................................................................................... 46        Section 2.04 Overadvances ............................................................................................ 48        Section 2.05 Swingline Loans........................................................................................ 48        Section 2.06 Letters of Credit ........................................................................................ 50        Section 2.07 Settlements Amongst Lenders .................................................................. 57        Section 2.08 Notes; Repayment of Loans ...................................................................... 58        Section 2.09 Termination  or  Reduction  of  Commitments;  Increase  of                    Commitments ............................................................................................ 59        Section 2.10 Letter of Credit Fees ................................................................................. 61        Section 2.11 Certain Fees .............................................................................................. 62        Section 2.12 Unused Commitment Fee ......................................................................... 62        Section 2.13 Interest on Loans ....................................................................................... 62        Section 2.14 Nature of Fees ........................................................................................... 63        Section 2.15 [Reserved] ................................................................................................. 63        Section 2.16 Alternate Rate of Interest .......................................................................... 63        Section 2.17 Conversion and Continuation of Loans .................................................... 65        Section 2.18 Payments Generally; Pro Rata Treatment; Sharing of Setoffs.................. 66        Section 2.19 [Reserved] ................................................................................................. 69        Section 2.20 Extension Offers ....................................................................................... 69        Section 2.21 Mandatory Prepayment; Cash Collateral .................................................. 73        Section 2.22 Optional Prepayment of Loans; Reimbursement of Lenders .................... 74        Section 2.23 Maintenance of Loan Account; Statements of Account ........................... 75        Section 2.24 Cash Receipts ............................................................................................ 76        Section 2.25 [Reserved] ................................................................................................. 78        Section 2.26 Increased Costs ......................................................................................... 79        Section 2.27 Change in Legality .................................................................................... 80        Section 2.28 Withholding of Taxes; Gross-Up .............................................................. 80        Section 2.29 [Reserved] ................................................................................................. 84        Section 2.30 Mitigation Obligations; Replacement of Lenders ..................................... 84        Section 2.31 Defaulting Lenders.................................................................................... 85                                         i   





 






         Section 2.32 Hedging Agreements and other Bank Products ........................................ 87  ARTICLE III LOAN GUARANTY ............................................................................................. 87        Section 3.01 Guaranty .................................................................................................... 87        Section 3.02 Guaranty of Payment ................................................................................ 88        Section 3.03 No Discharge or Diminishment of Loan Guaranty ................................... 88        Section 3.04 Defenses Waived ...................................................................................... 89        Section 3.05 Rights of Subrogation ............................................................................... 89        Section 3.06 Reinstatement; Stay of Acceleration ......................................................... 90        Section 3.07 Information ............................................................................................... 90        Section 3.08 Taxes ......................................................................................................... 90        Section 3.09 Maximum Liability ................................................................................... 90        Section 3.10 Contribution .............................................................................................. 90        Section 3.11 Liability Cumulative ................................................................................. 91        Section 3.12 Keepwell ................................................................................................... 91        Section 3.13 Release of Guarantees ............................................................................... 92  ARTICLE IV REPRESENTATIONS AND WARRANTIES ..................................................... 92        Section 4.01 Organization; Powers ................................................................................ 92        Section 4.02 Authorization; Enforceability ................................................................... 92        Section 4.03 Governmental Approvals; No Conflicts ................................................... 92        Section 4.04 Financial Condition ................................................................................... 93        Section 4.05 Properties .................................................................................................. 93        Section 4.06 Litigation and Environmental Matters ...................................................... 93        Section 4.07 Compliance with Laws and Agreements .................................................. 94        Section 4.08 Investment Company Status ..................................................................... 94        Section 4.09 Taxes ......................................................................................................... 94        Section 4.10 ERISA ....................................................................................................... 94        Section 4.11 Disclosure ................................................................................................. 94        Section 4.12 Subsidiaries ............................................................................................... 95        Section 4.13 Insurance ................................................................................................... 95        Section 4.14 Security Documents .................................................................................. 95        Section 4.15 Federal Reserve Regulations..................................................................... 95        Section 4.16 Solvency .................................................................................................... 95        Section 4.17 Use of Proceeds......................................................................................... 95        Section 4.18 Anti-Corruption Laws and Sanctions........................................................ 96        Section 4.19 Affected Financial Institutions .................................................................. 96        Section 4.20 Plan Assets; Prohibited Transactions ........................................................ 96  ARTICLE V CONDITIONS ........................................................................................................ 96        Section 5.01 Second Amendment Effective Date .......................................................... 96        Section 5.02 Conditions Precedent to Each Loan and Each Letter of Credit ................ 99  ARTICLE VI AFFIRMATIVE COVENANTS ......................................................................... 100        Section 6.01 Financial Statements and Other Information .......................................... 100        Section 6.02 Notices of Material Events...................................................................... 102        Section 6.03 Information Regarding Collateral ........................................................... 103                                         ii   





 






         Section 6.04 Existence; Conduct of Business .............................................................. 103        Section 6.05 Payment of Obligations........................................................................... 103        Section 6.06 Maintenance of Properties ...................................................................... 103        Section 6.07 Insurance ................................................................................................. 104        Section 6.08 Casualty and Condemnation ................................................................... 104        Section 6.09 Books and Records; Inspection and Audit Rights; Appraisals ............... 104        Section 6.10 Compliance with Laws ........................................................................... 105        Section 6.11 Use of Proceeds and Letters of Credit .................................................... 105        Section 6.12 Accuracy of Information ......................................................................... 106        Section 6.13 Additional Borrowers; Further Assurances ............................................ 106        Section 6.14 Post-Closing Obligations ........................................................................ 107  ARTICLE VII NEGATIVE COVENANTS ............................................................................... 108        Section 7.01 Indebtedness and Other Obligations ....................................................... 108        Section 7.02 Liens ........................................................................................................ 109        Section 7.03 Fundamental Changes ............................................................................. 110        Section 7.04 Restrictive Agreements ........................................................................... 111        Section 7.05 Asset Sales .............................................................................................. 112        Section 7.06 Restricted Payments; Certain Payments of Indebtedness ....................... 114        Section 7.07 Transactions with Affiliates .................................................................... 115        Section 7.08 Fixed Charge Coverage Ratio ................................................................. 116        Section 7.09 Subsidiaries ............................................................................................. 116        Section 7.10 Investments, Loans, Advances, Guarantees and Acquisitions ................ 116  ARTICLE VIII EVENTS OF DEFAULT .................................................................................. 117        Section 8.01 Events of Default .................................................................................... 117        Section 8.02 When Continuing .................................................................................... 121        Section 8.03 Remedies on Default ............................................................................... 121  ARTICLE IX THE AGENT ....................................................................................................... 121        Section 9.01 Authorization and Action ........................................................................ 121        Section 9.02 Administrative Agent’s Reliance, Indemnification, Etc.. ....................... 124        Section 9.03 Posting of Communications .................................................................... 125        Section 9.04 The Agent Individually ........................................................................... 127        Section 9.05 Successor Agent ...................................................................................... 127        Section 9.06 Acknowledgment of Lenders and Issuing Lender .................................. 128        Section 9.07 Collateral Matters.................................................................................... 129        Section 9.08 Credit Bidding ......................................................................................... 130        Section 9.09 Certain ERISA Matters ........................................................................... 131        Section 9.10 Flood Laws.............................................................................................. 132  ARTICLE X MISCELLANEOUS ............................................................................................. 132        Section 10.01 Notices .................................................................................................... 132        Section 10.02 Waivers; Amendments ............................................................................ 134        Section 10.03 Special Amendment Rules ...................................................................... 136        Section 10.04 Expenses; Indemnity; Damage Waiver ................................................... 138        Section 10.05 Designation of Parent Borrower as Borrowers’ Agent ........................... 140                                         iii   





 






                Section 10.06 Successors and Assigns........................................................................... 141  Section 10.07 Survival ................................................................................................... 144  Section 10.08 Counterparts; Integration; Effectiveness ................................................. 144  Section 10.09 Severability ............................................................................................. 145  Section 10.10 Right of Setoff......................................................................................... 145  Section 10.11 Governing Law; Jurisdiction; Consent to Service of Process ................. 145  Section 10.12 WAIVER OF JURY TRIAL ................................................................... 146  Section 10.13 Headings ................................................................................................. 146  Section 10.14 Interest Rate Limitation .......................................................................... 146  Section 10.15 Additional Waivers ................................................................................. 147  Section 10.16 No Fiduciary Duty, etc ............................................................................ 148  Section 10.17 Confidentiality ........................................................................................ 149  Section 10.18 Non-Public Information .......................................................................... 149  Section 10.19 USA PATRIOT Act ................................................................................ 150  Section 10.20 Specified Subsidiaries ............................................................................. 150  Section 10.21 Marketing Consent .................................................................................. 150  Section 10.22 Acknowledgement  and  Consent  to  Bail-In  of  Affected  Financial              Institutions............................................................................................... 150  Section 10.23 Acknowledgement Regarding Any Supported QFCs ............................. 151  Section 10.24 Several Obligations; Violation of Law ................................................... 152  Section 10.25 Disclosure ............................................................................................... 152  Section 10.26 Appointment for Perfection .................................................................... 152                                                                                                        iv                





 






                                     EXHIBITS   A     Form of Assignment and Assumption  B-1   Form of Revolving Notes  B-2   Form of Swingline Note  C     [Reserved]  D     Form of Borrowing Base Certificate  E     Form of Breakage Costs Certificate  F-1   U.S. Tax Certificate (For Foreign Lenders that are not Partnerships for U.S. Federal Income        Tax Purposes)  F-2   U.S. Tax Certificate (For Foreign Participants that are not Partnerships for U.S. Federal        Income Tax Purposes)  F-3   U.S. Tax Certificate (For Foreign Participants that are Partnerships for U.S. Federal Income        Tax Purposes)  F-4   U.S. Tax Certificate (For Foreign Lenders that are Partnerships for U.S. Federal Income        Tax Purposes)  G     Form of Borrowing Request                                                                     v   





 






                                   SCHEDULES   1.1         Lenders and Commitments  1.2         Bonds  2.24(a)     DDAs  2.24(b)     Credit Card Arrangements  4.05(c)(i)   Title to Properties; Real Estate Owned  4.05(c)(ii)   Leased Properties  4.06        Disclosed Matters  4.12        Subsidiaries  4.13        Insurance  7.01        Indebtedness  7.02        Liens  7.04        Restrictive Agreements  7.10        Investments                                               vi   





 






                         FIVE-YEAR CREDIT AGREEMENT         FIVE-YEAR CREDIT AGREEMENT dated as of May 13, 2015, as amended by that  certain Amendment No. 1 to Credit Agreement dated as of August 9, 2017 and by that certain  Amendment No. 2 to Credit Agreement dated as of April 30, 2020 (this “Agreement”), among  DILLARD’S, INC., a corporation organized under the laws of the State of Delaware, as Parent  Borrower, the other BORROWERS from time to time party hereto, the LENDERS from time to  time party hereto and JPMORGAN CHASE BANK, N.A., a national banking association, as  Administrative Agent and as Collateral Agent for the Lenders.         The Borrowers have requested that the Lenders make extensions of credit (by means of  loans and letters of credit) to the Borrowers in an original aggregate principal or face amount not  exceeding $800,000,000 at any one time outstanding in Dollars.  The Lenders are prepared to  extend such credit upon the terms and conditions hereof, and, accordingly, the parties hereto agree  as follows:                                    ARTICLE I                                                                           DEFINITIONS         Section 1.01 Defined Terms. As used in this Agreement, the following terms have the  meanings specified below:         “ACH” shall mean automated clearing house transfers.         “Activation Period” means any period commencing (a) on the first date on which an Event  of Default has occurred and is continuing or (b) when Excess Availability is less than $150,000,000  for a period of three consecutive Business Days, and, in each case, continuing until the date upon  which both (i) Excess Availability has been equal to or greater than $150,000,000 at all times  during the preceding thirty (30) consecutive day period and (ii) no Event of Default has occurred  during such thirty (30) consecutive day period.         “Adjusted LIBO Rate” means, for the Interest Period for any Eurocurrency Borrowing,  an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the  LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate for such Interest  Period.         “Administrative Agent” means JPMorgan, in its capacity as administrative agent for the  Lenders hereunder.         “Administrative  Questionnaire”  means  an  Administrative  Questionnaire  in  a  form  supplied by the Agent.         “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK  Financial Institution.                                          1 





 






         “Affiliate”  means,  with  respect  to  a  specified  Person,  another  Person  that  directly,  or  indirectly through one or more intermediaries, Controls or is Controlled by or is under common  Control with the specified Person.         “Agent” means JPMorgan, in its capacity as Administrative Agent and Collateral Agent  for  the  Lenders  hereunder,  and  any  successors  and  assigns  pursuant  to Section  9.05  of  this  Agreement.         “Agent Indemnitee” has the meaning assigned to it in Section 10.04(c).         “Agreement” shall have the meaning set forth in the preamble.         “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the  Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus 1⁄2 of 1% per  annum and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if such day  is not a Business Day, the immediately preceding Business Day) plus 1%.  For purposes of clause  (c) above, the Adjusted LIBO Rate on any day shall be based on the LIBO Screen Rate (or if the  LIBO Screen Rate is not available for such one month Interest Period, the Interpolated Rate) at  approximately 11:00 a.m., London time, on such day; provided that if such rate shall be less than  2.00%, such rate shall be deemed to be 2.00%.  Any change in the Alternate Base Rate due to a  change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be effective from and  including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted  LIBO Rate, as the case may be.           “Anti-Corruption  Laws”  means  all  laws,  rules,  and  regulations  of  any  jurisdiction  applicable to any Borrower or any of its Subsidiaries from time to time concerning or relating to  bribery, corruption or money laundering.         “Applicable Parties” has the meaning assigned to it in Section 9.03(c).         “Applicable Rate” means, on any day with respect to Base Rate Loans or Eurocurrency  Loans, the applicable per annum percentage set forth in the table shown below:                Base Rate Loans                      Eurocurrency Loans                   0.750%                                 1.750%          The Applicable Rate shall be applied by the Agent, and such application shall be conclusive  absent manifest error.          “Appraised Value” means the amount which represents the net percentage of the Cost of  the Borrowers’ Inventory realizable in the event of a liquidation of such Inventory determined  from a net orderly liquidation value appraisal of such Inventory undertaken from time to time by  an independent appraiser satisfactory to the Agent.         “Approved Electronic Platform” has the meaning provided therefor in Section 9.03(a).         “Approved  Fund”  means  any  Person  (other  than  a  natural  person)  that  is  engaged  in  making, purchasing, holding or investing in bank loans and similar extensions of credit in the                                         2 





 






   ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate  of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.         “Arranger” means each of the Effective Date Arrangers, the First Amendment Arrangers  and the Second Amendment Arrangers.         “Assignment and Assumption” means an assignment and assumption entered into by a  Lender and an Eligible Assignee (with the consent of each party whose consent is required by  Section 10.06), and accepted by the Agent, in the form of Exhibit A or any other form (including  electronic records generated by the use of an electronic platform) approved by the Agent.         “Auto-Renewal Letter of Credit” means a Letter of Credit with an initial expiry date of  one year or less after the date of its issuance that has automatic renewal provisions.         “Availability Reserves” means the sum of (i) such reserves as the Agent from time to time  determines  in  its  Permitted  Discretion  as  being  appropriate  to  reflect  the  impediments  to  the  Agent’s ability to realize upon the Collateral and (ii) with respect to Specified Bank Products then  provided or outstanding, the Bank Product Reserve in effect at such time; provided that reserves  with  respect  to  Specified  Bank  Products  then  provided  or  outstanding  shall  not  exceed  the  Specified Bank Product Amount.  Without limiting the generality of the foregoing, Availability  Reserves may include (but are not limited to) reserves based on (a) rent; (b) Customer Credit  Liabilities; (c) customs, duties, and other costs to release Inventory which is being imported into  the  United  States;  and  (d)  outstanding  taxes  and  other  governmental  charges,  including,  ad  valorem, real estate, personal property, and other taxes which might have priority over the interests  of the Agent in the Collateral and either which have not been paid when due or which the Agent,  in its Permitted Discretion, believes may impede the Agent’s ability to realize upon the Collateral.         “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable Resolution Authority in respect of any liability of an Affected Financial Institution.         “Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing  Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European  Union, the implementing law, rule, regulation or requirement for such EEA Member Country from  time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the  United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time)  and any other law, regulation or rule applicable in the United Kingdom relating to the resolution  of unsound or failing banks, investment firms or other financial institutions or their affiliates (other  than through liquidation, administration or other insolvency proceedings).         “Bank Product Obligations” means any and all obligations of the Borrowers and their  Subsidiaries, including, without limitation, Hedging Obligations, whether absolute or contingent  and howsoever and whensoever created, arising, evidenced or acquired (including all renewals,  extensions and modifications thereof and substitutions therefor) in connection with Bank Products  owed to any Person that (a) at the time it enters into a Bank Product is a Lender or any of its  Affiliates or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Bank Product with  any Borrower or any of its Subsidiaries, in each case in its capacity as a party to such Bank Product  (even if such Person ceases to be a Lender or such Person’s Affiliate ceases to be a Lender).                                         3 





 






         “Bank Product Reserve” means, at any time, an amount equal to the sum of all Specified  Bank Product Amounts associated with all of the then outstanding Specified Bank Products or,  with respect to any particular Specified Bank Product, such lesser amount as may equal to the  actual obligation of the applicable Borrower as determined utilizing the methodology agreed to  with respect to such Specified Bank Product by the Agent with respect to Bank Products provided  by JPMorgan (or one of its Affiliates) or between the applicable Lender (or its Affiliate) and the  Parent Borrower, as applicable.  With respect to any calculation of the amounts to be included in  the Bank Product Reserve which is less than an established Specified Bank Product Amount, the  Agent shall have no obligation to determine the amount thereof.  The Parent Borrower and/or the  applicable Lender (other than JPMorgan) or its Affiliate shall provide the Agent written notice of  such lower amount and calculation thereof.  In absence of any such notice, the amount included in  the Bank Product Reserve shall equal the Specified Bank Product Amount established with respect  to the Specified Bank Product in question. Notwithstanding the foregoing, in no event can the  Bank Product Reserve exceed $25,000,000.          “Bank  Products”  shall  mean  any  one  or  more  of  the  following  types  of  services  or  facilities extended to any Borrower or any of its Subsidiaries by the Agent, any Lender, or any of  their  respective  Affiliates:  (a)  credit  cards,  including  the  Borrowers’  commercial  credit  cards,  stored value cards and purchase cards, (b) Hedging Agreements, (c) merchant processing services  and any deposit, lock box, other cash management arrangement or treasury management services  (including,  without  limitation,  controlled  disbursement,  automated  clearinghouse  transactions,  return  items,  any  direct  debit  scheme  or  arrangement,  overdrafts,  cash  pooling  services,  and  interstate depository network services), (d) foreign exchange, (e) supply chain financing, open  account services and similar trade finance services, or (f) any other product or service provided by  any such Person.          “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as  now and hereafter in effect, or any successor statute.         “Bankruptcy Event” means, with respect to any Person, when such Person becomes the  subject of a voluntary or involuntary bankruptcy or insolvency proceeding, or has had a receiver,  conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person  charged with the reorganization or liquidation of its business, appointed for it, or, in the good faith  determination of the Agent, has taken any action in furtherance of, or indicating its consent to,  approval of, or acquiescence in, any such proceeding or appointment or has had any order for relief  in such proceeding entered in respect thereof, provided that a Bankruptcy Event shall not result  solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such  Person by a Governmental Authority or instrumentality thereof, unless such ownership interest  results in or provides such Person with immunity from the jurisdiction of courts within the United  States or from the enforcement of judgments or writs of attachment on its assets or permits such  Person  (or  such  Governmental  Authority  or  instrumentality),  to  reject,  repudiate,  disavow  or  disaffirm any contracts or agreements made by such Person.         “Base Rate Loan” shall mean any Loan bearing interest at a rate determined by reference  to the Alternate Base Rate in accordance with the provisions of Article II.                                          4 





 






         “Benchmark Replacement” means the sum of: (a) the alternate benchmark rate (which  may be a SOFR-Based Rate) that has been selected by the Agent and the Parent Borrower giving  due consideration to (i) any selection or recommendation of a replacement rate or the mechanism  for determining such a rate by the Relevant Governmental Body and/or (ii) any evolving or then- prevailing market convention for determining a rate of interest as a replacement to the LIBO Rate  for  U.S.  dollar-denominated  syndicated  credit  facilities  and  (b)  the  Benchmark  Replacement  Adjustment; provided that, if the Benchmark Replacement as so determined would be less than  1.00%,  the  Benchmark  Replacement  will  be  deemed  to  be  1.00%  for  the  purposes  of  this  Agreement;  provided  further  that  any  such  Benchmark  Replacement  shall  be  administratively  feasible as determined by the Agent in its sole discretion.          “Benchmark  Replacement  Adjustment”  means  the  spread  adjustment,  or  method  for  calculating or determining such spread adjustment, (which may be a positive or negative value or  zero) that has been selected by the Agent and the Parent Borrower giving due consideration to (i)  any selection or recommendation of a spread adjustment, or method for calculating or determining  such spread adjustment, for the replacement of the LIBO Rate with the applicable Unadjusted  Benchmark Replacement by the Relevant Governmental Body and/or (ii) any evolving or then- prevailing market convention for determining a spread adjustment, or method for calculating or  determining such spread adjustment, for the replacement of the LIBO Rate with the applicable  Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at  such time (for the avoidance of doubt, such Benchmark Replacement Adjustment shall not be in  the form of a reduction to the Applicable Rate).          “Benchmark  Replacement  Conforming  Changes”  means,  with  respect  to  any  Benchmark Replacement, any technical, administrative or operational changes (including changes  to the definition of “Alternate Base Rate,” the definition of “Interest Period,” timing and frequency  of determining rates and making payments of interest and other administrative matters) that the  Agent  decides  in  its  reasonable  discretion  may  be  appropriate  to  reflect  the  adoption  and  implementation of such Benchmark Replacement and to permit the administration thereof by the  Agent in  a manner  substantially consistent  with  market  practice (or,  if the Agent  decides  that  adoption of any portion of such market practice is not administratively feasible or if the Agent  determines that no market practice for the administration of the Benchmark Replacement exists,  in such other manner of administration as the Agent decides is reasonably necessary in connection  with the administration of this Agreement).         “Benchmark Replacement Date” means the earlier to occur of the following events with  respect to the LIBO Rate:          (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the  later of (a) the date of the public statement or publication of information referenced therein and (b)  the date on which the administrator of the LIBO Screen Rate permanently or indefinitely ceases to  provide the LIBO Screen Rate; or         (2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of  the public statement or publication of information referenced therein.                                          5 





 






         “Benchmark Transition Event” means the occurrence of one or more of the following  events with respect to the LIBO Rate:          (1) a public statement or publication of information by or on behalf of the administrator of  the LIBO Screen Rate announcing that such administrator has ceased or will cease to provide the  LIBO Screen Rate, permanently or indefinitely, provided that, at the time of such statement or  publication, there is no successor administrator that will continue to provide the LIBO Screen Rate;          (2) a public statement or publication of information by the regulatory supervisor for the  administrator of the LIBO Screen Rate, the U.S. Federal Reserve System, an insolvency official  with  jurisdiction over  the  administrator  for  the  LIBO  Screen  Rate,  a  resolution authority  with  jurisdiction over the administrator for the LIBO Screen Rate or a court or an entity with similar  insolvency or resolution authority over the administrator for the LIBO Screen Rate, in each case  which states that the administrator of the LIBO Screen Rate has ceased or will cease to provide  the LIBO Screen Rate permanently or indefinitely, provided that, at the time of such statement or  publication, there is no successor administrator that will continue to provide the LIBO Screen Rate;  and/or          (3) a public statement or publication of information by the regulatory supervisor for the  administrator  of  the  LIBO  Screen  Rate  announcing  that  the  LIBO  Screen  Rate  is  no  longer  representative.         “Benchmark Transition Start Date” means (a) in the case of a Benchmark Transition  Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark  Transition Event is a public statement or publication of information of a prospective event, the  90th day prior to the expected date of such event as of such public statement or publication of  information (or if the expected date of such prospective event is fewer than 90 days after such  statement or publication, the date of such statement or publication) and (b) in the case of an Early  Opt-in Election, the date specified by the Agent or the Required Lenders, as applicable, by notice  to the Borrower, the Agent (in the case of such notice by the Required Lenders) and the Lenders.         “Benchmark  Unavailability  Period”  means,  if  a  Benchmark  Transition  Event  and  its  related Benchmark Replacement Date have occurred with respect to the LIBO Rate and solely to  the extent that the LIBO Rate has not been replaced with a Benchmark Replacement, the period  (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no  Benchmark Replacement has replaced the LIBO Rate for all purposes hereunder in accordance  with Section 2.16 and (y) ending at the time that a Benchmark Replacement has replaced the LIBO  Rate for all purposes hereunder pursuant to Section 2.16.         “Beneficial  Ownership  Certification”  means  a  certification  regarding  beneficial  ownership or control as required by the Beneficial Ownership Regulation.         “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.         “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of  ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to  which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of                                          6 





 






   the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the  Code) the assets of any such “employee benefit plan” or “plan”.         “BHC Act Affiliate” means, as to any Person, an “affiliate” (as such term is defined under,  and interpreted in accordance with, 12 U.S.C. 1841(k)) of such Person.         “Blocked Account Agreements” has the meaning set forth in Section 2.24(c).         “Blocked Account Banks” shall mean the banks with whom the Borrowers have entered  into  Blocked  Account  Agreements,  including,  with  respect  to  the  Parent  Borrower  Blocked  Account, JPMorgan (or such other bank which has entered into a Blocked Account Agreement  with respect to the Parent Borrower Blocked Account).         “Blocked Accounts” shall have the meaning set forth in Section 2.24(c).         “Board” means the Board of Governors of the Federal Reserve System of the United States  of America.         “Bonds” means those obligations of the Parent Borrower for borrowed money under those  certain indentures described on Schedule 1.2 hereto.         “Borrowers”  means  collectively,  the  Parent  Borrower,  Dillard  Tennessee  Operating  Limited  Partnership,  Dillard  Store  Services,  Inc.,  The  Higbee  Company,  LLC,  Construction  Developers, LLC, Dillard International, LLC, Condev Nevada, Inc., U.S. Alpha, Inc., Dillard’s  Dollars,  Inc.,  Higbee  Louisiana,  LLC,  Dillard  Texas  Central,  LLC,  Dillard  Texas  East,  LLC,  Dillard  Texas  Four-Point,  LLC,  Dillard  Texas  South,  LLC,  DSS  Neil  Operations,  LLC,  DSS  Uniter, LLC, Higbee GAK, LP, Higbee Lancoms, LP, Higbee Salva, LP, Higbee West Main, LP,  600 Carnahan Drive Operations, LLC, 600 Carnahan Drive Property, LLC, BTK Development  L.L.C., Dillard Investment Co., Inc., Dillard Texas, LLC, Dillard’s Utah, Inc., D-SERF Company,  LLC, Fort Worth Borrower LLC, Fremaux Holdings, LLC, GAK GP, LLC, GAK Investco, LLC,  Higbee  Investco,  LLC,  Lancoms  GP,  LLC,  Little  Rock  Borrower  LLC,  California  DSS,  Inc.,  Pulaski Realty Company, Salva GP, LLC, TNLP Investco, LLC, West Main GP, LLC, and Higbee  KYG, LP and any Domestic Subsidiary that becomes a Borrower pursuant to Section 6.13 of this  Agreement.          “Borrowing” shall mean (a) the incurrence of Loans of a single Type, on a single date and  having, in the case of Eurocurrency Loans, a single Interest Period, or (b) a Swingline Loan.         “Borrowing Base” means (a) as of the Second Amendment Effective Date and until the  Deemed Borrowing Base Termination Date, the Deemed Borrowing Base and (b) any time after  the Deemed Borrowing Base Termination Date, an amount equal to (i) 90% multiplied by the  Appraised  Value  multiplied  by  Eligible  Inventory  (valued  at  Cost),  minus  (ii)  the  aggregate  amount of all Availability Reserves.         “Borrowing Base Certificate” has the meaning assigned to such term in Section 6.01(e).                                          7 





 






         “Borrowing Request” means a request by the Parent Borrower on behalf of the Borrowers  for a Borrowing substantially in the form of Exhibit G or any other form reasonably approved by  the Agent, in each case, in accordance with Section 2.03.         “Breakage Costs” shall have the meaning set forth in Section 2.22(b).         “Business  Day”  means  any  day  that  is  not  a  Saturday,  Sunday  or  other  day  on  which  commercial banks in New York, New York or Little Rock, Arkansas are authorized or required by  law to remain closed, provided that, when used in connection with a Eurocurrency Loan, the term  “Business Day” shall also exclude any day on which banks are not open for dealings in Dollar  deposits in the London interbank market.         “Capital Expenditures” means, for any period, (a) the additions to property, plant and  equipment and other capital expenditures of the Borrowers and their Subsidiaries that are (or would  be) set forth in a consolidated statement of cash flows of the Borrowers and their Subsidiaries for  such period prepared in accordance with GAAP and (b) Capital Lease Obligations incurred by the  Borrowers and their Subsidiaries during such period.         “Capital Lease Obligations” of any Person means the obligations of such Person to pay  rent or other amounts under any lease of (or other arrangement conveying the right to use) real or  personal property, or a combination thereof, which obligations are required to be classified and  accounted for as capital leases or financing leases on a balance sheet of such Person under GAAP,  and  the  amount  of  such  obligations  shall  be  the  capitalized  amount  thereof  determined  in  accordance with GAAP.         “Cash  Collateral  Account”  shall  mean  an  interest-bearing  account  established  by  the  Borrowers with the Agent at JPMorgan under the sole and exclusive dominion and control of the  Agent designated as the “Dillard’s Cash Collateral Account”.         “Cash Control Event” means that Excess Availability is less than $125,000,000 for three  (3) consecutive Business Days.  For purposes of Section 2.24(g), the occurrence of a Cash Control  Event shall be deemed continuing notwithstanding that Excess Availability may thereafter exceed  the  amount  set  forth  in  the  preceding  sentence  unless  and  until  Excess  Availability  exceeds  $125,000,000 for sixty (60) consecutive days, in which event a Cash Control Event shall no longer  be deemed to be continuing for purposes of Section 2.24(g).         “Cash Receipts” has the meaning provided therefor in Section 2.24(c).         “CFC” means a “controlled foreign corporation” within the meaning of Section 957(a) of  the Code.         “Change in Control” means either (a) after the Second Amendment Effective Date, any  Person  or  two  or  more  Persons  acting  in  concert  acquiring  beneficial  ownership  (within  the  meaning of Rule 13d-3 of the Exchange Act), directly or indirectly, of common stock of the Parent  Borrower representing 50% or more of the combined voting power of all common stock of the  Parent Borrower entitled to vote in the election of directors, (b) during any period of up to twelve  consecutive months, whether commencing before or after the Second Amendment Effective Date,  individuals  who  at  the  beginning  of  such  twelve-month  period  were  directors  of  the  Parent                                         8 





 






   Borrower, ceasing for any reason (other than by reason of death, disability or scheduled retirement)  to constitute a majority of the Board of Directors of the Parent Borrower, unless such directors  were replaced by new directors whose election to the Board of Directors of the Parent Borrower,  or whose nomination for election by the shareholders of the Parent Borrower, was approved by a  majority of the directors then still in office who either were directors at the beginning of such  period or whose election or nomination for election was previously so approved, or (c) the failure  of the Parent Borrower to directly or indirectly Control all of the Subsidiary Borrowers.   Notwithstanding the preceding or any provision of Section 13d-3 or 13d-5 of the Exchange Act,  (i) a Person or group shall not be deemed to beneficially own Equity Interests subject to a stock or  asset  purchase  agreement,  merger  agreement,  option  agreement,  warrant  agreement  or  similar  agreement (or voting or option or similar agreement related thereto) until the consummation of the  acquisition  of  the  Equity  Interests  in  connection  with  the  transactions  contemplated  by  such  agreement and (ii) a Person or group will not be deemed to beneficially own the common stock of  another Person as a result of its ownership of the common stock or other securities of such other  Person’s parent entity (or related contractual rights) unless it owns 50% or more of the total voting  power of the common stock entitled to vote for the election of directors of such parent entity having  a majority of the aggregate votes on the board of directors (or similar body) of such parent entity.         “Change in Law” means the occurrence after the Effective Date (or, with respect to any  Lender, such later date on which such Lender becomes a party to this Agreement) of any of the  following: (a) the adoption of or taking effect of any law, rule, regulation or treaty (including any  rules or regulations issued under or implementing any existing law), (b) any change in any law,  rule, regulation or treaty or in the administration, interpretation, implementation or application  thereof by any Governmental Authority; or (c) compliance by any Lender or any Issuing Lender  (or, for purposes of Section 2.26(b), by any lending office of such Lender or by such Lender’s or  such  Issuing  Lender’s  holding  company,  if  any)  with  any  request,  guideline,  requirement  or  directive (whether or not having the force of law) of any Governmental Authority made or issued  after the Effective Date; provided that notwithstanding anything herein to the  contrary, (i) the  Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines,  requirements or directives thereunder or issued in connection therewith or in the implementation  thereof, and (ii) all requests, rules, guidelines, requirements or directives promulgated by the Bank  for International Settlements, the Basel Committee on Banking Supervision (or any successor or  similar authority) or the United States or foreign regulatory authorities, in each case pursuant to  Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted,  adopted, issued or implemented; and provided, further, that the determination by any Lender of  any additional amount owing to it (other than such amounts payable under Section 2.28), to the  extent  claimed  in  reliance  on  the  preceding  proviso,  shall  be  made  in  good  faith  in  a  manner  generally  consistent  with  such  Lender’s  standard  practices  and  only  if  such  Lender  seeks,  or  intends to seek, reimbursement for such additional amounts under other syndicated credit facilities  involving similarly situated borrowers under which such Lender is a lender and may seek such  reimbursement.         “Charges” has the meaning provided therefor in Section 10.14.         “Class” when used in reference to any Loan or Borrowing, refers to whether such Loan, or  the Loans comprising such Borrowing, are Existing Loans, Extended Loans (of the same Extension                                         9 





 






   Series) or Swingline Loans, when used in reference to any Commitment, refers to whether such  Commitment is an Existing Commitment, an Extended Commitment (of each Extension Series) or  a Swingline Commitment and when used in reference to any Lender, refers to whether such Lender  has a Loan or Commitment with respect to a single class.         “Code” means the Internal Revenue Code of 1986, as amended from time to time.         “Collateral”  means  any  and  all  “Collateral”  as  defined  in  any  applicable  Security  Document.  In no event shall Other Store Proceeds constitute Collateral hereunder.         “Collateral Agent” means JPMorgan in its capacity as collateral agent for the Lenders  hereunder.         “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 Borrower in the ordinary course of business of such Borrower.         “Commercial Letter of Credit Outstandings” means, at any time, the sum of (a) the  aggregate undrawn amount of all outstanding Commercial Letters of Credit at such time plus (b)  the aggregate amount of all LC Disbursements relating to Commercial Letters of Credit that have  not yet been reimbursed by or on behalf of the Borrowers at such time.  The Commercial Letter of  Credit Outstandings of any Lender at any time shall be its Commitment Percentage of the total  Commercial Letter of Credit Outstandings at such time.         “Commitment” shall mean, with respect to each Lender, the commitment of such Lender  which is available to be borrowed in the amount set forth opposite its name as its Commitment on  Schedule 1.1 or as may subsequently be set forth in the Register from time to time, as the same  may be increased or reduced from time to time pursuant to Section 2.09.         “Commitment Fee” has the meaning provided therefor in Section 2.12.         “Commitment Fee Rate” means, on any day with respect to the Commitment Fee, a per  annum percentage equal to 0.30%.         “Commitment  Increase  Lender”  has  the  meaning  assigned  to  such  term  in  Section 2.09(c).         “Commitment Percentage” shall mean, with respect to each Lender, at any time, except  as otherwise provided herein, that percentage of the Commitments of all Lenders hereunder in the  amount set forth opposite its name on Schedule 1.1 or as may subsequently be set forth in the  Register from time to time, as the same may be reduced or increased from time to time pursuant  to Section 2.09.  Notwithstanding the foregoing, in the case of Section 2.31 when a Defaulting  Lender shall exist, “Commitment Percentage” as used in such Section 2.31 with respect to any  Non-Defaulting Lender shall mean the percentage of the Total Commitment (disregarding any  Defaulting Lender’s Commitment) represented by such Non-Defaulting Lender’s Commitment.         “Commitment  Termination  Date”  means  August  9,  2022  (or,  if  such  date  is  not  a  Business Day, the immediately preceding Business Day).                                         10 





 






         “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  and  any  regulations  promulgated  thereunder.         “Communications” has the meaning assigned to such term in Section 9.03(c).         “Compounded  SOFR”  means  the  compounded  average  of  SOFRs  for  the  applicable  Corresponding Tenor, with the rate, or methodology for this rate, and conventions for this rate  (which  may  include  compounding  in  arrears  with  a  lookback  and/or  suspension  period  as  a  mechanism to determine the interest amount payable prior to the end of each Interest Period) being  established by the Agent in accordance with:          (1)  the  rate,  or  methodology  for  this  rate,  and  conventions  for  this  rate  selected  or  recommended by the Relevant Governmental Body for determining compounded SOFR; provided  that:         (2)  if, and to  the  extent  that, the  Agent  determines  that  Compounded SOFR  cannot  be  determined in accordance with clause (1) above, then the rate, or methodology for this rate, and  conventions for this rate that the Agent determines in its reasonable discretion are substantially  consistent with any evolving or then-prevailing market convention for determining compounded  SOFR for U.S. dollar-denominated syndicated credit facilities at such time;          provided, further, that if the Agent decides that any such rate, methodology or convention  determined  in accordance  with clause  (1) or clause (2) is  not  administratively feasible  for the  Agent,  then  Compounded  SOFR  will  be  deemed  unable  to  be  determined  for  purposes  of  the  definition of “Benchmark Replacement.”         “Consolidated  Cash  Balance”  means,  at  any  time,  the  aggregate  amount  of  cash,  marketable  securities,  treasury  bonds  and  bills,  certificates  of  deposit,  investments  in  money  market funds and commercial paper and other cash equivalents (other than Excluded Cash), in  each  case,  held  or  owned  by  (whether  directly  or  indirectly),  credited  to  the  account  of,  or  otherwise reflected as an asset on the balance sheet (prepared in accordance of GAAP) of, the  Parent Borrower and its Subsidiaries.         “Consolidated Cash Balance Threshold” means $250,000,000.         “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.         “Corresponding  Tenor”  with  respect  to  a  Benchmark  Replacement  means  a  tenor  (including  overnight)  having  approximately  the  same  length  (disregarding  business  day  adjustment) as the applicable tenor for the applicable Interest Period with respect to the LIBO  Rate.                                          11 





 






         “Cost” means the cost value of Inventory as reported on the Borrowers’ financial stock  ledger using the retail method of accounting based on practices which are in effect on the date of  this Agreement.         “Covered  Entity”  means  any  of  the  following:   (a)  a  “covered  entity”  as  that  term  is  defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (b) a “covered bank” as that  term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI”  as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).         “Covered Party” has the meaning given to such term in Section 10.23.         “Credit Card Notifications” has the meaning provided therefor in Section 2.24(c).         “Credit Extensions” as of any day, shall be equal to the sum of (a) the principal balance  of all Loans then outstanding, and (b) the then amount of the Letter of Credit Outstandings.         “Credit  Party”  means  the  Administrative  Agent,  the  Collateral  Agent,  the  Issuing  Lenders, the Swingline Lenders or any other Lender.         “Customer Credit Liabilities” means, at any time, the aggregate face value at such time  of (a) outstanding gift certificates and gift cards of the Subsidiary Borrowers entitling the holder  thereof to use all or a portion of the certificate to pay all or a portion of the purchase price for any  Inventory,  and  (b)  outstanding  merchandise  credits  and  customer  deposits  of  the  Subsidiary  Borrowers.         “DDA Notification” has the meaning provided therefor in Section 2.24(c).         “DDAs”  means  any  checking  or  other  demand  deposit  account,  investment  account,  securities account, commodity account or other account maintained by any Borrower (other than  any Excluded Account).         “Deemed  Borrowing  Base”  means  an  amount  equal  to  (a)  75%  multiplied  by  the  difference between (A) the Cost of Eligible Inventory and (B) Inventory Reserves, minus (b) the  aggregate amount of all Availability Reserves.          “Deemed Borrowing Base Termination Date” means the date that the Parent Borrower  delivers to the Agent (a) a field examination and appraisal of the Subsidiary Borrowers’ Inventory  completed by a reasonably acceptable examiner and a reasonably acceptable appraiser, in each  case  to  the  Agent,  and  (b)  a  completed  Borrowing  Base  Certificate  using  the  borrowing  base  formula described in clause (b) of the definition of “Borrowing Base”.          “Default” means any event or condition that constitutes an Event of Default or that upon  notice, lapse of time or both would, unless cured or waived, become an Event of Default.         “Default  Right”  has  the  meaning  assigned  to  that  term  in,  and  shall  be  interpreted  in  accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.                                          12 





 






         “Defaulting Lender” means, any Lender that (a) has failed to (i) fund all or any portion of  its  Loans  within  two (2)  Business  Days  of  the  date  such  Loans  were  required  to  be  funded  hereunder, or (ii) pay to the Agent, any Issuing Lender, any Swingline Lender or any other Lender  any other amount required to be paid by it hereunder (including in respect of its participation in  Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due, (b) has  notified the Parent Borrower, the Agent, any Issuing Lender or any Swingline Lender in writing  that it does not intend to comply with its funding obligations hereunder, or has made a public  statement to that effect, (c) has failed, within three (3) Business Days after written request by the  Agent or the Parent Borrower, to confirm in writing to the Agent and the Borrowers that it will  comply with its prospective funding obligations hereunder (provided that such Lender shall cease  to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by  the Agent and the Parent Borrower), or (d) has, or has a direct or indirect Parent that has, (i) become  the subject of a Bankruptcy Event, (ii) had appointed for it a receiver, custodian, conservator,  trustee,  administrator,  assignee  for  the  benefit  of  creditors  or  similar  Person  charged  with  reorganization or liquidation of its business or  assets, including the  Federal Deposit  Insurance  Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii)  become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender  solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct  or indirect Parent thereof by a Governmental Authority so long as such ownership interest does  not result in or provide such Lender with immunity from the jurisdiction of courts within the United  States or from the enforcement of judgments or writs of attachment on its assets or permit such  Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts  or  agreements  made  with  such  Lender.   Any  determination  by  the  Agent  that  a  Lender  is  a  Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and  binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon  delivery of written notice of such determination to the Parent Borrower, each Issuing Lender, each  Swingline Lender and each Lender.         “Depository” means any bank, broker, depository, institution or other entity that maintains  a DDA.         “DICL” means Dillard’s Insurance Company Limited, a company registered and existing  under the laws of Bermuda.         “Disposition” has the meaning set forth in Section 7.05.         “Dividing Person” has the meaning given to such term in the definition of “Division”.         “Division” means the division of the assets, liabilities and/or obligations of a Person (the  “Dividing  Person”)  among  two  or  more  Persons  (whether  pursuant  to  a  “plan  of  division”  or  similar arrangement), which may or may not include the Dividing Person and pursuant to which  the Dividing Person may or may not survive.         “Division Successor” means any Person that, upon the consummation of a Division of a  Dividing Person, holds all or any portion of the assets, liabilities and/or obligations previously held  by such Dividing Person immediately prior to the consummation of such Division.  A Dividing                                          13 





 






   Person which retains any of its assets, liabilities and/or obligations after a Division shall be deemed  a Division Successor upon the occurrence of such Division.         “Documentation Agents” means each of the Effective Date Documentation Agent, the  First Amendment Documentation Agent and the Second Amendment Documentation Agent.         “Dollars” or “$” refers to lawful money of the United States of America.         “Domestic Subsidiary” means any Subsidiary of a Borrower organized or incorporated  under the laws of a jurisdiction located in the U.S.          “Early Opt-in Election” means the occurrence of:         (1) (i) a determination by the Agent or (ii) a notification by the Required Lenders to the  Agent (with a copy to the Parent Borrower) that the Required Lenders have determined that U.S.  dollar-denominated  syndicated  credit  facilities  being  executed  at  such  time,  or  that  include  language similar to that contained in Section 2.16 are being executed or amended, as applicable,  to incorporate or adopt a new benchmark interest rate to replace the LIBO Rate, and          (2) (i) the election by the Agent or (ii) the election by the Required Lenders to declare that  an Early Opt-in Election has occurred and the provision, as applicable, by the Agent of written  notice of such election to the Parent Borrower and the Lenders or by the Required Lenders of  written notice of such election to the Agent.         “EBITDA”  means,  for  any  period,  the  Net  Income  for  the  Parent  Borrower  and  its  Subsidiaries  on  a  consolidated  basis  determined  in  accordance  with  GAAP  plus  (a)  without  duplication to the extent deducted in determining such Net Income, the sum of (i) Interest Expense,  provision  for  Taxes  based  on  income  and  depreciation  and  amortization,  all  as  determined  in  accordance with GAAP, (ii) extraordinary, non-recurring or unusual charges or losses, (iii) charges  resulting from  the  application  of  FASB Statement  Number 123  (Revised), (iv) other non-cash  charges and (v) losses arising from the sale of assets other than in the ordinary course of business,  minus (b) to the extent included in such consolidated Net Income, extraordinary, non-recurring or  unusual gains and gains arising from the sale of assets other than in the ordinary course of business.   Notwithstanding anything to the contrary contained herein, all calculations of EBITDA shall be  calculated, determined and adjusted to exclude, for any applicable period or date of determination,  any income, loss, results of operations, deduction, charge or other adjustments with respect to the  Specified Subsidiaries, except, without duplication, for any earnings of any Specified Subsidiary  that are actually received in cash by any Borrower and included in such Borrower’s Net Income.         “EBITDAR”  means  for  any  period  for  the  Parent  Borrower  and  its  Subsidiaries  on  a  consolidated basis determined in accordance with GAAP, the sum of (a) EBITDA plus (b) Rental  and Lease Expense of the Parent Borrower and its Subsidiaries.  Notwithstanding anything to the  contrary  contained  herein,  all  calculations  of  EBITDAR  shall  be  calculated,  determined  and  adjusted to exclude, for any applicable period or date of determination, any income, loss, results  of operations, deduction, charge or other adjustments with respect to the Specified Subsidiaries,  except, without duplication, for any earnings of any Specified Subsidiary that are actually received  in cash by any Borrower and included in such Borrower’s Net Income.                                          14 





 






         “ECP”  means  an  “eligible  contract  participant”  as  defined  in  Section  1(a)(18)  of  the  Commodity Exchange Act or any regulations promulgated thereunder and the applicable rules  issued by the Commodity Futures Trading Commission and/or the SEC.         “EEA Financial Institution” means (a) any institution established in any EEA Member  Country  which  is  subject  to  the  supervision  of  an  EEA  Resolution  Authority,  (b)  any  entity  established in an EEA Member Country which is a parent of an institution described in clause (a)  of  this  definition,  or  (c)  any  institution  established  in  an  EEA  Member  Country  which  is  a  subsidiary  of  an  institution  described  in  clauses  (a)  or  (b)  of  this  definition  and  is  subject  to  consolidated supervision with its parent.         “EEA  Member  Country”  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.         “Effective Date” means May 13, 2015.         “Effective  Date  Arrangers”  means  each  of  J.P.  Morgan  Securities  LLC,  Wells  Fargo  Securities, LLC, Regions Capital Markets, a division of Regions Bank, and Citizens Bank, N.A.,  in  its  capacity  as  joint  lead  arranger  and  joint  bookrunner  for  the  credit  facility  established  hereunder as of the Effective Date.         “Effective Date Documentation Agent” means Citizens Bank, N.A., in its capacity as  documentation agent for the credit facility established hereunder as of the Effective Date.         “Effective Date Syndication Agents” means each of Wells Fargo Bank, N.A. and Regions  Capital Markets, in their capacity as syndication agents for the credit facility established hereunder  as of the Effective Date.         “Electronic  Signature”  means  an  electronic  sound,  symbol,  or  process  attached  to,  or  associated  with,  a  contract  or  other  record  and  adopted  by  a  Person  with  the  intent  to  sign,  authenticate or accept such contract or record.         “Electronic System”  means  any  electronic system,  including e-mail, e-fax, web  portal  access for such Borrower and any other Internet or extranet-based site, whether such electronic  system is owned, operated or hosted by the Agent or any Issuing Lender and any of its respective  Related Parties or any other Person, providing for access to data protected by passcodes or other  security system.         “Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender and (c) an Approved  Fund, other than, in each case, (i) a Defaulting Lender or its Parent, (ii) the Parent Borrower or  any Subsidiary or other Affiliate of the Parent Borrower, (iii) a natural person or (iv) a holding  company, investment vehicle or trust for, or owned and operated for the primary benefit of, a  natural person, other than, in the case of this clause (iv), any such holding company, investment  vehicle or trust that (A) has not been established for the primary purpose of acquiring Loans or                                         15 





 






   Commitments, (B) is managed by a professional advisor, who is not a natural person or a relative  thereof, having significant experience in the business of making or purchasing commercial loans,  (C) has assets greater than $25,000,000 and (D) makes or purchases commercial loans and similar  extensions of credit in the ordinary course of its business as significant part of its activities.         “Eligible  Inventory”  shall  mean,  as  of  the  date  of  determination  thereof,  items  of  Inventory of the Subsidiary Borrowers that are finished goods, merchantable and readily saleable  to the public in the ordinary course deemed by the Agent in its Permitted Discretion to be eligible  for inclusion in the calculation of the Borrowing Base. “Eligible Inventory” shall include, without  duplication of other Eligible Inventory, Eligible Letter of Credit Inventory.  Without limiting the  foregoing,  unless  otherwise  approved  in  writing  by  the  Agent,  none  of  the  following  shall  be  deemed to be Eligible Inventory:               (a)   Inventory that is not owned solely by the Subsidiary Borrowers, or is leased        or on consignment or the Subsidiary Borrowers do not have good and valid title thereto;               (b)   Inventory (including any portion thereof in transit from vendors, except for        Eligible Letter of Credit Inventory) that is not located at a warehouse facility or store that        is owned or leased by a Subsidiary Borrower;               (c)   Inventory  that  represents  (i)  goods  damaged,  defective  or  otherwise        unmerchantable,  (ii)  goods  that  do  not  conform  in  all  material  respects  to  the        representations  and  warranties  contained  in  this  Agreement  or  any  of  the  Security        Documents, or (iii) goods to be returned to the vendor or goods for which reclamation        rights have been asserted by the seller;               (d)   Inventory that is not located in the United States of America (excluding        territories and possessions thereof and Eligible Letter of Credit Inventory);               (e)   Inventory that is not subject to a perfected first priority security interest in        favor of the Agent for the benefit of the Secured Parties;               (f)   Inventory  which  consists  of  samples,  labels,  bags,  packaging,  and  other        similar non-merchandise categories;               (g)   Inventory  as  to  which  insurance  in  compliance  with  the  provisions  of        Section 6.07 hereof is not in effect;               (h)   Inventory  which  has  been  sold but  not  yet  delivered or  as  to  which  any        Subsidiary Borrower has accepted a deposit;               (i)   Perishable Inventory;               (j)   Inventory which is subject to any Lien other than (i) a Lien in favor of the        Agent and (ii) a Permitted Encumbrance which does not have priority over the Lien in        favor of the Agent;                                          16 





 






               (k)   Inventory (except for Eligible Letter of Credit Inventory) which is being        processed offsite at a third party location or outside processor, or is in-transit to or from        such third party location or outside processor; or               (l)   Inventory which has been acquired from a Sanctioned Person.   In the event that Inventory of a Subsidiary Borrower which was previously Eligible Inventory  ceases to be Eligible Inventory hereunder, such Subsidiary Borrower or the Parent Borrower shall  notify the Agent thereof on and at the time of submission to the Agent of the next Borrowing Base  Certificate.         “Eligible  Letter  of  Credit  Inventory”  means  Inventory  (a)  not  yet  delivered  to  a  Subsidiary Borrower, (b) the purchase of which is supported by a Commercial Letter of Credit  having an expiry within sixty (60) days of such date of determination, (c) subject to a negotiable  document showing Agent, or with consent of the Agent, for which the document of title reflects a  Subsidiary Borrower as consignee (along with delivery to the Agent or a Subsidiary Borrower, as  applicable, of the documents of title with respect thereto), (d) as to which, if so required by the  Agent in its discretion, the Agent has possession or control over the documents of title which  evidence ownership of the subject Inventory (such as by the delivery of a customs broker agency  agreement, satisfactory to the Agent), (e) which is insured to the reasonable satisfaction of the  Agent, and (f) which otherwise would constitute Eligible Inventory.         “Environmental Laws” means all applicable laws, rules, regulations, codes, ordinances,  orders,  decrees,  judgments,  injunctions,  notices  or  binding  agreements  issued,  promulgated  or  entered into by or with any Governmental Authority, relating in any way to (a) the environment,  (b) the preservation or reclamation of natural resources, (c) the management, handling, treatment,  storage, disposal, Release or threatened Release of any Hazardous Material or (d) health and safety  matters (to the extent related to exposure to any Hazardous Materials).         “Environmental Liability” means any liability, contingent or otherwise (including any  liability for damages, natural resource damage, costs of environmental remediation, administrative  oversight  costs,  fines,  penalties  or  indemnities),  of  any  Borrower  or  Subsidiary  directly  or  indirectly  resulting  from  or  based  upon  (a)  any  violation  of  any  Environmental  Law,  (b)  the  generation,  use,  handling,  transportation,  storage,  treatment  or  disposal  of  any  Hazardous  Materials, (c) any exposure to any Hazardous Materials, (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.         “Equity  Interests”  means  shares  of  capital  stock,  partnership  interests,  membership  interests in a limited liability company, beneficial interests in a trust or other equity ownership  interests  in  a  Person,  and  any  warrants,  options  or  other  rights  entitling  the  holder  thereof  to  purchase or acquire any of the foregoing, but excluding any debt securities convertible into any of  the foregoing.         “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from  time to time, and the rules and regulations promulgated thereunder.                                          17 





 






         “ERISA Affiliate” means any trade or business (whether or not incorporated) that, together  with any Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or  Section 4001(14) of ERISA or, solely for purposes of Section 302 of ERISA and Section 412 of  the Code, is treated as a single employer under Section 414 of the Code.         “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA  or the regulations issued thereunder, with respect to a Plan (other than an event for which the 30- day notice period is waived); (b) the failure by any Plan to satisfy the minimum funding standards  (within the meaning of Section 412 of the Code or Section 302 of ERISA applicable to such Plan),  whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of  ERISA of an application for a waiver of the minimum funding standard with respect to any Plan;  (d)  the  incurrence  by  any  Borrower  or  any  ERISA  Affiliate  of  any  liability  under  Title IV  of  ERISA with respect to the termination of any Plan; (e) the receipt by any Borrower or any ERISA  Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate  any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by any Borrower  or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal of any  Borrower or any ERISA Affiliate from any Plan or Multiemployer Plan; or (g) the receipt by any  Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from  any Borrower or any ERISA Affiliate of any notice, concerning the imposition upon any Borrower  or any ERISA Affiliate of Withdrawal Liability or a determination that a Multiemployer Plan is,  or is expected to be, insolvent, in critical status or in reorganization, within the meaning of Title IV  of ERISA.         “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.         “Eurocurrency Borrowing” shall mean a Borrowing comprised of Eurocurrency Loans.         “Eurocurrency  Loan”  shall  mean  any  Loan  bearing  interest  at  a  rate  determined  by  reference to the Adjusted LIBO Rate in accordance with the provisions of Article II.         “Event of Default” has the meaning assigned to such term in Section 8.01.         “Excess Availability” means, as of any date of determination, the excess, if any, of (a) the  lesser  of  the  Borrowing  Base  or  the  Total  Commitment,  minus  (b)  the  outstanding  Credit  Extensions.         “Excess  Availability  Threshold”  is  satisfied  as  of  any  date  of  determination  if,  with  respect to any transaction, Excess Availability (calculated on a pro forma basis after giving effect  to such transaction and any Borrowings to be made on such date of determination and at all times  during the 60-day period immediately prior to such transaction) is at least $200,000,000 (or, if  such transaction is to be permitted by Section 7.10(g) or Section 7.10(k), $300,000,000) on such  date of determination.          “Excess Cash” means, at any time, the amount by which the Consolidated Cash Balance  exceeds the Consolidated Cash Balance Threshold.         “Exchange Act” means the Securities Exchange Act of 1934.                                         18 





 






         “Excluded Accounts” means (a) accounts maintained in the ordinary course of business  containing  cash  amounts  that  do  not  exceed  at  any  time  $250,000  for  any  such  account  and  $1,250,000 in the aggregate for all such accounts under this clause (a), (b) an account which is  used exclusively for the payment of payroll, payroll taxes, employee benefits or escrow deposits  related to payroll, payroll taxes and employee benefits, (c) an account which exclusively holds  amounts in trust for third parties or on behalf of third parties including those held for the benefit  of  employees,  officers,  directors  or  taxing  authorities,  (d)  zero  balance  accounts,  (e)  accounts  consisting exclusively of Other Store Proceeds and (f) escrow accounts and other accounts used  exclusively to hold (i) proceeds of newly issued Indebtedness permitted under this Agreement  (other  than  any  advances  under this  Agreement) and (ii)  cash  or  cash  equivalents  constituting  purchase price deposits held in escrow by an unaffiliated third party pursuant to a binding and  enforceable purchase and sale agreement with an unaffiliated third party containing customary  provisions regarding the payment and refunding of such deposits.         “Excluded Cash” means (a) any cash to be used to pay obligations of the Borrowers then  due and owing to unaffiliated third parties and for which the Borrowers have issued checks or have  initiated wires or ACH transfers in order to pay such obligations, (b) cash held in (i) accounts  designated  and  used  solely for payroll or employee  benefits,  (ii) cash  collateral  accounts  with  respect to Letters of Credit, (iii) trust accounts designated and used exclusively for the payment of  taxes of the Borrowers or for the sole benefit of third parties, and (iv) escrow accounts and accounts  where solely proceeds of newly issued Indebtedness permitted under this Agreement (other than  any  advances  under  this  Agreement)  are  deposited,  and  (c)  any  cash  or  cash  equivalents  constituting purchase price deposits held in escrow by an unaffiliated third party pursuant to a  binding and enforceable purchase and sale agreement with an unaffiliated third party containing  customary provisions regarding the payment and refunding of such deposits.         “Excluded Hedging Obligation” means, with respect to any Borrower, (a) any Hedging  Obligation if, and to the extent that, all or a portion of the Guarantee of such Borrower of, or the  grant by such Borrower of a security interest to secure, such Hedging 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 Borrower’s failure for any reason to constitute an ECP at the time the  Guarantee  of  such  Borrower  or  the  grant  of  such  security  interest  becomes  or  would  become  effective with respect to such Hedging Obligation, (b) in the case of a Hedging Obligation subject  to  a  clearing  requirement  pursuant  to  Section  2(h)  of  the  Commodity  Exchange  Act  (or  any  successor  provision  thereto),  because  such  Borrower  is  a  “financial  entity,”  as  defined  in  Section 2(h)(7)(C) of the Commodity Exchange Act (or any successor provision thereto), at the  time the Guarantee of such Borrower becomes or would become effective with respect to such  related  Hedging  Obligation  or  (c) any  other  Hedging  Obligation  designated  as  an  “Excluded  Hedging  Obligation”  of  such  Borrower  as  specified  in  any  agreement  between  the  relevant  Borrower and counterparty applicable to such Hedging Obligations.  If a Hedging Obligation arises  under a master agreement governing more than one swap, such exclusion shall apply only to the  portion  of  such  Hedging  Obligation  that  is  attributable  to  swaps  for  which  such  Guarantee  or  security interest is or becomes illegal.         “Excluded  Subsidiary”  means  any  Subsidiary  of the Parent Borrower  that  is  (i) not  a  Material Subsidiary, (ii) a Foreign Subsidiary, (iii) a Subsidiary of a CFC, which Subsidiary is                                         19 





 






   organized or incorporated under the laws of a jurisdiction located in the U.S., (iv) a FSHCO or (v)  a  Specified  Subsidiary.   As  of  the  Second  Amendment  Effective  Date,  Condev  Mission,  Inc.,  Dillard Travel, Inc., Dillard’s Properties, Inc., DSS HQ Properties, LLC, DSS NEIL Properties,  LLC,  Westminster  Fashion  Place  LLC,  and  Westminster  Mall  Investing  LLC  are  Excluded  Subsidiaries.          “Excluded Taxes” means any of the following Taxes imposed on or with respect to  a  Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed  on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes,  in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having  its  principal  office  or,  in  the  case  of  any  Lender,  its  applicable  lending  office  located  in,  the  jurisdiction  imposing  such  Tax  (or  any  political  subdivision  thereof)  or  (ii)  that  are  Other  Connection  Taxes;  (b)  in  the  case  of  a  Lender,  U.S.  Federal  withholding  Taxes  imposed  on  amounts payable to or for the account of such Lender with respect to an applicable interest in a  Loan, Letter of Credit or Commitment pursuant to a law in effect on the date on which (i) such  Lender acquires such interest in the Loan, Letter of Credit or Commitment (other than pursuant to  an assignment request by the Borrowers under Section 2.30(b)) or (ii) such Lender changes its  lending  office,  except  in  each  case  to  the  extent  that,  pursuant  to Section 2.28,  amounts  with  respect  to  such  Taxes  were payable  either to  such Lender’s  assignor immediately  before  such  Lender acquired the  applicable  interest  in  a  Loan, Letter of Credit  or  Commitment or to such  Lender immediately before it changed its lending office; (c) Taxes attributable to such Recipient’s  failure to comply with Section 2.28(f); and (d) any withholding Taxes imposed under FATCA.         “Existing Blocked Account” shall have the meaning provided in Section 2.24(a).         “Existing Class” shall have the meaning provided in Section 2.20.         “Existing Commitment” shall have the meaning provided in Section 2.20.         “Existing Credit Card Notification” shall have the meaning provided in Section 2.24(b).         “Existing Loans” shall have the meaning provided in Section 2.20.         “Existing Revolving Borrowings” shall have the meaning provided in Section 2.09(d).         “Extended Commitments” shall have the meaning provided in Section 2.20.         “Extended Loans” shall have the meaning provided in Section 2.20.         “Extending Lender” shall have the meaning provided in Section 2.20.         “Extension Amendment” shall have the meaning provided in Section 2.20.         “Extension Date” shall have the meaning provided in Section 2.20.         “Extension Election” shall have the meaning provided in Section 2.20.         “Extension Request” shall have the meaning provided in Section 2.20.                                         20 





 






         “Extension Series” shall mean all Extended Commitments that are established pursuant to  the same Extension  Amendment  (or  any  subsequent  Extension Amendment to  the  extent  such  Extension Amendment expressly provides that the Extended Commitments provided for therein  are intended to be a part of any previously established Extension Series) and that provide for the  same interest margins, extension fees, maturity and other terms.         “FATCA” means Sections 1471 through 1474 of the Code, as of the Effective Date (or  any  amended  or  successor  version  that  is  substantively  comparable  and  not  materially  more  onerous to comply with), any current or future regulations or official interpretations thereof and  any agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory  legislation,  rules  or  practices  adopted  pursuant  to  any  intergovernmental  agreement,  treaty  or  convention among Governmental Authorities and implementing such Sections of the Code.         “Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB  based on such day’s federal funds transactions by depositary institutions (as determined in such  manner as shall be set forth on the Federal Reserve Bank of New York’s Website from time to  time) and published on the next succeeding Business Day by the NYFRB as the effective federal  funds rate, provided that, if the Federal Funds Effective Rate as so determined would be less than  zero, such rate shall be deemed to zero for the purposes of this Agreement.         “Federal Reserve Bank of New York’s Website” means the website of the NYFRB at  http://www.newyorkfed.org, or any successor source.         “Fee Letter” means, collectively, (a) the fee letter dated April 22, 2015 executed by the  Agent and the Parent Borrower with respect to any administrative agent fee set forth therein, (b)  the letter agreement entitled “Engagement Letter” dated April 7, 2020, regarding fees, executed  by the Agent and accepted and agreed to by the Parent Borrower, and (c) any other agreement now  or at anytime hereafter entered into between one or more Borrower and the Agent, JPMorgan  and/or  any  of  their  Affiliates,  in  each  case  providing  for  the  payment  of  fees  to  the  Agent,  JPMorgan and/or any of their Affiliates in connection with this Agreement or any transactions  contemplated hereby or related thereto, as such letter agreement and such other agreements may  from time to time be amended.         “Financial  Officer”  means,  with  respect  to  any  Borrower,  the  chief  financial  officer,  principal financial officer, principal accounting officer, treasurer, controller or assistant controller  of such Borrower.  Unless otherwise specified, each reference to Financial Officer shall be deemed  to be a Financial Officer of the Parent Borrower.         “First Amendment” means that certain Amendment No. 1 to Credit Agreement dated as  of  August  9,  2017  among  the  Parent  Borrower  and  Dillard  Store  Services,  Inc.,  an  Arizona  corporation, as borrowers, certain subsidiaries of the Parent Borrower as guarantors, the Lenders  party thereto and the Agent.         “First  Amendment  Arrangers”  means  each  of  JPMorgan,  Wells  Fargo  Bank,  N.A.,  Regions Capital Markets and Citizens Bank, N.A., in their capacity as joint lead arranger and joint  bookrunner for the First Amendment.                                          21 





 






         “First Amendment Documentation Agent” means Citizens Bank, N.A., in its capacity as  documentation agent for the First Amendment.         “First  Amendment  Syndication  Agents”  means  each of Wells  Fargo Bank,  N.A.  and  Regions Capital Markets, in their capacity as syndication agent for the First Amendment.         “Fixed Charge Coverage Ratio” means, with respect to any fiscal period of the Parent  Borrower and its Subsidiaries (other than the Specified Subsidiaries) on a consolidated basis, the  ratio of (a) the sum of EBITDAR for such period, minus Capital Expenditures incurred by the  Parent Borrower and its Subsidiaries (other than the Specified Subsidiaries) during such period  minus federal, state, local and foreign income Taxes paid in cash during such period, to (b) Fixed  Charges for such period.  The Fixed Charge Coverage Ratio shall be calculated on a trailing twelve  fiscal months basis.         “Fixed Charges” means, with respect to any fiscal period of the Parent Borrower and its  Subsidiaries on a consolidated basis, without duplication, the sum of (a) cash Interest Expense  during such fiscal period, (b) Rental and Lease Expense during such fiscal period, (c) Scheduled  Payments during such fiscal period, and (d) Restricted Payments made in cash in respect of Equity  Interests of the Parent Borrower during such fiscal period, but only to the extent such Restricted  Payments are paid on or after the Second Amendment Effective Date.  Notwithstanding anything  to the contrary contained herein, all calculations of Fixed Charges shall be calculated, determined  and adjusted to exclude, for any applicable period or date of determination, any amount, charge or  other adjustment with respect to the Specified Subsidiaries determined in accordance with GAAP  for such period or date of determination.          “Flood Laws” has the meaning assigned to such term in Section 9.10.         “Foreign Lender” means any Lender that is not a U.S. Person.         “Foreign  Subsidiary”  means  any  Subsidiary  of  a  Borrower  that  is  not  a  Domestic  Subsidiary.         “FSHCO” means any Domestic Subsidiary that has no material assets other than the capital  stock of one or more Foreign Subsidiaries that are CFCs.         “GAAP” means, subject to Section 1.03, generally accepted accounting principles in the  United States of America, as in effect from time to time.         “Governmental Authority” means the government of the United States of America, any  other nation or any political subdivision thereof, whether state or local, and any agency, authority,  instrumentality,  regulatory  body,  court,  central  bank  or  other  entity  exercising  executive,  legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to  government (including any supra-national bodies such as the European Union or the European  Central Bank).         “Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or  otherwise,  of  the  guarantor  guaranteeing  or  having  the  economic  effect  of  guaranteeing  any  Indebtedness  or  other obligation  of  any  other  Person  (the “primary obligor”) in  any manner,                                         22 





 






   whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a)  to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness  or other obligation or to purchase (or to advance or supply funds for the purchase of) any security  for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of  assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain  working capital, equity capital or any other financial statement condition or liquidity of the primary  obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as  an account party  in  respect  of  any  letter of credit or letter of guaranty  issued  to support  such  Indebtedness or obligation, provided that the term “Guarantee” shall not include endorsements for  collection or deposit in the ordinary course of business; provided, further, that the term Guarantee  shall not, with respect to any Subsidiary Borrower, include any Excluded Hedging Obligation of  such Subsidiary Borrower.         “Guaranteed Obligations” has the meaning assigned to such term in Section 3.01.         “Guarantor Payment” has the meaning assigned to such term in Section 3.10.           “Hazardous  Materials”  means:   (a)  any  substance, material,  or  waste that  is  included  within the definitions of “hazardous substances,” “hazardous materials,” “hazardous waste,” “toxic  substances,” “toxic materials,” “toxic waste,” or words of similar import in any Environmental  Law;  (b)  those  substances  listed  as  hazardous  substances  by  the  United  States  Department  of  Transportation (or any successor agency) (49 C.F.R. 172.101 and amendments thereto) or by the  Environmental Protection Agency (or any successor agency) (40 C.F.R. Part 302 and amendments  thereto);  and  (c)  any  substance,  material,  or  waste  that  is  petroleum,  petroleum-related,  or  a  petroleum  by-product,  asbestos  or  asbestos-containing  material,  polychlorinated  biphenyls,  flammable,  explosive,  radioactive,  freon  gas,  radon,  or  a  pesticide,  herbicide,  or  any  other  agricultural chemical.         “Hedging  Agreement”  means  any  agreement  with  respect to  any  swap, forward, spot,  future or derivative transaction or option or similar agreement involving, or settled by reference  to,  one  or  more  rates,  currencies,  commodities,  equity  or  debt  instruments  or  securities,  or  economic, financial or pricing indices or measures of economic, financial or pricing risk or value  or any similar transaction or any combination of these transactions; provided that no phantom stock  or similar plan providing for payments only on account of services provided by current or former  directors,  officers,  employees  or  consultants  of  the  Borrowers  or  the  Subsidiaries  shall  be  a  Hedging Agreement.         “Hedging  Obligation”  means,  with  respect  to  any  Person,  any  obligation  under  any  Hedging Agreement, including, without limitation the obligation to pay or perform thereunder.         “IBA” has the meaning assigned to such term in Section 1.07.         “Impacted Interest Period” has the meaning set forth in the definition of “LIBO Rate”.         “Indebtedness”  of  any  Person  means,  without  duplication,  (a)  all  obligations  of  such  Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures,  notes or similar instruments, (c) all obligations of such Person upon which interest charges are  customarily paid or accrued by such Person, (d) all obligations of such Person under conditional                                         23 





 






   sale  or  other  title  retention  agreements  relating  to  property  acquired  by  such  Person,  (e)  all  obligations  of  such  Person  in  respect  of  the  deferred  purchase  price  of  property  or  services  (excluding  current  accounts  payable  incurred  in  the  ordinary  course  of  business),  (f)  all  Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing  right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such  Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by  such Person of Indebtedness of others (including, without limitation, under any Synthetic Leases),  (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of  such  Person  as  an  account  party  in  respect  of  letters  of  credit  and  letters  of  guaranty,  (j)  all  obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (k) all  Hedging Agreements, and (l) all mandatorily redeemable preferred stock of such Person, valued  at the applicable redemption price, plus accrued and unpaid dividends payable in respect of such  redeemable preferred stock.  The Indebtedness of any Person shall include the Indebtedness of any  other entity (including any partnership in which such Person is a general partner) to the extent such  Person is liable therefor as a result of such Person’s ownership interest in or other relationship with  such entity, except to the extent the terms of such Indebtedness provide that such Person is not  liable therefor.  It is understood that the term “Indebtedness” does not include obligations in respect  of  operating  leases  (which,  for  purposes  hereof,  shall  be  determined  in  accordance  with  Section 1.03), including any operating leases arising under sale and leaseback transactions.         “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 the Borrowers under any Loan  Document and (b) to the extent not otherwise described in the foregoing clause (a) hereof, Other  Taxes.         “Indemnitee” has the meaning provided therefor in Section 10.04(b).         “Initial FCCR Test Period” has the meaning provided therefor in Section 7.08.         “Initial Loans” shall have the meaning provided in Section 2.01(a).         “Inspection Trigger Period” means any period commencing on the first date on which (a)  Excess Availability is less than $150,000,000 for three (3) consecutive Business Days or (b) an  Event of Default has occurred and is continuing, and continuing until the date on which (i) Excess  Availability  is  greater  than  $150,000,000  and  (ii)  no  Event  of  Default  has  occurred  and  is  continuing during such period.         “Interest  Expense”  means,  for  any  period,  total  interest  expense  (including  that  attributable to Capital Lease Obligations) of the Parent Borrower and its Subsidiaries for such  period with respect to all outstanding Indebtedness of the Parent Borrower and its Subsidiaries  (including all commissions, discounts and other fees and charges owed with respect to letters of  credit and bankers’ acceptances and net costs under Hedging Agreements in respect of interest  rates to the extent such net costs are allocable to such period in accordance with GAAP), calculated  on a consolidated basis for the Parent Borrower and its Subsidiaries for such period in accordance  with GAAP.                                          24 





 






         “Interest Payment Date” means (a) with respect to any Base Rate Loan and any Swingline  Loan, each Quarterly Date and (b) with respect to any Eurocurrency Loan, the last day of each  Interest Period therefor and, in the case of any Interest Period for a Eurocurrency Loan of more  than three (3) months’ duration, each day prior to the last day of such Interest Period that occurs  at three-month intervals after the first day of such Interest Period.         “Interest  Period”  means,  with  respect  to  any  Eurocurrency  Borrowing,  the  period  commencing on the date of such Eurocurrency Borrowing and ending on the day that is seven days  or  the  numerically  corresponding  day  in  the  calendar  month  that  is  one,  three  or  six  months  thereafter (or the day that is two months or twelve months thereafter if, at the time of the relevant  Borrowing, LIBOR funding for such a period is available to all Lenders participating therein), as  the Parent Borrower may elect, provided that (a) if any Interest Period would end on a day other  than a Business Day, such Interest Period shall be extended to the next succeeding Business Day  unless, in the case of a Eurocurrency Borrowing only, such next succeeding Business Day would  fall in the next calendar month, in which case such Interest Period shall end on the next preceding  Business Day, (b) any Interest Period pertaining to a Eurocurrency Borrowing that commences on  the  last  Business  Day  of  a  calendar  month  (or  on  a  day  for  which  there  is  no  numerically  corresponding day in the last calendar month of such Interest Period) shall end on the last Business  Day of the last calendar month of such Interest Period, and (c) any Interest Period which would  otherwise end after the Maturity Date shall end on the Maturity Date.  For purposes hereof, the  date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter  shall be the effective date of the most recent conversion or continuation of such Borrowing.         “Interpolated  Rate”  means,  at  any  time,  for  any  Interest  Period,  the  rate  per  annum  (rounded  to  the  same  number  of  decimal  places  as  the  LIBO  Rate)  determined  by  the  Administrative Agent (which determination shall be conclusive and binding absent manifest error)  to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Rate  (for the longest period for which the LIBO Rate is available) that is shorter than the Impacted  Interest  Period;  and  (b)  the  LIBO  Rate  for  the  shortest  period  (for  which  that  LIBO  Rate  is  available) that exceeds the Impacted Interest Period, in each case, at such time.         “Inventory” has the meaning assigned to such term in the Security Agreement.         “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 saleability, at retail, of  the Eligible Inventory or which reflect such other factors as affect the Appraised Value of the  Eligible  Inventory.   Without  limiting  the  generality  of the  foregoing,  Inventory  Reserves  may  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.         “Investments” has the meaning set forth in Section 7.10.         “Issuing Lenders” means (a) JPMorgan, in its capacity as an issuer of Letters of Credit  hereunder, and any successor to JPMorgan in such capacity and (b) each other Lender, other than                                         25 





 






   JPMorgan, designated by the Parent Borrower as an Issuing Lender through written notice to the  Agent,  including  any  replacement  thereof  with  another  Lender;  provided  that  if  the  Parent  Borrower appoints a Lender (other than JPMorgan) as an Issuing Lender, the Parent Borrower  shall  furnish  prompt  written  notice  thereof  to  the  Agent  and  such  Lender  has  accepted  such  designation  in  writing  pursuant  to  documentation  reasonably  acceptable  to  the  Agent.   Each  Issuing Lender may, in its reasonable discretion, arrange for one or more Letters of Credit to be  issued by Affiliates of such Issuing Lender, in which case the term “Issuing Lender” shall include  any such Affiliate with respect to Letters of Credit issued by such Affiliate.  Each Issuing Lender  shall act commercially reasonably and otherwise in accordance with the standard of care set forth  in Section 2.06(g).         “JPMCB Parties” has the meaning assigned to such term in Section 10.21.         “JPMorgan” means JPMorgan Chase Bank, N.A., a national banking association.         “JPMorgan Concentration Account” shall have the meaning set forth in Section 2.24(c).         “Latest Maturity Date” shall mean at any date of determination, the latest Maturity Date  applicable to any Class of Commitments or Loans that is outstanding hereunder on such date of  determination, as extended in accordance with this Agreement from time to time.         “LC Disbursement” means a payment made by an Issuing Lender pursuant to a Letter of  Credit.         “LC Sublimit” means (a) with respect to JPMorgan, in its capacity as an Issuing Lender,  $30,000,000 in the aggregate and (b) with respect to any other Issuing Lender, an amount agreed  to by such Issuing Lender and the Parent Borrower.         “Lenders” shall mean the Persons identified on Schedule 1.1 and any other Person that  shall have become a Lender hereunder pursuant to Section 2.09 or an Assignment and Assumption  or otherwise,  other  than  any  such Person  that  ceases  to be a Lender hereunder pursuant  to an  Assignment  and  Assumption  or  otherwise.   Unless  the  context  otherwise  requires,  the  term  “Lenders” includes the Swingline Lender and the Issuing Lender.         “Letter of Credit” shall mean a letter of credit that is (a) issued pursuant to this Agreement  for the account of a Borrower or a direct or indirect Subsidiary of the Parent Borrower, (b) a  Standby Letter of Credit or Commercial Letter of Credit, (c) issued in connection with the purchase  of Inventory by a Borrower or for any other purpose that is reasonably acceptable to the Agent,  and (d) in form and substance reasonably satisfactory to the applicable Issuing Lender.         “Letter of Credit Fees” shall mean the fees payable in respect of Letters of Credit pursuant  to Section 2.10.         “Letter  of  Credit  Outstandings”  means  the  sum  of  Commercial  Letter  of  Credit  Outstandings and Standby Letter of Credit Outstandings.  The Letter of Credit Outstandings of any  Lender  at  any  time  shall  be  its  Commitment  Percentage  of  the  aggregate  Letter  of  Credit  Outstandings.                                          26 





 






         “LIBO Rate” means, with respect to any Eurocurrency Borrowing for any Interest Period,  a rate per annum equal to the LIBO Screen Rate at approximately 11:00 a.m., London time, two  Business Days prior to the commencement of such Interest Period; provided that if such rate shall  be less than 1.00%, such rate shall be deemed to be 1.00%; provided, further, that if such rate shall  not be available at such time for such Interest Period (an “Impacted Interest Period”) then the  LIBO Rate shall be the Interpolated Rate, subject to Section 2.16 in the event that the Agent shall  conclude that it shall not be possible to determine such Interpolated Rate (which conclusion shall  be conclusive and binding absent manifest error); provided that if any Interpolated Rate shall be  less than 1.00%, such rate shall be deemed to be 1.00% for purposes of this Agreement.          “LIBO  Screen  Rate”  means,  for  any  day  and  time,  with  respect  to  any  Eurocurrency  Borrowing for any Interest Period or  for  any Borrowing of any Base Rate Loans, the London  interbank offered rate as administered by ICE Benchmark Administration (or any other Person that  takes over the administration of such rate for Dollars) for a period equal in length to such Interest  Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen  that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on  any successor or substitute page on such screen that displays such rate, or on the appropriate page  of such other information service that publishes such rate from time to time as selected by the  Agent in its reasonable discretion); provided that if the LIBO Screen Rate as so determined would  be less than 1.00%, such rate shall be deemed to 1.00% for the purposes of this Agreement.         “Lien” means,  with  respect  to  any  asset,  (a) any  mortgage,  deed of trust,  lien,  pledge,  hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of  a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement  (or any financing lease having substantially the same economic effect as any of the foregoing)  relating to such asset and (c) in the case of securities, any purchase option, call or similar right of  a third party with respect to such securities.         “Loan Account” has the meaning assigned to such term in Section 2.23(a).         “Loan  Documents”  means  this  Agreement,  the  First  Amendment,  the  Second  Amendment, the Notes, the Letters of Credit, any Letter of Credit applications, the Fee Letter, all  Borrowing  Base  Certificates,  the  Blocked  Account  Agreements,  the  DDA  Notifications,  the  Security Documents, any Extension Amendment, all other agreements, instruments, documents  and certificates identified in Section 5.01 executed and delivered to, or in favor of, the Agent or  any Lenders and any other instrument or agreement executed and delivered in connection herewith  or therewith.  Any reference in this Agreement or any other Loan Document to a Loan Document  shall  include  all  appendices,  exhibits  or  schedules  thereto,  and  all  amendments,  restatements,  supplements  or  other  modifications  thereto,  and  shall  refer  to  this  Agreement  or  such  Loan  Document as the same may be in effect at any and all times such reference becomes operative.         “Loan Guarantor” means each Borrower.         “Loan Guaranty” means Article III of this Agreement.                                          27 





 






         “Loans”  shall  mean  all  loans  (including,  without  limitation,  Revolving  Loans,  Initial  Loans, Extended Loans and Swingline Loans) at any time made to the Borrowers or for account  of the Borrowers pursuant to this Agreement.         “Margin Stock” means “margin stock” within the meaning of Regulation T, Regulation U  and Regulation X, as applicable.         “Material Adverse Effect” means a material adverse effect on (a) the business, operations,  property, assets, or condition, financial or otherwise, of the Parent Borrower and its Subsidiaries  taken as a whole, (b) the validity or enforceability of this Agreement or any of the other Loan  Documents or (c) any of the material rights or remedies of the Agent, the Issuing Lenders or the  Lenders hereunder or thereunder; provided that, on or prior to January 30, 2021, no such material  adverse  effect  directly  related  to  or  solely  arising  from  any  effects  publicly  disclosed  by  the  Borrower of the COVID-19 pandemic on the Parent Borrower and its Subsidiaries taken as a whole  and their business,  or  the  reasonably foreseeable  consequences  and duration of the  continuing  effect of the COVID-19 pandemic so long as such consequences are not having a disproportionate  impact on the Parent Borrower and its Subsidiaries taken as a whole when compared to other  similarly situated companies, shall be deemed by itself, either alone or in combination, to constitute  a Material Adverse Effect.         “Material Indebtedness” means (a) the Bonds and (b) Indebtedness (other than the Loans  and Letters of Credit), or obligations in respect of one or more Hedging Agreements, of any one  or more of the Borrowers in an aggregate principal amount exceeding $100,000,000.  For purposes  of determining Material Indebtedness, the “principal amount” of the obligations of the Borrowers  or  any  Subsidiary  in  respect  of  any  Hedging  Agreement  at  any  time  shall  be  the  maximum  aggregate amount (giving effect to any netting agreements) that such Borrower or such Subsidiary  would be required to pay if such Hedging Agreement was terminated at such time.         “Material Subsidiary” means any Domestic Subsidiary which, at any time, owns property  of the same type as the Collateral, the book value of which property exceeds $500,000; provided  that if the aggregate book value of all such property of Domestic Subsidiaries which are not then  Subsidiary  Borrowers  is  in  excess  of  $1,000,000,  then  the  Parent  Borrower  shall  promptly  designate Domestic Subsidiaries which are not then Subsidiary Borrowers and which own any  such property as Material Subsidiaries (and cause such designated Material Subsidiaries to comply  with the requirements of Section 6.13(a)) to the extent necessary so that the aggregate book value  of all such property of Domestic Subsidiaries which are not then Subsidiary Borrowers is less than  $1,000,000; provided further that a Subsidiary will be considered to be a Material Subsidiary if it  is a Subsidiary Borrower.          “Maturity Date” means, (a) as to the Initial Loans, the Commitment Termination Date,  (b)  as  to  any  Extended  Loans,  the applicable maturity  date  related  to any Extension  Series  of  Extended Commitments, or (c) as to the Swingline Loans, the Swingline Maturity Date.         “Maximum Rate” has the meaning provided therefor in Section 10.14.         “Minority Interests” means, with respect to any Person, an amount not to exceed 30% of  the Equity Interests in such Person.                                         28 





 






         “Minority Lenders” has the meaning provided therefor in Section 10.03(c).         “Moody’s” means Moody’s Investors Service, Inc., and any successor to its rating agency  business.         “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of  ERISA.         “Net  Income”  means,  for  any  period  with  respect  to  the  Parent  Borrower  and  its  Subsidiaries, on a consolidated basis, the net income (or loss) of such Persons for such period taken  as a single accounting period determined in conformity with GAAP, provided that there shall be  excluded (a) the income (or loss) of any Person in which any other Person has an interest, except  to the extent of the amount of dividends or other distributions actually paid to the Parent Borrower  or  any  Subsidiary  by  such  Person  during  such  period,  (b)  the  income  (or  loss)  of  any  Person  accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with the Parent  Borrower or any Subsidiary or that Person’s assets are acquired by the Parent Borrower or any  Subsidiary, and (c) the income of any direct or indirect Subsidiary of the Parent Borrower or a  Subsidiary to the extent that the declaration or payment of dividends or similar distributions by  that Subsidiary of that income is not at the time permitted by operation of the terms of its charter  or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation  applicable to that Subsidiary.         “New Blocked Accounts” has the meaning provided therefor in Section 2.24(c).         “Non-Defaulting Lender” means, at any time, any Lender that is not a Defaulting Lender  at such time.         “Non-Extending Lender” has the meaning provided therefor in Section 2.20(b).         “Non-Renewal Notice” has the meaning provided therefor in Section 2.06(b)(ii).         “Non-Renewal Notice Date” has the meaning provided therefor in Section 2.06(b)(ii).         “Non-Borrower Credit Card Proceeds” means the proceeds of any credit card charges  from major credit card processors such as MasterCard, Visa, Discover, and the like attributable to  the business operations of any Person which is not a Subsidiary Borrower.         “Notes” shall mean (a) the promissory notes of the Borrowers substantially in the form of  Exhibit B-1, each payable to the applicable Lender, evidencing the Revolving Loans, and (b) the  promissory  note  of  the  Borrowers  substantially  in  the  form  of Exhibit B-2,  payable  to  the  Swingline Lender, evidencing the Swingline Loans.         “NYFRB” means the Federal Reserve Bank of New York.         “NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in  effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day  that is not a Business Day, for the immediately preceding Business Day); provided that if none of  such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the                                         29 





 






   rate for a federal funds transaction quoted at 11:00 a.m. on such day received to the Administrative  Agent from a Federal funds broker of recognized standing selected by it; provided, further, that if  any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes  of this Agreement.         “Obligated Party” has the meaning assigned to such term in Section 3.02.          “Obligations” means (a) the payment by the Borrowers of (i) the principal of, and interest  on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set  for prepayment or otherwise (including any interest that accrues after the commencement of any  case or proceeding by or against any Borrower in a bankruptcy, whether or not allowed in such  case or proceeding), (ii) each payment required to be made by the Borrowers under this Agreement  in  respect  of  any  Letter  of  Credit,  when  and  as  due,  including  payments  in  respect  of  reimbursement of disbursements, interest thereon and obligations to provide cash collateral and  (iii)  all  other  monetary  obligations,  including  fees,  costs,  expenses  and  indemnities,  whether  primary, secondary, direct, contingent, fixed or otherwise, of the Borrowers to the Secured Parties  under  this  Agreement  and  the  other  Loan  Documents,  (b)  the  performance  of  all  covenants,  agreements, obligations and liabilities of the Borrowers under or pursuant to this Agreement and  the other Loan Documents, (c) the payment and performance of all the covenants, agreements,  obligations and liabilities of each Borrower under or pursuant to this Agreement, and the other  Loan  Documents,  and  (d)  all  Bank  Product  Obligations;  provided  that  Excluded  Hedging  Obligations of any Borrower shall in any event be excluded from “Obligations” owing by such  Borrower.         “Obligor” means each Borrower.         “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a  result of a present or former connection between such Recipient and the jurisdiction imposing such  Taxes (other than a connection arising from such Recipient having executed, delivered, become a  party to, performed its obligations under, received payments under, received or perfected a security  interest under, engaged in any other transaction pursuant to, or enforced, any Loan Document, or  sold or assigned an interest in any Loan, Letter of Credit, any other Guaranteed obligation or any  Loan Document).         “Other Store Proceeds” means any amounts collected by any Subsidiary Borrower from  any Person and deposited into a DDA of such Subsidiary Borrower representing payments made  by any Person on account of such Person’s liabilities on account of the Parent Borrower’s private  label credit card receivables.         “Other Taxes” means any and all present or future stamp, court, documentary, intangible,  recording, filing, excise, property or similar Taxes arising from any payment made hereunder or  under any other Loan Document or from the execution, delivery, performance, enforcement or  registration  of,  or  from  the  registration,  receipt  or  perfection  of  a  security  interest  under,  or  otherwise with respect to, this Agreement or any other Loan Document, except (i) any such Taxes  that are Other Connection Taxes imposed with respect to an assignment (other than an assignment  under Section 2.30(b)) and (ii) any Excluded Taxes.                                          30 





 






         “Overadvance” means,  at  any  time of  calculation,  a  circumstance  in which  the Credit  Extensions exceed the lesser of (a) the Total Commitment or (b) the Borrowing Base.         “Overnight  Bank  Funding  Rate”  means,  for  any  day,  the  rate  comprised  of  both  overnight federal funds and overnight eurodollar borrowings by U.S.-managed banking offices of  depository institutions, as such composite rate shall be determined by the NYFRB as set forth on  its public website from time to time, and published on the next succeeding Business Day by the  NYFRB  as  an  overnight  bank  funding  rate  (from  and  after  such  date  as  the  NYFRB  shall  commence to publish such composite rate).         “Paid in Full” or “Payment in Full” means, (a) the indefeasible payment in full in cash  of all outstanding Loans and LC Disbursements, together with accrued and unpaid interest thereon,  (b) the termination, expiration, or cancellation and return of all outstanding Letters of Credit (or  alternatively, with respect to each such Letter of Credit, the furnishing to the Agent of a cash  deposit, or at the discretion of the Agent a backup standby letter of credit satisfactory to the Agent  and the applicable Issuing Lender, in an amount equal to 103% of the Letter of Credit Outstandings  with respect to such Letter of Credit as of the date of such payment), (c) the indefeasible payment  in full in cash of the accrued and unpaid fees, (d) the indefeasible payment in full in cash of all  reimbursable expenses and other Obligations (other than Unliquidated Obligations for which no  claim  has  been  made  and  other  obligations  expressly  stated  to  survive  such  payment  and  termination  of  this  Agreement),  together  with  accrued  and  unpaid  interest  thereon,  (e)  the  termination  of  all  Commitments,  and  (f)  the  termination  of  the  Bank  Product  Obligations  or  entering into other arrangements satisfactory to the Secured Parties counterparties thereto.          “Parent” means,  with  respect  to  any  Lender,  any  Person  as  to  which  such  Lender  is,  directly or indirectly, a Subsidiary.         “Parent Borrower” means Dillard’s, Inc., a Delaware corporation.         “Parent  Borrower  Blocked  Account”  has  the  meaning  provided  therefor  in  Section 2.24(c).         “Parent Borrower Blocked Account Agreement” means that certain Blocked Account  Control Agreement by and among the Parent Borrower, the Agent, and JPMorgan, as depositary  bank, with respect to the Parent Borrower Blocked Account.         “Participant” has the meaning set forth in Section 10.06(e).         “Participant Register” has the meaning set forth in Section 10.06(e).         “PBGC”  means  the  Pension  Benefit  Guaranty  Corporation  referred  to  and  defined  in  ERISA and any successor entity performing similar functions.         “Perfection  Certificate”  means  a  certificate  in  the  form  of  Annex  1  to  the  Security  Agreement or any other form approved by the Agent.         “Perishable Inventory” means Inventory that is subject to decay, spoilage, or destruction  solely due to the passage of time.                                         31 





 






         “Permitted Discretion” means a determination made in good faith and in the exercise of  reasonable (from the perspective of a secured asset-based lender) business judgment.         “Permitted Encumbrances” means:               (a)   Liens imposed by law for Taxes that are not yet due or are being contested        in compliance with Section 6.05;               (b)   landlord’s,  carriers’,  warehousemen’s,  mechanics’,  materialmen’s,        repairmen’s and other like Liens imposed by law, arising in the ordinary course of business        and securing obligations that are not overdue by more than 90 days or are being contested        in compliance with Section 6.05;               (c)   pledges and deposits made in the ordinary course of business in compliance        with workers’ compensation, unemployment insurance, old-age pension and other social        security laws or regulations;               (d)   deposits to secure the performance of bids, trade contracts, leases, contracts        (other than for the repayment of borrowed money), statutory obligations, surety and appeal        bonds,  performance  bonds  and  other  obligations  of  a  like  nature,  in  each  case  in  the        ordinary course of business;               (e)   judgment Liens in respect of judgments that do not constitute an Event of        Default under clause (k) of Article VIII;                (f)   easements,  zoning  restrictions,  rights-of-way  and  similar  encumbrances        (and  with  respect  to  leasehold  interests,  mortgages,  obligations,  liens  and  other        encumbrances incurred, created, assumed or permitted to exist and arising by, through or        under or asserted by a landlord or owner of leased property, with or without the consent of        the lessee) 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 interfere with the ordinary conduct of business of any Borrower        or any Subsidiary;               (g)   licenses,  leases,  or  subleases  granted  to  third  Persons  or  to  the  Parent        Borrower or its Subsidiaries by the Parent Borrower and its Subsidiaries in the ordinary        course of business;               (h)   Liens encumbering pledges and deposits made to secure obligations arising        from statutory, regulatory, contractual or warranty requirements of the Parent Borrower        and its Subsidiaries, including workers’ compensation, unemployment insurance, old-age        pension  and  other  social  security  laws  or  regulations  (excluding  deposits  securing  the        repayment of Indebtedness);               (i)   Liens  encumbering  customary  initial  deposits  and  margin  deposits,  and        other Liens incurred in the ordinary course of business and which are within the general        parameters customary in the industry securing obligations, under commodities agreements;                                          32 





 






               (j)   any (i) interest or title of a lessor or sublessor under any lease, (ii) restriction        or encumbrance that the interest or title of such lessor or sublessor may be subject to, or        (iii)  subordination  of  the  interest  of  the  lessee  or  sublessee  under  such  lease  to  any        restriction or encumbrance referred to in the preceding clause (ii);               (k)   Liens  on  any  property  or  assets  of  any  Person  existing  at  the  time  such        Person  is  merged  into  or  consolidated  with  the  Parent  Borrower  or  any  Subsidiary,        provided that such Lien was not incurred in contemplation thereof and does not extend to        any other property of the Parent Borrower or any of its Subsidiaries;               (l)   Liens arising from filing UCC financing statements relating solely to leases        not prohibited by this Agreement;               (m)   Liens in favor of customs and revenue authorities arising as a matter of law        to secure payment of customs duties in connection with the importation of goods;               (n)   Liens solely on cash earnest money deposits made by the Parent Borrower        or any Subsidiary in connection with any letter of intent or purchase agreement permitted        hereunder; provided that such Liens are granted on customary business terms and in the        ordinary course of business of the Parent Borrower or such Subsidiary; and               (o)   Liens (i) of a collection bank arising under Section 4-210 of the UCC on        items in the course of collection and (ii) in favor of a banking institution arising as a matter        of  law  encumbering  deposits  (including  the  right  of  set-off)  and  which  are  within  the        general parameters customary in the banking industry, in each case existing solely with        respect to cash or cash equivalents.   provided that, except as provided in any one or more of clauses (a) through (o) above, the term  “Permitted Encumbrances” shall not include any Lien securing Indebtedness.         “Permitted Investments” means each of the following:               (a)   direct obligations of, or obligations the principal of and interest on which        are unconditionally guaranteed by, the United States of America (or by any agency thereof        to the extent such obligations are backed by the full faith and credit of the United States of        America), in each case maturing within one year from the date of acquisition thereof;               (b)   investments in commercial paper maturing within 270 days from the date        of acquisition thereof and having, at such date of acquisition, a credit rating of at least A-1        or P-1 from S&P or from Moody’s;               (c)   investments  in  certificates  of  deposit,  banker’s  acceptances  and  time        deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed        by  or  placed  with,  and  demand  deposit  and  money  market  deposit  accounts  issued  or        offered by, any domestic office of any commercial bank organized under the laws of the        United States of America or any State thereof that has a combined capital and surplus and        undivided profits of not less than $500,000,000; and                                          33 





 






               (d)   fully collateralized repurchase agreements with a term of not more than 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;   provided that, notwithstanding the foregoing, after the occurrence and during the continuance of a  Cash Control Event, no such investments shall be permitted by a Subsidiary Borrower unless (i)  either (A) no Loans are then outstanding, or (B) the investment is a temporary investment pending  expiration of an Interest Period for a Eurocurrency Loan, the proceeds of which investment will  be applied to the Obligations after the expiration of such Interest Period,  and (ii) such investments  are pledged by the Subsidiary Borrower to the Agent as additional collateral for the Obligations  pursuant to such agreements as may be reasonably required by the Agent.         “Permitted  Joint  Venture”  means,  with  respect  to  any  Subsidiary  Borrower,  a  joint  venture or partnership in which each of the following conditions are satisfied:               (a)   The Parent Borrower shall have furnished the Agent with five (5) days prior        notice of such intended joint venture or partnership and shall have furnished the Agent with        a  current  draft  of  the  joint  venture  or  partnership  agreement  and  other  applicable        organizational documents, and a summary of the structure and terms of the transaction, and        such other information as the Agent may reasonably require;               (b)   No Default or Event of Default shall exist at the time of, or arise from, the        Subsidiary Borrower’s entering into such joint venture or partnership; and               (c)   The  joint  venture  or  partnership  shall  be  for  the  purpose  of  acquiring,        constructing, managing and/or operating an enclosed mall, an open-air shopping center or        a stand alone store, in each case in which a store operated by a Borrower or a Subsidiary        of a Borrower is to be located.         “Permitted  Overadvance”  means  an  Overadvance  determined  by  the  Agent,  in  its  reasonable discretion, (a) which is made to maintain, protect or preserve the Collateral and/or the  Lenders’ rights under the Loan Documents, or (b) which is otherwise in the Lenders’ interests;  provided that Permitted Overadvances shall not (i) exceed ten percent (10%) of the lesser of the  then Borrowing Base or the then Total Commitment, in the aggregate outstanding at any time or  (ii) remain  outstanding for more than thirty  (30)  consecutive Business  Days,  unless in  case of  clause (ii), the Required Supermajority Lenders  otherwise agree; and provided further that the  foregoing shall not (A) modify or abrogate any of the provisions of Section 2.06(f) regarding the  Lenders’  obligations  with respect to  LC  Disbursements,  or  (B) result in  any claim  or liability  against the Agent (regardless of the amount of any Overadvance) for “inadvertent Overadvances”  (i.e. where an Overadvance results from changed circumstances beyond the control of the Agent  (such as a reduction in the collateral value)), and further 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 Total Commitment.         “Person”  means  any  natural  person,  corporation,  limited  liability  company,  trust,  joint  venture, association, company, partnership, Governmental Authority or other entity.                                         34 





 






         “Plan”  means  any  employee  pension  benefit  plan  (other  than  a  Multiemployer  Plan)  subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,  and in respect of which any Borrower or any ERISA Affiliate is (or, if such plan were terminated,  would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5)  of ERISA or which is currently or as of the date on which the representations herein are deemed  made is, or was at any time during the six (6) calendar years preceding the date hereof, sponsored,  maintained or contributed to by any Borrower or any ERISA Affiliate.         “Plan  Asset  Regulations”  means  29  CFR  §  2510.3-101  et  seq.,  as  modified  by  Section 3(42) of ERISA, as amended from time to time.         “Pledge Agreement” means the Pledge and Security Agreement dated as of the Second  Amendment Effective Date between the Parent Borrower and the Agent for the benefit of the  Secured Parties, as amended and in effect from time to time.         “Prepayment” has the meaning set forth in Section 7.06(b)(iii).         “Prime Rate” means the rate of interest per annum publicly announced from time to time  by JPMorgan as its prime rate in effect at its principal office in New York City.  Each change in  the Prime Rate shall be effective from and including the date such change is publicly announced  as being effective.         “PTE” means a prohibited transaction class exemption issued by the U.S. Department of  Labor, as any such exemption may be amended from time to time.         “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be  interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).         “QFC Credit Support” has the meaning given to such term in Section 10.23.         “Qualified ECP Guarantor” means, in respect of any Hedging Obligation, each Borrower  that has total assets exceeding $10,000,000 at the time the relevant Loan Guaranty or grant of the  relevant  security  interest  becomes  or  would  become  effective  with  respect  to  such  Hedging  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.         “Quarterly  Dates”  means  the  last  Business  Day  of  each  fiscal  quarter  of  the  Parent  Borrower in each of its fiscal years, the first of which shall be the first such day after the Effective  Date.         “Real Estate” means all land, together with the buildings, structures, parking areas, and  other improvements thereon, now or hereafter owned or leased by any Borrower, including all  easements,  rights-of-way,  and  similar  rights  relating  thereto  and  all  leases,  tenancies,  and  occupancies thereof.                                          35 





 






         “Recipient” means, as applicable, (a) the Agent, (b) any Lender and (c) any Issuing Lender,  or any combination thereof (as the context requires).         “Register” has the meaning set forth in Section 10.06(c).         “Regulated Lender Entity” has the meaning assigned to such term in Section 6.13(b).         “Regulation T” means Regulation T of the Federal Reserve Board, as from time to time  in effect and all official rulings and interpretations thereunder or thereof.         “Regulation U” means Regulation U of the Board as from time to time in effect and all  official rulings and interpretations thereunder or thereof.         “Regulation X” means Regulation X of the Board as from time to time in effect and all  official rulings and interpretations thereunder or thereof.         “Related Parties” means, with respect to any specified Person, such Person’s Affiliates  and  the  respective  directors,  officers,  partners,  members,  trustees,  employees,  agents,  administrators,  managers,  representatives  and  advisors  of  such  Person  and  of  such  Person’s  Affiliates.         “Release” means any releasing, spilling, leaking, pumping, pouring, emitting, emptying,  discharging, injecting, escaping, leaching, migrating, disposing or dumping of any substance into  the environment.         “Relevant Governmental Body” means the Federal Reserve Board and/or the NYFRB,  or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB  or, in each case, any successor thereto.         “Rental and Lease Expense” means, for any period, all items that, in accordance with  GAAP would be classified as rental and lease expense of the Parent Borrower and its Subsidiaries  on a consolidated basis that are included on the consolidated statement of earnings of the Parent  Borrower, in each case determined in accordance with GAAP; provided that Rental and Lease  Expense shall not include any Rental and Lease Expense incurred during such period under leases  that  have  been  assigned  to  and  assumed  by  any  Person  (other  than  the  Parent  Borrower  or  a  Subsidiary) or that constitute or relate to discontinued operations, in each case, for which the Parent  Borrower and its Subsidiaries are no longer obligated.         “Replacement Deposit Accounts” has the meaning provided therefor in Section 2.24(c).         “Replacement Institutions” has the meaning provided therefor in Section 2.24(c).         “Report” means reports prepared by the Agent or another Person showing the results of  appraisals, field examinations or audits pertaining to the assets of the Borrowers from information  furnished by or on behalf of the Borrowers, after the Agent has exercised its rights of inspection  pursuant to this Agreement, which Reports may be distributed to the Lenders by the Agent.         “Repurchase” has the meaning set forth in Section 7.06(a)(iv).                                         36 





 






         “Required Lenders” means, (a) Lenders having Commitments outstanding representing  more  than  50%  of  the  Total  Commitments,  or  (b)  if  the  Commitments  have  been  terminated,  Lenders whose percentage of the outstanding Credit Extensions (after settlement and repayment  of all Swingline Loans by the Lenders) represent more than 50% of all such Credit Extensions.         “Required  Supermajority  Lenders”  means,  (a)  Lenders  having  Commitments  outstanding  representing  at  least  66  2/3%  of  the  Total  Commitments  outstanding  or  (b)  if  the  Commitments  have  been  terminated,  Lenders  whose  percentage  of  the  outstanding  Credit  Extensions (after settlement and repayment of all Swingline Loans by the Lenders) represent not  less than 66 2/3% of all such Credit Extensions.         “Reserves” means the Inventory Reserves and Availability Reserves, as applicable.         “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK  Financial Institution, a UK Resolution Authority.         “Responsible Officer” means the president, chief executive officer or Financial Officer of  a Borrower.         “Restricted  Payment”  means  any  dividend  or  other  distribution  (whether  in  cash,  securities  or  other  property)  with  respect  to  any  shares  of  any  class  of  capital  stock  of  any  Borrower, or any payment (whether in cash, securities or other property), including any sinking  fund  or  similar  deposit,  on  account  of  the  purchase,  redemption,  retirement,  acquisition,  cancellation or termination of any such shares of capital stock of any Borrower or any option,  warrant or other right to acquire any such shares of capital stock of any Borrower.         “Restrictions” has the meaning set forth in Section 7.04.         “Resulting Revolving Borrowings” shall have the meaning provided in Section 2.09(d).         “Revolving  Loans”  means  all  Loans  at  any  time  made  by  a  Lender  pursuant  to  Section 2.01.         “S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services  LLC business, and any successor to its rating agency business.         “Sanctioned Country” means, at any time, a country, region or territory which is itself the  subject or target of any Sanctions (at the Second Amendment Effective Date, Crimea, Cuba, Iran,  North Korea and Syria).         “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related  list  of  designated  Persons  maintained  by  the  Office  of  Foreign  Assets  Control  of  the  U.S.  Department of the Treasury, the U.S. Department of State, the United Nations Security Council,  the European Union or any European Union member state, Her Majesty’s Treasury of the United  Kingdom or other relevant sanctions authority, (b) any Person operating, organized or resident in  a Sanctioned Country, or (c) any Person more than 50% owned or controlled by any such Person  or Persons described in the foregoing clauses (a) or (b).                                          37 





 






         “Sanctions”  means  all  economic  or  financial  sanctions  or  trade  embargoes  imposed,  administered  or  enforced  from  time  to  time  by  (a)  the  U.S.  government,  including  those  administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or  the U.S. Department of State, or (b) the United Nations Security Council, the European Union,  any  European  Union  member  state,  Her  Majesty’s  Treasury  of  the  United  Kingdom  or  other  relevant sanctions authority.         “Scheduled  Payments”  means,  as  of  any  date  of  determination,  scheduled  principal  payments  on  account of Indebtedness of the  Parent Borrower  and  its  Subsidiaries  which were  required to have been made during the preceding twelve fiscal month period, as determined in  accordance with GAAP.         “SEC” means the Securities and Exchange Commission of the U.S.         “Section 2.20 Additional Amendment” shall have the meaning provided in Section 2.20.         “Second Amendment” means that certain Amendment No. 2 to Credit Agreement dated  as of the Second Amendment Effective Date among the Borrowers, as borrowers, the Lenders  party thereto and the Agent.         “Second Amendment Arrangers” means each of JPMorgan, Wells Fargo Bank, N.A.,  Regions Capital Markets and Citizens Bank, N.A., in their capacity as joint lead arranger and joint  bookrunner for the Second Amendment.         “Second Amendment Documentation Agent” means Citizens Bank, N.A., in its capacity  as documentation agent for the Second Amendment.         “Second Amendment Effective Date” means the date on which the conditions specified  in Section 5.01 are satisfied (or waived by the Required Lenders), which, for the avoidance of  doubt was April 30, 2020.         “Second Amendment Syndication Agents” means each of Wells Fargo Bank, N.A. and  Regions Capital Markets, in their capacity as syndication agent for the Second Amendment.         “Secured Parties” has the meaning assigned to such term in the Security Agreement.         “Security Agreement” means the Security Agreement dated as of the Second Amendment  Effective  Date  among  the  Subsidiary  Borrowers  and  the  Agent  for  the  benefit  of  the  Secured  Parties, as amended and in effect from time to time.         “Security Documents” means the Security Agreement, the Pledge Agreement, and each  other  security  agreement  or  other  instrument  or  document  executed  and  delivered  pursuant  to  Section 6.13 to secure any of the Obligations.         “Settlement Date” has the meaning provided in Section 2.07(b).         “Shrink” means Inventory which has been lost, misplaced, stolen, or which is otherwise  unaccounted for.                                         38 





 






         “SOFR” with respect to any day, means the secured overnight financing rate published for  such day by the NYFRB, as the administrator of the benchmark (or a successor administrator), on  the Federal Reserve Bank of New York’s Website.         “SOFR-Based Rate” means SOFR, Compounded SOFR or Term SOFR.         “Solvent” means, with respect to any Person and its Subsidiaries on a consolidated basis  on a particular date, that on such date (a) at fair valuations, all of the properties and assets of such  Person and its Subsidiaries are greater than the sum of the debts, including contingent liabilities,  of such Person and its Subsidiaries, on a consolidated basis, (b) the present fair saleable value of  the properties and assets of such Person and its Subsidiaries is not less than the amount that would  be required to pay the probable liability of such Person and its Subsidiaries on its debts as they  become absolute and matured, on a consolidated basis, (c) such Person and its Subsidiaries, on a  consolidated basis, is able to realize upon its properties and assets and pay its debts and other  liabilities, contingent obligations and other commitments as they mature in the normal course of  business, (d) such Person and its Subsidiaries, on a consolidated basis, does not intend to, and does  not believe that it will, incur debts beyond such Person’s and its Subsidiaries’ ability to pay as such  debts mature, and (e) such Person and its Subsidiaries, on a consolidated basis, is not engaged in  a business or a transaction, and is not about to engage in a business or transaction, for which such  Person’s or its Subsidiaries’ properties and assets would constitute unreasonably small capital after  giving due consideration to the prevailing practices in the industry in which such Person or its  Subsidiaries is engaged.         “Specified Bank Product Amount” or “Specified Bank Product Amounts” have the  meanings set forth in the definition of “Specified Bank Products”; provided that at no such time  shall the Specified Bank Product Amounts exceed $25,000,000.         “Specified Bank Products” shall mean any Bank Product for which the applicable Lender  (or  its  Affiliate)  and  the  Parent  Borrower  have  provided  the  Agent  written  notice  of:  (a)  the  existence and nature of the accommodation that is to be a “Specified Bank Product”, (b) with  respect to each Specified Bank Product, the Lender’s (or its Affiliate’s) and the Parent Borrower’s  agreement as to the maximum dollar amount of the applicable Borrower’s obligations arising under  such Specified Bank Product (each such amount, the “Specified Bank Product Amount” and,  collectively, all such amounts, the “Specified Bank Product Amounts”) that shall be included in  the Bank Product Reserves, and (c) the methodology agreed upon by the applicable Lender (or its  Affiliate) and the Parent Borrower to determine the Specified Bank Product Amount.  After any  of the foregoing have been established as a Bank Product hereunder, the Specified Bank Product  Amount  may  thereafter  be  changed  by  the  Agent  with  respect  to  Bank  Products  provided  by  JPMorgan (or one of its Affiliates) or by written notice to the Agent pursuant to an agreement  between the applicable Lender (or its Affiliate) and the Parent Borrower, as applicable; provided  that no change in a Specified Bank Product Amount may cause Excess Availability to be less than  zero.  Notwithstanding the foregoing, the notification requirements set forth in this definition do  not  need to  be  complied  with  when  JPMorgan  (or one of its  Affiliates)  is  the  provider of the  applicable Bank Product.         “Specified Existing Commitment” shall mean any Existing Commitments belonging to a  Specified Existing Commitment Class.                                         39 





 






         “Specified  Existing  Commitment  Class”  shall  have  the  meaning  provided  in  Section 2.20.         “Specified Subsidiaries” means, collectively, DICL, CDI Contractors, LLC, CDI-Hunt  Arkansas JV, Dillard’s Benelux, LLC and UT Center, Inc.          “Standby Letter of Credit” means any Letter of Credit other than a Commercial Letter of  Credit.         “Standby  Letter  of  Credit  Outstandings”  means,  at  any  time,  the  sum  of  (a)  the  aggregate undrawn amount of all outstanding Standby Letters of Credit at such time plus (b) the  aggregate amount of all LC Disbursements relating to Standby Letters of Credit that have not yet  been reimbursed by or on behalf of the Borrowers at such time.  The Standby Letter of Credit  Outstandings of any Lender at any time shall be its Commitment Percentage of the total Standby  Letter of Credit Outstandings at such time.         “Standby  Letters  of  Credit  Sublimit”  has  the  meaning  assigned  to  such  term  in  Section 2.06(c).         “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of  which is the number one and the denominator of which is the number one minus the aggregate of  the maximum reserve percentages (including any marginal, special, emergency or supplemental  reserves) expressed as a decimal established by the Board to which the Administrative Agent is  subject 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 of the Board.  Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to  be subject to such reserve requirements without benefit of or credit for proration, exemptions or  offsets that may be available from time to time to any Lender under Regulation D of the Board 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.         “Subsidiary”  means,  with  respect  to  any  Person  (the  “parent”)  at  any  date,  any  corporation,  limited  liability  company,  partnership,  association  or  other  entity  the  accounts  of  which  would  be  consolidated  with  those  of  the  parent  in  the  parent’s  consolidated  financial  statements if such financial statements were prepared in accordance with GAAP as of such date,  as well as any other corporation, limited liability company, partnership, association or other entity  of which securities or other ownership interests representing more than 50% of the equity or more  than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the  general partnership interests are, as of such date, owned, controlled or held by the parent and/or  one  or  more  subsidiaries  of  the  parent.   Unless  otherwise  specified,  “Subsidiary”  means  a  Subsidiary of the Parent Borrower.  In no event shall (a) a Permitted Joint Venture be deemed a  Subsidiary for purposes of Article VII or (b) a Specified Subsidiary be deemed a Subsidiary for  purposes of Article III, Article IV, Article VI, or Article VII.         “Subsidiary Borrowers” means all Borrowers other than the Parent Borrower; provided  that no Excluded Subsidiary shall be required to be a Subsidiary Borrower.                                          40 





 






         “Subsidiary Guarantor” has the meaning assigned to such term in this Agreement prior  to giving effect to the Second Amendment.         “Supported QFC” has the meaning given to such term in Section 10.23.         “Swingline  Commitment”  means,  with  respect  to  each  Swingline  Lender,  the  commitment of such Swingline Lender to make Swingline Loans pursuant to Section 2.05 in an  aggregate  principal  amount  at  any  one  time  outstanding  not  to  exceed  $100,000,000.   The  Swingline Commitment is part of, and not in addition to, the Total Commitment.         “Swingline Exposure” means, at any time, the aggregate principal amount of all Swingline  Loans outstanding at such time.  The Swingline Exposure of any Lender at any time shall be the  sum of (a) its Commitment Percentage of the aggregate principal amount of all Swingline Loans  outstanding  at  such  time  (excluding,  in  the  case  of  any  Lender  that  is  a  Swingline  Lender,  Swingline Loans made by it outstanding at such time) and (b) in the case of any Lender that is a  Swingline Lender, the aggregate principal amount of all Swingline Loans made by such Lender  outstanding  at  such  time  to  the  extent  that  the  other  Lenders  shall  not  have  funded  their  participations in such Swingline Loans, in each case adjusted to give effect to any reallocation  under Section 2.31(c) of the Swingline Exposure of Defaulting Lenders in effect at such time.          “Swingline Lender” means JPMorgan and any other Lender designated as a Swingline  Lender  in  accordance  with Section  2.05(c),  in  their  capacity  as  a  lender  of  Swingline  Loans  hereunder, and any successor or replacement thereof.         “Swingline Loan” has the meaning assigned to such term in Section 2.05(a).         “Swingline  Maturity  Date”  shall  mean,  with  respect  to  any  Swingline  Loan,  the  Commitment Termination Date, or such later date as the Swingline Lender may hereafter consent  to pursuant to an Extension Amendment or another amendment hereto.         “Syndication Agents”  means  each of  the Effective  Date Syndication  Agents,  the  First  Amendment Syndication Agents and the Second Amendment Syndication Agents.          “Synthetic  Lease”  means  any  lease  or  other  agreement  for  the  use  or  possession  of  property creating obligations which do not appear as Indebtedness on the balance sheet of the  lessee  thereunder  but  which,  upon  the  insolvency  or  bankruptcy  of  such  Person,  would  be  characterized as Indebtedness of such lessee without regard to the accounting treatment.         “Taxes”  means  any  and  all present  or  future taxes,  levies,  imposts,  duties,  deductions,  withholdings (including backup withholding), value added taxes, or any other goods and services,  use or sales taxes, assessments, fees or other charges imposed by any Governmental Authority,  including any interest, additions to tax or penalties applicable thereto.         “Term SOFR” means the forward-looking term rate based on SOFR that has been selected  or recommended by the Relevant Governmental Body.         “Termination Date” shall mean the earliest to occur of (a) with respect to any Class of  Commitments or Loans, the Maturity Date applicable to such Class, (b) the date on which the                                         41 





 






   maturity of the Loans are accelerated and the Commitments are terminated in accordance with  Section 8.01, or (c) the date of the occurrence of any Event of Default pursuant to Section 8.01(h)  or Section 8.01(i).         “Total Commitment” shall mean the sum of the Commitments of all the Lenders at such  time.  The Total Commitment as of the Second Amendment Effective Date is $800,000,000.         “Transactions” means the execution, delivery and performance by the Borrowers of this  Agreement and the other Loan Documents, the borrowing of Loans and other credit extensions,  the use of the proceeds thereof and the issuance of Letters of Credit hereunder.         “Trigger Period” has the meaning provided therefor in Section 7.08.         “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of  interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to  the Adjusted LIBO Rate or the Alternate Base Rate.         “UCC” means the Uniform Commercial Code as in effect from time to time in the State of  New York or any other state the laws of which are required to be applied in connection with the  issue of perfection of security interests.         “UK Financial Institution” means any BRRD Undertaking (as such term is defined under  the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential  Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended  from  time  to  time)  promulgated  by  the  United  Kingdom  Financial  Conduct  Authority,  which  includes  certain  credit  institutions  and  investment  firms,  and  certain  affiliates  of  such  credit  institutions or investment firms.         “UK  Resolution  Authority”  means  the  Bank  of  England  or  any  other  public  administrative authority having responsibility for the resolution of any UK Financial Institution.         “Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding  the  Benchmark  Replacement  Adjustment;  provided  that,  if  the  Unadjusted  Benchmark  Replacement as so determined would be less than 1.00%, the Unadjusted Benchmark Replacement  will be deemed to be 1.00% for the purposes of this Agreement.         “Unliquidated Obligations” means, at any time, any Obligations (or portion thereof) that  are  contingent  in  nature  or  unliquidated  at  such  time,  including  any  Obligation  that  is:  (a)  an  obligation to reimburse a bank for drawings not yet made under a letter of credit issued by it; (b)  any other obligation (including any guarantee) that is contingent in nature at such time; or (c) an  obligation to provide collateral to secure any of the foregoing types of obligations.         “Unused Commitment” shall mean, on any day, (a) the Total Commitment then in effect,  minus (b) the Credit Extensions on such day.         “U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30)  of the Code.                                          42 





 






         “U.S. Special Resolution Regimes” has the meaning given to such term in Section 10.23.         “U.S.  Tax  Compliance  Certificate”  has  the  meaning  assigned  to  such  term  in  Section 2.28(f)(ii)(B)(3).         “USA  PATRIOT  Act”  means  the  Uniting  and  Strengthening  America  by  Providing  Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.         “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete  or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle  E of Title IV of ERISA.         “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution  Authority, the write-down and conversion powers of such EEA Resolution Authority from time to  time under the Bail-In Legislation for the applicable EEA Member Country, which write-down  and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect  to  the  United  Kingdom,  any  powers  of  the  applicable  Resolution  Authority  under  the  Bail-In  Legislation  to  cancel,  reduce,  modify  or  change  the  form  of  a  liability  of  any  UK  Financial  Institution  or any contract or instrument under which that liability arises, to convert all or part of  that liability into shares, securities or obligations of that Person or any other Person, to provide  that any such contract or instrument is to have effect as if a right had been exercised under it or to  suspend  any  obligation  in  respect  of  that  liability  or  any  of  the  powers  under  that  Bail-In  Legislation that are related to or ancillary to any of those powers.         Section 1.02 Terms Generally.  The definitions of terms herein shall apply equally to  the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun  shall  include  the  corresponding  masculine,  feminine  and  neuter  forms.   The  words  “include”,  “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.   The word “law” shall be construed as referring to all statutes, rules, regulations, codes and other  laws  (including  official  rulings  and  interpretations  thereunder  having  the  force  of  law  or  with  which  affected  Persons  customarily  comply)  and  all  judgments,  orders  and  decrees  of  all  Governmental Authorities.  The word “will” shall be construed to have the same meaning and  effect as the word “shall”.  Unless the context requires otherwise (a) any definition of or reference  to any agreement, instrument or other document herein shall be construed as referring to such  agreement, instrument or other document as from time to time amended, restated, supplemented  or otherwise modified (subject to any restrictions on such amendments, restatements, supplements  or modifications set forth herein), (b) any definition of or reference to any statute, rule or regulation  shall be construed as referring thereto as from time to time amended, supplemented or otherwise  modified (including by succession of comparable successor laws), (c) any reference herein to any  Person  shall  be  construed  to  include  such  Person’s  successors  and  assigns  (subject  to  any  restrictions on assignments set forth herein) and, in the case of any Governmental Authority, any  other Governmental Authority that shall have succeeded to any or all functions thereof, (d) the  words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer  to this Agreement in its entirety and not to any particular provision hereof, (e) all references herein  to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections  of, and Exhibits and Schedules to, this Agreement, (f) any reference in any definition to the phrase  “at any time” or “for any period” shall refer to the same time or period for all calculations or                                         43 





 






   determinations within such definition, and (g) the words “asset” and “property” shall be construed  to have the same meaning and effect and to refer to any and all tangible and intangible assets and  properties, including cash, securities, accounts and contract rights.         Section 1.03 Accounting  Terms;  GAAP.   Except  as  otherwise  expressly  provided  herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP,  as in effect from time to time, provided that, if the Parent Borrower notifies the Agent that the  Parent Borrower requests an amendment to any provision hereof to eliminate the effect of any  change occurring after the Effective Date in GAAP or in the application thereof on the operation  of such provision (or if the Agent notifies the Parent Borrower that the Required Lenders request  an amendment to any provision hereof for such purpose), regardless of whether any such notice is  given before or after such change in GAAP or in the application thereof, then such provision shall  be interpreted on the basis of GAAP as in effect and applied immediately before such change shall  have become effective until such notice shall have been withdrawn or such provision amended in  accordance herewith.  Notwithstanding the foregoing, (a) all liabilities under or in respect of any  lease (whether now outstanding or at any time entered into or incurred) that, under GAAP as in  effect on the Effective Date, would be accrued as a Rental and Lease Expense and would not  constitute a Capital Lease Obligation, shall continue to be treated as Rental and Lease Expense in  accordance with GAAP as in effect on the Effective Date and shall not constitute a Capital Lease  Obligation, in each case, for purposes of the covenants set forth herein and all defined terms as  used  therein,  (b)  Indebtedness  shall  be  determined  without  giving  effect  to  the  application  of  Financial  Accounting  Standards  Board  Accounting  Standards  Codification  815  (and  related  interpretations) to the extent such application would otherwise increase or decrease the principal  amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded  derivatives created by the terms of such Indebtedness and (c) all terms of an accounting or financial  nature used herein shall be construed, and all computations of amounts and ratios referred to herein  shall be made, (i) without giving effect to any election under Statement of Financial Accounting  Standards  159,  The  Fair  Value  Option  for  Financial  Assets  and  Financial  Liabilities,  or  any  successor  thereto  (including  pursuant  to  the  Accounting  Standards  Codification),  to  value  any  Indebtedness of the Parent Borrower or any Subsidiary at “fair value” as defined therein and (ii)  without giving effect to any treatment of Indebtedness in respect of convertible debt instruments  under Financial Accounting Standards Board Accounting Standards Codification 470-20 (or any  other  Accounting  Standards  Codification  having  a  similar  result  or  effect)  to  value  any  such  Indebtedness in a reduced or bifurcated manner as described therein, it being agreed that such  Indebtedness shall at all times be valued at the full stated principal amount thereof.         Section 1.04 Classification of Loans, Commitments and Borrowings.  For purposes  of this Agreement, Loans and Commitments may be classified and referred to by Class (e.g., an  “Extended Loan” or “Extended Commitments”) or by Type (e.g., a “Eurocurrency Loan”) or by  Class and Type (e.g., a “Eurocurrency Extended Loan”).         Section 1.05 Status of Obligations.  The Borrowers agree that the Obligations hereunder  are senior in respect of any outstanding subordinated Indebtedness.         Section 1.06 Divisions.  For all purposes under the Loan Documents, in connection with  an Division under Delaware law (or any comparable event under a different jurisidiction’s laws);  (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or                                         44 





 






   liability of a different Person, then it shall be deemed to have been transferred from the original  Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person  shall be deemed to have been organized on the first date of its existence by the holders of its Equity  Interests at such time.         Section 1.07 Interest Rates; LIBOR Notification.  The interest rate on Eurocurrency  Loans is determined by reference to the LIBO Rate, which is derived from the London interbank  offered  rate.   The  London  interbank  offered  rate  is  intended  to  represent  the  rate  at  which  contributing banks may obtain short-term borrowings from each other in the London interbank  market.  In July 2017, the U.K. Financial Conduct Authority announced that, after the end of 2021,  it would no longer persuade or compel contributing banks to make rate submissions to the ICE  Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the  “IBA”) for purposes of the IBA setting the London interbank offered rate.  As a result, it is possible  that commencing in 2022, the London interbank offered rate may no longer be available or may  no longer be deemed an appropriate reference rate upon which to determine the interest rate on  Eurocurrency Loans.  In light of this eventuality, public and private sector industry initiatives are  currently underway to identify new or alternative reference rates to be used in place of the London  interbank offered rate.  Upon the occurrence of a Benchmark Transition Event or an Early Opt-In  Election, Section 2.16(c) provides a mechanism for determining an alternative rate of interest.  The  Agent  will  promptly  notify  the  Borrower,  pursuant  to Section  2.16(e),  of  any  change  to  the  reference rate upon which the interest rate on Eurocurrency Loans is based.  However, the Agent  does not warrant or accept any responsibility for, and shall not have any liability with respect to,  the administration, submission or any other matter related to the London interbank offered rate or  other rates in the definition of “LIBO Rate” or with respect to any alternative or successor rate  thereto,  or  replacement  rate  thereof  (including,  without  limitation,  (i)  any  such  alternative,  successor  or  replacement  rate  implemented  pursuant  to Section  2.16(c),  whether  upon  the  occurrence  of  a  Benchmark  Transition  Event  or  an  Early  Opt-in  Election,  and  (ii)  the  implementation  of  any  Benchmark  Replacement  Conforming  Changes  pursuant  to Section  2.16(d)),  including  without  limitation,  whether  the  composition  or  characteristics  of  any  such  alternative, successor or replacement reference rate will be similar to, or produce the same value  or economic equivalence of, the LIBO Rate or have the same volume or liquidity as did the London  interbank offered rate prior to its discontinuance or unavailability.                                    ARTICLE II                                                                 AMOUNT AND TERMS OF CREDIT         Section 2.01 Commitment of the Lenders.               (a)   Each Lender severally and not jointly with any other Lender, agrees, upon  the terms and subject to the conditions set forth herein, to extend credit (each an “Initial Loan”  and,  collectively,  the  “Initial  Loans”)  to  the  Borrowers  on  a  revolving  basis,  in  the  form  of  Revolving Loans and Letters of Credit and in an amount not to exceed the lesser of such Lender’s  Commitment or such Lender’s Commitment Percentage of the Borrowing Base, subject to the  following limitations:                                          45 





 






                     (i)   The aggregate outstanding amount of the Credit Extensions shall not        at any time exceed the lower of (A) the Total Commitment then in effect (as the same may        be adjusted from time to time pursuant to Section 2.09), or (B) the then amount of the        Borrowing Base.                     (ii)  No  Lender  shall  be  obligated  to  issue  any  Letter  of  Credit,  and        Letters  of  Credit  shall  be  available  from  any  Issuing  Lender,  subject  to  the  ratable        participation of all Lenders, as set forth in Section 2.06.  The Borrowers will not at any        time permit the  aggregate Letter of Credit Outstandings to exceed the lesser of (x) the        aggregate LC Sublimits for all Issuing Lenders and (y) $200,000,000.                     (iii) Subject to all of the other provisions of this Agreement, each Class        of  Revolving  Loans  that  are  repaid  may  be  reborrowed  prior  to  the  Termination  Date        applicable to such Class.  No new Credit Extension under any Class of  Commitments,        however, shall be made to the Borrowers after the Termination Date applicable to such        Class.               (b)   Subject  to  the  provisions  of Section 2.01(c),  each  Borrowing  of  Initial  Loans under this Agreement shall be made by the Lenders pro rata in accordance with their then  applicable  Commitment Percentages  with  respect  to the applicable  Class.   Each Borrowing  of  Extended Loans under this Agreement shall be made by the Lenders of the relevant Extension  Series  thereof  pro  rata  on  the  basis  of  their  then  applicable  Extended  Commitments  for  the  applicable Extension Series.  The failure of any Lender to make any Loan shall neither relieve any  other Lender of its obligation to fund its Loan in accordance with the provisions of this Agreement  nor increase the obligation of any such other Lender.               (c)   Notwithstanding  anything  to  the  contrary  herein  contained,  Credit  Extensions shall be made by the Lenders pro rata in accordance with their respective Commitment  Percentages.         Section 2.02 Reserves; Changes to Reserves.               (a)   The initial Availability Reserves as of the Second Amendment Effective  Date are the following:                     (i)   Gift  Certificates:  An  amount  equal  to  fifty  percent  (50%)  of  the        Subsidiary Borrowers’ gift certificates, gift cards and cardholder rewards cards outstanding        from time to time.                     (ii)  Rent:  An  amount  equal  to  two  (2)  months  rent  for  each  leased        location of each Subsidiary Borrower; provided that no such Reserve shall be imposed for        any location for which a landlord’s waiver reasonably satisfactory to the Agent has been        obtained.               (b)   The  Agent  may  on  and  after  the  Second  Amendment  Effective  Date  establish additional Reserves or change any of the foregoing Reserves in its Permitted Discretion.         Section 2.03 Making of Loans.                                         46 





 






               (a)   Except  as  set  forth  in Section 2.16  and Section 2.27,  Loans  (other  than  Swingline Loans) by the Lenders shall be either Base Rate Loans or Eurocurrency Loans as the  Parent Borrower on behalf of the Borrowers may request subject to and in accordance with this  Section 2.03, provided that all Swingline Loans shall be only Base Rate Loans.  All Loans made  pursuant to the same Borrowing shall, unless otherwise specifically provided herein, be Loans of  the same Type.  Each Lender may fulfill its Commitment with respect to any Loan by causing any  lending office of such Lender to make such Loan; but any such use of a lending office shall not  affect the obligation of the Borrowers to repay such Loan in accordance with the terms of the  applicable Note.  Each Lender shall, subject to its overall policy considerations, use reasonable  efforts (but shall not be obligated) to select a lending office which will not result in the payment  of increased costs by the Borrowers pursuant to Section 2.26.  Subject to the other provisions of  this Section 2.03 and the provisions of Section 2.27, Borrowings of Loans of more than one Type  may be incurred at the same time, but no more than fifteen (15) Borrowings of Eurocurrency Loans  may be outstanding at any time.               (b)   The Parent Borrower shall give the Agent three (3) Business Days’ prior  telephonic (thereafter confirmed in writing) or e-mail notice of each Borrowing of Eurocurrency  Loans  and  same-day  notice  of  each  Borrowing  of  Base  Rate  Loans.   Any  such  notice,  to  be  effective, must be received by the Agent not later than 11:00 a.m., New York City time, on the  third Business Day in the case of Eurocurrency Loans prior to the date on which such Borrowing  is to be made, and on the date of the proposed Borrowing in the case of Base Rate Loans.  Such  Borrowing Request shall be irrevocable and shall specify the amount of the proposed Borrowing  (which shall be in an integral multiple of $1,000,000, but not less than $5,000,000 in the case of  Eurocurrency Loans and shall be in an integral multiple of $250,000, but not less than $1,000,000  in the case of Base Rate Loans) and the date thereof (which shall be a Business Day) and shall  contain disbursement instructions.  Such Borrowing Request shall specify whether the Borrowing  then being requested is to be  a Borrowing of Base Rate Loans or Eurocurrency Loans and, if  Eurocurrency Loans, the Interest Period with respect thereto.  If no election of Interest Period is  specified in any such Borrowing Request for a Borrowing of Eurocurrency Loans, such Borrowing  Request shall be deemed a request for an Interest Period of one month.  If no election is made as  to the Type of Loan, such Borrowing Request shall be deemed a request for a Borrowing of Base  Rate  Loans.   The  Agent  shall  promptly  notify  each  Lender  of  its  proportionate  share  of  such  Borrowing, the date of such Borrowing, the Type of Borrowing being requested and the Interest  Period or Interest Periods applicable thereto, as appropriate.  On the borrowing date specified in  such Borrowing Request, each Lender shall make its share of the Borrowing available at the office  of the Agent at 10 South Dearborn Street, 22nd Floor, Chicago, Illinois, no later than 12:00 noon,  New York City time, in immediately available funds.  Unless the Agent shall have received notice  from  a  Lender  prior  to  the  proposed  date  of  any  Borrowing  that  such  Lender  will  not  make  available to the 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 this Section 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 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 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 (i) in the case of such Lender, the greater of the NYFRB Rate and a rate determined by  the Agent in accordance with banking industry rules on interbank compensation or (ii) in the case                                         47 





 






   of the Borrowers, the interest rate applicable to Base Rate Loans.  If such Lender pays such amount  to the Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.   Upon receipt of the funds made available by the Lenders to fund any Borrowing hereunder, the  Agent shall disburse such funds in the manner specified in the Borrowing Request delivered by  the  Parent  Borrower  and  shall  use  reasonable  efforts  to  make  the  funds  so  received  from  the  Lenders available to the Borrowers no later than 3:00 p.m., New York City time.               (c)   If the Borrowers fail to make any payment when due hereunder or under  any other Loan Document, the Agent, without the request of the Parent Borrower, shall make a  Base Rate Loan in order to pay interest, fees, or other such payments to which the Agent, any  Lender or any of their Affiliates is entitled from any Borrower and shall charge the same to the  Loan Account.  The Agent shall advise the Parent Borrower of any such Base Rate Loan promptly  after the making thereof.  The making of such Loan shall not constitute a waiver of the Borrowers’  obligations under Section 2.21(a) hereof or of the provisions of Section 2.04.         Section 2.04 Overadvances.  The Agent and the Lenders have no obligation to make any  Loan or to provide any Letter of Credit if an Overadvance would result.  The Agent may, in its  discretion, make Permitted Overadvances without the consent of the Lenders and each Lender  shall  be  bound  thereby.   Any  Permitted  Overadvances  may  constitute  Swingline  Loans.   The  making  of  any  Permitted  Overadvance  is  for  the  benefit  of  the  Borrowers;  such  Permitted  Overadvances constitute Loans and Obligations.  The making of any such Permitted Overadvances  on any one occasion shall not obligate the Agent or any Lender to make or permit any Permitted  Overadvances  on  any  other  occasion  or  to  permit  such  Permitted  Overadvances  to  remain  outstanding.  The Agent’s authorization to make Permitted Overadvances may be revoked at any  time by the Required Supermajority Lenders.  Any such revocation must be in writing and shall  become effective prospectively upon the Agent’s receipt thereof.           Section 2.05 Swingline Loans.               (a)   General.  The Agent, the Swingline Lenders and the Lenders agree that in  order to facilitate the administration of this Agreement and the other Loan Documents, promptly  after the Parent Borrower requests a Borrowing of Base Rate Loans, the Swingline Lenders may  elect to have the terms of this Section 2.05(a) apply to such Borrowing Request by advancing, on  behalf of the Lenders and in the amount requested, same day funds to the Borrowers, on the date  of the applicable Borrowing to the account specified by the Parent Borrower in such Borrowing  Request (each such Loan made solely by the Swingline Lenders pursuant to this Section 2.05(a)  is referred to in this Agreement as a “Swingline Loan”), with settlement among them as to the  Swingline Loans to take place on a periodic basis as set forth in Section 2.07(a).  Each Swingline  Loan shall be subject to all the terms and conditions applicable to other Base Rate Loans funded  by the  Lenders,  except  that  all payments  thereon shall  be  payable to  the applicable  Swingline  Lender solely for its own account.  The aggregate amount of Swingline Loans outstanding at any  time shall not exceed the Swingline Commitment.  The Swingline Lenders shall not make any  Swingline Loan if the requested Swingline Loan would cause the aggregate outstanding amount  of the Credit Extensions to exceed the lower of (A) the Total Commitment then in effect (as the  same may be adjusted from time to time pursuant to Section 2.09), or (B) the then amount of the  Borrowing Base (before or after giving effect to such Swingline Loan), and the Swingline Lenders                                          48 





 






   (other than JPMorgan) will receive confirmation from the Agent that such requirement is satisfied  before making the requested Swingline Loan.  All Swingline Loans shall be Base Rate Loans.               (b)   Participations by Lenders in Swingline Loans.  Each Swingline Lender may  by  written  notice  given  to  the  Agent  not  later  than  12:00  p.m.,  New  York  City  time,  on  any  Business Day require the Lenders to acquire participations on such Business Day in all or a portion  of its Swingline Loans outstanding.  Such notice shall specify the aggregate amount of Swingline  Loans in which Lenders will be required to participate.  Promptly upon the receipt of such notice,  the  Agent  will  give  notice  thereof  to  each  Lender,  specifying  in  such  notice  such  Lender’s  Commitment Percentage of such Swingline Loan or Loans.  Each Lender hereby absolutely and  unconditionally agrees to pay, upon receipt of notice as provided above in this paragraph, to the  Agent, in Dollars, for the account of the applicable Swingline Lender, such Lender’s Commitment  Percentage  of  such  Swingline Loan or Loans.   Each Lender acknowledges  and  agrees  that  its  obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and  unconditional and shall not be affected by any circumstance whatsoever, including the occurrence  and continuance of a Default or reduction or termination of the Commitments, and that each such  payment shall be made without any offset, abatement, withholding or reduction whatsoever.  Each  Lender  further  acknowledges  and  agrees  that, in  making  any  Swingline  Loan,  each  Swingline  Lender shall be entitled to rely, and shall not incur any liability for relying, upon the representation  and warranty of the Parent Borrower deemed made pursuant to Section 5.02, unless, at least two  Business Days prior to the time such Swingline Loan was made, the Required Lenders shall have  notified such Swingline Lender (with a copy to the Agent) in writing that, as a result of one or  more events or circumstances described in such notice, one or more of the conditions precedent  set forth in Section 5.02 would not be satisfied if such Swingline Loan were then made (it being  understood and agreed that, in the event any Swingline Lender shall have received any such notice,  no Swingline Lender shall make any Swingline Loan until and unless it shall be satisfied that the  events and circumstances described in such notice shall have been cured or otherwise shall have  ceased to exist).  Each Lender shall comply with its obligation under this paragraph by wire transfer  of immediately available funds, in the same manner as provided in Section 2.07 with respect to  Loans  made  by  such  Lender  (and Section 2.07  shall  apply, mutatis  mutandis,  to  the  payment  obligations  of  the  Lenders  under  this  paragraph),  and  the  Agent  shall  promptly  pay  to  the  applicable Swingline Lender the amounts so received by it from the Lenders.               The Agent shall notify the Parent Borrower of any participations in any Swingline  Loan acquired pursuant to the preceding paragraph, and thereafter payments in respect of such  Swingline Loan shall be made to the Agent and not to the applicable Swingline Lender.  Any  amounts  received by  a  Swingline Lender  from  the  Borrowers  (or  other  party on  behalf of the  Borrowers) in respect of a Swingline Loan after receipt by such Swingline Lender of the proceeds  of a sale of partcipations therein shall be promptly remitted to the Agent; and any such amounts  received by the Agent shall be promptly remitted by the Agent to the Lenders that shall have made  their payments pursuant to the preceding paragraph and to such Swingline Lender, as their interests  may appear; provided that any such payment so remitted shall be repaid to such Swingline Lender  or to the Agent, as applicable, if and to the extent such payment is required to be refunded to the  Borrowers for any reason.  The purchase of participations in a Swingline Loan pursuant to this  paragraph shall not relieve the Borrowers of any default in the payment thereof.                                          49 





 






               (c)   Additional  Swingline  Lenders;  Replacement  of  Swingline  Lender.   Any  Swingline Lender may be added or an existing Swingline Lender may be replaced at any time by  written agreement among the Parent Borrower, the Agent and the relevant Swingline Lender(s).   The Agent shall notify the Lenders of any such addition or replacement of a Swingline Lender.  At  the time any such replacement shall become effective, the Borrowers shall pay all unpaid interest  accrued for the account of the replaced Swingline Lender pursuant to Section 2.13(a).  From and  after the effective date of any such addition or replacement, (x) the new Swingline Lender shall  have all the rights and obligations of a Swingline Lender under this Agreement with respect to  Swingline Loans made thereafter and (y) references herein to the term “Swingline Lender” shall  be deemed to refer to such new Swingline Lender, successor to any previous Swingline Lender, or  to  such  successor  and  all  previous  Swingline  Lenders,  as  the  context  shall  require.   After  the  replacement of a Swingline Lender hereunder, the replaced Swingline Lender shall remain a party  hereto and shall continue to have all the rights and obligations of a Swingline Lender under this  Agreement with respect to Swingline Loans made by it prior to its replacement, but shall not be  required to make additional Swingline Loans.               (d)   Resignation  of  Swingline  Lender.   Subject  to  the  appointment  and  acceptance of a successor Swingline Lender, any Swingline Lender may resign as a Swingline  Lender at any time upon thirty days’ prior written notice to the Agent, the Parent Borrower and  the  Lenders,  in  which  case,  such  Swingline  Lender  shall  be  replaced  in  accordance  with  Section 2.05(c) above.         Section 2.06 Letters of Credit.               (a)   General.  Subject to the terms and conditions set forth herein, in addition to  the Loans provided for in Section 2.01, the Parent Borrower may request any Issuing Lender to  issue  Letters  of  Credit  denominated  in  Dollars  for  the  account  of  any  Borrower  or  one  of  its  Subsidiaries in such form as is acceptable to the Agent and such Issuing Lender in its reasonable  determination.  Letters of Credit issued hereunder shall constitute utilization of the Commitments.   Notwithstanding  anything herein  to the contrary,  the  Issuing  Lenders  shall  have no  obligation  hereunder to issue, and shall not issue, any Letter of Credit (i) the proceeds of which would be  made available to any Person (A) to fund any activity or business of or with any Sanctioned Person,  or in any country or territory that, at the time of such funding, is the subject of any Sanctions or  (B) in any manner that would result in a violation of any Sanctions by any party to this Agreement,  (ii) if any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms  purport  to  enjoin  or  restrain  the  Issuing  Lenders  from  issuing  such  Letter  of  Credit,  or  any  applicable law relating to the Issuing Lenders or any request or directive (whether or not having  the force of law) from any Governmental Authority with jurisdiction over the Issuing Lenders shall  prohibit, or request that the Issuing Lenders refrain from, the issuance of letters of credit generally  or such Letter of Credit in particular or shall impose upon the Issuing Lenders with respect to such  Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lenders are  not otherwise compensated hereunder) not in effect on the Second Amendment Effective Date, or  shall impose upon the Issuing Lenders  any unreimbursed loss, cost or expense which  was not  applicable on the Second Amendment Effective Date and which the Issuing Lenders in good faith  deems material to it, or (iii) if the issuance of such Letter of Credit would violate one or more  policies  of  the  Issuing  Lenders  applicable  to  letters  of  credit  generally;  provided  that,  notwithstanding  anything  herein  to  the  contrary,  (x)  the  Dodd-Frank  Wall  Street  Reform  and                                         50 





 






   Consumer Protection Act and all requests, rules, guidelines, requirements or directives thereunder  or issued in connection therewith or in the implementation thereof, and (y) all requests, rules,  guidelines, requirements or directives promulgated by the Bank for International Settlements, the  Basel Committee on Banking Supervision (or any successor or similar authority) or the United  States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be  deemed not to be in effect on the Second Amendment Effective Date for purposes of clause (ii)  above, regardless of the date enacted, adopted, issued or implemented.                 (b)   Notice  of  Issuance,  Amendment,  Renewal  or  Extension;  Auto-Renewal  Letters of Credit.                     (i)   To request the issuance of a Letter of Credit (or the amendment,        renewal or extension of an outstanding Letter of Credit, other than an automatic renewal        of  an  Auto-Renewal  Letter  of  Credit  permitted  pursuant  to clause (ii)  of  this        Section 2.06(b)),  the  Parent  Borrower  shall  hand  deliver,  fax  or  e-mail  (in  .pdf  or  .tif        format)  to  the  relevant  Issuing  Lender  and  the  Agent  (reasonably  in  advance  of  the        requested  date  of  issuance,  amendment,  renewal  or  extension)  a  notice  requesting  the        issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed        or extended, and specifying the date of issuance, amendment, renewal or extension (which        shall be a Business Day), the date on which such Letter of Credit is to expire (which shall        comply with paragraph (d) of this Section), the amount of such Letter of Credit, the name        and address of the beneficiary thereof and such other information as shall be necessary to        prepare, amend, renew or extend such Letter of Credit.  If requested by the relevant Issuing        Lender, the Parent Borrower also shall submit a letter of credit application on such Issuing        Lender’s standard form in connection with any request for a Letter of Credit.  In the event        of any inconsistency between the terms and conditions of this Agreement and the terms        and conditions of any form of letter of credit application or other agreement submitted by        the Parent Borrower to, or entered into by the Parent Borrower with, an Issuing Lender        relating to any Letter of Credit, the terms and conditions of this Agreement shall control.                     (ii)  Any Letter of Credit issuable under this Agreement may be issued,        if the Parent Borrower so requests and the relevant Issuing Lender so agrees, in the form        of an Auto-Renewal Letter of Credit; provided that any such Auto-Renewal Letter of Credit        must permit such Issuing Lender to prevent any such renewal at least once in each twelve-       month period (commencing with the date of issuance of such Letter of Credit) by giving        prior notice to the beneficiary thereof of such Issuing Lender’s option not to extend the        Letter  of  Credit  beyond  the  expiration  date  (a  “Non-Renewal  Notice”).   Such  Issuing        Lender shall have the option to issue a Non-Renewal Notice during a specified period in        each such twelve-month period to be agreed upon by the Parent Borrower, such Issuing        Lender and the Agent at the time such Letter of Credit is issued (the date of such notice        shall be referred to herein as the “Non-Renewal Notice Date”).  Once an Auto-Renewal        Letter of Credit has been issued, each Lender shall be deemed to have authorized (but may        not require) the relevant Issuing Lender to permit the renewal of such Letter of Credit at        any time to an expiry date not later than one year after its date of issuance or renewal;        provided that such Issuing Lender shall not permit any such renewal if such Issuing Lender        has reasonably determined that it would have no obligation at such time to issue such Letter                                          51 





 






         of Credit in its renewed form under the terms of this Agreement (by reason of the provisions        of paragraph (c) or (d) of this Section or otherwise).               (c)   Limitations  on  Amounts.   A  Letter  of  Credit  shall  be  issued,  amended,  renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter  of Credit the Parent Borrower shall be deemed to represent and warrant that), after giving effect to  such issuance, amendment, renewal or extension (i) the aggregate Letter of Credit Outstandings  shall  not  exceed  the  lesser  of  (x)  the  aggregate  LC  Sublimits  for  all  Issuing  Lenders  and  (y)  $200,000,000 and, subject to the last sentence of this subsection (c), no more than $100,000,000  of  which  may  be  in  respect  of  Standby  Letters  of  Credit  (the  “Standby  Letters  of  Credit  Sublimit”), (ii) the aggregate amount of the Letter of Credit Outstandings attributable to Letters  of Credit issued by any Issuing Lender shall not exceed the LC Sublimit of such Issuing Lender,  (iii) the Credit Extensions of any Lender shall not exceed the Commitment of such Lender, (iv)  the Credit Extensions shall not exceed the Total Commitment and (v) in the event the Maturity  Date shall have been extended as provided in Section 2.20, the sum of (x) the Letter of Credit  Outstandings attributable to Letters of Credit expiring after any Maturity Date before giving effect  to such extension plus (y) the Swingline Exposure attributable to Swingline Loans maturing after  such Maturity Date shall not exceed the total Commitments that shall have been extended to a date  after  the  latest  expiration  date  of  such  Letters  of  Credit  and  the  latest  maturity  date  of  such  Swingline Loans.  Each Issuing Lender (other than JPMorgan) will receive confirmation from the  Agent that the requirements in clauses (i) and (iv) of the foregoing sentence are satisfied before  issuing, amending, renewing or extending a Letter of Credit.  Notwithstanding the foregoing, the  Parent Borrower may adjust the amount of the Standby Letters of Credit Sublimit by providing  three (3) Business Days prior written notice to the Agent, so long as the total of such Standby  Letters of Credit Sublimit plus any Commercial Letter of Credit Outstandings does not exceed the  aggregate sublimit for Letter of Credit Outstandings set forth in Section 2.06(c)(i).  The Agent  shall promptly confirm to the Parent Borrower, the Issuing Lenders and the Lenders the amount  and the effective date of the revised sublimits.               (d)   Expiration Date.  Each Letter of Credit shall expire at or prior to the close  of business on the earlier of (i) the date twelve-months after the date of the issuance of such Letter  of Credit (or, in the case of any renewal or extension thereof, twelve months after the then-current  expiration date of such Letter of Credit), subject to automatic renewal of any Auto-Renewal Letter  of Credit as provided in Section 2.06(b)(ii), and (ii) the date that is five Business Days prior to the  Maturity Date.               (e)   Participations.  By the issuance of a Letter of Credit (or an amendment to a  Letter of Credit increasing the amount thereof) by any Issuing Lender, and without any further  action on the part of such Issuing Lender or the Lenders, such Issuing Lender hereby grants to each  Lender, and each Lender hereby acquires from such Issuing Lender, a participation in such Letter  of Credit equal to such Lender’s Commitment Percentage of the aggregate amount available to be  drawn under such Letter of Credit.  Each Lender acknowledges and agrees that its obligation to  acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and  unconditional  and  shall  not  be  affected  by  any  circumstance  whatsoever,  including  any  amendment, renewal or extension of any Letter of Credit, the occurrence and continuance of a  Default or reduction or termination of the Commitments, or any force majeure or other event that  under any rule of law or uniform practices to which any Letter of Credit is subject (including                                         52 





 






   Section 3.14 of ISP 98 or any successor publication of the International Chamber of Commerce)  permits a drawing to be made under such Letter of Credit after the expiration thereof or of the  Commitments.  Each Lender further acknowledges and agrees that, in issuing, amending, renewing  or extending any Letter of Credit, the relevant Issuing Lender shall be entitled to rely, and shall  not incur any liability for relying, upon the representation and warranty of the Borrowers deemed  made pursuant to Section 5.02, unless, at least two Business Days prior to the time of issuance, or  the time of any amendment, renewal or extension subject to Section 5.02, of any Letter of Credit  by such Issuing Lender (or, in the case of an automatic renewal permitted pursuant to clause (ii)  of Section 2.06(b), at least two Business Days prior to the time by which the election not to permit  renewal must be made by the relevant Issuing Lender), the Required Lenders shall have notified  the applicable Issuing Lender (with a copy to the Agent) in writing that, as a result of one or more  events or circumstances described in such notice, one or more of the conditions precedent set forth  in Section 5.02 would not be satisfied if such Letter of Credit were then issued or so amended,  renewed or extended (it being understood and agreed that, in the event any Issuing Lender shall  have received any such notice, no Issuing Lender shall issue, amend, renew or extend any Letter  of Credit until and unless it shall be satisfied that the events and circumstances described in such  notice shall have been cured or otherwise shall have ceased to exist).               In consideration and in furtherance of the foregoing, each Lender hereby absolutely  and unconditionally agrees to pay to the Agent, for account of the relevant Issuing Lender, such  Lender’s Commitment Percentage of each LC Disbursement made by an Issuing Lender (i) in the  event  the  Borrowers  fail  to  reimburse  such  LC  Disbursement  when  due,  as  provided  in  paragraph (f) of this Section, promptly upon the receipt of notice from the Agent referred to in  paragraph (f) of this Section and (ii) if any reimbursement payment is required to be refunded to  the Borrowers for any reason, at any time thereafter, promptly upon the request of such Issuing  Lender.  Such payment shall be made without any offset, abatement, withholding or reduction  whatsoever.  Each such payment shall be made in the same manner as provided in Section 2.03  with respect to Loans made by such Lender (and Section 2.03 shall apply, mutatis mutandis, to  the payment obligations of the Lenders under this paragraph), and the Agent shall promptly pay to  the relevant Issuing Lender the amounts so received by it from the Lenders.  Promptly following  receipt by the Agent of any payment from any Borrower pursuant to paragraph (f) of this Section,  the Agent shall distribute such payment to the relevant Issuing Lender or, to the extent that the  Lenders have made payments pursuant to this paragraph to reimburse such Issuing Lender, then to  such Lenders and such Issuing Lender as their interests may appear.  Any payment made by a  Lender pursuant to this paragraph to reimburse an Issuing Lender for any LC Disbursement shall  not constitute a Loan and shall not relieve the applicable Borrower of its obligation to reimburse  such LC Disbursement.               (f)   Disbursement and Reimbursement.  If an Issuing Lender shall make any LC  Disbursement in respect of a Letter of Credit, such Issuing Lender shall give prompt notice thereof  to the Agent and the Parent Borrower by telephone (confirmed by hand delivery, facsimile or e- mail), and the Borrowers shall reimburse such Issuing Lender in respect of such LC Disbursement  by paying to the Agent an amount equal to such LC Disbursement not later than 12:00 noon, New  York  City  time, on (i) the  Business Day that  the Parent  Borrower receives  notice  of  such  LC  Disbursement,  if  such  notice  is  received  prior  to  10:00  a.m.,  New  York  City  time,  or  (ii)  the  Business Day immediately following the day that the Parent Borrower receives such notice, if such  notice is not received prior to such time; provided that if such LC Disbursement is not less than                                         53 





 






   (x) $2,000,000 in the case of a Borrowing of Base Rate Loans and (y) $1,000,000 in the case of a  Borrowing of Swingline Loans, the Parent Borrower may, subject to the conditions to borrowing  set forth herein, request in accordance with Section 2.03 or 2.05 that such payment be financed  with a Borrowing of Base Rate Loans or a Borrowing of Swingline Loans in an equivalent amount  and, to the extent so financed, the Borrowers’ obligation to make such payment shall be discharged  and replaced by the resulting Borrowing of Base Rate Loans or Borrowing of Swingline Loans.               If the Borrowers fail to make such payment when due, the Agent shall notify each  Lender of the applicable LC Disbursement, the payment then due from the Borrowers in respect  thereof and such Lender’s Commitment Percentage thereof.               (g)   Obligations  Absolute.   The  Borrowers’  obligation  to  reimburse  LC  Disbursements as provided in paragraph (f) of this Section shall be absolute, unconditional and  irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under  any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability  of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other  document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any  respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by an  Issuing Lender under a Letter of Credit against presentation of a draft or other document that does  not comply strictly with the terms of such Letter of Credit, (iv) the failure to perfect any lien or  security interest granted to, or in favor of, the Agent or any of the Lenders as security for any  reimbursement obligations in respect of  any LC Disbursement, (v)  any force majeure or other  event that under  any rule of law or uniform practices to which any Letter of Credit is subject  (including Section 3.14 of ISP 98 or any successor publication of the International Chamber of  Commerce) permits a drawing to be made under such Letter of Credit after the stated expiration  date thereof or of the Commitments or (vi) any other event or circumstance whatsoever, whether  or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute  a legal or equitable discharge of, or provide a right of setoff against, the Borrowers’ obligations  hereunder.               None of the Agent, the  Lenders or the  Issuing Lenders, or  any of their Related  Parties, shall have any liability or responsibility by reason of or in connection with the issuance or  transfer of any Letter of Credit by any Issuing Lender or any payment or failure to make any  payment  thereunder  (irrespective  of  any  of  the  circumstances  referred  to  in  the  preceding  sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any  draft,  notice  or  other  communication  under  or  relating  to  any  Letter  of  Credit  (including  any  document required to make a drawing thereunder), any error in interpretation of technical terms or  any consequence arising from causes beyond the control of the relevant Issuing Lender; provided  that  the  foregoing  shall  not  be  construed  to  excuse  an  Issuing  Lender  from  liability  to  the  Borrowers to the extent of any direct damages (as opposed to special, indirect, consequential or  punitive damages, claims in respect of which are hereby waived by the Borrowers to the extent  permitted by applicable law) suffered by the Borrowers that are caused by such Issuing Lender’s  failure to exercise care when determining whether drafts and other documents presented under a  Letter of Credit comply with the terms thereof.  The parties hereto expressly agree, to the fullest  extent permitted by law, that, in the absence of gross negligence or willful misconduct on the part  of an Issuing Lender (with such absence to be presumed unless otherwise determined by a court                                          54 





 






   of competent jurisdiction in a final and nonappealable judgment), such Issuing Lender shall be  deemed to have exercised care in each such determination, and that:                     (i)   an Issuing Lender may accept documents that appear on their face        to be in substantial compliance with the terms of a Letter of Credit without responsibility        for further investigation, regardless of any notice or information to the contrary, and may        make payment upon presentation of documents that appear on their face to be in substantial        compliance with the terms of such Letter of Credit;                     (ii)  an  Issuing  Lender  shall  have  the  right,  in  its  sole  discretion,  to        decline to accept such documents and to make such payment if such documents are not in        strict compliance with the terms of such Letter of Credit; and                     (iii) this sentence shall establish the standard of care to be exercised by        an Issuing Lender when determining whether drafts and other documents presented under        a Letter of Credit comply with the terms thereof (and the parties hereto hereby waive, to        the  extent  permitted  by  applicable  law,  any  standard  of  care  inconsistent  with  the        foregoing).               (h)   Disbursement  Procedures.   The  Issuing  Lender  for  any  Letter  of  Credit  shall, within a reasonable time following its receipt thereof, examine all documents purporting to  represent a demand for payment under such Letter of Credit.  Such Issuing Lender shall promptly  after such examination notify the Agent and the Parent Borrower by telephone (confirmed by hand  delivery, facsimile or e-mail) of such demand for payment and whether such Issuing Lender has  made or will make an LC Disbursement thereunder; provided that any failure to give or delay in  giving such notice shall not relieve the Borrowers of their obligation to reimburse such Issuing  Lender and the Lenders with respect to any such LC Disbursement.               (i)   Interim Interest.  If the Issuing Lender for any Letter of Credit shall make  any LC Disbursement, then, unless the Borrowers shall reimburse such LC Disbursement in full  on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each  day from and including the date such LC Disbursement is made to, but excluding the date that the  Borrowers reimburse such LC Disbursement, at the rate per annum then applicable to Base Rate  Loans; provided that, if the Borrowers fail to reimburse such LC Disbursement when due pursuant  to paragraph (f) of this Section, then Section 2.13(d) shall apply.  Interest accrued pursuant to  this paragraph shall be for the account of such Issuing Lender, except that interest accrued on and  after the date of payment by any Lender pursuant to paragraph (e) of this Section to reimburse  such Issuing Lender shall be for the account of such Lender to the extent of such payment, and  shall be payable on demand or, if no demand has been made, on the date on which the Borrowers  reimburse the applicable LC Disbursement in full.               (j)   Additional Issuing Lenders; Replacement of Issuing Lenders.  An Issuing  Lender may be added, or an existing Issuing Lender may be replaced, under this Agreement at any  time  by  written  agreement  between  the  Parent  Borrower,  the  Agent  and  the  relevant  Issuing  Lender.  The Agent shall notify the Lenders of any such addition or replacement.  At the time any  such replacement shall become effective, the Borrowers shall pay all unpaid fees accrued for the  account  of  the  Issuing  Lender  being  replaced  pursuant  to Section 2.10.   From  and  after  the                                         55 





 






   effective date of any such addition, the new Issuing Lender shall have all the rights and obligations  of an Issuing Lender under this Agreement with respect to Letters of Credit to be issued thereafter.   After the replacement of an Issuing Lender hereunder, the replaced Issuing Lender shall remain a  party hereto and shall continue to have all the rights and obligations of an Issuing Lender under  this  Agreement  with  respect  to  any  outstanding  Letters  of  Credit  issued  by  it  prior  to  such  replacement, but shall not be required to issue any new Letters of Credit or to amend, renew or  extend any such outstanding Letters of Credit.               (k)   Resignation of Issuing Lender.  Subject to the appointment and acceptance  of a successor Issuing Lender, any Issuing Lender may resign as an Issuing Lender at any time  upon thirty days’ prior written notice to the Agent, the Parent Borrower and the Lenders, in which  case, such Issuing Lender shall be replaced in accordance with Section 2.06(j) above.               (l)   Issuing Lender Reports to the Agent.  Unless otherwise agreed by the Agent,  each Issuing Lender (other than JPMorgan) shall, in addition to its notification obligations set forth  elsewhere in this Section, report in writing to the Agent (i) periodic activity (for such period or  recurrent periods as shall be requested by the Agent) in respect of Letters of Credit issued by such  Issuing Lender, including all issuances, extensions, amendments and renewals, all expirations and  cancellations and all disbursements and reimbursements, (ii) reasonably prior to the time that such  Issuing Lender issues, amends, renews or extends any Letter of Credit, the date of such issuance,  amendment, renewal or extension, and the stated amount of the Letters of Credit issued, amended,  renewed  or  extended  by  it  and  outstanding  after  giving  effect  to  such  issuance,  amendment,  renewal or extension (and whether the amounts thereof shall have changed), (iii) on each Business  Day on which such Issuing Lender makes any LC Disbursement, the date and amount of such LC  Disbursement,  (iv)  on  any  Business  Day  on  which  the  Borrowers  fail  to  reimburse  an  LC  Disbursement required to be reimbursed to such Issuing Lender on such day, the date of such  failure and the amount of such LC Disbursement and (v) on any other Business Day, such other  information as the Agent shall reasonably request as to the Letters of Credit issued by such Issuing  Lender.               (m)   Cash  Collateralization.   If  any  Event  of  Default  shall  occur  and  be  continuing, on the Business Day that the Parent Borrower receives notice from the Agent or the  Required Lenders (or, if the maturity of the Loans has been accelerated pursuant to Article VIII,  Lenders with Letter of Credit Outstandings representing more than 50% of the total Letter of Credit  Outstandings) demanding the deposit of cash collateral pursuant to this paragraph, the Borrowers  shall immediately deposit into the Cash Collateral Account an amount in immediately available  funds  in  Dollars  equal  to  103%  of the Letter of  Credit  Outstandings  as  of  such  date  plus  any  accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral  shall become effective immediately, and such deposit shall become immediately due and payable,  without demand or other notice of any kind, upon the occurrence of any Event of Default with  respect to any Borrower described in clause (h) or (i) of Article VIII.  The Borrowers also shall  deposit  cash  collateral  in  accordance  with  this  paragraph  as  and  to  the  extent  required  by  Section 2.31.  Each such deposit shall be held by the Agent as collateral for the Letter of Credit  Outstandings and other obligations of the Borrowers under this Agreement, and for this purpose  the Borrowers hereby grant a security interest to the Agent for the benefit of the Lenders and the  Issuing Lenders in such collateral account and in any financial assets (as defined in the UCC) or  other property held therein.                                         56 





 






               The Agent shall have exclusive dominion and control, including the exclusive right  of  withdrawal,  over  such  Cash  Collateral  Account.   All  amounts  on  deposit  pursuant  to  this  paragraph (m) shall be invested by the Agent in interest bearing instruments or accounts, with  the selection of which instruments or accounts to be determined by the Agent in its sole discretion;  provided  that  the  Agent  shall  consult  with  the  Parent  Borrower  as  to  the  selection  of  such  instruments or accounts; provided, further, that such investments shall be at the risk and expense  of the Borrowers.  Other than any interest earned on the investment of such deposits, such deposits  shall not bear interest.  Interest or profits, if any, on such investments shall accumulate in such  account.  Moneys in such Cash Collateral Account shall be applied by the Agent to reimburse the  relevant Issuing Lender for LC Disbursements for which it has not been reimbursed and, to the  extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the  Borrowers for the Letter of Credit Outstandings at such time or, if the maturity of the Loans has  been  accelerated (but (i) subject to  the  consent  of Lenders  with Letter  of Credit  Outstandings  representing  100%  of  the  total  Letter  of  Credit  Outstandings  and  (ii)  in  the  case  of  any  such  application at a time  when  any  Lender is  a  Defaulting  Lender (but  only if,  after giving  effect  thereto, the remaining cash collateral shall be less than the aggregate Letter of Credit Outstandings  of all the Defaulting Lenders), the consent of each Issuing Lender), be applied to satisfy other  obligations of the Borrowers under this Agreement.  If the Borrowers are required to provide an  amount of cash collateral hereunder as a result of the occurrence of an Event of Default, the amount  (including  any  interest  and  profits  earned  thereon  as  aforesaid)  standing  to  the  credit  of  such  account (to the extent not applied as aforesaid) shall be returned to the Borrowers within three  Business Days after all Events of Default have been cured or waived.  If the Borrowers are required  to provide an amount of cash collateral hereunder pursuant to Section 2.31, such amount (to the  extent not applied as aforesaid) shall be returned to the Borrowers, as promptly as practicable, to  the extent that, after giving effect to such return, no Issuing Lender shall have any exposure in  respect of any outstanding Letter of Credit that is not fully covered by the Commitments of the  Non-Defaulting Lenders and/or the remaining cash collateral and no Event of Default shall have  occurred and be continuing.         Section 2.07 Settlements Amongst Lenders.                (a)   Each Swingline Lender may (but shall not be obligated to), at any time, on  behalf of the Borrowers (which hereby authorize each Swingline Lender to act in their behalf in  that regard) request the Agent to cause the Lenders to make a Revolving Loan (which shall be a  Base Rate Loan) in an amount equal to such Lender’s Commitment Percentage of the outstanding  amount of Swingline Loans made in accordance with Section 2.05, which request may be made  regardless of whether the conditions set forth in Article V have been satisfied.  Upon such request,  the Agent, on behalf of such Swingline Lender, shall request settlement with the Lenders on at  least a weekly basis or on any date that the Agent elects, by notifying the Lenders of such requested  settlement by facsimile, telephone, or e-mail no later than 2:00 p.m. New York City time on the  Settlement Date.  Upon such request, each Lender shall make available to the Agent the proceeds  of such Revolving Loan for the account of the applicable Swingline Lender.  If the applicable  Swingline Lender requires a Revolving Loan to be made by the Lenders and the request therefor  is received prior to 2:00 p.m., New York City time, on a Business Day, such transfers shall be  made in immediately available funds no later than 5:00 p.m., New York City time, that day; and,  if the request therefor is received after 2:00 p.m., New York City time, then no later than 5:00  p.m., New York City time, on the next Business Day.  The obligation of each Lender to transfer                                         57 





 






   such funds is irrevocable, unconditional and without recourse to or warranty by the Agent or the  applicable Swingline Lender.  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  at the NYFRB Rate.               (b)   The  amount  of  each  Lender’s  Commitment  Percentage  of  outstanding  Revolving  Loans  shall  be  computed  on  at  least  a  weekly  (or  more  frequently  in  the  Agent’s  discretion) basis and shall be adjusted upward or downward based on all Revolving Loans and  repayments of Revolving Loans received by the Agent as of 3:00 p.m., New York City time, on  the  first  Business  Day  following  the  end  of  the  period  specified  by  the  Agent  (such  date,  the  “Settlement Date”).               (c)   The Agent shall deliver to each of the Lenders promptly after the Settlement  Date a summary statement of the amount of outstanding Revolving Loans for the period and the  amount of repayments received for the period.  As reflected on the summary statement: (x) the  Agent shall transfer to each Lender its applicable Commitment Percentage of repayments, and (y)  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 Revolving Loans made by each Lender with respect to Revolving Loans shall be equal  to such Lender’s applicable Commitment Percentage of Revolving Loans outstanding as of such  Settlement Date.  If the  summary statement requires transfers to be made to the Agent by the  Lenders and is received prior to 2:00 p.m., New York City time, on a Business Day, such transfers  shall be made in immediately available funds no later than 5:00 p.m., New York City time, that  day; and, if received after 2:00 p.m., New York City time, then no later than 5:00 p.m., New York  City time, 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 at the NYFRB Rate.         Section 2.08 Notes; Repayment of Loans.                (a)   The Loans made by each Lender (and to the applicable Swingline Lender,  with respect to Swingline Loans) may, upon request by such Lender (or such Swingline Lender),  be evidenced by a Note duly executed by the Borrowers, dated the Effective Date (or in the case  of a Note evidencing an increased or a new Commitment pursuant to Section 2.09, the effective  date  of  such  increased  or  new  Commitment),  in  substantially  the  form  attached  hereto  as  Exhibit B-1  or B-2,  as  applicable,  payable  to  such  Lender  (or  such  Swingline  Lender,  as  applicable)  in  an  aggregate  principal  amount  equal  to  such  Lender’s  Commitment  (or  the  applicable Swingline Lender’s Swingline Commitment).                 (b)   The  Borrowers  shall  repay  to  the  Agent  the  then  outstanding  principal  balance  of  all  Swingline  Loans  on  the  earlier  of  the  Swingline  Maturity  Date  or,  on  the  date  otherwise  requested  by  the  applicable  Swingline  Lender  in  accordance  with  the  provisions  of  Section 2.05(a).  The Borrowers shall repay to the Agent, for the benefit of the applicable Lenders,  (i)  on  the  Commitment  Termination  Date,  the  then  outstanding  principal  balance  of  all  Initial                                         58 





 






   Loans and (ii) on the relevant maturity date for any Extension Series of Extended Commitments,  the then outstanding principal balance of all Extended Loans in respect of such Extension Series.   The  Borrowers  shall  repay  to  the  Agent  the  then  outstanding  principal  balance  of  all  other  Obligations  (other  than  the  Initial  Loans,  Swingline  Loans  and  Extended  Loans)  on  the  Termination Date (subject to earlier repayment as provided below).  Each Loan shall bear interest  from the date thereof on the outstanding principal balance thereof as set forth in this Article II.   Each Lender is hereby authorized by the Borrowers to endorse on a schedule attached to any Note  delivered to such Lender (or on a continuation of such schedule attached to such Note and made a  part thereof), or otherwise to 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, each payment of interest on any such Loan and the other information  provided for on such schedule; provided, however, that the failure of any Lender to make such a  notation or any error therein shall not affect the obligation of the Borrowers to repay the Loans  made by such Lender in accordance with the terms of this Agreement and the applicable Notes.         Section 2.09 Termination  or  Reduction  of  Commitments;   Increase  of  Commitments.                (a)   Upon at least two (2) Business Days’ prior written notice to the Agent, the  Parent Borrower may at any time in whole permanently terminate, or from time to time in part  permanently reduce, the Commitments of any Class.  Each such partial reduction shall be in the  principal  amount  of  $5,000,000  or  any  integral  multiple  thereof.   Each  such  reduction  or  termination shall (i) be applied ratably to the Commitments of each Lender of such Class, except  that,  notwithstanding  the  foregoing,  (1)  the  Parent  Borrower  may  allocate  any  termination  or  reduction of Commitments among Classes of Commitments either (A) ratably among Classes or  (B)  first  to  the  Commitments  with  respect  to  any  Existing  Commitments  and  second  to  any  Extended Commitments, in each case, on a pro rata basis based on such Lender’s Commitment  Percentage of the applicable Class of Commitments and (2) in connection with the establishment  on any date of any Extended Commitments pursuant to Section 2.20, the Existing Commitments  of any one or more Lenders providing any such Extended Commitments on such date shall be  reduced in an amount equal to the amount of Specified Existing Commitments so extended on  such date (provided that (x) after giving effect to any such reduction and to the repayment of any  Loans  made  on  such  date,  the  Credit  Extensions  of  any  such  Lender  does  not  exceed  the  Commitment thereof (such Credit Extension and Commitment being determined in each case, for  the avoidance of doubt, exclusive of such Lender’s Extended Commitment and any exposure in  respect thereof) and (y) for the avoidance of doubt, any such repayment of Loans contemplated by  the preceding clause (x) shall be made in compliance with the requirements of Section 2.18 with  respect to the ratable allocation of payments hereunder, with such allocation being determined  after  giving  effect  to  any  conversion  pursuant  to Section 2.20  of  Existing  Commitments  and  Existing Loans into Extended Commitments and Extended Loans respectively, and prior to any  reduction being made to the Commitment of any other Lender) and (ii) be irrevocable when given.   At the effective time of each such reduction or termination, the Borrowers shall pay to the Agent  for  application  as  provided  herein  (i)  all  Commitment  Fees  accrued  on  the  amount  of  the  Commitments so terminated or reduced through the date thereof and (ii) any amount by which the  Credit Extensions outstanding on such date exceed the amount to which the Commitments are to  be reduced effective on such date, in each case pro rata based on the amount prepaid.                                          59 





 






               (b)   The  Borrowers  shall  have  the  right  to  increase  the  Commitments  by  obtaining additional Commitments, either from one or more of the Lenders or another lending  institution provided that (i) any such request for an increase shall be in a minimum amount of  $25,000,000, (ii) the Parent Borrower, on behalf of the Borrowers, may make a maximum of four  (4) such requests, (iii) the Agent has approved the identity of any such new Lender, such approval  not to be unreasonably withheld, (iv) any such new Lender assumes all of the rights and obligations  of a “Lender” hereunder, and (v) the procedures described in Section 2.09(c) have been satisfied;  provided that for purposes of clarity, no Lender shall have any obligation to agree to increase its  Commitments.               (c)   Any amendment hereto for such an increase or addition of the Commitments  pursuant to Section 2.09(b) shall be in form and substance reasonably satisfactory to the Agent  and shall only require the written signatures of the Agent, the Borrowers and each Lender being  added or increasing its Commitment (each such Lender, a “Commitment Increase Lender”),  subject only to the approval of the requisite Lenders pursuant to Section 10.02(b) if any such  increase would cause the Total Commitment to exceed $1,000,000,000.  As a condition precedent  to such an increase, the Borrowers shall deliver to the Agent a certificate of each Borrower signed  by an authorized officer of each Borrower (i) certifying and attaching the resolutions adopted by  such Borrower approving or consenting to such increase, and (ii) in the case of the Borrowers,  certifying  that,  before  and  after  giving  effect  to  such  increase,  (A)  the  representations  and  warranties  contained  in Article IV  and  the  other  Loan  Documents  are  true  and  correct  in  all  material respects (except any representations and warranties qualified by materiality shall be true  and  correct  in  all  respects),  except  to  the  extent  that  such  representations  and  warranties  specifically refer to an earlier date, in which case they are true and correct in all material respects  (except any representations and warranties qualified by materiality shall be true and correct in all  respects) as of such earlier date, and (B) no Default exists.               (d)   On  the  effective  date  of  any  increase  or  addition  of  the  Commitments  pursuant  to Section 2.09(b),  (i) the  aggregate  principal  amount  of  the  Revolving  Loans  outstanding  (the  “Existing Revolving  Borrowings”) immediately prior to  the effectiveness  of  such increase of the Commitments shall be deemed to be repaid, (ii) each Commitment Increase  Lender  that  shall  have  had  a  Commitment  prior  to  the  effectiveness  of  such  increase  of  the  Commitments shall pay to the Agent in dollars, in immediately available funds, an amount equal  to the difference between (A) the product of (1) such Lender’s Commitment Percentage (calculated  after giving effect to the effectiveness of such increase of the Commitments) multiplied by (2) the  aggregate amount of the Resulting Revolving Borrowings (as defined below) and (B) the product  of (1) such Lender’s Commitment Percentage (calculated without giving effect to the effectiveness  of such increase of the  Commitments) multiplied by (2) the aggregate  amount of the Existing  Revolving  Borrowings,  (iii) each  Commitment  Increase  Lender  that  shall  not  have  had  a  Commitment prior to the effectiveness of such increase of the Commitments shall pay to the Agent  in dollars, in immediately available funds, an amount equal to the product of (1) such Lender’s  Commitment Percentage (calculated after giving effect to the effectiveness of such increase of the  Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings,  (iv) after the Agent receives the funds specified in clauses (ii) and (iii) above, the Agent shall pay  to each Lender the portion of such funds that is equal to the difference between (A) the product of  (1) such Lender’s Commitment Percentage (calculated without giving effect to the effectiveness  of such increase of the  Commitments) multiplied by (2) the aggregate  amount of the Existing                                         60 





 






   Revolving  Borrowings,  and  (B)  the  product  of  (1)  such  Lender’s  Commitment  Percentage  (calculated after giving effect to the effectiveness of such increase of the Commitments) multiplied  by (2) the aggregate amount of the Resulting Revolving Borrowings, (v) after the effectiveness of  such increase of the Commitments, the Borrowers shall be deemed to have made new Borrowings  of Revolving Loans (the “Resulting Revolving Borrowings”) in an aggregate amount equal to  the aggregate amount of the Existing Revolving Borrowings and of the Types and for the Interest  Periods specified in a Borrowing Request delivered to the Agent in accordance with Section 2.03  (and the Parent Borrower shall deliver such Borrowing Request), (vi) each Lender shall be deemed  to  hold  its  Commitment  Percentage  of  each  Resulting  Revolving  Borrowing  (calculated  after  giving effect to the effectiveness of such increase of the Commitments) and (vii) the Borrowers  shall pay each Lender any and all accrued but unpaid interest on its Loans comprising the Existing  Revolving  Borrowings.   The  deemed  payments  of  the  Existing  Revolving  Borrowings  made  pursuant to clause (i) above shall be subject to compensation by the Borrowers pursuant to the  provisions of Section 2.21(d) if the date of the effectiveness of such increase of the Commitments  occurs other than on the last day of the Interest Period relating thereto.  Upon each increase of the  Commitments, the participation interests of the Lenders in the then outstanding Letters of Credit  shall automatically be adjusted to reflect, and each Lender (including each Commitment Increase  Lender) shall have a participation in each such Letter of Credit equal to, the Lenders’ respective  Commitment Percentage of the aggregate amount available to be drawn under each such Letter of  Credit, after giving effect to such increase of the Commitments.               (e)   Within a reasonable time after the effective date of any increase or addition  of the Commitments pursuant to Section 2.09(b), the Agent shall, and is hereby authorized and  directed  to,  revise Schedule  1.1  to  reflect  such  increase  and  shall  distribute  such  revised  Schedule 1.1 to each of the Lenders and the Borrowers, whereupon such revised Schedule 1.1  shall replace the old Schedule 1.1 and become part of this Agreement.         Section 2.10 Letter of Credit Fees.                (a)   The Borrowers shall pay the Agent, for the account of the Lenders, on the  third Business Day after each Quarterly Date and on the Latest Maturity Date, in arrears, a fee  (each, a “Letter of Credit Fee”) equal to the following per annum percentages of the average  daily  amount  of  Standby  Letter  of  Credit  Outstandings  or  Commercial  Letter  of  Credit  Outstandings,  as  applicable  (excluding  in  each  case  any  portion  thereof  attributable  to  unreimbursed LC Disbursements) during the period from and including the Effective Date to but  excluding the later of the date such Lender’s Commitment terminates and the date on which such  Lender ceases to have any Standby Letter of Credit Outstandings or Commercial Letter of Credit  Outstandings, as applicable (each computed on the basis of the actual number of days elapsed  (including the first day but excluding the last day) over a year of 360 days):                     (i)   Standby Letters of Credit:  At the then Applicable Rate per annum        for Eurocurrency Loans.                     (ii)  Commercial Letters of Credit:  At 50% of the then Applicable Rate        per annum for Eurocurrency Loans.                                          61 





 






                     (iii) After  the  occurrence  and  during  the  continuance  of  an  Event  of        Default, at the option of the Agent or upon the direction of the Required Lenders, the Letter        of Credit Fee set forth in clauses (i) and (ii) above, shall be increased by an amount equal        to two percent (2%) per annum.               (b)   The Borrowers shall pay to each Issuing Lender, in addition to all Letter of  Credit Fees otherwise provided for hereunder, such fronting fees and other fees and charges in  connection  with  the  issuance,  negotiation,  settlement,  amendment,  renewal,  extension,  administration  and  processing  of  each  Letter  of  Credit  issued  by  such  Issuing  Lender  as  are  customarily imposed by such Issuing Lender from time to time in connection with letter of credit  transactions.               (c)   Participation fees and fronting fees, if any, accrued through and including  each Quarterly Date shall be payable on the third Business Day following such Quarterly Date,  commencing on the first such date to occur after the Second Amendment Effective Date; provided  that all such fees shall be payable on the date on which the Commitments terminate and any such  fees accruing after the date on which the Commitments terminate shall be payable on demand.   Any other fees payable to any Issuing Lender pursuant to this Section 2.10 shall be payable within  10 days after demand.  All participation fees and fronting fees, if any, shall be computed on the  basis of a year of 360 days and shall be payable for the actual number of days elapsed (including  the first day but excluding the last day).         Section 2.11 Certain Fees.          The  Borrowers  shall  pay  to  the  Agent  and  its  Affiliates,  as  applicable,  for  their  own  accounts, the fees set forth in the Fee Letter as and when payment of such fees is due as set forth  therein.         Section 2.12 Unused Commitment Fee.          The Borrowers agree to pay to the Agent for account of each Lender a commitment fee  (the “Commitment Fee”), which shall accrue at the Commitment Fee Rate on the daily unused  amount of the Commitment of such Lender during the period from and including the Effective  Date to but excluding the date such Commitment terminates; provided that Swingline Loans shall  be excluded for the purposes of this calculation.  Accrued commitment fees shall be payable in  arrears on each Quarterly Date and on the date the Commitments terminate, commencing on the  first such date to occur after the Effective Date; provided that any commitment fees accruing after  the date on which the Commitments terminate shall be payable on demand.  All commitment fees  shall be computed on the basis of a year of 360 days and shall be payable for the actual number of  days  elapsed  (including  the  first  day  but  excluding  the  last  day).   The  Agent  shall  pay  the  Commitment Fee to the Lenders based upon their pro rata share of the aggregate Commitment Fee  due to all Lenders on the date payment is due.         Section 2.13 Interest on Loans.                (a)   Subject to Section 2.13(d), each Base Rate Loan shall bear interest at a rate  per annum that shall be equal to the then Alternate Base Rate, plus the Applicable Rate for Base  Rate Loans.                                         62 





 






               (b)   Subject to Section 2.13(d), each Eurocurrency Loan shall bear interest at a  rate per annum equal, during each Interest Period applicable thereto, to the Adjusted LIBO Rate  for such Interest Period, plus the Applicable Rate for Eurocurrency Loans.               (c)   [Reserved]               (d)   Effective  upon  the  occurrence  of  any  Event  of  Default  and  at  all  times  thereafter while such Event of Default is continuing, interest shall accrue on all outstanding Loans  (including Swingline Loans) (after as well as before judgment, as and to the extent permitted by  law) at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2.00% plus the  rate  (including  the  Applicable Rate  for Loans) otherwise  applicable to  such  Loan  as  provided  above or (ii) in the case of any other amount, 2.00% plus the rate applicable to Base Rate Loans  as provided in paragraph (a) of this Section, and such interest shall be payable on demand.               (e)   Accrued interest on each Loan shall be payable in arrears on each Interest  Payment Date for such  Loan and, in the case of Revolving Loans and Swingline Loans, upon  termination of the Commitments; provided that (i) interest accrued pursuant to paragraph (d) of  this Section shall be payable on demand; (ii) in the event of any repayment or prepayment of any  Loan (other than a prepayment of a Base Rate Loan prior to the Maturity Date applicable to such  Loan), accrued interest on the principal amount repaid or prepaid shall be payable on the date of  such  repayment  or  prepayment;  and  (iii)  in  the  event  of  any  conversion  of  any  Eurocurrency  Borrowing prior to the end of the Interest Period therefor, accrued interest on such Eurocurrency  Borrowing shall be payable on the effective date of such conversion.               (f)   All interest hereunder shall be computed on the basis of a year of 360 days,  except that interest computed by reference to the Alternate Base Rate at times when the Alternate  Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366  days  in  a  leap  year),  and  in each case shall  be payable for the actual  number of  days  elapsed  (including the first day but excluding the last day).  The applicable Alternate Base Rate, Adjusted  LIBO  Rate  or  LIBO  Rate  shall  be  determined  by  the  Agent,  and  such  determination  shall  be  conclusive absent manifest error.          Section 2.14 Nature of Fees.          All fees shall be paid on the dates due, in Dollars and immediately available funds, to the  Agent, for the respective accounts of the Agent, the Issuing Lenders, and the Lenders, as provided  herein.   Once  paid,  all  fees  shall  be  fully  earned  and  shall  not  be  refundable  under  any  circumstances.         Section 2.15 [Reserved].          Section 2.16 Alternate Rate of Interest.                (a)   If prior to the commencement of any Interest Period for a Eurocurrency  Borrowing:                     (i)   the Agent determines (which determination shall be conclusive and        binding  absent  manifest  error)  that  adequate  and  reasonable  means  do  not  exist  for                                         63 





 






         ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable (including, without        limitation,  by  means  of  an  Interpolated  Rate  or  because  the  LIBO  Screen  Rate  is  not        available  or  published  on  a  current  basis)  for  such  Interest  Period;  provided  that  no        Benchmark Transition Event shall have occurred at such time; or                     (ii)  the  Agent  is  advised  by  the  Required  Lenders  that  the  Adjusted        LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately        and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans        (or Loan) included in such Borrowing for such Interest Period;   then  the  Agent  shall  give  notice  thereof  to  the  Borrowers  and  the  Lenders  through  Electronic  System as provided in Section 10.01 as promptly as practicable thereafter and, until the Agent  notifies the Parent Borrower and the Lenders that the circumstances giving rise to such notice no  longer exist, (A) any notice from the Parent Borrower to the Agent in accordance with Section  2.17 that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a  Eurocurrency Borrowing shall be ineffective and any such Eurocurrency Borrowing shall be repaid  or converted into a Borrowing of Base Rate Loans on the last day of the then current Interest Period  applicable thereto, and (B) if any Borrowing Request requests a Eurocurrency Borrowing, such  Borrowing shall be made as a Borrowing of Base Rate Loans.               (b)   If any Lender determines that any requirement of law has made it unlawful,  or if any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable  lending  office  to  make,  maintain,  fund  or  continue  any  Eurocurrency  Borrowing,  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 Borrowers through the Agent, any obligations of such Lender to  make,  maintain, fund or continue  Eurocurrency  Loans  or  to convert  Borrowings  of Base Rate  Loans to Eurocurrency Borrowings will be suspended until such Lender notifies the Agent and the  Borrowers that the circumstances giving rise to such determination no longer exist.  Upon receipt  of such notice, the Borrowers will upon demand from such Lender (with a copy to the Agent),  either prepay or convert all Euroccurency Borrowings of such Lender to Borrowings of Base Rate  Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue  to maintain such Eurocurrency Borrowings to such day, or immediately, if such Lender may not  lawfully  continue  to  maintain  such  Loans.   Upon  any  such  prepayment  or  conversion,  the  Borrowers will also pay accrued interest on the amount so prepaid or converted.               (c)   Notwithstanding  anything  to  the  contrary  herein  or  in  any  other  Loan  Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as  applicable, the Agent and the Borrowers may amend this Agreement to replace the LIBO Rate  with a Benchmark Replacement.  Any such amendment with respect to a Benchmark Transition  Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Agent has posted  such proposed amendment to all Lenders and the Borrower, so long as the Agent has not received,  by such time, written notice of objection to such proposed amendment from Lenders comprising  the Required Lenders; provided that, with respect to any proposed amendment containing any  SOFR-Based Rate, the Lenders shall be entitled to object only to the Benchmark Replacement  Adjustment contained therein.  Any such amendment with respect to an Early Opt-in Election will  become effective on the date that Lenders comprising the Required Lenders have delivered to the                                         64 





 






   Agent written notice that such Required Lenders accept such amendment.  No replacement of  LIBO  Rate  with  a  Benchmark  Replacement  will  occur  prior  to  the  applicable  Benchmark  Transition Start Date.               (d)   In connection with the implementation of a Benchmark Replacement, the  Agent will have the right to make Benchmark Replacement Conforming Changes from time to  time and, notwithstanding anything to the contrary herein or in any other Loan Document, any  amendments  implementing  such  Benchmark  Replacement  Conforming  Changes  will  become  effective without any further action or consent of any other party to this Agreement.               (e)   The Agent will promptly notify the Borrowers and the Lenders of (i) any  occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, (ii) the  implementation  of  any  Benchmark  Replacement,  (iii)  the  effectiveness  of  any  Benchmark  Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark  Unavailability Period.  Any determination, decision or election that may be made by the Agent or  Lenders pursuant to this Section 2.16, including any determination with respect to a tenor, rate or  adjustment  or  of  the  occurrence  or  non-occurrence  of  an  event,  circumstance  or  date  and  any  decision to take or refrain from taking any action, will be conclusive and binding absent manifest  error and may be made in its or their sole discretion and without consent from any other party  hereto, except, in each case, as expressly required pursuant to this Section 2.16.               (f)   Upon  the  Borrower’s  receipt  of  notice  of  the  commencement  of  a  Benchmark  Unavailability  Period,  (i)  any  notice  from  the  Parent  Borrower  to  the  Agent  in  accordance with Section 2.17 that requests the conversion of any Borrowing to, or continuation of  any  Borrowing  as,  a  Eurocurrency  Borrowing  shall  be  ineffective  and  any  such  Eurocurrency  Borrowing shall be repaid or converted into a Borrowing of Base Rate Loans on the last day of the  then  current  Interest  Period  applicable  thereto,  and  (ii)  if  any  Borrowing  Request  requests  a  Eurocurrency Borrowing, such Borrowing shall be made as a Borrowing of Base Rate Loans.         Section 2.17 Conversion and Continuation of Loans.          The Parent Borrower on behalf of the Borrowers shall have the right at any time,               (a)   on three (3) Business Days’ prior irrevocable notice to the Agent (which  notice, to be effective, must be received by the Agent not later than 11:00 a.m., New York City  time,  on  the  third  Business  Day  preceding  the  date  of  any  conversion),  (x)  to  convert  any  outstanding Borrowings of Base Rate Loans (but in no event Swingline Loans) to Borrowings of  Eurocurrency Loans or (y) to continue an outstanding Borrowing of Eurocurrency Loans for an  additional Interest Period, or               (b)   on same-day notice to the Agent (which notice, to be effective, must be  received by the Agent not later than 11:00 a.m., New York City time, on the date of any conversion  which must be a Business Day), to convert any outstanding Borrowings of Eurocurrency Loans to  a Borrowing of Base Rate Loans,   subject to the following:                                          65 





 






                     (i)   no  Borrowing  of  Loans  may  be  converted  into,  or  continued  as,        Eurocurrency Loans at any time when an Event of Default has occurred and is continuing        and the Agent or the Required Lenders have determined in its or their sole discretion not        to  permit  such  conversions,  and  any  Eurocurrency  Loans  that  cannot  be  continued  as        Eurocurrency Loans as a result shall, unless repaid, be converted to a Borrowing of Base        Rate Loans at the end of the Interest Period therefor;                     (ii)  if less than a full Borrowing of Loans is converted, such conversion        shall be made pro rata among the Lenders, as applicable, in accordance with the respective        principal  amounts  of  the  Loans  comprising  such  Borrowing  held  by  such  Lenders        immediately prior to such refinancing;                     (iii) the  aggregate  principal  amount  of  Loans  being  converted  into  or        continued  as  Eurocurrency  Loans  shall  be  in  an  integral  of  $1,000,000  and  at  least        $5,000,000;                     (iv)  the  Interest  Period  with  respect  to  a  Borrowing  of  Eurocurrency        Loans effected by a conversion or in respect to the Borrowing of Eurocurrency Loans being        continued  as  Eurocurrency  Loans  shall  commence  on  the  date  of  conversion  or  the        expiration of the current Interest Period applicable to such continuing Borrowing, as the        case may be;                     (v)   a Borrowing of Eurocurrency Loans may be converted only on the        last day of an Interest Period applicable thereto;                     (vi)  each  request  for  a  conversion  or  continuation  of  a  Borrowing  of        Eurocurrency Loans which fails to state an applicable Interest Period shall be deemed to        be a request for an Interest Period of one month; and                     (vii) no more than fifteen (15) Borrowings of Eurocurrency Loans may        be outstanding at any time.   If the Parent Borrower does not give notice to convert any Borrowing of Base Rate Loans, or does  not give notice to continue, or does not have the right to continue, any Borrowing as Eurocurrency  Loans, in each case as provided above, such Borrowing shall automatically be converted to, or  continued as, as applicable, a Borrowing of Base Rate Loans at the expiration of the then-current  Interest Period.  The Agent shall, after it receives notice from the Parent Borrower, promptly give  each Lender notice of any conversion, in whole or part, of any Loan made by such Lender.           Section 2.18 Payments Generally; Pro Rata Treatment; Sharing of Setoffs.                (a)   Payments  by  the  Borrowers.   The  Borrowers  shall  make  each  payment  required to be made by it hereunder or under any other Loan Document (whether of principal,  interest,  fees  or  reimbursement  of  LC  Disbursements,  or  of  amounts  payable  under  Section 2.22(b), Section 2.26 or Section 2.28, or otherwise) prior to 1:00 p.m., New York City  time, on the date when due, in immediately available funds, without setoff or counterclaim.  Any  amounts received after such time on any date may, in the discretion of the Agent, be deemed to  have  been  received  on  the  next  succeeding  Business  Day  for  purposes  of  calculating  interest                                         66 





 






   thereon.  All such payments shall be made to the Agent at its offices at 10 South Dearborn Street,  22nd  Floor,  Chicago,  Illinois,  except  payments  to  be  made  directly  to  an  Issuing  Lender  or  a  Swingline  Lender  as  expressly  provided  herein  and  except  that  payments  pursuant  to  Section 2.22(b), Section 2.26, Section 2.28  and Section 10.04  shall  be  made  directly  to  the  Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the  Persons specified therein.  The Agent shall distribute any such payments received by it for the  account of any other Person to the appropriate recipient promptly following receipt thereof.  If any  payment  under  any  Loan  Document  (other  than  payments  with  respect  to  Eurocurrency  Borrowings)  shall  be  due  on  a  day  that  is  not  a  Business  Day,  the  date  for  payment  shall  be  extended  to  the  next  succeeding  Business  Day,  and,  if  any  payment  due  with  respect  to  Eurocurrency Borrowings shall be due on a day that is not a Business Day, the date for payment  shall be extended to the next succeeding Business Day, unless that succeeding Business Day is in  the next calendar month, in which event, the date of such payment shall be on the last Business  Day of subject calendar month, and, in the case of any payment accruing interest, interest thereon  shall be payable for the period of such extension.  All payments under each Loan Document shall  be made in dollars.               (b)   Application of Insufficient Payments.  If at any time insufficient funds are  received by and available to the Agent to pay fully all amounts of principal, unreimbursed LC  Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay  all fees then due, and all costs and expenses then due or reimbursable, to the Agent, in its capacity  as such, under any Loan Document, (ii) second, to pay all principal and interest then due hereunder  in respect of the Swingline Loans, ratably between the Swingline Lenders in accordance with the  amounts of such principal and interest then due to the Swingline Lenders, (iii) third, to reimburse  all unreimbursed LC Disbursements and to pay all letter of credit fronting fees, if any, then due  hereunder, ratably between the Issuing Lenders entitled thereto in accordance with the amounts  thereof then due to the Issuing Lenders, (iv) fourth, to pay all other interest and other fees then due  hereunder,  ratably  among  the  parties  entitled  thereto  in  accordance  with  the  amounts  of  such  interest and fees then due to such parties, (v) fifth, to pay all other principal then due hereunder,  ratably among the parties entitled thereto in accordance with the amounts of such principal then  due to such parties, and (vi) sixth, to pay all other Obligations then due hereunder, ratably among  the parties entitled thereto in accordance with the amounts of such Obligations then due to such  parties.               (c)   Pro Rata Treatment.  Except to the extent otherwise provided herein (for the  avoidance of doubt, as this Agreement is in effect from time to time), including Sections 2.20(f)  and 2.31: (i) each payment of commitment fees under Section 2.12 and letter of credit fees under  Section 2.10 shall be made for the account of the Lenders, and each termination or reduction of  the  amount  of  the  Commitments  under Section 2.09  shall  be  applied  to  the  respective  Commitments of the Lenders, pro rata according to the amounts of their respective Commitments  (or, in the case of any such payment of commitment fees at a time when the Commitments shall  have  terminated  or  expired,  pro  rata  according  to  the  amounts  of  their  respective  Credit  Extensions); (ii) each Borrowing of Revolving Loans shall be allocated pro rata among the Lenders  according to the amounts of their respective Commitments (in the case of the making of Revolving  Loans)  or  their  respective  Loans  that  are  to  be  included  in  such  Borrowing  (in  the  case  of  conversions and continuations of Loans); (iii) each payment or prepayment of any Borrowing of  Revolving Loans shall be applied ratably to the Loans included in the repaid or prepaid Borrowing                                         67 





 






   of  Revolving  Loans;  (iv)  each  Swingline  Borrowing  shall  be  allocated  pro  rata  between  the  Swingline Lenders according to the amounts of their respective Swingline Commitments; (v) each  payment or prepayment of any Swingline Borrowing shall be applied ratably to the Swingline  Loans  included  in  the  repaid  or  prepaid  Swingline  Borrowing;  and  (vi)  each  payment  or  prepayment of any other Obligations shall be applied ratably to Bank Product Obligations included  in the repaid or prepaid other Obligations.               (d)   Sharing of Payments by Lenders.  If (i) any Lender shall, by exercising any  right  of  setoff  or  counterclaim  or  otherwise,  obtain  payment  in  respect  of  any  principal  of  or  interest on any of its Loans or participations in LC Disbursements or Swingline Loans resulting in  such Lender’s receiving payment of a greater proportion of the aggregate amount of its Loans and  accrued  interest  thereon  than  the  proportion  received  by  any  other  Lender,  then  the  Lender  receiving such greater proportion shall (A) notify the Administrative Agent of such fact and (B)  purchase  (for  cash  at  face  value)  participations  in  the  Loans  and  participations  in  LC  Disbursements and Swingline Loans of other Lenders, or make such other adjustments as shall be  equitable,  so  that  the  benefit  of  all  such  payments  shall  be  shared  by  the  Lenders  ratably  in  accordance with the aggregate amounts of principal of and accrued interest on their Loans and  participations in LC Disbursements and Swingline Loans or (ii) any Swingline Lender shall, by  exercising  any  right  of  setoff  or  counterclaim  or  otherwise,  obtain  payment  in  respect  of  any  principal of or interest on any of its Swingline Loans resulting in such Swingline Lender receiving  payment  of  a  greater  proportion  of  the  aggregate  amount  of  its  Swingline  Loans  and  accrued  interest thereon than the proportion received by the other Swingline Lender, then the Swingline  Lender receiving such greater proportion shall (A) notify the Administrative Agent and the other  Swingline  Lender  of  such  fact  and  (B)  purchase  (for  cash  at  face  value)  participations  in  the  Swingline Loans of the other Swingline Lender to the extent necessary so that the amount of all  such payments shall be shared by the Swingline Lenders ratably in accordance with the aggregate  amounts of principal of and accrued interest on their Swingline Loans, provided that:                     (i)   if any such participations are purchased and all or any portion of the        payment giving rise thereto is recovered, such participations shall be rescinded and the        purchase price restored to the extent of such recovery, without interest; and                     (ii)  the provisions of this paragraph shall not be construed to apply to        (x) any payment made by any Borrower pursuant to and in accordance with the express        terms of this Agreement (for the avoidance of doubt, as this Agreement is in effect from        time to time), including Sections 2.09(d) and 2.20(f), or (y) any payment obtained by a        Lender as consideration for the assignment of or sale of a participation in any of its Loans        or participations in LC Disbursements or Swingline Loans to any Eligible Assignee.   Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under  applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements  may  exercise  against  each  Borrower  rights  of  setoff  and  counterclaim  with  respect  to  such  participation as fully as if such Lender were a direct creditor of each Borrower in the amount of  such participation.               (e)   Payments by the Borrowers; Presumptions by the Agent.  Unless the Agent  shall have received notice from the Parent Borrower prior to the date on which any payment is due                                         68 





 






   to the Agent for the account of the Lenders or an Issuing Lender 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  such  Issuing  Lender,  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 such Issuing Lender,  as the case may be, severally agrees to repay to the Agent forthwith on demand the amount so  distributed to such Lender or such Issuing Lender with interest thereon, for each day from and  including the date such amount is distributed to it to but excluding the date of payment to the  Agent, at the greater of the NYFRB Rate and a rate determined by the Agent in accordance with  banking industry rules on interbank compensation.               (f)   Certain  Deductions  by  the  Agent.   If  any  Lender  shall  fail  to  make  any  payment required to be made by it hereunder to or for the account of the Agent, any Issuing Lender  or  any  Swingline  Lender,  then  the  Agent  may,  in  its  discretion  (notwithstanding  any  contrary  provision hereof), (i) apply any amounts thereafter received by the Agent for the account of such  Lender to satisfy such Lender’s obligations in respect of such payment until all such unsatisfied  obligations have been discharged or (ii) hold any such amounts in a segregated account as cash  collateral for, and application to, any future funding obligations of such Lender pursuant to this  Agreement  (including  pursuant  to Sections 2.03(b), 2.05(b), 2.06(e), 2.06(f), 2.18(e)  and  10.04(c)), in each case in such order as shall be determined by the Agent in its discretion.               (g)   Returned Payments.  If any item deposited to the JPMorgan Concentration  Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether  or not such return is rightful or timely, the Agent shall have the right to reverse such credit and  charge the amount of such item to the Loan Account and the Borrowers shall indemnify the Agent,  the Issuing Lenders and the Lenders against all claims and losses resulting from such dishonor or  return.  Without limiting the foregoing, the Agent may delay application of the items deposited in  the  JPMorgan  Concentration  Account  to  the  Obligations  until  the  Agent  has  received  a  reconciliation  of  Non-Borrower  Credit  Card  Proceeds  which  may  have  been  forwarded  to  the  JPMorgan Concentration Account.         Section 2.19 [Reserved]         Section 2.20 Extension Offers.               (a)   The Borrowers may at any time and from time to time request that all or a  portion of the Commitments of any Class, existing at the time of such request (each, an “Existing  Commitment” and any related revolving credit loans under any such facility, “Existing Loans”;  each Existing Commitment and related Existing Loans together being referred to as an “Existing  Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of  any payment of principal with respect to all or a portion of any principal amount of Existing Loans  related  to  such  Existing  Commitments  (any  such  Existing  Commitments  which  have  been  so  extended, “Extended Commitments” and any related revolving credit loans, “Extended Loans”)  and  to  provide  for  other  terms  consistent  with  this Section 2.20.   Prior  to  entering  into  any  Extension Amendment with respect to any Extended Commitments, the Parent Borrower shall  provide a notice to the Agent (who shall provide a copy of such notice to each of the Lenders of  the applicable Class of Existing Commitments and which such request shall be offered equally to                                         69 





 






   all  Lenders)  (an  “Extension  Request”)  setting  forth  the  proposed  terms  of  the  Extended  Commitments to be established thereunder, which terms shall be substantially similar to those  applicable  to  the  Existing  Commitments  from  which  they  are  to  be  extended  (the  “Specified  Existing  Commitment  Class”)  except  that  (w)  all  or  any  of  the  final  maturity  dates  of  such  Extended Commitments may be delayed to later dates than the final maturity dates of the Existing  Commitments  of  the  Specified  Existing  Commitment  Class,  (x)(i) the  interest  rates,  interest  margins, rate floors, upfront fees, funding discounts, original issue discounts and premiums with  respect to the Extended Commitments may be different from those for the Existing Commitments  of the Specified Existing Commitment Class and/or (ii) additional fees and/or premiums may be  payable to the Lenders providing such Extended Commitments in addition to or in lieu of any of  the  items  contemplated  by  the  preceding clause (i),  (y)(A) the  undrawn  revolving  credit  commitment fee rate with respect to the Extended Commitments may be different from such rate  for Existing Commitments of the Specified Existing Commitment Class and (B) the Extension  Amendment may provide for other covenants and terms that apply to any period after the Latest  Maturity  Date  in  effect  prior  to  the  Extension  Amendment;  provided  that,  notwithstanding  anything to the contrary in this Section 2.20 or otherwise, (1) the borrowing and repayment (other  than in connection with a permanent repayment and termination of commitments (which shall be  governed by clause (3) below)) of the Extended Loans under any Extended Commitments shall be  made  on  a  pro  rata  basis  with  any  borrowings  and  repayments  of  the  Existing  Loans  of  the  Specified Existing Commitment Class (the mechanics for which may be implemented through the  applicable Extension Amendment and may include technical changes related to the borrowing and  replacement  procedures  of  the  Specified  Existing  Commitment  Class),  (2) assignments  and  participations of Extended Commitments and Extended Loans shall be governed by the assignment  and participation provisions set forth in Section 10.06, (3) subject to the applicable limitations set  forth in Section 2.09, permanent repayments of Extended Loans (and corresponding permanent  reduction in the related Extended Commitments) shall be permitted as may be agreed between the  Parent Borrower and the Lenders thereof and (4) the Extension Amendment may provide for any  other  amendments  or  modifications  provided  such  other  amendments  or  modifications  are  consented  to by  the  requisite Lenders  in  accordance with Section 10.02 and Section 10.03, as  applicable.  No Lender shall have any obligation to agree to have any of its Loans or Commitments  of any Existing Class converted into Extended Loans or Extended Commitments pursuant to any  Extension  Request.   Any  Extended  Commitments  of  any  Extension  Series  shall  constitute  a  separate  Class  of  revolving  credit  commitments  from  Existing  Commitments  of  the  Specified  Existing Commitment Class and from any other Existing Commitments (together with any other  Extended Commitments so established on such date).               (b)   The Parent Borrower shall provide the applicable Extension Request at least  five  (5)  Business  Days  (or  such  shorter  period  as  the  Agent  may  determine  in  its  reasonable  discretion) prior to the date on which Lenders under the Existing Class are requested to respond,  and shall agree to such procedures, if any, as may be established by, or acceptable to, the Agent,  in each case acting reasonably, to accomplish the purpose of this Section 2.20.  Any Lender (an  “Extending Lender”) wishing to have all or a portion of its Commitments (or any earlier Extended  Commitments) of an Existing Class subject to such Extension Request converted into Extended  Commitments shall notify the Agent (an “Extension Election”) on or prior to the date specified  in  such  Extension  Request  of  the  amount  of  its  Commitments  (and/or  any  earlier  Extended  Commitments)  which  it  has  elected  to  convert  into  Extended  Commitments  (subject  to  any  minimum denomination requirements imposed by the Agent); provided that any Lender that does                                         70 





 






   not so advise the Parent Borrower shall be deemed to have rejected such Extension Request (any  such Lender which shall have rejected or is deemed to have rejected such extension being a “Non- Extending Lender”).  In the event that the aggregate amount of Commitments (and any earlier  Extended  Commitments)  subject  to  Extension  Elections  exceeds  the  amount  of  Extended  Commitments requested pursuant to the Extension Request, Commitments and (and any earlier  Extended  Commitments)  subject  to  Extension  Elections  shall  be  converted  to  Extended  Commitments on a pro rata basis based on the amount of Commitments (and any earlier Extended  Commitments) included in each such Extension Election or as may be otherwise agreed to in the  applicable Extension Amendment.  Notwithstanding the conversion of any Existing Commitment  into  an  Extended  Commitment,  such  Extended  Commitment  shall  be  treated  identically  to  all  Existing  Commitments  of  the  Specified  Existing  Commitment  Class  for  purposes  of  the  obligations of a Lender in respect of Swingline Loans under Section 2.05 and Letters of Credit  under Section 2.06,  except  that  the  applicable  Extension  Amendment  may  provide  that  the  Swingline Maturity Date and/or the last day for issuing Letters of Credit may be extended and the  related  obligations  to  make  Swingline  Loans  and  issue  Letters  of  Credit  may  be  continued  (pursuant to mechanics to be specified in the applicable Extension Amendment) so long as the  applicable Swingline Lender and/or the applicable Issuing Lender, as applicable, have consented  to such extensions (it being understood that no consent of any other Lender shall be required in  connection with any such extension).               (c)   Extended Commitments shall be established pursuant to an amendment (an  “Extension Amendment”) to this Agreement (which, notwithstanding anything to the contrary  set forth in Section 10.02 and Section 10.03, as applicable, shall not require the consent of any  Lender other than the Extending Lenders with respect to the Extended Commitments established  thereby) executed by the Borrowers, the Agent and the Extending Lenders.  It is understood and  agreed that each Lender hereunder has consented, and shall at the effective time thereof be deemed  to consent to each amendment to this Agreement and the other Loan Documents authorized by this  Section 2.20  and  the  arrangements  described  above  in  connection  therewith.   No  Extension  Amendment shall provide for any tranche of Extended Commitments in an aggregate principal  amount  that  is  less  than  $200,000,000.   Notwithstanding  anything  to  the  contrary  in  this  Section 2.20(c)  and  without  limiting  the  generality  or  applicability  of Section 10.02  and  Section 10.03, as applicable, to any Section 2.20 Additional Amendments (as defined below), any  Extension Amendment may provide for additional terms and/or additional amendments other than  those  referred  to  or  contemplated  above  (any  such  additional  amendment,  a  “Section 2.20  Additional Amendment”) to this Agreement and the other Loan Documents; provided that such  Section 2.20 Additional Amendments are within the requirements of Section 2.20(a) and do not  become  effective  prior  to  the  time  that  such  Section 2.20  Additional  Amendments  have  been  consented  to  (including,  without  limitation,  pursuant  to  consents  applicable  to  holders  of  any  Extended Loans provided for in any Extension Amendment) by such of the Lenders, Borrowers  and  other  parties  (if  any)  as  may  be  required  in  order  for  such  Section 2.20  Additional  Amendments  to  become  effective  in  accordance  with Section 10.02  and Section 10.03,  as  applicable.               (d)   Notwithstanding anything to the contrary contained in this Agreement, (A)  on  any  date  on  which  any  Class  of  Existing  Commitments  is  converted  to  extend  the  related  scheduled maturity date(s) in accordance with paragraph (a) above (an “Extension Date”), in the  case  of  the  Existing  Commitments  of  each  Extending  Lender  under  any  Specified  Existing                                         71 





 






   Commitment  Class,  the  aggregate  principal  amount  of  such  Existing  Commitments  shall  be  deemed reduced by an amount equal to the aggregate principal amount of Extended Commitments  so converted by such Lender on such date, and such Extended Commitments shall be established  as a separate Class of revolving credit commitments from the Specified Existing Commitment  Class and from any other Existing Commitments (together with any other Extended Commitments  so  established  on  such  date)  and  (B)  if,  on  any  Extension  Date,  any  Existing  Loans  of  any  Extending Lender are outstanding under the Specified Existing Commitment Class, such Existing  Loans (and any related participations) shall be deemed to be allocated as Extended Loans (and  related  participations)  in  the  same  proportion  as  such  Extending  Lender’s  Specified  Existing  Commitments  to  Extended  Commitments.   Promptly  following  each  Extension  Date,  the  Borrowers,  at  the  request  of  any  Extending  Lender,  will  deliver  to  such  Lender  a  new  or  replacement Note or Notes, conforming to the requirements of Section 2.08(a) but modified to  reflect  the  changes  to  such  Lender’s  Existing  Commitment  or  Extended  Commitment,  as  applicable. Upon receipt of any replacement Note or Notes hereunder the relevant Lender shall  cancel and return to the Borrowers each replaced Note held by such Lender.               (e)   No  exchange  of  Loans  or  Commitments  pursuant  to  any  Extension  Amendment  in  accordance  with  this Section 2.20  shall  constitute  a  voluntary  or  mandatory  payment or prepayment for purposes of this Agreement.               (f)   Notwithstanding anything to the contrary contained in this Agreement, (i)  with  respect  to  any  Non-Extending  Lender,  the  Maturity  Date  for  such  Lender  shall  remain  unchanged (and the Commitment of such Lender shall terminate, the Loans made by such Lender  to the Borrowers hereunder shall mature and be payable by the Borrowers, and all other amounts  owing to such Non-Extending Lender hereunder shall be payable, on such date), and on such date  the Borrowers shall also make such other prepayments of Loans as shall be required in order that,  after  giving  effect  to  the  termination  of  the  Commitments  of,  and  all  payments  to,  the  Non- Extending  Lenders  pursuant  to  this  sentence,  the  Credit  Extensions  will  not  exceed  the  Commitments  and  (ii)  the  “Maturity  Date”  (without  taking  into  consideration  any  extension  pursuant to this Section 2.20), as such terms are used in reference to any Issuing Lender or any  Letters of Credit issued by such Issuing Lender or any Swingline Lender or any Swingline Loan  made by such Swingline Lender, may not be extended without the prior written consent of such  Issuing Lender and such Swingline Lender, as applicable (it being understood and agreed that, in  the event any Issuing Lender or Swingline Lender shall not have consented to any such extension,  (i) such Issuing Lender or Swingline Lender, as applicable, shall continue to have all the rights  and obligations of an Issuing Lender or a Swingline Lender, as applicable, hereunder through the  Maturity Date for such Issuing Lender or Swingline Lender, and thereafter shall have no obligation  to make any Swingline Loans or to issue, amend, extend or renew any Letter of Credit (but shall,  in each case, continue to be entitled to the benefits of Sections 2.05, 2.06, 2.13, 2.26, 2.28, 10.04  and 10.11, as applicable as to Letters of Credit or Swingline Loans issued or made prior to such  time), and (ii) the Borrowers shall cause the Letter of Credit Outstandings attributable to Letters  of Credit issued by such Issuing Lender and the Swingline Exposure attributable to Swingline  Loans made by such Swingline Lender to be zero no later than the day on which such Letter of  Credit Outstandings or Swingline Exposure, as applicable, would have been required to have been  reduced to zero in accordance with the terms hereof without giving effect to any effectiveness of  the extension of the applicable Maturity Date pursuant to this Section).                                          72 





 






         Section 2.21 Mandatory Prepayment; Cash Collateral.          The outstanding Obligations shall be subject to mandatory prepayment as follows:               (a)   If at any time the amount of the Credit Extensions exceeds the lower of (i)  the then amount of the Total Commitment, and (ii) the then amount of the Borrowing Base, the  Borrowers  will  immediately  upon  notice  from  the  Agent  (A)  prepay  the  Loans  in  an  amount  necessary to eliminate such excess, and (B) if, after giving effect to the prepayment in full of all  outstanding  Loans  such  excess  has  not  been  eliminated,  deposit  cash  into  the  Cash  Collateral  Account  in  an  amount  equal  to  the  difference  between  (1)  103%  of  the  Letters  of  Credit  Outstanding, and (2) the lower of (x) the amount of the then Total Commitment, and (y) the then  amount of the Borrowing Base.               (b)   To the extent required pursuant to Section 2.24(c)(ii), the Revolving Loans  shall be repaid daily in accordance with the provisions of said Section 2.24(c)(ii).               (c)   If, as of the close of business on any day on which (i) the Parent Borrower  delivers a Borrowing Base Certificate to the Agent pursuant to Section 6.01(e) or (ii) a Revolving  Loan is made or a Letter of Credit is issued, amended, renewed or extended, the Consolidated Cash  Balance after giving pro forma effect to (x) the Borrowing Base calculated by such Borrowing  Base Certificate but prior to giving effect to any payment required to be made by the Borrowers  pursuant to Section 2.21(a) above and (y) such Credit Extension after giving effect to the use of  proceeds  thereof,  in  each  case,  as  applicable,  would  exceed  the  Consolidated  Cash  Balance  Threshold,  then  the  Borrowers  shall  within  five  (5)  Business  Days  after  such  date  prepay  the  Revolving Loans in an amount equal to the amount of Excess Cash as of such date of payment  after  giving  effect  to  any  payment  required  to  be  made  by  the  Borrowers  pursuant  to  Section 2.21(a) above, if any, and any use of proceeds from such Credit Extension to be made  contemporaneously therewith.                (d)   Subject  to  the  foregoing,  outstanding  Base  Rate  Loans  shall  be  prepaid  before outstanding Eurocurrency Loans are prepaid.  Each partial prepayment of Eurocurrency  Loans shall be in an integral multiple of $1,000,000.  If any prepayment of Eurocurrency Loans is  made  other  than  on  the  last  day  of  an  Interest  Period  applicable  thereto,  the  Borrowers  shall  reimburse  the  Lenders  for all  “Breakage Costs”  (as  defined  in Section 2.22 below) associated  therewith.  In order to avoid such Breakage Costs, as long as no Event of Default has occurred and  is continuing, at the request of the Parent Borrower, the Agent shall hold all amounts required to  be applied to Eurocurrency Loans in the Cash Collateral Account and will apply such funds to the  applicable Eurocurrency Loans at the end of the then pending Interest Period therefor (provided  that  the  foregoing  shall  in  no  way  limit  or  restrict  the  Agent’s  rights  upon  the  subsequent  occurrence of an Event of Default).  No partial prepayment of a Borrowing of Eurocurrency Loans  pursuant to this Section 2.21 shall result in the aggregate principal amount of the Eurocurrency  Loans remaining outstanding pursuant to such Borrowing being less than $10,000,000 (unless all  such outstanding Eurocurrency Loans are being prepaid in full).  Any prepayment of the Revolving  Loans shall not permanently reduce the Commitments.                                          73 





 






               (e)   All  amounts  required  to  be  applied  to  all  Loans  hereunder  (other  than  Swingline  Loans)  shall  be  applied  ratably  in  accordance  with  each  Lender’s  Commitment  Percentage.               (f)   Upon  the  Termination  Date  applicable  to  a  Class  of  Commitments,  the  Commitments of such Class shall be terminated in full and the Borrowers shall pay, in full and in  cash, all outstanding Loans of such Class.         Section 2.22 Optional Prepayment of Loans; Reimbursement of Lenders.                (a)   The Borrowers shall have the right at any time and from time to time to  prepay outstanding Loans in whole or in part, (x) with respect to Eurocurrency Loans, upon at least  two (2) Business Days’ prior written, telex or facsimile (or other electronic transmission) notice to  the Agent prior to 11:00 a.m., New York City time, and (y) with respect to Base Rate Loans, on  the same Business Day if written, telex or facsimile (or other electronic transmission) notice is  received by the Agent prior to 1:00 p.m., New York City time, subject to the following limitations:                     (i)   Subject to Section 2.18, all prepayments shall be paid to the Agent        for application, first, to the prepayment of outstanding Swingline Loans, and second, to the        prepayment  of  other  outstanding  Loans  ratably  in  accordance  with  each  Lender’s        Commitment Percentage.                     (ii)  Subject  to  the  foregoing,  outstanding  Base  Rate  Loans  shall  be        prepaid before outstanding Eurocurrency Loans are prepaid.  Each partial prepayment of        Eurocurrency Loans shall be in an integral multiple of $1,000,000.  If any prepayment of        Eurocurrency Loans is made other than on the last day of an Interest Period applicable        thereto, the Borrowers shall reimburse the Lenders for all “Breakage Costs” (as defined        below) associated therewith.  No partial prepayment of a Borrowing of Eurocurrency Loans        pursuant  to  this Section 2.22  shall  result  in  the  aggregate  principal  amount  of  the        Eurocurrency Loans remaining outstanding pursuant to such Borrowing being less than        $10,000,000 (unless all such outstanding Eurocurrency Loans are being prepaid in full).                     (iii) Each notice of prepayment shall specify the prepayment date, the        principal amount and Type of the Loans to be prepaid and, in the case of Eurocurrency        Loans,  the Borrowing or Borrowings  pursuant  to  which  such  Loans  were  made.   Each        notice of prepayment shall be irrevocable and shall commit the Borrowers to prepay such        Loan  by  the  amount  and  on  the  date  stated  therein.   The  Agent  shall,  promptly  after        receiving notice from the Borrowers hereunder, notify each Lender of the principal amount        and Type of the Loans held by such Lender which are to be prepaid, the prepayment date        and the manner of application of the prepayment.               (b)   The  Borrowers  shall  reimburse  each  Lender  on  demand  for  any  loss  incurred or to be incurred by it in the reemployment of the funds released (i) resulting from any  prepayment (for any reason whatsoever, including, without limitation, conversion to Base Rate  Loans  or  acceleration  by  virtue  of,  and  after,  the  occurrence  of  an  Event  of  Default)  of  any  Eurocurrency Loan required or permitted under this Agreement, if such Loan is prepaid other than  on the last day of the Interest Period for such Loan or (ii) in the event that after the Parent Borrower                                         74 





 






   delivers a notice of borrowing under Section 2.03 in respect of Eurocurrency Loans, such Loans  are not borrowed on the first day of the Interest Period specified in such notice of borrowing for  any reason.  Such loss shall be the amount as reasonably determined by such Lender as the excess,  if any, of (A) the amount of interest which would have accrued to such Lender on the amount so  paid or not borrowed at a rate of interest equal to the Adjusted LIBO Rate for such Loan, for the  period from the date of such payment or failure to borrow to the last day (x) in the case of a  payment or refinancing of a Eurocurrency Loan other than on the last day of the Interest Period  for such Loan, of the then current Interest Period for such Loan or (y) in the case of such failure to  borrow, of the Interest Period for such Eurocurrency Loan which would have commenced on the  date of such failure to borrow, over (B) the amount of interest which would have accrued to such  Lender on such amount by placing such amount on deposit for a comparable period with leading  banks in the London interbank market (collectively, “Breakage Costs”).  Any Lender demanding  reimbursement  for  such  loss  shall  deliver  to  the  Borrowers  from  time  to  time  one  or  more  certificates setting forth the amount of such loss as determined by such Lender and setting forth in  reasonable  detail  the  manner  in  which  such  amount  was  determined,  such  certificates  to  be  substantially in the form of Exhibit E hereto.               (c)   In the event the Borrowers fail to prepay any Loan on the date specified in  any prepayment notice delivered pursuant to Section 2.22(a), the Borrowers on demand by any  Lender shall pay to the Agent for the account of such Lender any amounts required to compensate  such Lender for any actual loss incurred by such Lender as a  result of such failure to prepay,  including, without limitation, any loss, cost or expenses incurred by reason of the acquisition of  deposits or other funds by such Lender to fulfill deposit obligations incurred in anticipation of such  prepayment.  Any Lender demanding such payment shall deliver to the Borrowers from time to  time one or more certificates setting forth the amount of such loss as determined by such Lender  and setting  forth  in reasonable detail  the  manner in  which  such  amount  was  determined, such  certificates to be substantially in the form of Exhibit E hereto.               (d)   Whenever any partial prepayment of Loans of a particular Class are to be  applied to Eurocurrency Loans of such Class, such Eurocurrency Loans shall be prepaid in the  chronological order of their Interest Payment Dates.   Notwithstanding the foregoing (and as provided in clause (1) of the proviso to Section 2.20(a)),  the Borrowers may not optionally prepay Extended Loans of any Extension Series unless such  prepayment is accompanied by a pro rata repayment of Existing Loans of the Specified Existing  Commitment  Class  of  the  Existing  Class  from  which  such  Extended  Loans  and  Extended  Commitments  were  converted  (or  such  Loans  and  Commitments  of  the  Existing  Class  have  otherwise been repaid and terminated in full).         Section 2.23 Maintenance of Loan Account; Statements of Account.                (a)   The  Agent  shall  maintain  an  account  on  its  books  in  the  name  of  the  Borrowers  (the  “Loan  Account”) which  will  reflect  (i)  all  Loans  made by the Lenders  to  the  Borrowers or for the Borrowers’ account, (ii) all LC Disbursements, fees and interest that have  become payable as set forth herein, and (iii) any and all other monetary Obligations that have  become payable.                                          75 





 






               (b)   The Loan Account will be credited with all amounts received by the Agent  from the Borrowers, including all amounts received in the JPMorgan Concentration Account from  the  Blocked  Account  Banks,  and  the  amounts  so  credited  shall  be  applied  as  set  forth  in  Section 2.18(b).  After the end of each month, the Agent shall send to the Borrowers a statement  accounting for the charges, loans, advances and other transactions occurring among and between  the Agent, the Lenders and the Borrowers during that month.  The monthly statements shall, absent  manifest error, be an account stated, which is final, conclusive and binding on the Borrowers.         Section 2.24 Cash Receipts.                (a)   Annexed hereto as Schedule 2.24(a) is a list of all DDAs as of the Second  Amendment Effective Date, which Schedule includes, with respect to each Depository and DDA,  as applicable, (i) the name and address of that Depository; (ii) the account number(s) maintained  with  such  Depository;  (iii)  to  the  extent  known,  a  contact  person  at  such  Depository  and  (iv)  indicating whether both a duly completed and executed DDA Notification and a Blocked Account  Agreement satisfying the requirements of Section 2.24(c) have been delivered to the Agent prior  to  the  Second  Amendment  Effective  Date  for  such  DDA,  and  if  so  completed  and  delivered,  identifying such DDA Notification and such Blocked Account Agreement for such DDA (each  such DDA, an “Existing Blocked Account”).               (b)   Annexed hereto as Schedule 2.24(b) is a list (i) describing all arrangements  to which any Borrower is a party as of the Second Amendment Effective Date with respect to the  payment to any Borrower of the proceeds of all credit card charges for sales by any Borrower and  (ii)  indicating  whether  a  duly  completed  and  executed  Credit  Card  Notification  satisfying  the  requirements of Section 2.24(c) has been delivered to the Agent prior to the Second Amendment  Effective Date for such arrangement, and if so completed and delivered, identifying such Credit  Card Notification (each such Credit Card Notification, an “Existing Credit Card Notification”).               (c)   (i) (x) Within ninety (90) days (as such date may be extended by the Agent  in its sole discretion) after the Second Amendment Effective Date, (A) the Borrowers shall deliver  to the Agent notifications executed on behalf of the Borrowers to each Depository with which any  DDA  is  maintained  by  the  Borrowers  (other  than  an  Existing  Blocked  Account)  in  form  satisfactory to the Agent, of the Agent’s interest in such DDA (each, a “DDA Notification”), and  (B) the Borrowers shall either (1) enter into agency agreements with the Depositories maintaining  the deposit accounts or other accounts identified on Schedule 2.24(a) that maintain a DDA (other  than an Existing Blocked Account) (collectively, the “New Blocked Accounts”, and collectively  with the Existing Blocked Accounts, the “Blocked Accounts”), which agreements (the “Blocked  Account Agreements”) shall be in form and substance reasonably satisfactory to the Agent, or (2)  if  the  Borrowers  are  unable  to  enter  into  Blocked  Account  Agreements  in  form  reasonably  satisfactory  to  the  Agent  with  any  of  the  Depositories  identified  on  Schedule  2.24(a),  the  Borrowers shall (I) provide the Agent with evidence, reasonably satisfactory to the Agent, that the  Borrowers have closed the deposit accounts maintained with such banks, (II) establish new deposit  accounts or other accounts (the “Replacement Deposit Accounts”) with a different Depository  (the  “Replacement  Institution”),  (III)  enter  into  a  Blocked  Account  Agreement  in  form  and  substance reasonably satisfactory to the Agent with each Replacement Institution and the Agent  with respect to the Replacement Deposit Accounts, and (IV) in connection with the foregoing,  provide the Agent with an amended Schedule 2.24(a) reflecting the removal of the closed deposit                                         76 





 






   accounts and the addition of the Replacement Deposit Accounts, and (y) within ninety (90) days  (as such date may be extended by the Agent in its sole discretion) after the Second Amendment  Effective  Date,  the  Borrowers  shall  deliver  to  the  Agent  notifications  (the  “Credit  Card  Notifications”) executed on behalf of the Subsidiary Borrowers to each of their major credit card  processors that has not delivered an Existing Credit Card Notification instructing such credit card  processors to remit proceeds of all credit card charges to a Blocked Account with JPMorgan that  is reasonably acceptable to the Parent Borrower and the Agent (the “Parent Borrower Blocked  Account”), which Parent Borrower Blocked Account is subject to the Parent Borrower Blocked  Account Agreement.                     (ii)  The  DDA  Notifications  shall  require,  after  the  occurrence  and  during the continuance of an Event of Default or Cash Control Event, the sweep on each Business  Day of all available cash receipts and other proceeds from the sale of Inventory, including, without  limitation, the  proceeds  of  all credit  card  charges  (all  such  cash  receipts  and proceeds,  “Cash  Receipts”), to a concentration account maintained by the Agent at JPMorgan and designated by  the Agent for such purpose (the “JPMorgan Concentration Account”).  The Blocked Account  Agreements (including, without limitation, the Blocked Account Agreement with respect to the  Parent Borrower Blocked Account) shall require, after the occurrence and during the continuance  of an Event of Default or Cash Control Event, the sweep on each Business Day of all cash and  other amounts, including, without limitation, all Cash Receipts, held in such Blocked Account to  the JPMorgan Concentration Account.               (d)   The  Borrowers  shall  cause  all  Cash  Receipts  from  the  sale  of  each  Subsidiary  Borrower’s  Inventory to  be  directly  deposited  into  a  Blocked  Account  subject  to a  Blocked Account Agreement.               (e)   The Borrowers  may close DDAs  or Blocked Accounts  and/or  open  new  DDAs or Blocked Accounts, subject to the execution and delivery to the Agent of appropriate  DDA  Notifications  or  Blocked  Account  Agreements  consistent  with  the  provisions  of  this  Section 2.24 and Section 6.13(d).  Within thirty (30) days (or such longer period as the Agent may  reasonably agree) of any Borrower entering into any agreement with credit card processors, such  Borrower must execute and deliver a Credit Card Notification to the Agent.               (f)   The JPMorgan Concentration Account is, and shall remain, under the sole  dominion  and  control  of  the  Agent.   Each  Borrower  acknowledges  and  agrees  that  (i)  such  Borrower has no right of withdrawal from the JPMorgan Concentration Account, (ii) the funds on  deposit in the JPMorgan Concentration Account shall continue to be collateral security for all of  the Obligations and (iii) the funds on deposit in the JPMorgan Concentration Account shall be  applied as provided in Section 2.18(b).               (g)   So long as (i) no Event of Default has occurred and is continuing, and (ii)  no Cash Control Event has occurred and is continuing, the Borrowers may direct, and shall have  sole  control  over,  the  manner  of  disposition  of  its  funds  in  the  DDA  Accounts  and  Blocked  Accounts.  After the occurrence and during the continuation of an Event of Default or Cash Control  Event,  the  Borrowers  shall  cause  the  ACH  or  wire  transfer  to  a  Blocked  Account  or  to  the  JPMorgan Concentration Account, no less frequently than daily (and whether or not there is then  an  outstanding  balance  in  the  Loan  Account,  unless  the  Commitments  have  been  terminated                                         77 





 






   hereunder and the Obligations have been Paid in Full) of the then contents of each DDA, each such  transfer  to  be  net  of  any  minimum  balance,  not  to  exceed  $10,000,  as  may  be  required  to  be  maintained in the subject DDA by the bank at which such DDA is maintained, and, in connection  with each such transfer, the Borrowers shall also provide the Agent with an accounting of the  contents  of  each  DDA  which  shall  identify,  to  the  satisfaction  of  the  Agent,  the  Other  Store  Proceeds.  Upon the receipt of (x) the contents of each such DDA, and (y) such accounting, the  Agent agrees to promptly remit to the Borrowers the Other Store Proceeds received by the Agent  for such day.         Further,  whether  or  not  any  Obligations  are  then  outstanding,  after  the  occurrence  and  during the continuation of an Event of Default or Cash Control Event, the Borrowers shall cause  the ACH or wire transfer to the JPMorgan Concentration Account, no less frequently than daily,  of the then entire ledger balance of each Blocked Account (including, without limitation, the Parent  Borrower Blocked Account), net of such minimum balance, not to exceed $10,000, as may be  required to be maintained in the subject Blocked Account by the bank at which such Blocked  Account  is  maintained.   In  addition  to  the  foregoing,  unless  and  until  the  Borrowers  have  established procedures with their credit card processors to deposit the Non-Borrower Credit Card  Proceeds to an account, other than the Parent Borrower Blocked Account, which is not subject to  the Lien of the Agent, the Borrowers shall, in connection with the transfer of the ledger balance of  the Parent Borrower Blocked Account, net of the permitted balance, provide the Agent with an  accounting of the contents of the Parent Borrower Blocked Account, which shall identify, to the  satisfaction of the Agent, the Non-Borrower Credit Card Proceeds.  Upon the receipt of (x) the  contents of the Parent Borrower Blocked Account, and (y) such accounting, the Agent agrees to  promptly remit to the Borrowers the Non-Borrower Credit Card Proceeds received by the Agent  for such day.         In the event that, notwithstanding the provisions of this Section 2.24, after the occurrence  of an Event of Default or Cash Control Event, the Borrowers receive or otherwise have dominion  and control of any such proceeds or collections, such proceeds and collections shall be held in trust  by the Borrowers for the Agent and shall not be commingled with any of the Borrowers’ other  funds or deposited in any account of any Borrower other than as instructed by the Agent.         Effective upon notice to the Parent Borrower from the Agent, after the occurrence and  during  the  continuation  of  a  Cash  Control  Event  or  an  Event  of  Default  (including,  without  limitation, the failure  of the Borrowers  to comply with  the provisions  of this Section 2.24(g))  (which notice may be given by telephone if promptly confirmed in writing), (i) the Agent may, at  any  time  thereafter,  deliver  the  DDA  Notifications  and  the  Credit  Card  Notifications  to  the  addressees  thereof,  and  (ii)  the  DDA  Accounts,  Blocked  Accounts  and  the  JPMorgan  Concentration Account will, without any further action on the part of any Borrower or the Agent  convert into a closed  account under the exclusive dominion and control of the Agent in which  funds are held subject to the rights of the Agent hereunder.  In such event, all amounts in the  JPMorgan  Concentration  Account  (other  than  Non-Borrower  Credit  Card  Proceeds  and  Other  Store Proceeds) from time to time may be applied to the Obligations in such order and manner as  provided in Section 2.18(b) hereof.         Section 2.25 [Reserved].                                           78 





 






         Section 2.26 Increased Costs.                (a)   If any Change in Law shall:                     (i)   impose, modify or deem applicable any reserve, special deposit or        similar  requirement  (including  any  compulsory  loan  requirement  or  insurance  charge)        against assets of, deposits with or for the account of, or credit extended by, any Lender or        any holding company of any Lender (except any such reserve requirement reflected in the        Adjusted LIBO Rate) or any Issuing Lender; or                     (ii)  subject  any  Recipient  to  any  Taxes  (other  than  (A)  Indemnified        Taxes, (B) Other Taxes and (C) Excluded Taxes) of any kind whatsoever with respect to        its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits,        reserves, other liabilities or capital attributable thereto; or                     (iii) impose  on  any  Lender  or  any  Issuing  Lender  or  the  London        interbank market any other condition, cost or expense affecting this Agreement or Loans        made by such Lender or any Letter of Credit or participation therein;   and the result of any of the foregoing shall be to increase the cost to such Lender or such other  Recipient  of  making,  continuing,  converting  or  maintaining  any  Loan  (or  of  maintaining  its  obligation to make any such Loan) or to increase the cost to such Lender, an Issuing Lender or  such other Recipient of participating in, issuing or maintaining any Letter of Credit or to reduce  the amount of any sum received or receivable by such Lender, such Issuing Lender or such other  Recipient hereunder (whether of principal, interest or otherwise) other than Taxes which shall be  governed by Section 2.28 hereof, then the Borrowers will pay to such Lender, such Issuing Lender  or such other Recipient, as the case may be, such additional amount or amounts as will compensate  such Lender, such Issuing Lender or such other Recipient, as the case may be, for such additional  costs incurred or reduction suffered.               (b)   If any Lender or any Issuing Lender determines that any Change in Law  regarding capital or liquidity requirements has or would have the effect of reducing the rate of  return on such Lender’s or such Issuing Lender’s capital or on the capital of such Lender’s or such  Issuing Lender’s holding company, if any, as a consequence of this Agreement, the Commitments  of, or the Loans made by, or participations in Letters of Credit or Swingline Loans held by, such  Lender, or the Letters of Credit issued by such Issuing Lender, to a level below that which such  Lender or such Issuing Lender or such Lender’s or such Issuing Lender’s holding company could  have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing  Lender’s policies and the policies of such Lender’s or such Issuing Lender’s holding company  with respect to capital adequacy and liquidity), then from time to time the Borrowers will pay to  such Lender or such Issuing Lender, as the case may be, such additional amount or amounts as  will compensate such Lender or such Issuing Lender or such Lender’s or such Issuing Lender’s  holding company for any such reduction suffered.               (c)   A certificate of a Lender or an Issuing Lender setting forth the amount or  amounts necessary to compensate such Lender or such Issuing Lender or its holding company, as  the case may be, as specified in paragraph (a) or (b) of this Section and setting forth in reasonable                                         79 





 






   detail the manner in which such amount or amounts were determined shall be delivered to the  Parent Borrower and shall be conclusive absent manifest error.  The Borrowers shall pay such  Lender or such Issuing Lender, as the case may be, the amount shown as due on any such certificate  within ten (10) days after receipt thereof.               (d)   Failure or delay on the part of any Lender or the Issuing Lender to demand  compensation pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing  Lender’s right to demand such compensation; provided that the Borrowers shall not be required to  compensate a Lender or the Issuing Lender pursuant to this Section for any increased costs or  reductions incurred more than 180 days prior to the date that such Lender or the Issuing Lender,  as the case may be, notifies the Parent Borrower of the Change in Law giving rise to such increased  costs or reductions and of such Lender’s or the Issuing Lender’s intention to claim compensation  therefor;  provided  further  that,  if  the  Change  in  Law  giving  rise  to  such  increased  costs  or  reductions is retroactive, then the 180-day period referred to above shall be extended to include  the period of retroactive effect thereof.         Section 2.27 Change in Legality.                (a)   Notwithstanding  anything  to  the  contrary  contained  elsewhere  in  this  Agreement, if (x) any Change in Law shall make it unlawful for a Lender or its applicable lending  office to make or maintain a Eurocurrency Loan or to give effect to its obligations as contemplated  hereby with respect to a Eurocurrency Loan or (y) at any time any Lender determines that the  making or continuance of any of its Eurocurrency Loans has become impracticable as a result of  a contingency occurring after the Second Amendment Effective Date which adversely affects the  London interbank market or the position of such Lender in the London interbank market, then, by  written notice to the Parent Borrower, such Lender may (i) declare that Eurocurrency Loans will  not thereafter be made by such Lender hereunder, whereupon any request by the Borrowers for a  Eurocurrency Borrowing shall, as to such Lender only, be deemed a request for a Base Rate Loan  unless  such  declaration  shall  be  subsequently  withdrawn;  and  (ii) require  that  all  outstanding  Eurocurrency  Loans  made  by  it  be  converted  to  Base  Rate  Loans,  in  which  event  all  such  Eurocurrency Loans shall be automatically converted to Base Rate Loans as of the effective date  of such notice as provided in paragraph (b) below.  In the event any Lender shall exercise its  rights under clause (i) or (ii) of this paragraph (a), all payments and prepayments of principal  which would otherwise have been applied to repay the Eurocurrency Loans that would have been  made by such Lender or the converted Eurocurrency Loans of such Lender shall instead be applied  to repay the Base Rate Loans made by such Lender in lieu of, or resulting from the conversion of,  such Eurocurrency Loans.               (b)   For purposes of this Section 2.27, a notice to the Borrowers by any Lender  pursuant to paragraph (a) above shall be effective, if lawful, and if any Eurocurrency Loans shall  then be outstanding, on the last day of the then-current Interest Period; and otherwise such notice  shall be effective on the date of receipt by the Borrowers.         Section 2.28 Withholding of Taxes; Gross-Up.                (a)   Payments Free of Taxes.  Any and all payments by or on account of any  obligation  of  any  Borrower  under  any  Loan  Document  shall  be  made  without  deduction  or                                         80 





 






   withholding  for  any  Taxes,  except  as  required  by  applicable  law.   If  any  applicable  law  (as  determined in the good faith discretion of an applicable withholding agent) requires the deduction  or withholding of any Tax from any such payment by a withholding agent, then the applicable  withholding agent shall be entitled to make such deduction or withholding and shall timely pay  the full amount deducted or withheld to the relevant Governmental Authority in accordance with  applicable law and, if such Tax is an Indemnified Tax, then the sum payable by any Borrower shall  be increased as necessary so that after such deduction or withholding has been made (including  such deductions and withholdings applicable to additional sums payable under this Section 2.28)  the applicable Recipient receives an amount equal to the sum it would have received had no such  deduction or withholding been made.               (b)   Payment of Other Taxes by the Borrowers.  The Borrowers shall timely pay  to the relevant Governmental Authority in accordance with applicable law, or at the option of the  Agent timely reimburse it for, Other Taxes.               (c)   Evidence of Payment.  As soon as practicable after any payment of Taxes  by any Borrower to a Governmental Authority pursuant to this Section 2.28, such 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.               (d)   Indemnification  by  the  Borrowers.   The  Borrowers  shall  jointly  and  severally indemnify each Recipient, within ten (10) days after demand therefor, for the full amount  of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to  amounts payable under this Section) payable or paid by such Recipient or required to be withheld  or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or  with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or  asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment  or liability delivered to any 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.               (e)   Indemnification by the Lenders.  Each Lender shall severally indemnify the  Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to  such Lender (but only to the extent that any Borrower has not already indemnified the Agent for  such Indemnified Taxes and without limiting the obligation of the Borrowers to do so), (ii) any  Taxes  attributable  to  such  Lender’s  failure  to  comply  with  the  provisions  of Section 10.06(e)  relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to  such Lender, in each case, that are payable or paid by the Agent in connection with any Loan  Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not  such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.   A certificate as to the amount of such payment or liability delivered to any Lender by the Agent  shall be conclusive absent manifest error.  Each Lender hereby authorizes the Agent to setoff and  apply  any  and  all  amounts  at  any  time  owing  to  such  Lender  under  any  Loan  Document  or  otherwise payable by the Agent to such Lender from any other source against any amount due to  the Agent under this paragraph (e).               (f)   Status of Lenders.                                           81 





 






                            (i)   Any Lender that is entitled to an exemption from or reduction of  withholding Tax with respect to payments made under any Loan Document shall deliver  to the Parent Borrower and the Agent, at the time or times reasonably requested by the  Parent  Borrower  or  the  Agent,  such  properly  completed  and  executed  documentation  reasonably requested by the Parent Borrower or the Agent as will permit such payments to  be made without withholding or at a reduced rate of withholding.  In addition, any Lender,  if  reasonably  requested  by  the  Parent  Borrower  or  the  Agent,  shall  deliver  such  other  documentation  prescribed  by  applicable  law  or  reasonably  requested  by  the  Parent  Borrower or the Agent as will enable the Borrowers or the Agent to determine whether or  not such Lender is subject to backup withholding or information reporting requirements.   Notwithstanding anything to the contrary in the preceding two sentences, the completion,  execution and submission of such documentation (other than such documentation set forth  in Section 2.28(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s  reasonable judgment such completion, execution or submission would subject such Lender  to any material unreimbursed cost or expense or would materially prejudice the legal or  commercial position of such Lender.               (ii)  Without limiting the generality of the foregoing, in the event that  any Borrower is a U.S. Person,                     (A)   any Lender that is a U.S. Person shall deliver to the Parent        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 Parent Borrower or the Agent), an executed copy of IRS Form W-9        certifying that such Lender is exempt from U.S. federal backup withholding tax;                     (B)   any Foreign Lender shall, to the extent it is legally entitled        to do so, deliver to the Parent 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 Parent Borrower or the Agent), whichever of the        following is applicable:                           (1)   in the case of a Foreign Lender claiming the benefits              of an income tax treaty to which the United States is a party (x) with respect              to payments of interest under any Loan Document, an executed copy of IRS              Form  W-8BEN  or  IRS  Form  W-8BEN-E,  as  applicable,  establishing  an              exemption from, or reduction of, U.S. federal withholding Tax pursuant to              the “interest” article of such tax treaty and (y) with respect to any other              applicable payments under any Loan Document, IRS Form W-8BEN or IRS              Form  W-8BEN-E,  as  applicable,  establishing  an  exemption  from,  or              reduction  of,  U.S.  Federal  withholding  Tax  pursuant  to  the  “business              profits” or “other income” article of such tax treaty;                           (2)   in  the  case  of  a  Foreign  Lender  claiming  that  its              extension  of  credit  will  generate  U.S.  effectively  connected  income,  an              executed copy of IRS Form W-8ECI;                                   82 





 






                                  (3)   in the case of a Foreign Lender claiming the benefits        of the exemption for portfolio interest under Section 881(c) of the Code, (x)        a certificate substantially in the form of Exhibit F-1 to the effect that such        Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A)        of the Code, a “10 percent shareholder” of a Borrower within the meaning        of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation”        described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance        Certificate”) and (y) an executed copy of IRS Form W-8BEN or IRS Form        W-8BEN-E, as applicable; or                     (4)   to the extent a Foreign Lender is not the beneficial        owner, an executed copy of IRS Form W-8IMY, accompanied by IRS Form        W-8ECI,  IRS Form  W-8BEN or  IRS Form W-8BEN-E, as applicable, a        U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2        or Exhibit F-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 F-4 on behalf of each such direct and indirect partner;               (C)   any Foreign Lender shall, to the extent it is legally entitled  to do so, deliver to the Parent 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 Parent Borrower or the Agent), executed copies  of any other form prescribed by applicable law as a basis for claiming exemption  from or a reduction in U.S. federal withholding Tax, duly completed, together with  such  supplementary  documentation  as  may  be  prescribed  by  applicable  law  to  permit  the  Borrowers  or  the  Agent  to  determine  the  withholding  or  deduction  required to be made; and               (D)   if a payment made to a Lender under any Loan Document  would  be  subject  to  U.S.  Federal  withholding  Tax  imposed  by  FATCA  if  such  Lender  were  to  fail  to  comply  with  the  applicable  reporting  requirements  of  FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as  applicable), such Lender shall deliver to the Parent Borrower and the Agent at the  time or times prescribed by law and at such time or times reasonably requested by  the Parent 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  Parent  Borrower  or  the  Agent as may be necessary for the Borrowers and the Agent to comply with their  obligations under FATCA and to determine that such Lender has complied with  such Lender’s obligations under FATCA or to determine the amount to deduct and  withhold from such payment.  Solely for purposes of this clause (D), “FATCA”  shall include any amendments made to FATCA after the date of this Agreement.                              83 





 






         Each  Lender  agrees  that  if  any  form  or  certification  it  previously  delivered  expires  or  becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly  notify the Parent Borrower and the Agent in writing of its legal inability to do so.               (g)   Treatment of Certain Refunds.  If any party determines, in its sole discretion  exercised  in  good  faith,  that  it  has  received  a  refund  of  any  Taxes  as  to  which  it  has  been  indemnified pursuant to this Section (including by the payment of additional amounts pursuant to  this Section), it shall pay to the indemnifying party an amount equal to such refund (but only to  the extent of indemnity payments made under this Section with respect to the Taxes giving rise to  such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and  without interest (other than any interest paid by the relevant Governmental Authority with respect  to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay  to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties,  interest or other charges imposed by the relevant Governmental Authority) in the event that such  indemnified  party  is  required  to  repay  such  refund  to  such  Governmental  Authority.   Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified  party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the  payment of which would place the indemnified party in a less favorable net after-Tax position than  the indemnified party would have been in if the Tax subject to indemnification and giving rise to  such  refund  had  not  been  deducted,  withheld  or  otherwise  imposed  and  the  indemnification  payments  or  additional  amounts  giving  rise  to  such  refund  had  never  been  paid.   This  paragraph (g) shall not be construed to require any indemnified party to make available its Tax  returns  (or  any  other  information  relating  to  its  Taxes  that  it  deems  confidential)  to  the  indemnifying party or any other Person.               (h)   Survival.   Each  party’s  obligations  under  this  Section  shall  survive  the  resignation or replacement of the Agent or any assignment of rights by, or the replacement of, a  Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all  obligations under any Loan Document (including the Payment in Full of the Obligations).               (i)   Defined  Terms.   For  purposes  of  this Section 2.28,  the  term  “Lender”  includes any Issuing Lender and the term “applicable law” includes FATCA.         Section 2.29 [Reserved].          Section 2.30 Mitigation Obligations; Replacement of Lenders.                (a)   Designation  of  a  Direct  Lending  Office.   If  any  Lender  requests  compensation under Section 2.26, or requires the Borrowers to pay any additional amount to any  Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.28,  then such Lender shall use reasonable efforts to designate a different lending office for funding or  booking  its  Loans  hereunder  or  to  assign  and  delegate  its  rights  and  obligations  hereunder  to  another of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation  or  assignment  and  delegation  (i)  would  eliminate  or  reduce  amounts  payable  pursuant  to  Section 2.26 or Section 2.28, as the case may be, in the future and (ii) would not subject such  Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such  Lender.  The Borrowers hereby agree to pay all reasonable costs and expenses incurred by any                                         84 





 






   Lender in connection with any such designation or assignment and delegation; provided, however,  that  the  Borrowers  shall  not  be  liable  for  such  costs  and  expenses  of  a  Lender  requesting  compensation if (i) such Lender becomes a party to this Agreement on a date after the Second  Amendment Effective Date and (ii) the relevant Change in Law occurs on a date prior to the date  such Lender becomes a party hereto.               (b)   Replacement  of  Lenders.   If  any  Lender  requests  compensation  under  Section 2.26, 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 2.28, or if any Lender  becomes a Defaulting Lender, or if any Lender has become a Non-Extending Lender, or if any  Lender has become a Minority 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 (other than its existing rights to payment pursuant to  Section 2.26  or Section 2.28)  and  obligations  under  this  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 (i) except in the case of an assignment  to another Lender, the Borrowers shall have received the prior written consent of the Agent, the  Issuing Lenders and the Swingline Lender, which consent shall not unreasonably be withheld, (ii)  the Borrowers shall have paid to the Agent the assignment fee specified in Section 10.06, (iii) such  Lender shall have received payment of an amount equal to the outstanding principal of its Loans  and  participations  in  LC  Disbursements  and  Swingline  Loans  that  have  been  funded  by  such  Lender, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and  under the other Loan Documents (including any amounts under Section 2.22(b)) 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), (iv) in the case of any such assignment and delegation resulting from a  claim  for  compensation  under Section 2.26  or  payments  required  to  be  made  pursuant  to  Section 2.28, such assignment and delegation will result in a reduction in such compensation or  payments thereafter, (v) in the case of any assignment and delegation resulting from any Lender  becoming a Non-Extending Lender, upon the effectiveness of such assignment and delegation,  such assignee shall be deemed to have consented to the extension of the Maturity Date requested  in the relevant Extension Request (and, if such assignment and delegation shall become effective  after the effective date of the relevant Extension Amendment, the Maturity Date with respect to  such assignee (insofar as relating to the interests, rights and obligations under this Agreement and  the related Loan Documents so assigneed and delegated) shall automatically extend to the date  specified  in  the  relevant  Extension  Request),  and  (vi)  such  assignment  does  not  conflict  with  applicable law.  A Lender shall not be required to make any such assignment and delegation if,  prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the  Borrowers to require such assignment and delegation cease to apply.  Each party hereto agrees that  an assignment and delegation required pursuant to this paragraph may be effected pursuant to an  Assignment and Assumption executed by the Parent Borrower, the Agent and the assignee and  that the Lender required to make such assignment and delegation need not be a party thereto.         Section 2.31 Defaulting Lenders.  Notwithstanding any provision of this Agreement to  the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply  for so long as such Lender is a Defaulting Lender.                                          85 





 






               (a)   fees shall cease to accrue on the Unused Commitment of such Defaulting  Lender pursuant to Section 2.12;               (b)   such Defaulting  Lender  shall not  have the  right  to vote  on  any  issue on  which voting is required (other than to the extent expressly provided in Section 10.02(b)) and the  Commitment and Credit Extensions of such Defaulting Lender shall not be included in determining  whether the Required Lenders or the Required Supermajority Lenders have taken or may take any  action hereunder;               (c)   if any Swingline Exposure or Letter of Credit Outstandings exists at the  time a Lender becomes a Defaulting Lender then:                     (i)   all  or  any  part  of  the  Swingline  Exposure  or  Letter  of  Credit        Outstandings of such Defaulting Lender shall be reallocated among the Non-Defaulting        Lenders in accordance with their respective Commitment Percentages but only to the extent        the sum of all Non-Defaulting Lenders’ Credit Extensions plus such Defaulting Lender’s        pro  rata  share  of  the  Swingline  Exposure  and  Letters  of  Credit  Outstandings  does  not        exceed the total of all Non-Defaulting Lenders’ Commitments;                     (ii)  if the reallocation described in clause (i) above cannot, or can only        partially, be effected, the Borrowers shall within one Business Day following notice by the        Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize, for the        benefit  of  the  Issuing  Lenders,  the  Borrowers’  obligations  corresponding  to  such        Defaulting  Lender’s  Letter  of  Credit  Oustandings  (after  giving  effect  to  any  partial        reallocation pursuant to clause (i) above) in accordance with the procedures set forth in        Section 2.06(m) for so long as such Letter of Credit Outstandings is outstanding;                     (iii) if the Borrowers cash collateralize any portion of such Defaulting        Lender’s Letter of Credit Outstandings pursuant to clause (ii) above, the Borrowers shall        not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(a) with        respect to such Defaulting Lender’s Letter of Credit Outstandings during the period such        Defaulting Lender’s Letter of Credit Outstandings is cash collateralized;                     (iv)  if the Letter of Credit Outstandings of the Non-Defaulting Lenders        is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to        Section 2.12  and Section 2.10(a)  shall  be  adjusted  in  accordance  with  such  Non-       Defaulting Lenders’ Commitment Percentages; and                     (v)   if all or any portion of such Defaulting Lender’s Letter of Credit        Outstandings  is  neither  reallocated  nor  cash  collateralized  pursuant  to clause (i)  or (ii)        above, then, without prejudice to any rights or remedies of the Issuing  Lenders or any        Lender hereunder, all letter of credit fees payable under Section 2.10(a) with respect to        such Defaulting  Lender’s  Letter of Credit  Outstandings  shall be payable to  the  Issuing        Lenders until such Letter of Credit Outstandings is reallocated and/or cash collateralized;        and               (d)   so long as such Lender is a Defaulting Lender, the Swingline Lenders shall  not be required to fund any Swingline Loan and the Issuing Lenders shall not be required to issue,                                         86 





 






   amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100%  covered  by  the  Commitments  of  the  Non-Defaulting  Lenders  and/or  cash  collateral  will  be  provided by the Borrowers in accordance with Section 2.31(c), and participating interests in any  such newly made Swingline Loan or newly issued or increased Letter of Credit shall be allocated  among  Non-Defaulting  Lenders  in  a  manner  consistent  with Section 2.31(c)(i)  (and  such  Defaulting Lender shall not participate therein).         If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following  the date hereof and for so long as such event shall continue or (ii) any Issuing Lender or any  Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations  under one or more other agreements in which such Lender commits to extend credit, the Issuing  Lenders shall not be required to issue, amend or increase any Letter of Credit and the Swingline  Lenders  shall  not  be  required  to  fund  any  Swingline  Loan,  unless  the  Issuing  Lenders  or  the  Swingline Lenders, as the case may be, shall have entered into arrangements with the Borrowers  or such Lender, satisfactory to the Issuing Lenders or the Swingline Lenders, as the case may be,  to defease any risk  in respect of such Lender hereunder.         In the event that each of the Agent, the Borrowers, the Issuing Lenders and the Swingline  Lenders agrees that a  Defaulting Lender has adequately remedied all matters that caused such  Lender to be a Defaulting Lender, then the Swingline Exposure and Letter of Credit Outstandings  of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on  the date of such readjustment such Lender shall purchase at par such of the Loans of the other  Lenders (other than Swingline Loans) as the Agent shall determine may be necessary in order for  such Lender to hold such Loans in accordance with its Commitment Percentage.         Section 2.32 Hedging Agreements and other Bank Products.  Each Lender (other than  JPMorgan) or Affiliate thereof providing Bank Products for, or having Hedging Agreements with,  any Borrower or any Subsidiary or Affiliate of a Borrower shall deliver to the Agent, promptly  after  entering  into  such  Bank  Product  or  Hedging  Agreement,  written  notice  setting  forth  the  aggregate amount of all Bank Product Obligations of such Borrower or Subsidiary or Affiliate  thereof to such Lender or Affiliate (whether matured or unmatured, absolute or contingent) and  the Specified Bank Product Amount agreed to between the Lender (or its Affiliate) and the Parent  Borrower, as applicable.  In addition, each such Lender (other than JPMorgan) or Affiliate thereof  shall deliver to the Agent, from time to time after a significant change therein or upon a request  therefor,  a  summary  of  the  amounts  due  or  to  become  due  in  respect  of  such  Bank  Product  Obligations and the Specified Bank Product Amount agreed to between the Lender (or its Affiliate)  and the Parent Borrower, as applicable.  The most recent information provided to the Agent shall  be used in determining the amounts to be applied in respect of such Bank Product Obligations  pursuant to Section 2.18(b).                                      ARTICLE III                                                                         LOAN GUARANTY         Section 3.01 Guaranty.  The Loan Guarantors hereby jointly and severally, as a primary  obligor and not merely as a surety, guarantee to each Lender, each other holder of a Guaranteed  Obligation (as hereinafter defined) and the Agent and their respective successors and assigns the                                         87 





 






   prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the  principal  of  and  interest  on  the  Loans  made  by  the  Lenders  to  the  Borrowers  and  all  fees,  indemnification payments and other amounts whatsoever, whether direct or indirect, absolute or  contingent, now or hereafter from time to time owing to the Lenders or the Agent by a Borrower  under this Agreement and by any Borrower (other than, with respect to any Loan Guarantor, any  Excluded Hedging Obligations of such Loan Guarantor) under any of the other Loan Documents,  in  each  case  strictly  in  accordance  with  the  terms  thereof  and  including  all  interest,  fees  and  expenses accrued or incurred subsequent to the commencement of any bankruptcy or insolvency  proceeding with respect to a Borrower, whether or not such interest, fees or expenses are allowed  as a claim in such proceeding (such obligations being herein collectively called the “Guaranteed  Obligations”).  The Loan Guarantors hereby further jointly and severally agree that if a Borrower  shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of  the Guaranteed Obligations, the Loan Guarantors will promptly pay the same, without any demand  or notice whatsoever, and that in the case of any extension of time of payment or renewal of any  of  the  Guaranteed  Obligations,  the  same  will  be  promptly  paid  in  full  when  due  (whether  at  extended maturity, by acceleration or otherwise) in accordance with the terms of such extension  or renewal.  Each Loan Guarantor further agrees that the Guaranteed Obligations may be extended  or renewed in whole or in part without notice to or further assent from it, and that it remains bound  upon its guarantee notwithstanding any such extension or renewal.  All terms of this Loan Guaranty  apply to and may be enforced by or on behalf of any domestic or foreign branch or Affiliate of any  Lender that extended any portion of the Guaranteed Obligations.         Section 3.02 Guaranty of Payment.  This Loan Guaranty is a guaranty of payment and  not of collection.  Each Loan Guarantor waives any right to require the Agent, the Issuing Lender  or any Lender to sue any Borrower, any Loan Guarantor, any other guarantor of, or any other  Person obligated for, all or any part of the Guaranteed Obligations (each, an “Obligated Party”),  or otherwise to enforce its payment against any collateral securing all or any part of the Guaranteed  Obligations.         Section 3.03 No Discharge or Diminishment of Loan Guaranty.                (a)   Except  as  otherwise  provided  for  herein,  the  obligations  of  each  Loan  Guarantor hereunder are unconditional and absolute and not subject to any reduction, limitation,  impairment  or  termination  for  any  reason  (other  than  Payment  in  Full  of  the  Guaranteed  Obligations), including:  (i) any claim of waiver, release, extension, renewal, settlement, surrender,  alteration or compromise of any of the Guaranteed Obligations, by operation of law or otherwise;  (ii) any change in the corporate existence, structure or ownership of any Borrower or any other  Obligated Party liable for any of the Guaranteed Obligations; (iii) any insolvency, bankruptcy,  reorganization or other similar proceeding affecting any Obligated Party or their assets or any  resulting release or discharge of any obligation of any Obligated Party; or (iv) the existence of any  claim, setoff or other rights which any Loan Guarantor may have at any time against any Obligated  Party,  the  Agent,  the  Issuing  Lender,  any  Lender  or  any  other  Person,  whether  in  connection  herewith or in any unrelated transactions.               (b)   The obligations of each Loan Guarantor hereunder are not subject to any  defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity,  illegality or unenforceability of any of the Guaranteed Obligations or otherwise, or any provision                                         88 





 






   of applicable  law or  regulation purporting  to  prohibit  payment  by  any  Obligated Party, of the  Guaranteed Obligations or any part thereof.               (c)   Further, the obligations of any Loan Guarantor hereunder are not discharged  or impaired or otherwise affected by: (i) the failure of the Agent, the Issuing Lender or any Lender  to assert any claim or demand or to enforce any remedy with respect to all or any part of the  Guaranteed Obligations; (ii) any waiver or modification of or supplement to any provision of any  agreement relating to the Guaranteed Obligations; (iii) any release, non-perfection or invalidity of  any  indirect  or  direct  security  for  the  obligations  of  any  Borrower  for  all  or  any  part  of  the  Guaranteed  Obligations  or  any  obligations  of  any  other  Obligated  Party  liable  for  any  of  the  Guaranteed Obligations; (iv) any action or failure to act by the Agent, the Issuing Lender or any  Lender with respect to any collateral securing any part of the Guaranteed Obligations; or (v) any  default,  failure  or  delay,  willful  or  otherwise,  in  the  payment  or  performance  of  any  of  the  Guaranteed  Obligations,  or  any  other  circumstance,  act,  omission  or  delay  that  might  in  any  manner or to any extent vary the risk of such Loan Guarantor or that would otherwise operate as a  discharge of any Loan Guarantor as a matter of law or equity (other than Payment in Full of the  Guaranteed Obligations).         Section 3.04 Defenses Waived.  To the fullest extent permitted by applicable law, each  Loan Guarantor hereby waives any defense based on or arising out of any defense of any Borrower  or any Loan Guarantor or the unenforceability of all or any part of the Guaranteed Obligations  from  any  cause,  or  the  cessation  from  any  cause  of  the  liability  of  any  Borrower,  any  Loan  Guarantor or any other Obligated Party, other than Payment in Full of the Guaranteed Obligations.   Without  limiting  the  generality  of  the  foregoing,  each  Loan  Guarantor  irrevocably  waives  acceptance hereof, presentment, demand, protest and, to the fullest extent permitted by law, any  notice not provided for herein, as well as any requirement that at any time any action be taken by  any Person against any Obligated Party or any other Person.  Each Loan Guarantor confirms that  it is not a surety under any state law and shall not raise any such law as a defense to its obligations  hereunder.  The Agent may, at its election, foreclose on any Collateral held by it by one or more  judicial or nonjudicial sales, accept an assignment of any such Collateral in lieu of foreclosure or  otherwise act or fail to act with respect to any collateral securing all or a part of the Guaranteed  Obligations,  compromise  or  adjust  any  part  of  the  Guaranteed  Obligations,  make  any  other  accommodation with any Obligated Party or exercise any other right or remedy available to it  against any Obligated Party, without affecting or impairing in any way the liability of such Loan  Guarantor under this Loan Guaranty except to the extent the Guaranteed Obligations have been  Paid in Full.  To the fullest extent permitted by applicable law, each Loan Guarantor waives any  defense  arising  out  of  any  such  election  even  though  that  election  may  operate,  pursuant  to  applicable law, to impair or extinguish any right of reimbursement or subrogation or other right or  remedy of any Loan Guarantor against any Obligated Party or any security.         Section 3.05 Rights of Subrogation.  No Loan Guarantor will assert any right, claim or  cause  of  action,  including,  without  limitation,  a  claim  of  subrogation,  contribution  or  indemnification, that it has against any Obligated Party or any collateral, until the Borrowers and  the Loan Guarantors have fully performed all their obligations to the Agent, the Issuing Lender  and the Lenders.                                          89 





 






         Section 3.06 Reinstatement; Stay of Acceleration.  If at any time any payment of any  portion of the Guaranteed Obligations (including a payment effected through exercise of a right of  setoff) is rescinded, or must otherwise be restored or returned upon the insolvency, bankruptcy or  reorganization of any Borrower or otherwise (including pursuant to any settlement entered into by  a Secured Party in its discretion), each Loan Guarantor’s obligations under this Loan Guaranty  with respect to that payment shall be reinstated at such time as though the payment had not been  made and whether or not the Agent, the Issuing Lender and the Lenders are in possession of this  Loan Guaranty.  If acceleration of the time for payment of any of the Guaranteed Obligations is  stayed  upon  the  insolvency,  bankruptcy  or  reorganization  of  any  Borrower,  all  such  amounts  otherwise subject to acceleration under the terms of any agreement  relating to the Guaranteed  Obligations  shall nonetheless be payable  by the Loan Guarantors  forthwith on  demand  by  the  Agent.         Section 3.07 Information.  Each Loan Guarantor assumes all responsibility for being  and  keeping  itself  informed  of  the  Borrowers’  financial  condition  and  assets,  and  of  all  other  circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature,  scope  and  extent  of  the  risks  that  each  Loan  Guarantor  assumes  and  incurs  under  this  Loan  Guaranty, and agrees that none of the Agent, the Issuing Lender or any Lender shall have any duty  to advise any Loan Guarantor of information known to it regarding those circumstances or risks.         Section 3.08 Taxes.  Each payment of the Guaranteed Obligations will be made by each  Loan Guarantor without withholding for any Taxes, unless such withholding is required by law.   If any Loan Guarantor determines, in its sole discretion exercised in good faith, that it is so required  to withhold Taxes, then such Loan Guarantor may so withhold and shall timely pay the full amount  of withheld Taxes to the relevant Governmental Authority in accordance with applicable law.  If  such Taxes are Indemnified Taxes, then the  amount payable by such Loan Guarantor shall be  increased as necessary so that, net of such withholding (including such withholding applicable to  additional amounts payable under this Section), the Agent, Lender or Issuing Lender (as the case  may be) receives the amount it would have received had no such withholding been made.         Section 3.09 Maximum Liability.  Notwithstanding any other provision of this Loan  Guaranty, the amount guaranteed by each Loan Guarantor hereunder shall be limited to the extent,  if  any,  required  so  that  its  obligations  hereunder  shall  not  be  subject  to  avoidance  under  Section 548 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer  Act, Uniform Fraudulent Conveyance Act, Uniform Voidable Transactions Act or similar statute  or common law.  In determining the limitations, if any, on the amount of any Loan Guarantor’s  obligations hereunder pursuant to the preceding sentence, it is the intention of the parties hereto  that any rights of subrogation, indemnification or contribution which such Loan Guarantor may  have under this Loan Guaranty, any other agreement or applicable law shall be taken into account.         Section 3.10 Contribution.                (a)   To the extent that any Loan Guarantor shall make a payment under this Loan  Guaranty (a “Guarantor Payment”) which, taking into account all other Guarantor Payments then  previously  or  concurrently  made  by  any  other  Loan  Guarantor,  exceeds  the  amount  which  otherwise would have been paid by or attributable to such Loan Guarantor if each Loan Guarantor  had paid the aggregate Guaranteed Obligations satisfied by such Guarantor Payment in the same                                         90 





 






   proportion  as  such  Loan  Guarantor’s  “Allocable  Amount”  (as  defined  below)  (as  determined  immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each  of the Loan Guarantors as determined immediately prior to the making of such Guarantor Payment,  then, following indefeasible payment in full in cash of the Guarantor Payment and the Payment in  Full of the Guaranteed Obligations and the termination of this Agreement, such Loan Guarantor  shall be entitled to receive contribution and indemnification payments from, and be reimbursed  by, each other Loan Guarantor for the amount of such excess, pro rata based upon their respective  Allocable Amounts in effect immediately prior to such Guarantor Payment.               (b)   As  of  any  date  of  determination,  the  “Allocable  Amount”  of  any  Loan  Guarantor shall be equal to the excess of the fair saleable value of the property of such  Loan  Guarantor  over  the  total  liabilities  of  such  Loan  Guarantor  (including  the  maximum  amount  reasonably  expected  to  become  due  in  respect  of  contingent  liabilities,  calculated,  without  duplication, assuming each other Loan Guarantor that is also liable for such contingent liability  pays its ratable share thereof), giving effect to all payments made by other Loan Guarantors as of  such date in a manner to maximize the amount of such contributions.               (c)   This Section 3.10 is intended only to define the relative rights of the Loan  Guarantors, and nothing set forth in this Section 3.10 is intended to or shall impair the obligations  of the Loan Guarantors, jointly and severally, to pay any amounts as and when the same shall  become due and payable in accordance with the terms of this Loan Guaranty.               (d)   The  parties  hereto  acknowledge  that  the  rights  of  contribution  and  indemnification hereunder shall constitute assets of the Loan Guarantor or Loan Guarantors to  which such contribution and indemnification is owing.               (e)   The  rights  of  the  indemnifying  Loan  Guarantors  against  other  Loan  Guarantors  under  this Section 3.10  shall  be  exercisable  upon  the  Payment  in  Full  of  the  Guaranteed Obligations and the termination of this Agreement.         Section 3.11 Liability Cumulative.  The liability of each Borrower as a Loan Guarantor  under this Article III is in addition to and shall be cumulative with all liabilities of each Borrower  to  the  Agent,  the  Issuing  Lender  and  the  Lenders  under  this  Agreement  and  the  other  Loan  Documents to which such Borrower is a party or in respect of any obligations or liabilities of the  other  Borrowers,  without  any  limitation  as  to  amount,  unless  the  instrument  or  agreement  evidencing or creating such other liability specifically provides to the contrary.         Section 3.12 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 Borrower to honor all of its obligations under this  Guarantee  in  respect  of  a  Hedging  Obligation  (provided,  however,  that  each  Qualified  ECP  Guarantor shall only be liable under this Section 3.12 for the maximum amount of such liability  that can be hereby incurred without rendering its obligations under this Section 3.12 or otherwise  under  this  Loan  Guaranty  voidable  under  applicable  law  relating  to  fraudulent  conveyance  or  fraudulent transfer, and not for any greater amount).  Except as otherwise provided herein, the  obligations of each Qualified ECP Guarantor under this Section 3.12 shall remain in full force and  effect until the termination of all Hedging Obligations.  Each Qualified ECP Guarantor intends                                         91 





 






   that this Section 3.12 constitute, and this Section 3.12 shall be deemed to constitute, a “keepwell,  support, or other agreement” for the benefit of each other Borrower for all purposes of Section  1a(18)(A)(v)(II) of the Commodity Exchange Act.         Section 3.13 Release  of  Guarantees.   A  Loan  Guarantor  (other  than  the  Parent  Borrower)  will  automatically  be  released  from  its  obligations  under  this Article III  upon  the  consummation of any transaction permitted by this Agreement as a result of which neither the  Parent Borrower nor any of its Subsidiaries owns any Equity Interest in such Loan Guarantor or  such Loan Guarantor otherwise becomes an Excluded Subsidiary; provided that, if so required by  this Agreement, the Required Lenders shall have consented to such transactions and the terms of  such consent shall not have provided otherwise.  In connection with any release pursuant to this  Section, the Agent shall execute and deliver to any Loan Guarantor, at such Loan Guarantor’s  expense, all documents that such Loan Guarantor shall reasonably request to evidence such release.   Any execution and delivery of documents pursuant to this Section shall be without recourse to or  warranty by the Agent.                                    ARTICLE IV                                                              REPRESENTATIONS AND WARRANTIES         Each Borrower, for itself and on behalf of such Borrower’s Subsidiaries represents and  warrants to the Agent and the Lenders that:         Section 4.01 Organization; Powers.  Each Borrower is, and each of its Subsidiaries is,  duly organized or formed, validly existing and in good standing under the laws of the jurisdiction  of its  organization,  and  each such Person  has  all  requisite  power and authority to  carry on its  business as now conducted and, except where the failure to do so, individually or in the aggregate,  would not reasonably be expected to result in a Material Adverse Effect, is qualified to do business  in, and is in good standing in, every jurisdiction where such qualification is required.         Section 4.02 Authorization;  Enforceability.   The  Transactions  are  within  each  Borrower’s corporate, limited liability company or partnership powers, as applicable, and have  been  duly  authorized  by  all  necessary  corporate,  limited  liability  company  or  partnership,  as  applicable,  and,  if  required,  stockholder  action.   This  Agreement  has  been  duly  executed  and  delivered by each Borrower that is a party hereto and constitutes, and each other Loan Document  to which any Borrower is a party, when executed and delivered by such Borrower will constitute,  a  legal,  valid  and  binding  obligation  of  such  Borrower  (as  the  case  may  be),  enforceable  in  accordance  with  its  terms,  except  as  such  enforceability  may  be  limited  by  (a) bankruptcy,  insolvency,  reorganization,  moratorium  or  other  laws  of  general  applicability  affecting  the  enforcement of creditors’ rights and (b) the application of general principles of equity (regardless  of whether such enforceability is considered in a proceeding in equity or at law).          Section 4.03 Governmental  Approvals;  No  Conflicts.   The  Transactions  (a)  do  not  require  any  consent  or  approval  of,  registration  or  filing  with,  or  any  other  action  by,  any  Governmental Authority, except (i) for such as have been obtained or made and are in full force  and effect, (ii) for those which would not be reasonably be expected to have a Material Adverse  Effect, and (iii) for filings and recordings necessary to perfect Liens created pursuant to the Loan                                         92 





 






   Documents, (b) will not violate any applicable law or regulation or the charter, by laws or other  organizational documents of any Borrower or any order of any Governmental Authority, except  for such violation which would not reasonably be expected to have a Material Adverse Effect, (c)  will not violate or result in a default under any indenture, agreement or other instrument binding  upon any Borrower or any of its Subsidiaries or their respective assets, except for such violation  or default (other than under the Bonds as to which no violation or default may exist) which would  not reasonably be expected to have a Material Adverse Effect, or give rise to a right thereunder to  require any payment to be made by any Borrower or any of its Subsidiaries under any Material  Indebtedness, and (d) will not result in the creation or imposition of, or the requirement to create,  any Lien on any asset of any Borrower or any of its Subsidiaries, except Liens permitted hereunder.         Section 4.04 Financial Condition.  The Parent Borrower has heretofore furnished to the  Agent (for furnishing to the Lenders) its consolidated balance sheet and statements of income,  stockholders’ equity, and cash flows (a) as of and for the fiscal years ended February 2, 2019 and  February 1, 2020, in each case reported on by KPMG LLP, independent public accountants, and  (b) as of and for each fiscal quarter ended subsequent to the date of the latest financial statements  delivered  pursuant  to clause (a)  of  this  Section,  certified  by  a  Financial  Officer  of  the  Parent  Borrower.  Such financial statements present fairly, in all material respects, the financial position,  results of operations and cash flows of the Parent Borrower and its consolidated Subsidiaries as of  such dates and for such periods in accordance with GAAP.  No event, change or condition has  occurred, either individually or in the aggregate, that has had, or would reasonably be expected to  have, a Material Adverse Effect, since February 1, 2020.         Section 4.05 Properties.                (a)   Each  Borrower,  and  each  of  its  Subsidiaries,  has  good  title  to,  or  valid  leasehold interests in, all its real and personal property material to its business, except to the extent  the failure to have such would not reasonably be expected to have a Material Adverse Effect.               (b)   Each Borrower, and each of its Subsidiaries owns, or is licensed to use, all  trademarks,  trade  names,  copyrights,  patents  and  other  intellectual  property  material  to  its  business, and the use thereof by such Person does not infringe upon the rights of any other Person,  except for any such infringements that, individually or in the aggregate, would not reasonably be  expected to result in a Material Adverse Effect.               (c)   Schedule  4.05(c)(i)  sets  forth  the  address  (including  county)  of  all  Real  Estate that is owned by the Borrowers and each of their respective Subsidiaries as of the Second  Amendment Effective  Date, together  with  a list  of  the  holders  of  any mortgage or  other  Lien  thereon.  Schedule 4.05(c)(ii) sets forth the address (including county) of all Real Estate that is  leased by the Borrowers and each of their respective Subsidiaries as of the Second Amendment  Effective Date, together with a list of the landlord and the holders of any mortgage or other Lien  thereon.         Section 4.06 Litigation and Environmental Matters.                 (a)   There are no actions, suits or proceedings by or before  any arbitrator or  Governmental Authority pending against or, to the knowledge of any Borrower, threatened against                                         93 





 






   or affecting any Borrower or any of its Subsidiaries (i) as to which there is a reasonable possibility  of  an  adverse  determination  and  that,  if  adversely  determined,  could  reasonably  be  expected,  individually or in the aggregate, to result in a Material Adverse Effect (other than those set forth  on Schedule 4.06) or (ii) that purport to question the validity, legality or enforceability of any Loan  Document or the Transactions.                (b)   Except for the matters set forth on Schedule 4.06, and except as would not  reasonably be expected to have a Material Adverse Effect, no Borrower and no Subsidiary of any  Borrower (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 notice of any claim with respect to any  Environmental Liability or (iv) knows of any basis for any Environmental Liability.               (c)   Since the Second Amendment Effective Date, there has been no change in  the status  of  the  matters set  forth on  Schedule 4.06 that,  individually  or  in  the aggregate,  has  resulted in, or would reasonably be expected to result in, a Material Adverse Effect.         Section 4.07 Compliance with Laws and Agreements.  Each Borrower, and each of its  Subsidiaries, is in compliance with all laws, regulations and orders of any Governmental Authority  applicable  to  it  or  its  property  and  all  indentures  (including,  without  limitation,  the  Bonds),  material agreements (including, without limitation, any agreements relating to the securitization  of  the  Parent  Borrower’s  private  label  credit  cards  and  any  agreements  relating  to  Material  Indebtedness) and other instruments binding upon it or its property, except where the failure to do  so,  individually  or  in  the  aggregate,  would  not  reasonably  be  expected  to  result  in  a  Material  Adverse Effect.  No Default or Event of Default has occurred and is continuing.         Section 4.08 Investment Company Status.  Neither the Parent Borrower nor any of its  Subsidiaries  is  an  “investment  company”  as  defined  in,  or  subject  to  regulation under,  the  Investment Company Act of 1940.         Section 4.09 Taxes.  Each Borrower, and each of its Subsidiaries, has timely filed or  caused to be filed all Tax returns and reports required to have been filed and has paid or caused to  be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in  good faith by appropriate proceedings, for which such Person has set aside on its books adequate  reserves, and as to which no Lien has arisen, or (b) to the extent that the failure to do so would not  reasonably be expected to result in a Material Adverse Effect.         Section 4.10 ERISA.  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, could reasonably be expected to result in a Material Adverse Effect.           Section 4.11 Disclosure.  The Borrowers have disclosed to the Lenders all agreements,  instruments and corporate or other restrictions to which any Borrower or any of its Subsidiaries,  is subject, and all other matters known to any of them, that, individually or in the aggregate, in  each case, could reasonably be expected to result in a Material Adverse Effect.  None of the reports,  financial statements, certificates or other information furnished by or on behalf of any Borrower  or any of its Subsidiaries to the Agent or any Lender in connection with the negotiation of this                                         94 





 






   Agreement or any other Loan Document or delivered hereunder or thereunder (as modified or  supplemented by other information so furnished) when taken as a whole contains any material  misstatement of fact or omits to state any material fact necessary to make the statements therein,  in the light of the circumstances under which they were made, not materially misleading.  As of  the Second Amendment Effective Date, to the best knowledge of any Borrower, the information  included in the Beneficial Ownership Certification provided on or prior to the Second Amendment  Effective Date to any Lender in connection with this Agreement is true and correct in all respects.         Section 4.12 Subsidiaries.   Schedule  4.12  sets  forth  the  name  of,  and  the  ownership  interest of each Borrower in each Subsidiary as of the Second Amendment Effective Date.  As of  the  Second  Amendment  Effective  Date,  except  as  set  forth  on  Schedule  4.12,  the  Subsidiary  Borrowers are not and each of their respective Subsidiaries is not party to any joint venture, general  or limited partnership, or limited liability company, agreements or any other business ventures or  entities.         Section 4.13 Insurance.  Schedule 4.13 sets forth a description of all insurance which  covers the Collateral maintained by or on behalf of the Borrowers and their respective Subsidiaries  as of the Second Amendment Effective Date.  As of the Second Amendment Effective Date, all  premiums in respect of such insurance that are due and payable have been paid.         Section 4.14 Security  Documents.   The  Security  Documents  create  in  favor  of  the  Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable security interest  in  the  Collateral,  and  the  Security  Documents  constitute,  or  will  upon  the  filing  of  financing  statements and the obtaining of “control”, in each case with respect to the relevant Collateral as  required under the applicable UCC, the creation of a fully perfected first priority Lien on, and  security  interest  in,  all  right,  title  and  interest  of  the  applicable  Borrowers  thereunder  in  such  Collateral,  in  each  case  prior  and  superior  in  right  to  any  other  Person,  except  as  permitted  hereunder or under any other Loan Document.         Section 4.15 Federal Reserve Regulations.                (a)   Neither the Borrowers nor any of their respective Subsidiaries is engaged  principally, or as one of its important activities, in the business of extending credit for the purpose  of buying or carrying Margin Stock.               (b)   No part of the proceeds of any Loan or any Letter of Credit will be used,  whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) to buy or  carry Margin  Stock  in violation  of,  or  in  a  manner that  is  inconsistent  with, the provisions  of  applicable law and the regulations of the Board, including Regulation U or X, (ii) to extend credit  to others for the purpose of buying or carrying Margin Stock or to refund indebtedness originally  incurred for such purpose or (iii) for any purpose that entails a violation of, or that is inconsistent  with, the provisions of the regulations of the Board, including Regulation U or X.         Section 4.16 Solvency.   The  Parent  Borrower  and  its  Subsidiaries,  on  a  consolidated  basis, are Solvent.           Section 4.17 Use of Proceeds.  The proceeds of the Loans have been used and will be  used, whether directly or indirectly, as set forth in Section 6.11.                                         95 





 






         Section 4.18 Anti-Corruption Laws and Sanctions.  Each Borrower has implemented  and maintains in effect policies reasonably designed to ensure compliance in all material respects  by such Borrower, its Subsidiaries and their respective directors, officers and employees with Anti- Corruption  Laws  and  applicable  Sanctions,  and  such  Borrower,  its  Subsidiaries  and  their  respective officers and directors and, to the knowledge of such Borrower, its employees, are in  compliance with Anti-Corruption Laws and applicable Sanctions in all material respects and are  not knowingly engaged in any activity that would reasonably be expected to result in any Borrower  being designated as a Sanctioned Person.  None of any Borrower, any Subsidiary or any of their  respective directors, officers or, to the knowledge of any such Borrower or Subsidiary, employees,  is a Sanctioned Person.  No Borrowing or Letter of Credit, or use of proceeds thereof, will be used  to violate Anti-Corruption Laws or applicable Sanctions.         Section 4.19 Affected Financial Institutions.  Neither the Borrowers nor any of their  respective Subsidiaries is an Affected Financial Institution.         Section 4.20 Plan  Assets;  Prohibited  Transactions.   No  Borrower  or  any  of  its  Subsidiaries  is  an  entity  deemed  to  hold  “plan  assets”  (within  the  meaning  of  the  Plan  Asset  Regulations), and based on the assumption that Lenders are in compliance with Section 9.09(a)(i)  through Section 9.09(a)(iii) of this Agreement, neither the execution, delivery nor performance of  the transactions contemplated under this Agreement, including the making of any Loan and the  issuance of any Letter of Credit hereunder, will give rise to a non-exempt prohibited transaction  under Section 406 of ERISA or Section 4975 of the Code.                                    ARTICLE V                                                                           CONDITIONS         Section 5.01 Second  Amendment  Effective  Date.   The  effectiveness  of  the  Second  Amendment and the obligations of the Lenders to make Loans and of the Issuing Lenders to issue  Letters of Credit hereunder is subject to satisfaction (or waiver by the Required Lenders) of the  following conditions precedent:               (a)   The Agent (or its counsel) shall have received from the Borrowers and the  Required Lenders either (i) a counterpart of the Second Amendment and all other Loan Documents  signed on behalf of such party or (ii) written evidence satisfactory to the Agent (which may include  telecopy or other electronic transmission of a signed signature page of the Second Amendment)  that such party has signed a counterpart of the Second Amendment and all other Loan Documents.               (b)   The Agent shall have received a favorable written opinion (addressed to the  Agent  and  the  Lenders  on  the  Second  Amendment  Effective  Date  and  dated  the  Second  Amendment Effective Date) of Simpson Thacher & Bartlett LLP, counsel for the Borrowers, and  such other opinions of counsel as the Agent may reasonably request, and covering such matters  relating to the Borrowers, the Loan Documents or the Transactions as is customary for transactions  of this type.  The Borrowers hereby request such counsel to deliver such opinion.               (c)   The Agent shall have received such documents and certificates as the Agent  or its counsel may reasonably request relating to the organization, existence and good standing of                                         96 





 






   each Borrower, the authorization of the transactions contemplated by the Loan Documents and  any  other  legal  matters  relating  to  the  Borrowers,  the  Loan  Documents  or  the  transactions  contemplated thereby, all in form and substance reasonably satisfactory to the Agent and their  counsel.               (d)   The  Agent  shall  have  received  a  Borrowing  Base  Certificate  dated  the  Second Amendment Effective Date, relating to the month ended on March 31, 2020, calculating  the  Deemed  Borrowing  Base  on  such  date  with  customary  supporting  schedules  and  documentation.               (e)   The Agent shall have received a certificate, reasonably satisfactory in form  and substance to the Agent, with respect to the solvency of the Parent Borrower and its Subsidiaries  on a consolidated basis, as of the Second Amendment Effective Date.               (f)   All  necessary  consents  and  approvals  to  the  transactions  contemplated  hereby shall have been obtained and shall be reasonably satisfactory to the Agent.               (g)   No event, change or condition, either individually or in the aggregate, that  has had, or could reasonably be expected to have, a Material Adverse Effect, since February 1,  2020.               (h)   The  Agent  shall  have  received  and  be  reasonably  satisfied  with  (i) the  audited financial statements of the Parent Borrower and its Subsidiaries for the fiscal year ended  February 2, 2019 and February 1, 2020; (ii) satisfactory unaudited interim consolidated financial  statements of the Parent Borrower for each fiscal quarter ended subsequent to the date of the latest  financial  statements  delivered  pursuant  to clause (i)  of  this paragraph (h)  and  (iii) the  Parent  Borrower’s most recent projected income statement, balance sheet and cash flows prepared on a  monthly basis through January 29, 2021.               (i)   There is no pending litigation or other proceeding, the result of which would  reasonably be expected to have a Material Adverse Effect.               (j)   The  consummation  of  the  Transactions  contemplated  hereby  shall  not  conflict  with,  or  result  in  a  default  or  event  of  default  under,  any  material  agreement  of  any  Borrower,  including,  without  limitation,  under  the  Bonds  or  under  any  agreement  relating  to  Material  Indebtedness  (and  the  Agent  and  the  Lenders  shall  receive  a  satisfactory  opinion  of  Borrowers’ counsel to that effect).               (k)   The  Agent  shall  have  received  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  Borrowers’  Inventory  and  proceeds  thereof,  including without limitation, receivables from credit card processors, except for Liens for which  termination  statements  and  releases  reasonably  satisfactory  to  the  Agent  are  being  tendered  concurrently with such extension of credit.               (l)   Other than as set forth in Section 2.24(c), the Agent shall have received all  documents and instruments, including UCC financing statements, required by law or reasonably  requested by the Agent to be filed, registered or recorded to create or perfect the first priority Liens                                         97 





 






   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.               (m)   All fees due on the Second Amendment Effective Date and all reasonable  and  documented  out-of-pocket  expenses  incurred  by  the  Agent  and  the  Second  Amendment  Arrangers in connection with the Second Amendment (including the reasonable fees and expenses  of counsel to the Agent and the Second Amendment Arrangers) for which invoices have been  presented not later than three (3) Business Days prior to the Second Amendment Effective Date,  shall have been paid in full.               (n)   [reserved].               (o)   [reserved].               (p)   The Agent shall have received a certificate of the Parent Borrower stating  that the representations and warranties made by the Borrowers to the Agent and the Lenders in the  Loan  Documents  are  true  and  correct  in  all  material  respects  (except  any  representations  and  warranties qualified by materiality shall be true and correct in all respects) as of the date of such  certificate, and that no event has occurred which is or which, solely with the giving of notice or  passage of time (or both) would be an Event of Default.               (q)   There  shall  be  no  Default  or  Event  of  Default  that  has  occurred  and  is  continuing on the Second Amendment Effective Date.               (r)   The  Agent  shall  have  received  evidence  of  insurance  coverage  in  form,  scope, and substance reasonably satisfactory to the Agent and otherwise in compliance with the  terms of Section 6.07 hereof and Section 4.15 of the Security Agreement.               (s)   (i) The Agent shall have received, at least three (3) days prior to the Second  Amendment Effective  Date, all  documentation  and other information  regarding the Borrowers  requested in connection with applicable “know your customer” and anti-money laundering rules  and  regulations,  including  the  USA  PATRIOT  Act,  to  the  extent  requested  in  writing  of  the  Borrowers at least seven (7) days prior to the Second Amendment Effective Date, and (ii) to the  extent  any  Borrower  qualifies  as  a  “legal  entity  customer”  under  the  Beneficial  Ownership  Regulation, at least three (3) days prior to the Second Amendment Effective Date, any Lender that  has requested, in a written notice to the Borrowers at least seven (7) days prior to the Second  Amendment Effective Date, a Beneficial Ownership Certification in relation to each Borrower  shall have received such Beneficial Ownership Certification (provided that, upon the execution  and delivery by such Lender of its signature page to the Second Amendment, the condition set  forth in this clause (ii) shall be deemed to be satisfied).   Without limiting the generality of the provisions of Section 9.02(c), for purposes of determining  compliance with the conditions specified in this Section 5.01, each Lender that has signed the  Second Amendment shall be deemed to have consented to, approved or accepted or to be satisfied  with,  each  document  or  other  matter  required  under  this Section 5.01  to  be  consented  to  or  approved by or acceptable or satisfactory to a Lender unless the Agent shall have received notice  from such Lender prior to the Second Amendment Effective Date specifying its objection thereto.   All  documents  executed  or  submitted  pursuant  to  this Section 5.01  by  and  on  behalf  of  the                                         98 





 






   Borrowers shall be in form and substance reasonably satisfactory to the Agent and its counsel.  The  Agent shall notify the Borrowers and the Lenders of the Second Amendment Effective Date, and  such notice shall be conclusive and binding.          Section 5.02 Conditions Precedent to Each Loan and Each Letter of Credit.          In addition to those conditions described in Section 5.01, the obligation of the Lenders to  make each Revolving Loan and of the Issuing Lenders to issue, amend, renew or extend any Letter  of Credit, is subject to the following conditions precedent:               (a)   Notice.   The  Agent  shall  have  received  a  notice  with  respect  to  such  Borrowing or issuance,  amendment,  renewal or  extension,  as  the  case may be,  as  required by  Article II, certifying (i) as to the use of proceeds of such Borrowing on the date of such Borrowing  if the Consolidated Cash Balance after giving pro forma effect to such Borrowing and the use of  proceeds thereof would exceed the Consolidated Cash Balance Threshold, and (ii) that at the time  of and after giving effect to such Borrowing (and the use of proceeds thereof) on or around such  date,  but  in  any  event  not  to  exceed  five  (5)  Business  Days  after  such  date  (as  certified  by  a  Responsible Officer of the Parent Borrower to the extent required under the foregoing clause (i))  or  the  issuance,  amendment,  renewal  or  extension  of  such  Letter  of  Credit,  as  applicable,  the  Consolidated Cash Balance shall not exceed the Consolidated Cash Balance Threshold.               (b)   Representations  and  Warranties.   All  representations  and  warranties  contained  in  this  Agreement  and  the  other  Loan  Documents  or  otherwise  made  in  writing  in  connection herewith or therewith shall be true and correct in all material respects (except any  representations and warranties qualified by materiality shall be true and correct in all respects) on  and as of the date of each Borrowing or the issuance, amendment, renewal or extension of any  Letter of Credit hereunder with the same effect as if made on and as of such date, other than  representations and warranties that relate solely to an earlier date.               (c)   No Default.  On the date of each such Borrowing and the issuance of each  Letter of Credit, and after giving effect to such Borrowing or issuance, amendment, renewal or  extension of such Letter of Credit, no Default or Event of Default shall have occurred and be  continuing.   The request by the Borrowers for, and the acceptance by the Borrowers of, each extension of credit  hereunder shall be deemed to be a representation and warranty by the Borrowers that the conditions  specified in this Section 5.02 have been satisfied at that time and that after giving effect to such  extension of credit the aggregate of all Credit Extensions shall not exceed the amounts set forth in  Section 2.01(a) hereof.  The conditions set forth in this Section 5.02 are for the sole benefit of the  Agent and each Lender and may be waived by the Agent in whole or in part without prejudice to  the Agent or any Lender.  Notwithstanding the failure to satisfy the conditions precedent set forth  in this Section 5.02, unless otherwise directed by the Required Lenders, the Administrative Agent  may, but shall have no obligation to, continue to make Loans and an Issuing Lender may, but shall  have no obligation to, issue, amend, renew or extend, or cause to be issued, amended, renewed or  extended, any Letter of Credit for the ratable account and risk of Lenders from time to time if the  Agent believes that making such Loans or issuing, amending, renewing or extending, or causing                                          99 





 






   the issuance, amendment, renewal or extension of, any such Letter of Credit is in the best interests  of the Lenders.                                    ARTICLE VI                                                                    AFFIRMATIVE COVENANTS         Until all of the Obligations have been Paid in Full, each Borrower covenants and agrees  with the Agent and the Lenders that:         Section 6.01 Financial  Statements  and  Other  Information.   The  Borrowers  will  furnish to the Agent:               (a)   as soon as available and in any event within ninety (90) days after the end  of each  fiscal year  of  the  Parent  Borrower, the  audited consolidated balance sheet  and related  statements  of  earnings,  shareholders’  equity  and  cash  flows  of  the  Parent  Borrower  and  its  Subsidiaries (together with an unaudited reconciliation, reflecting total assets, Inventory, capital  expenditures  and  cash  for  the  Parent  Borrower  and  its  Subsidiaries,  on  the  one  hand,  and  the  Specified Subsidiaries, on the other hand) as of the end of and for such year, setting forth in each  case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP  or another independent registered public accounting firm of recognized national standing (without  a “going concern” or like qualification or exception and without any qualification or exception as  to the scope of such audit) to the effect that such consolidated financial statements present fairly,  in all material respects, the financial condition and results of operations and cash flows of the  Parent Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;               (b)   as soon as available and in any event within forty-five (45) days after the  end  of  each  of  the  first  three  fiscal  quarters  of  each  fiscal  year  of  the  Parent  Borrower,  the  consolidated balance sheet and related statements of earnings, shareholders’ equity and cash flows  of the Parent Borrower and its Subsidiaries (together with an unaudited reconciliation, reflecting  total assets, Inventory, capital expenditures and cash for the Parent Borrower and its Subsidiaries,  on the one hand, and the Specified Subsidiaries, on the other hand) as of the end of and for such  fiscal  quarter  and  the  then  elapsed  portion  of  the  fiscal  year,  setting  forth  in  each  case  in  comparative  form  the  figures  for  (or,  in  the  case  of  the  balance  sheet,  as  of  the  end  of)  the  corresponding period or periods of the previous fiscal year, all certified by a Financial Officer of  the Parent Borrower as presenting fairly, in all material respects, the financial condition and results  of operations and cash flows of the Parent Borrower and its Subsidiaries on a consolidated basis  in accordance with GAAP, subject to normal year-end audit adjustments and the absence of certain  footnotes;               (c)   concurrently with any delivery of financial statements under clause (a) or  (b)  of  this  Section,  a  certificate  executed  by  a  Financial  Officer  of  the  Parent  Borrower  (i)  certifying as to whether, to the best knowledge of such Financial Officer (following due inquiry),  a Default has occurred and, if a Default has occurred, specifying the details thereof and any action  taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations  demonstrating  compliance  with Section 7.08  (if  a  Trigger  Period  is  in  effect)  and  (iii)  stating  whether any change in GAAP or in the application thereof has occurred since the date of the Parent                                        100 





 






   Borrower’s audited financial statements referred to in Section 4.04 and, if any such change has  occurred, specifying the effect of such change on the financial statements accompanying such  certificate;               (d)   within forty-five (45) days after the commencement of each fiscal year of  the Parent Borrower, a detailed consolidated budget by quarter for such fiscal year (including a  projected consolidated balance sheet and related statements of projected operations and cash flow  as of the end of and for such fiscal year) and, promptly when available, any significant revisions  of such budget;               (e)   within five (5) days after the end of each month, a certificate in the form of  Exhibit D  or  any  other  form  reasonably  acceptable  to  the  Agent  (a  “Borrowing  Base  Certificate”)  showing  the  Borrowing  Base  as  of  the  close  of  business  on  the  last  day  of  the  immediately preceding month and supporting information reasonably requested by the Agent in  connection therewith, each such Borrowing Base Certificate to be certified as complete and correct  on behalf of the Borrowers by a Financial Officer of the Parent Borrower; provided, that, at any  time an Activation Period exists, a Borrowing Base Certificate (showing the Borrowing Base as  of the close of business on the last day of the immediately preceding week) shall be furnished  weekly on Wednesday of each week;               (f)   promptly after the same become publicly available, copies of all periodic  and other reports,  proxy statements  and  other  materials  filed by  the  Parent  Borrower  with the  Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of  the  functions  of  the  Securities  and  Exchange  Commission,  or  with  any  national  securities  exchange, as the case may be;               (g)   promptly upon receipt thereof, copies of all reports submitted to the Parent  Borrower by independent certified public accountants in connection with each annual, interim or  special audit of the books of the Parent Borrower and its Subsidiaries made by such accountants,  including any management letter commenting on the Borrowers’ internal controls submitted by  such accountants to management in connection with their annual audit;               (h)   promptly (but in any event within two (2) Business Days) after delivering  any Borrowing Base Certificate pursuant to Section 6.01(e), the Parent Borrower shall notify the  Administrative Agent of the Consolidated Cash Balance as the close of business on the date such  Borrowing  Base  Certificate  was  delivered  and  whether  the  Borrowers  are  required  to  make  a  payment pursuant to Section 2.21(c); and                (i)   promptly  following  any  request  therefor,  (i)  such  other  information  regarding the operations, changes in ownership of Equity Interests, business affairs and financial  condition of any Borrower or any Subsidiary, or compliance with the terms of this Agreement or  any other Loan Document, as the Agent or any Lender may reasonably request, and (ii) information  and documentation reasonably requested by the Agent or any Lender for purposes of compliance  with applicable “know your customer” and anti-money laundering rules and regulations, including  the USA PATRIOT Act and the Beneficial Ownership Regulation.                                         101 





 






   The Parent Borrower’s obligations under clauses (a) and (b) of this Section shall in any event be  deemed sufficiently performed if the financial statements referred to therein are delivered by the  time  required  under  the  applicable  clause  in  such  form  and  content  as  permitted  under  the  Exchange Act.  Documents required to be delivered pursuant to clauses (a) and (b) of this Section  (to the extent any such documents are included in materials otherwise filed and publicly available  with the Securities and Exchange Commission) shall be deemed to have been delivered on the date  on which the Parent Borrower posts such documents on www.sec.gov, or provides a link thereto  on the Parent Borrower’s website.  All documents and notices required by this Section shall be  deemed sufficiently delivered when posted by the Agent on the Approved Electronic Platform to  which each Lender and the Agent have been granted access.   The Parent Borrower represents and warrants that it files its financial statements with the SEC and,  accordingly, the Parent Borrower hereby (i) authorizes the Agent to make the financial statements  to  be  provided  under Section 6.01(a)  or (b),  along  with  the  Loan  Documents,  available  to  all  Lenders and (ii) agrees that at the time such financial statements are provided hereunder, they shall  already have been made available to holders of its securities.  The Parent Borrower will not request  that any other material be posted to all Lenders without expressly representing and warranting to  the Agent in writing that such materials do not constitute material non-public information or that  the  Parent  Borrower  has  no  outstanding  publicly  traded  securities.   In  no  event  shall  the  Administrative Agent post compliance certificates or budgets to public side lenders.         Section 6.02 Notices of Material Events.  The Borrowers will furnish to the Agent (to  furnish promptly to each Issuing Lender and each Lender) prompt written notice of the following:               (a)   the occurrence of any Default or Event of Default;               (b)   the filing or commencement of any action, suit or proceeding by or before  any arbitrator or Governmental Authority against or affecting any Borrower or any Subsidiary or  any Affiliate thereof that, if adversely determined, could reasonably be expected to result in a  Material Adverse Effect;               (c)   the occurrence of any ERISA Event that, alone or together with any other  ERISA  Events  that  have  occurred,  results  in,  or  could  reasonably  be  expected  to  result  in,  a  Material Adverse Effect;               (d)   any other development that results in, or could reasonably be expected to  result in, a Material Adverse Effect;               (e)   the discharge by any Borrower of their present independent accountants or  any withdrawal or resignation by such independent accountants; and               (f)   any  change  in  the  information  provided  in  the  Beneficial  Ownership  Certification delivered to such Lender that would result in a change to the list of beneficial owners  identified in such certification.   Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer  or  other  Responsible  Officer  of  the  Parent  Borrower  setting  forth  the  details  of  the  event  or                                         102 





 






   development requiring such notice and, if applicable, any action taken or proposed to be taken  with respect thereto.         Section 6.03 Information Regarding Collateral.                 (a)   The Parent Borrower will furnish to the Agent prompt written notice of any  change in (i) any Borrower’s corporate name or in any trade name used to identify it in the conduct  of  its  business  or  in  the  ownership  of  its  properties,  (ii)  the  location  of  any  Borrower’s  chief  executive office, its principal place of business, any office in which it maintains books or records  relating to Collateral owned by it or any office or facility at which Collateral owned by it is located  (including the establishment of any such new office or facility), (iii) any Borrower’s identity or  corporate  structure  or  (iv)  any  Borrower’s  jurisdiction  of  organization,  Federal  Taxpayer  Identification Number or state organizational number.  The Parent Borrower also agrees promptly  to notify the Agent if any material portion of the Collateral is damaged or destroyed.               (b)   Each year, at the time of delivery of annual financial statements with respect  to  the  preceding  fiscal  year  pursuant  to clause (a)  of Section 6.01,  the  Parent  Borrower  shall  deliver to the Agent a certificate of a Financial Officer of the Parent Borrower setting forth the  information  required  pursuant  to  Section  3  and  Section  6  of  the  Perfection  Certificate  or  confirming  that  there  has  been  no  change  in  such  information  since  the  Second  Amendment  Effective  Date  or  the  date  of  the  most  recent  Perfection  Certificate  delivered  pursuant  to  this  Section.         Section 6.04 Existence; Conduct of Business.  Each Borrower will, and will cause each  of its Subsidiaries to, do or cause to be done all things necessary to comply with its respective  charter,  certificate  of  incorporation,  articles  of  organization,  and/or  other  organizational  documents,  as  applicable;  and  by  laws  and/or  other  instruments  which  deal  with  corporate  governance, and to preserve, renew and keep in full force and effect its legal existence and the  rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names  material to the conduct of its business except, in each case, as otherwise permitted by Section 7.03  or except to the extent that failure to do so would not reasonably be expected to have a Material  Adverse Effect.         Section 6.05 Payment of Obligations.  Each Borrower will, and will cause each of its  Subsidiaries to, pay its Indebtedness and other obligations, including Tax liabilities, before the  same shall become delinquent or in default, except where (a) the validity or amount thereof is  being contested in good faith by appropriate proceedings, (b) such Borrower or such Subsidiary  has set aside on its books adequate reserves with respect thereto in accordance with GAAP, (c) no  Lien that is prohibited by Section 7.02 secures such obligation, and (d) the failure to make payment  pending such contest would not reasonably be expected to result in a Material Adverse Effect.   Nothing contained herein shall be deemed to limit the rights of the Agent under Section 2.02(a).         Section 6.06 Maintenance of Properties.  Each Borrower will, and will cause each of  its Subsidiaries to, keep and maintain all property material to the conduct of its business in good  working order and condition, ordinary wear and  tear excepted and with the exception of asset  dispositions permitted hereunder.                                         103 





 






         Section 6.07 Insurance.                (a)   Each Borrower will, and will cause each of its Subsidiaries to, (i) maintain  insurance with financially sound and reputable insurers reasonably acceptable to the Agent (or, to  the extent consistent with prudent business practice, a program of self-insurance approved by the  Agent, such approval not to be unreasonably withheld) on such of its property and in at least such  amounts and against at least such risks as is customary with companies in the same or similar  businesses operating in the same or similar locations, including public liability insurance against  claims for personal injury or death occurring upon, in or about or in connection with the use of any  properties owned, occupied or controlled by it (including the insurance required pursuant to the  Security  Documents);  (ii)  maintain  such  other  insurance  as  may  be  required  by  law;  and  (iii)  furnish to the Agent, upon written request, full information as to the insurance carried.               (b)   Fire  and  extended  coverage  policies  maintained  with  respect  to  any  Collateral shall be endorsed or otherwise amended to include (i) a provision to the effect that none  of the Borrowers, the Agent, or any other party shall be a coinsurer, (ii) naming the Agent as lender  loss payee and additional insured, and (iii) such other provisions as the Agent may reasonably  require from time to time to protect the interests of the Lenders.  Each such policy referred to in  this paragraph also shall provide that it shall not be canceled, modified or not renewed (A) by  reason of nonpayment of premium except upon not less than 30 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 (B) for any other reason except upon not less than 30 days’ prior written notice thereof by the  insurer  to  the  Agent.   The  Borrowers  shall  deliver  to  the  Agent,  prior  to  the  cancellation,  modification or nonrenewal of any such policy of insurance, a copy of a renewal or replacement  policy (or other evidence of renewal of a policy previously delivered to the Agent) together with  evidence satisfactory to the Agent of payment of the premium therefor.  The Agent may retain and  apply insurance proceeds which are paid to reimburse the Borrowers for any loss to the Collateral  in accordance with this Agreement, but only after a Cash Control Event or an Event of Default has  occurred and is continuing; all other insurance proceeds and all insurance proceeds received when  no Cash Control Event or Event of Default has occurred and is continuing may be retained by the  Borrowers  and  the Agent shall  endorse any instruments  on which it  is  named  as  payee to  the  applicable  Borrower;  provided  that,  in  each  case,  the  Borrowers  shall  be  required  to  make  a  mandatory prepayment pursuant to Section 2.21(a) to the extent such casualty or condemnation  event results in a loss of Collateral that causes the Credit Extensions to exceed the lower of the (x)  the then amount of the Total Commitment, and (y) the then amount of the Borrowing Base after  giving effect to such casualty or condemnation event.         Section 6.08 Casualty and Condemnation.  Each Borrower will furnish to the Agent  and the Lenders prompt written notice 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  material portion of the Collateral or any part thereof or interest therein under power of eminent  domain or by condemnation or similar proceeding.         Section 6.09 Books and Records; Inspection and Audit Rights; Appraisals.                (a)   Each Borrower will, and will cause each of its Subsidiaries to, keep proper  books of record and account in such detail as is necessary to allow the delivery of the reports                                        104 





 






   required  by Section 6.01,  in  which  full,  true  and  correct  entries  are  made  of  all  dealings  and  transactions in relation to its business and activities in accordance with and as required by GAAP  in all material respects.  Each Borrower will, and will cause each of its Subsidiaries to, permit any  representatives designated by the Agent (on its own behalf or as requested by any Lender), upon  reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its  books  and  records,  and  to  discuss  its  affairs,  finances  and  condition  with  its  officers  and  independent accountants, all at such reasonable times and as often as reasonably requested.               (b)   Each Borrower will, and will cause each of the Subsidiaries to, from time  to time upon the reasonable request of the Agent or the Required Lenders through the Agent,  permit the Agent or other professionals (including investment bankers, consultants, accountants,  lawyers and appraisers) retained by the Agent to conduct appraisals, field examinations and other  evaluations, including, without limitation, of (i) the Borrowers’ 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, and  pay the reasonable  fees  and  expenses  of the Agent  or  such professionals  with  respect  to  such  evaluations and appraisals.  Notwithstanding the foregoing, the Agent shall only undertake one  inventory  appraisal  and  one  field  examination  at  the  Borrowers’  expense  in  each  consecutive  twelve month period as long as an Inspection Trigger Period is not continuing; if an Inspection  Trigger Period has occurred and is continuing, the Agent may cause additional inventory appraisals  and field exams to be undertaken as it in its discretion deems necessary or appropriate, or as may  be required by applicable law; provided that any inventory appraisals or field exams commenced  while  an  Inspection  Trigger  Period  is  continuing  shall  be  at  the  expense  of  the  Borrowers;   provided, further, that two inventory appraisals shall be undertaken at the Borrowers’ expense in  the first twelve-month period after the Second Amendment Effective Date.         Section 6.10 Compliance with Laws.  Each Borrower will, and will cause each of its  Subsidiaries to, comply with all laws (including ERISA and Environmental Laws) and all rules,  regulations and orders of any Governmental Authority applicable to it or its property, except where  the failure to do so, individually or in the aggregate, would not reasonably be expected to result in  a  Material  Adverse  Effect.   Each  Borrower  will  maintain  in  effect  and  enforce  policies  and  procedures designed to ensure compliance by such Borrower, its Subsidiaries and their respective  directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.         Section 6.11 Use  of  Proceeds  and  Letters  of  Credit.   The  proceeds  of  Loans  made  hereunder and Letters of Credit issued hereunder will be used only (a) to finance the acquisition  of working capital assets of the Borrowers and their respective Subsidiaries, including the purchase  of  Inventory  in  the  ordinary  course  of  business,  (b)  to  finance  Capital  Expenditures  of  the  Borrowers  and  their  respective  Subsidiaries,  and  (c)  for  general  corporate  purposes,  including  repurchases of the Bonds and other Indebtedness.  No part of the proceeds of any Loan and no  Letter of Credit will be used, whether directly or indirectly, for any purpose that entails a violation  of the Bonds or of any of the regulations of the Board, including Regulations T, U and X.  No  Borrower will request any Borrowing or Letter of Credit, and no Borrower shall use, and each  Borrower  shall  procure  that  its  Subsidiaries  and  its  and  their  respective  directors,  officers,  employees  and  agents  shall  not  use,  the  proceeds  of  any  Borrowing  or  Letter  of  Credit  (i)  in  furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of  money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for                                        105 





 






   the purpose of funding, financing or facilitating any activities, business or transaction of or with  any Sanctioned Person, or in any Sanctioned Country, except to the extent permitted for a Person  required to comply with Sanctions, or (iii) in any manner that would result in the violation of any  Sanctions applicable to any party hereto.         Section 6.12 Accuracy  of  Information.   The  Borrowers  will  ensure  that  any  information,  including  financial  statements  or  other  documents,  furnished  to  the  Agent  or  the  Lenders in connection with this Agreement or any other Loan Document or any amendment or  modification  hereof  or  thereof  or  waiver  hereunder  or  thereunder  contains  no  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, and the furnishing  of such information shall be deemed to be a representation and warranty by the Borrowers on the  date thereof as to the matters specified in this Section; provided that, with respect to projected  financial information, the Borrowers will only ensure that such information was prepared in good  faith based upon assumptions believed to be reasonable at the time.         Section 6.13 Additional Borrowers; Further Assurances.                (a)   Upon  the  formation  or  acquisition  of  any  Material  Subsidiary  of  any  Borrower (other than any Excluded Subsidiary), after the Second Amendment Effective Date, or  if any Subsidiary becomes a Material Subsidiary after the Second Amendment Effective Date, (i)  the Parent Borrower shall notify the Agent of such Material Subsidiary and provide the Agent with  such documents and information related to the  Material Subsidiary to satisfy the requirements  under Section 10.19 and (ii) such Material Subsidiary shall execute and deliver a joinder to this  Agreement  and  to  the  Security  Agreement  as,  and  shall  become,  a  Borrower  hereunder  and  a  Grantor (as defined in the Security Agreement) thereunder within, in each case, thirty (30) days  (as such date may be extended by the Agent in its sole discretion) after such Subsidiary becomes  a Material Subsidiary.  Further, within sixty (60) days (as such date may be extended by the Agent  in its sole discretion) after such Person becomes a Material Subsidiary, such Person shall execute  and deliver,  or  cause  to  be executed  and  delivered,  such  Blocked Account  Agreements,  DDA  Notifications,  and  Credit  Card  Notifications  as  the  Agent  may  reasonably  request.   Nothing  contained in this Section 6.13 shall permit any Borrower to form or acquire any Subsidiary which  is otherwise prohibited by this Agreement.               (b)   Each Borrower and its Subsidiaries (other than any Excluded Subsidiary)  will 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 or the Required  Lenders  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  Borrowers.  The Borrowers also agree to provide to the Agent, from time to time upon request,  evidence reasonably satisfactory to the Agent as to the perfection and priority of the Liens created  or intended to be created by the Security Documents, and to the extent any real property is included  in the Collateral, such other documents as the Agent may reasonably request on behalf of any  Lender that is a regulated financial institution or any Affiliate of such a Lender (each, a “Regulated  Lender Entity”), in each case, to the extent such other documents are required for compliance by                                        106 





 






   such  Regulated  Lender  Entity  with  applicable  law  with  respect  to  flood  insurance  diligence,  documentation and coverage under the Flood Disaster Protection Act of 1973, as amended.  Prior  to  signing  by  any  Borrower  of  any  mortgage  or  deed  of  trust  to  secure  the  Obligations,  the  applicable Borrower and the Agent shall have provided each Regulated Lender Entity requesting  the same a copy of the life of loan flood zone determination relative to the property to be subject  to such mortgage or deed of trust delivered to the Agent and copies of the other documents required  by any such Regulated Lender Entity as provided in the preceding sentence and shall have received  confirmation  from  each  Regulated  Lender  Entity  that  flood  insurance  due  diligence  and  flood  insurance compliance has been completed by such Regulated Lender Entity (such confirmation  not to be unreasonably withheld, conditioned or delayed, and shall be delivered promptly upon  such completion by the applicable Regulated Lender Entity).               (c)   The  Borrowers  shall  cause  each  Subsidiary  which  is  not  a  Subsidiary  Borrower  and  which  owns  or  controls  any  trademark,  trade  name,  logo,  any  other  General  Intangibles, or any furniture, Fixtures, or Equipment located at any store location, to execute and  deliver to the Agent a royalty free, non-exclusive license to use any such assets in connection with  any exercise of the Agent’s rights under the Security Agreement, including without limitation, in  connection with any sale or other disposition of Inventory.  As used herein, the term “General  Intangible”, “Fixtures” and “Equipment” shall each have the meaning provided in the Security  Agreement.               (d)   Notwithstanding  anything  to  the  contrary  contained  herein,  subject  to  Section 2.24(c),  each  Subsidiary  Borrower  shall,  and  the  Parent  Borrower  shall  cause  each  Subsidiary Borrower to, execute and deliver, or cause to be executed and delivered, such Blocked  Account  Agreements,  DDA  Notifications,  and  Credit  Card  Notifications  as  the  Agent  may  reasonably request for any DDA that is not subject to a Blocked Account Agreement and any credit  card processor that has not delivered a Credit Card Notification prior to the earlier of (i) Parent  Borrower, Subsidiary Borrower or their Subsidiaries depositing any amounts into such DDA or  using such credit card processor, and (ii) sixty (60) days (as such date may be extended by the  Agent in its sole discretion) after (x) opening such DDA or entering into an agreement with such  credit card processor, as applicable, or (y) any Subsidiary (other than any Excluded Subsidiary)  becomes a Material Subsidiary, in each case as applicable.         Section 6.14 Post-Closing Obligations.                (a)   On or prior to the date that is 90 days (as such date may be extended by the  Agent in its sole discretion) after the day that 80% of the Borrowers’ then existing stores are re- opened, the Agent shall have received (i) appraisals of the Collateral consisting of Inventory by a  third  party  appraiser  reasonably  acceptable  to  the  Agent  and  (ii)  a  field  examination  of  the  Borrowers’ books and records reasonably acceptable to the Agent.               (b)   On or prior to the date that is 30 days (as such date may be extended by the  Agent  in  its  sole  discretion)  after  the  Second  Amendment  Effecive  Date,  the  Borrowers  shall  deliver insurance endorsements in form, scope and substance reasonably acceptable to the Agent  evidencing  that  the  Agent  has  been  named  as  lender  loss  payee  and  additional  insured,  as  applicable, under each applicable insurance policy and otherwise in compliance with the terms of  the Loan Documents.                                        107 





 






               (c)   On or prior to the date that is 15 days (as such date may be extended by the  Agent in its sole discretion) after the Second Amendment Effective Date, the Agent shall have  received a favorable written opinion (addressed to the Agent and the Lenders on the date such  opinion is delivered) of Nevada, Missouri, Utah and Arizona counsel for the Borrowers, covering  such matters relating to the Borrowers, the Loan Documents or the Transactions as is customary  for transactions of this type. The Borrowers hereby request such counsel to deliver such opinion.                 (d)   The Borrowers failure to comply with any requirement of this Section 6.14  on or before the date specified in this Section 6.14 shall constitute an immediate Event of Default.                                   ARTICLE VII                                                                      NEGATIVE COVENANTS         Until all of the Obligations have been Paid in Full, each Borrower covenants and agrees  with the Agent and the Lenders that:         Section 7.01 Indebtedness and Other Obligations.  The Subsidiary Borrowers will not,  and will not permit any of their respective Subsidiaries to, create, incur, assume or permit to exist  any Indebtedness, except:               (a)   Indebtedness created under the Loan Documents;               (b)   Indebtedness  existing on  the  Second  Amendment  Effective Date and set  forth in Schedule 7.01 and extensions, renewals and replacements of any such Indebtedness that  do not increase the outstanding principal amount thereof or result in an earlier maturity date or  decreased weighted average life thereof;               (c)   Indebtedness of any Subsidiary Borrower to any other Subsidiary Borrower;               (d)   Indebtedness of any Borrower to finance the acquisition or construction of  any 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  (the  “Fixed  Capital  Asset  Debt”),  and  extensions,  renewals  and  replacements  of  such  Fixed  Capital  Asset  Debt  that  do  not  increase  the  outstanding  principal  amount thereof or result in an earlier maturity date or decreased weighted average life thereof,  provided that the aggregate principal amount of the Fixed Capital Asset Debt shall not exceed  $200,000,000 at any time outstanding;               (e)   Indebtedness incurred to finance, refinance or otherwise monetize the value  of any Real Estate owned by any Borrower not otherwise permitted to be used as collateral for the  Fixed Capital Asset Debt; provided that the aggregate principal amount of Indebtedness permitted  by this clause (e) shall not exceed $500,000,000 at any time outstanding;               (f)   Indebtedness under Hedging Agreements with any Lender or its Affiliates;  provided that no Hedging Agreement shall be entered into for speculative purposes;                                         108 





 






               (g)   Guarantees  of  Indebtedness  incurred  in  connection  with  Permitted  Joint  Ventures, provided that at the time that such Guarantees are entered into, no Default or Event of  Default then exists or would result from the making of such Guarantees;                (h)   Indebtedness  of  (A)  a  Person  that  becomes  a  Subsidiary  of  the  Parent  Borrower to the extent such Indebtedness exists at the time such Person becomes a Subsidiary and  is not created in contemplation of or in connection with such Person becoming a Subsidiary and  (B) a Subsidiary to the extent such Indebtedness is assumed in connection with an acquisition or  investment made by such Subsidiary and is not created in contemplation of such acquisition or  investment;  provided,  however,  that  such  Indebtedness  shall  not  be  guaranteed  by  any  other  Subsidiary; and               (i)   other  unsecured  Indebtedness  in  an  aggregate  principal  amount  not  exceeding $100,000,000 at any time outstanding.   Notwithstanding anything to the contrary herein, (i) the Borrowers will not, and will not permit  any  of  their  respective  Subsidiaries  to,  create,  incur,  assume  or  permit  to  exist  any  additional  Indebtedness  after  the  Second  Amendment  Effective  Date  (other  than  Indebtedness  incurred  pursuant to clauses (a), (b), (c) and (f) above) until the Deemed Borrowing Base Termination Date  has occurred and (ii) to the extent the Parent Borrower creates, incurs, assumes or permits to exist  any Indebtedness to finance the acquisition or construction of any fixed or capital asset, including  Capital  Lease  Obligations,  or  finance,  refinance,  or  otherwise monetize  the  value  of  any Real  Estate,  in  each  case,  on  or  after  the  Deemed  Borrowing  Base  Termination  Date,  the  Parent  Borrower agrees to be bound by the caps on Indebtedness set forth in clauses (d) and (e) above.         Section 7.02 Liens.  The Borrowers will not, and will not permit any of their respective  Subsidiaries to, create, incur, assume or permit to exist any Lien on any property or asset now  owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts  receivable) or rights in respect of any thereof, except:               (a)   Permitted Encumbrances;               (b)   any Lien on any property or asset of any Borrower set forth in Schedule  7.02, provided that (A) such Lien shall not apply to any other property or asset of any Borrower  and (B) such Lien shall secure only those obligations that it secures as of the Second Amendment  Effective  Date,  and  extensions,  renewals  and  replacements  thereof  that  do  not  increase  the  outstanding principal amount thereof;               (c)   Liens on fixed or capital assets acquired by any Borrower, provided that (A)  such Liens secure Indebtedness permitted by clause (d) of Section 7.01, (B) such Liens and the  Indebtedness secured thereby are incurred prior to or within 90 days after such acquisition or the  completion of such construction or improvement, (C) the Indebtedness secured thereby does not  exceed 100% of the cost of acquiring such fixed or capital assets and (D) such Liens shall not  apply to any other property or assets of the Borrowers;               (d)   Liens  to  secure  Indebtedness  permitted  by clause (e)  of Section 7.01;  provided that such Liens shall not apply to any property or assets of the Subsidiary Borrowers                                         109 





 






   other than the Real Estate so financed, refinanced or otherwise monetized or which is the subject  of a sale-leaseback transaction;               (e)   deposits or pledges, or cash collateral given to any financial institution that  has  issued  a  letter  of  credit,  to  secure  payment  of  workers’  compensation,  unemployment  insurance,  old  age  pensions  or  other  social  security  or  employee  benefit  obligations,  daylight  overdraft  exposure  or  ACH  obligations,  or  liabilities  under  or  in  respect  of  self-insurance  programs,  in  each  case  in  the  ordinary  course  of  business  of  the  Parent  Borrower  and  its  Subsidiaries;               (f)   [Reserved];               (g)   Liens  securing  Indebtedness  and  related  obligations  of  any  Subsidiary  which became a Subsidiary after the Second Amendment Effective Date if such Indebtedness and  Liens were outstanding prior to the time it became a Subsidiary and not incurred in contemplation  of its becoming a Subsidiary, and Liens on the same property (or, if such Lien attaches to a type  or class of property of any Person, on the same type or class of property of such Person) securing  Indebtedness and related obligations incurred by the same obligor to extend, renew, refinance,  refund or replace such Indebtedness or obligations so long as the outstanding principal thereof is  not increased; and                (h)   Liens created under the Loan Documents.   Notwithstanding anything to the contrary herein, the Borrowers will not, and will not permit any  of their respective Subsidiaries to, create, incur, assume or permit to exist any additional Lien after  the Second Amendment Effective Date on any property or asset now owned or hereafter acquired  by it, or assign or sell any additional income or revenues (including accounts receivable) or rights  in respect of any thereof, in each case, until the Deemed Borrowing Base Termination Date has  occurred,  except  as  permitted  by Sections  7.02(a), 7.02(b)  and 7.02(h).   Without  limiting the  provisions of this Section 7.02, neither the Parent Borrower nor its Subsidiaries shall create, incur,  assume or permit to exist any Lien (other than Liens incurred pursuant to clause (a) and (b) of the  definition of Permitted Encumbrances) on any Inventory now owned or hereafter acquired by it  other than in favor of the Agent.          Section 7.03 Fundamental Changes.                (a)   The  Borrowers  and  their  respective  Subsidiaries  will  not  merge  into  or  consolidate with any other Person, or permit any other Person to merge into or consolidate with it,  or liquidate or  dissolve, except  that, if at  the  time thereof  and immediately  after  giving  effect  thereto, no Default shall have occurred and be continuing:                     (i)   any Subsidiary may merge, consolidate with, or liquidate or dissolve        into a Borrower in a transaction in which a Borrower is the surviving or continuing entity,        provided,  that,  no  Subsidiary  Borrower  shall  be  permitted  to  merge,  consolidate  with,        liquidate  or  dissolve  into  the  Parent  Borrower  unless  at  the  time  of  such  merger,        consolidation,  liquidation  or  dissolution  into  the  Parent  Borrower,  (x)  the  Excess        Availability Threshold is satisfied and (y) to the extent such Subsidiary Borrower owns        any Inventory that was included in the most recently delivered Borrowing Base Certificate                                        110 





 






         at  such  time,  then  (1)  the  Parent  Borrower  shall,  concurrently  with  any  such  merger,        consolidation,  liquidation  or  dissolution,  deliver  a  revised  Borrowing  Base  Certificate        reflecting the removal of such Inventory from the Borrowing Base and (2) the aggregate        outstanding amount of the Credit Extension shall not exceed the lower of (A) the Total        Commitment then in effect or (B) the then amount of the Borrowing Base after giving        effect to such merger, liquidation or dissolution.                     (ii)  the Parent Borrower may merge with or consolidate with any other        Person (other than a Subsidiary Borrower) as long as the Parent Borrower is the surviving        or continuing entity;                     (iii) any Subsidiary Borrower may merge, consolidate with, or liquidate        or dissolve into any Subsidiary in a transaction in which a Subsidiary that is not a Borrower        is  the  surviving  or  continuing  entity,  provided,  that  (x)(1)  at  the  time  of  such  merger,        consolidation, liquidation or dissolution, the Excess Availability Threshold is satisfied and        (2) to the extent such Subsidiary Borrower owns any Inventory that was included in the        most  recently  delivered  Borrowing  Base  Certificate  at  such  time,  then  (A)  the  Parent        Borrower  shall,  concurrently  with  any  such  merger,  consolidation,  liquidation  or        dissolution, deliver a revised Borrowing Base Certificate reflecting the removal of such        Inventory from the Borrowing Base and (B) the aggregate outstanding amount of the Credit        Extensions shall not exceed the lower of (A) the Total Commitment then in effect or (B)        the then amount of the Borrowing Base after giving effect to such merger, liquidation or        dissolution and (y) any such merger, consolidation, liquidation or dissolution involving a        Person  that  is  not  a  wholly  owned  Subsidiary  immediately  prior  to  such  merger,        consolidation,  liquidation  or  dissolution  shall  not  be  permitted  if  such  merger,        consolidation,  liquidation  or  dissolution  would  constitute  an  Investment  prohibited  by        Section 7.10;                      (iv)  any Subsidiary that is not a Borrower may merge, consolidate with,        liquidate or dissolve into any other Subsidiary that is not a Borrower, provided that any        such  merger,  consolidation,  liquidation  or  dissolution  involving  a  Person  that  is  not  a        wholly owned Subsidiary immediately prior to such merger, consolidation, liquidation or        dissolution shall not be permitted if such merger, consolidation, liquidation or dissolution        would constitute an Investment prohibited by Section 7.10; and                     (v)   any  Investment  that  is  permitted  by Section  7.10  and  any        Disposition that is permitted by Section 7.05 may be structured as a merger, consolidation,        liquidation or dissolution.               (b)   The  Borrowers  and  their  respective  Subsidiaries  will  not  engage  to  any  material extent in any business other than businesses of the type conducted by the Borrowers as of  the  Effective  Date  and  businesses  reasonably  related,  complementary,  synergistic  or  ancillary  thereto or reasonable extensions thereof.         Section 7.04 Restrictive Agreements.  The Parent Borrower will not, and will not permit  any of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement  or  other  arrangement  that  prohibits,  restricts  or  imposes  any  condition  upon  (collectively,                                        111 





 






   “Restrictions”) (i) the ability of any Borrower to create, incur or permit to exist a first priority  Lien upon any of its Inventory securing its obligations hereunder, (ii) the ability of any Subsidiary  to pay dividends or similar distributions with respect to any shares of its capital stock (or similar  Equity Interests) or to make or repay loans or advances to an Borrower or (iii) the ability of any  wholly-owned Subsidiary to Guarantee any of the Guaranteed Obligations; provided that:               (a)   the  foregoing  shall  not  apply  to  (A)  Restrictions  imposed  by  law,  rule,  regulation or order or by this Agreement or any other Loan Document, (B) Restrictions existing  on the Second Amendment Effective Date identified on Schedule 7.04 (but shall apply to any  amendment  or  modification  expanding  the  scope  of  any  such  Restrictions),  (C)  Restrictions  imposed by any agreement by which any Subsidiary is bound at the time such Subsidiary became  a Subsidiary, so long as such agreement was in effect at the time of such acquisition and was not  created in contemplation of such acquisition and such Restrictions only apply to such Subsidiary  (but shall apply to any amendment or modification expanding the scope of any such Restriction),  (D) customary Restrictions contained in agreements relating to the sale of a Subsidiary or assets  pending such sale, provided that (1) such Restrictions apply only to the Subsidiary or assets to be  sold and (2) such sale is permitted hereunder, (E) Restrictions on cash or other deposits under  contracts entered into in the ordinary course of business, (F) in the case of any Subsidiary that is  not a wholly-owned Subsidiary of the Parent Borrower, Restrictions imposed by its organizational  documents or any related joint venture or similar agreement, provided that such Restrictions apply  only  to  such  Subsidiary  and  to  any  Equity  Interests  in  such  Subsidiary,  and  (G)  Restrictions  customarily contained in lease agreements or agreements not relating to Indebtedness, in each case,  entered into by the Parent Borrower or any Subsidiary in the ordinary course of business; and               (b)   clause (i) of the foregoing shall not apply to customary provisions in leases  and other contracts restricting the assignment thereof.         Section 7.05 Asset Sales.                (a)   The Subsidiary Borrowers and their respective Subsidiaries will not sell,  transfer,  lease  or  otherwise  dispose  of  any  asset,  including  any  Equity  Interests,  nor  will  any  Subsidiary Borrower issue any additional shares of its Equity Interests, except:                     (i)   (A) sales of Inventory in the ordinary course of business, or (B) used        or surplus equipment, or (C) Permitted Investments, in each case in the ordinary course of        business;                     (ii)  sales,  transfers  and  dispositions  among  the  Borrowers  and  their        respective  Subsidiaries  (excluding,  however,  any  sales,  transfers  and  dispositions  of        Inventory and other Collateral or proceeds thereof, from any Subsidiary Borrower except        to another Subsidiary Borrower), provided that any such sales, transfers or dispositions        involving  a  Subsidiary  that  is  not  a  Borrower  shall  be  made  in  compliance  with        Section 7.07 and further provided that within five (5) Business Days after consummation        of such sale, transfer or disposition, the provisions of Section 6.13(c) shall be satisfied, if        applicable;                                         112 





 






                     (iii) sales of Minority Interests in the Equity Interests of any Subsidiary;        provided  that  (A)  no  Event  of  Default  has  occurred  and  is  continuing  or  would  arise        therefrom and (B) no Change in Control would result therefrom;                     (iv)  sales of real and personal property in connection with the closure of        any store location to the extent such property is not, in the Parent Borrower’s reasonable        judgment, necessary for the continued conduct of the Subsidiary Borrowers’ business; and                     (v)   sales of real property with a value not to exceed $25,000,000 for        cash in an aggregate amount not less than the fair market value of such property to the        extent that the proceeds of such sale are used to fund working capital and other general        corporate purposes of the Subsidiary Borrowers and their respective Subsidiaries;   provided that 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 (other than sales, transfers and  other dispositions among Borrowers permitted under clause (ii)); and further provided that the  authority  granted  hereunder  may  be  terminated  in  whole  or  in  part  by  the  Agent  upon  the  occurrence and during the continuance of any Event of Default;               (b)   (i) The Parent Borrower will not sell, transfer, lease or otherwise dispose of  receipts from credit card processors of the Subsidiary Borrowers or the Parent Borrower except  among the Parent Borrower and the Subsidiary Borrowers;                      (ii)  The Parent Borrower will not, after the occurrence and during the        continuation of an Event of Default, sell, transfer, lease or otherwise dispose of any asset        (including  any  Equity  Interests  or  the  issuance  of  any  additional  shares  of  its  Equity        Interests unless done in accordance with Section 7.05(b)(iii) below), except:                           (A)   (1) sales of assets in the ordinary course of business, or (2)              used  or  surplus  equipment,  or  (3)  Permitted  Investments,  in  each  case  in  the              ordinary course of business;                           (B)   sales, transfers and dispositions among the Parent Borrower              and the Subsidiary Borrowers; and                           (C)   other  sales,  transfers,  or  dispositions  of  assets  not  in  the              ordinary course of business; provided that such sales do not exceed ten percent of              the book value of all of the consolidated tangible assets of the Parent Borrower as              of the date of such Event of Default; and                           (D)   sales of real and personal property in  connection with the              closure  of  any  store  location  to  the  extent  such  property  is  not,  in  the  Parent              Borrower’s reasonable judgment, necessary for the continued conduct of the Parent              Borrower’s business;                     (iii) The  Parent  Borrower  may  sell  additional  shares  of  its  Equity        Interests and any Minority Interests in the Equity Interests of any Subsidiary; provided that        (A) no Event of Default has occurred and is continuing or would result therefrom, (B) no                                        113 





 






         Change in Control would result therefrom and (C) all sales permitted hereby shall be made        at arm’s length and for fair value.               (c)   Sections 7.05(a) and (b) will not prohibit the sale, transfer, lease or other  disposition (collectively, a “Disposition”) of any asset (other than Inventory and receipts from  credit  card  processors  of  the  Subsidiary  Borrowers  or  the  Parent  Borrower  Blocked  Account  which, for the avoidance of doubt, may be disposed of only in accordance with Sections 7.05(a)  and (b)) if, on the date on which such Disposition is consummated and after giving effect thereto,  (i) no Default or Event of Default shall exist immediately prior to or after giving effect to such  Disposition and (ii) the Excess Availability Threshold is satisfied.   Notwithstanding anything to the contrary herein, the Borrowers and their respective Subsidiaries  will not sell, transfer, lease or otherwise dispose of any asset, including any Equity Interests, nor  will any Borrower issue any additional shares of its Equity Interests, in each case, after the Second  Amendment Effective Date until the Deemed Borrowing Base Termination Date has occurred,  except as permitted by Sections 7.05(a)(i), (a)(ii), (a)(v), (b)(ii)(A), (b)(ii)(B) and (b)(iii).         Section 7.06 Restricted Payments; Certain Payments of Indebtedness.                 (a)   The Borrowers will not declare or make, or agree to pay or make, directly  or indirectly, any Restricted Payment, except:                     (i)   the Borrowers may declare and pay dividends with respect to their        Equity Interests in additional shares of their Equity Interests;                     (ii)  the  Subsidiary  Borrowers  may  declare  and  pay  dividends  with        respect to their Equity Interests in cash or in other property (other than Inventory) so long        as (A) no Default or Event of Default then exists or, after giving effect to such dividend,        would arise, and (B) on the date of and after giving effect to such dividend, the Excess        Availability Threshold is satisfied;                     (iii) the Parent Borrower may declare and pay dividends with respect to        its Equity Interests in cash or in other property (other than Inventory) so long as (A) no        Event of Default exists or would arise, and (B) on the date of and after giving effect to such        dividend, the  Excess Availability  Threshold  is  satisfied;  provided  that, notwithstanding        anything to the contrary herein, the Parent Borrower may declare and pay dividends with        respect to its Equity Interests in cash for the fiscal quarters ending on or about May 4, 2020        and August 3, 2020 in an aggregate amount not to exceed $4,000,000 in each fiscal quarter;                     (iv)  the  Parent  Borrower  may  repurchase  its  Equity  Interests  (a        “Repurchase”) as long as (A) no Event of Default then exists or, after giving effect to such        Repurchase, would arise, and (B) on the date of and after giving effect to such Repurchase,        the Excess Availability Threshold is satisfied.               (b)   The  Borrowers  will  not  at  any  time,  and  will  not  permit  any  of  their  Subsidiaries  to  make  or  agree  to  pay  or  make,  directly  or  indirectly,  any  payment  or  other  distribution (whether in cash securities or other property) of or in respect of principal of or interest  on any Indebtedness, or any payment or other distribution (whether in cash, securities or other                                        114 





 






   property), including any sinking fund or similar deposit, on account of the purchase, redemption,  retirement, acquisition, cancellation or termination of any Indebtedness, except:                     (i)   required  payments  of  principal  and  interest  as  and  when  due  in        respect of any Indebtedness permitted under Section 7.01;                     (ii)  refinancings  of  Indebtedness  to  the  extent  permitted  by        Section 7.01; and                     (iii) optional  prepayments,  redemptions,  retirements,  acquisition,        cancellation  or  termination  of  Indebtedness  of  any  Borrower  (collectively,  a        “Prepayment”) as long as (A) no Default or Event of Default then exists or, after giving        effect to such Prepayment, would arise; and (B) on the date of and after giving effect to        such Prepayment, the Excess Availability Threshold is satisfied.               (c)   After the occurrence and during the continuation an Event of Default under  Section 8.01(h) or Section 8.01(i) hereof, the Parent Borrower will not at any time, make or agree  to pay or make, directly or indirectly any payment or other distribution (whether in cash securities  or other property) of or in respect of principal of or interest on any Indebtedness, or any payment  or other distribution (whether in cash, securities or other property), including any sinking fund or  similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or  termination of any Indebtedness, except required payments of principal and interest as and when  due  in  respect  of  any  permitted  Indebtedness  and  refinancings  of  Indebtedness  to  the  extent  permitted by Section 7.01.   Notwithstanding anything to the contrary herein, the Borrowers will not (i) declare or make, or  agree to pay or make, directly or indirectly, any Restricted Payment after the Second Amendment  Effective  Date  until  the  Deemed  Borrowing  Base  Termination  Date  has  occurred,  except  as  permitted by Section 7.06(a)(i) and the proviso to Section 7.06(a)(iii), and (ii) at any time, and  will not permit any of their Subsidiaries to make or agree to pay or make, directly or indirectly,  any payment or other distribution (whether in cash securities or other property) of or in respect of  principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash,  securities  or  other  property),  including  any  sinking  fund  or  similar  deposit,  on  account  of  the  purchase,  redemption,  retirement,  acquisition,  cancellation  or  termination  of  any  Indebtedness  after the Second Amendment Effective Date until the Deemed Borrowing Base Termination Date  has occurred, except as permitted by Sections 7.06(b)(i) and (b)(ii).         Section 7.07 Transactions with Affiliates.  The Subsidiary Borrowers will not at any  time, and the Parent Borrower will not after the occurrence and during the continuation of an Event  of Default sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise  acquire any property or assets from, or otherwise engage in any other transactions with, any of its  Affiliates, except (a) transactions in the ordinary course of business that are at prices and on terms  and conditions not less favorable to the Borrowers than could be obtained on an arm’s-length basis  from unrelated third parties, (b) transactions between or among the Borrowers and their respective  Subsidiaries not involving any other Affiliate, which would not otherwise violate the provisions  of the Loan Documents, and (c) other transactions otherwise permitted under this Agreement.                                         115 





 






         Section 7.08 Fixed Charge Coverage Ratio.  The Borrowers will not permit the Fixed  Charge Coverage Ratio to be less than 1.0:1.0; provided, that this covenant shall only be applicable  to the extent Excess Availability is ever less than $100,000,000 or an Event of Default has occurred  and is continuing (a “Trigger Period”); provided, further, that once applicable, this covenant will  be  tested  for  the  fiscal  quarter  most  recently  ended  for  which  financial  statements  have  been  provided pursuant to Section 6.01(a) or Section 6.01(b) (an “Initial FCCR Test Period”) on the  date Excess Availability is less than $100,000,000 or an Event of Default has occurred and is  continuing, and this covenant shall continue to be applicable and tested as of the end of each fiscal  quarter  ending  thereafter  until  (x)  the  date  that  Excess  Availability  has  been  greater  than  $100,000,000 at all times for ninety (90) consecutive calendar days, and (y) no Default or Event  of Default then exists or has existed during such ninety (90) consecutive calendar day period.  To  the extent this covenant shall be applicable as set forth above, within two (2) Business Days of its  becoming applicable, the Borrowers shall deliver to the Agent a certificate of a Financial Officer,  in form and substance acceptable to the Agent, setting forth and certifying to reasonably detailed  calculations of the Fixed Charge Coverage Ratio for such Initial FCCR Test Period demonstrating  compliance (or non compliance) with this Section 7.08 for such period.         Section 7.09 Subsidiaries.  The Borrowers shall not form, acquire, or cause to be formed  a Material Subsidiary or permit any Subsidiary to become a Material Subsidiary, unless and until  any such Material Subsidiary enters into a joinder agreement in accordance with the terms of, and  to the extent required by, Section 6.13(a) hereof.  The Borrowers shall not permit Subsidiaries  which are not then Subsidiary Borrowers to collectively own property of the same type as the  Collateral that has an aggregate book value in excess of $1,000,000.         Section 7.10 Investments,  Loans,  Advances,  Guarantees  and  Acquisitions.   The  Borrowers and their respective Subsidiaries will not purchase, hold or acquire (including pursuant  to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any  Equity Interests, evidences of indebtedness or other securities (including any option, warrant or  other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to,  guarantee any obligations of, or make or permit to exist any investment or any other interest in,  any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions)  any assets of any other Person constituting a business unit (the foregoing collectively referred to  as “Investments”), except for:               (a)   Permitted Investments;               (b)   Investments  existing  on  the  Second  Amendment  Effective  Date,  and  set  forth on Schedule 7.10, to the extent such investments would not be permitted under any other  clause of this Section;               (c)   Investments  existing  on  the  Second  Amendment  Effective  Date  in  any  Borrower or any Subsidiary (including the Specified Subsidiaries) of a Borrower;               (d)   loans  or  advances  and  other  investments  by  any  Borrower  to  any  other  Borrower or by any Subsidiary to any Borrower;                                         116 





 






               (e)   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;               (f)   loans or advances to employees for the purpose of travel, entertainment or  relocation in the ordinary course of business;               (g)   Investments  in  wholly  owned  Subsidiaries  which  are  not  Borrowers  (including the Specified Subsidiaries) in an amount not to exceed, in the aggregate after the Second  Amendment Effective Date, (i) $50,000,000, plus (ii) such additional amounts as the Borrowers  may determine, as long as on the date of and after giving effect to such Investment, the Excess  Availability  Threshold  is  satisfied;  provided  that  no  such  Investment  may  be  made  after  the  occurrence and during the continuance of an Event of Default or if an Event of Default would arise  therefrom;               (h)   Guaranties of Indebtedness permitted under Section 7.01;               (i)   Investments  in  Permitted  Joint  Ventures,  provided  that  at  the  time  that  commitments to make such Investments become binding, no Default or Event of Default exists or  would result from the making of such Investment;               (j)   acquisitions of real property assets with an aggregate value not to exceed  $10,000,000 so long as no Default or Event of Default shall have occurred and be continuing or  would result from the consummation of the proposed acquisition; and               (k)   other Investments so long as at the time such Investment is made (i) no  Default  or  Event  of  Default  shall  exist  immediately  prior  to  or  after  giving  effect  to  such  Investment and (ii) the Excess Availability Threshold is satisfied.   Notwithstanding anything to the contrary herein, the Borrowers and their respective Subsidiaries  will not make any additional Investments after the Second Amendment Effective Date until the  Deemed Borrowing Base Termination Date has occurred, except as permitted by Section 7.10(d)  and Section 7.10(j).                                   ARTICLE VIII                                                                       EVENTS OF DEFAULT         Section 8.01 Events of Default.  If any of the following events (“Events of Default”)  shall occur:               (a)   the Borrowers shall fail to pay principal of any Loan or any reimbursement  obligation in respect of any LC Disbursement when and as the same shall become due and payable,  whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;               (b)   the Borrowers shall fail to pay any interest on any Loan or any fee or any  other amount (other than an amount referred to in clause (a) of this Article) payable under this  Agreement  or  any  other  Loan  Document  within  three  (3)  Business  Days  after  the  same  shall                                        117 





 






   become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof  or otherwise;               (c)   any representation or warranty made or deemed made by or on behalf of  any  Borrower  in  or  in  connection  with  this  Agreement  or  any  other  Loan  Document  or  any  amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report,  certificate, financial statement or other document furnished pursuant to or in connection with this  Agreement or any other Loan Document or any amendment or modification hereof or thereof or  waiver hereunder or thereunder, shall prove to have been incorrect in any material respect when  made or deemed made;               (d)   the Borrowers shall (i) fail to observe or perform any covenant, condition  or agreement contained in Section 2.24, Section 6.02(a), Section 6.04 (with respect to the Parent  Borrower’s  existence), Section 6.09(b), Section 6.11, Section  6.13, Section 6.14  or  in  Article VII, (ii) fail to  observe or perform any covenant, condition or  agreement  contained in  Section 6.01(e) and such failure shall continue unremedied for a period of five (5) days after the  earlier of any Borrower’s knowledge of such breach or notice thereof from the Agent to the Parent  Borrower or (iii) fail to observe or perform any covenant, condition or agreement contained in  Section 6.07 or Section 6.09(a) and such failure shall continue unremedied for a period of three  (3) days after the earlier of any Borrower’s knowledge of such breach or notice thereof from the  Agent to the Parent Borrower;               (e)   any Borrower shall fail to observe or perform any covenant, condition or  agreement contained in any Loan Document (other than those specified in clause (a), (b), (c), or  (d) of this Article), and such failure shall continue unremedied for a period of thirty (30) days after  the earlier of any Borrower’s knowledge of such breach or notice thereof from the Agent (which  notice will be given at the request of any Lender) to the Parent Borrower;               (f)   any  Borrower  shall  fail  to  make  any  payment  (whether  of  principal  or  interest and regardless of amount) in respect of any Material Indebtedness when and as the same  shall become due and payable (after giving effect to the expiration of any grace or cure period set  forth therein); provided that any such failure with respect to any such Material Indebtedness that  is being contested in good faith by appropriate proceedings shall not constitute an Event of Default  as long as any Borrower’s title to any substantial part of its property is not materially adversely  affected, its use of such property in the ordinary course of business is not materially interfered with  and adequate reserves with respect thereto have been set aside on its books in conformity with  GAAP;               (g)   any event or condition occurs that results in any Material Indebtedness (i)  becoming due or required to be prepaid, repurchased, redeemed or defeased or (ii) in the case of  any Hedging Agreement, terminated, in each case, prior to its scheduled maturity or that enables  or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of  any Material Indebtedness (other than in respect of any Hedging Agreement) or any trustee or  agent on its or their behalf to cause any such Material Indebtedness to become due, or to require  the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity;  provided that this clause (g) shall not apply to (A) secured Indebtedness that becomes due as a  result of the voluntary sale or transfer of the property or assets securing such Indebtedness to the                                        118 





 






   extent such sale or transfer is permitted by Section 7.05 or (B) any Indebtedness that becomes due  as a result of a voluntary refinancing thereof by any Borrower or any of its Subsidiaries or, in the  case of any Indebtedness in respect of a Hedging Agreement, a voluntary termination thereof by  any Borrower or any of its Subsidiaries;               (h)   an involuntary proceeding shall be commenced or an involuntary petition  shall be filed seeking (i) liquidation, reorganization or other relief in respect of any Borrower or  any of its Material Subsidiaries or its debts, or of a substantial part of its assets, under any federal,  state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or  (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official  for any Borrower or any of its Material Subsidiaries or for a substantial part of its assets, and, in  any such case, such proceeding or petition shall continue undismissed for a period of 60 or more  days or an order or decree approving or ordering any of the foregoing shall be entered;               (i)   any  Borrower  or  any  of  its  Material  Subsidiaries  shall  (i)  voluntarily  commence any proceeding or file any petition seeking liquidation, reorganization or other relief  under  any federal, state  or foreign bankruptcy, insolvency, receivership or similar law now or  hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate  manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent  to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for  any Borrower or any of its Material Subsidiaries or for a substantial part of its assets, (iv) file an  answer admitting the material allegations of a petition filed against it in any such proceeding, (v)  make a general assignment for the benefit of creditors or (vi) take any action for the purpose of  effecting any of the foregoing;               (j)   any Borrower or any of its Material Subsidiaries shall become unable, admit  in writing its inability or fail generally to pay its debts as they become due;               (k)   one or more judgments for the payment of money in an aggregate amount  in excess of $75,000,000 shall be rendered against any Borrower or any of its Subsidiaries or any  combination thereof and the same shall remain undischarged for a period of 60 consecutive days  during which execution shall not be effectively stayed, or any action shall be legally taken by a  judgment creditor to attach or levy upon any assets of any Borrower or any of its Subsidiaries to  enforce any such judgment;               (l)   an ERISA Event shall have occurred that when, taken together with all other  ERISA Events that have occurred, would reasonably be expected to result in a Material Adverse  Effect;               (m)   (i) any challenge by or on behalf of any Borrower to the validity of any Loan  Document or the applicability or enforceability of any Loan Document strictly in accordance with  the subject Loan Document’s terms or which seeks to void, avoid, limit, or otherwise adversely  affect any security interest (other than with respect to an immaterial portion of the Collateral (taken  as a whole) not of the type included in the Borrowing Base or accounts receivable) created by or  in any Loan Document or any payment made pursuant thereto.                                         119 





 






                     (ii)  any challenge by or on behalf of any other Person to the validity of        any Loan Document or the applicability or enforceability of any Loan Document strictly        in accordance with the subject Loan Document’s terms or which seeks to void, avoid, limit,        or otherwise adversely affect any security interest (other than with respect to an immaterial        portion of the Collateral (taken as a whole) not of the type included in the Borrowing Base        or accounts receivable) created by or in any Loan Document or any payment made pursuant        thereto, in each case, as to which an order or judgment has been entered adverse to the        Agent and the Lenders.                     (iii) any Lien (other than with respect to an immaterial portion of the        Collateral (taken as a whole) not of the type included in the Borrowing Base or accounts        receivable) purported to be created under any Security Document shall cease to be, or shall        be asserted by any Borrower not to be, a valid and perfected Lien on any Collateral, with        the priority required by the applicable Security Document, except as a result of the sale or        other disposition of the applicable Collateral in a transaction permitted under the Loan        Documents;               (n)   a Change in Control shall occur;               (o)   the Loan Guaranty shall fail to remain in full force or effect with respect to  any  Loan  Guarantor  or  any  action  shall  be  taken  to  discontinue  or  to  assert  the  invalidity  or  unenforceability of the Loan Guaranty, or any Loan Guarantor shall fail to comply with any of the  terms or provisions of the Loan Guaranty, or any Loan Guarantor shall deny that it has any further  liability under the Loan Guaranty, or shall give notice to such effect;               (p)   the  occurrence  of  any  uninsured  loss  to  any  material  portion  of  the  Collateral;               (q)   the indictment of, or institution of any legal process or proceeding against,  any  Borrower,  under  any  federal,  state,  municipal,  and  other  civil  or  criminal  statute,  rule,  regulation,  order,  or  other  requirement  having  the  force  of  law  where  the  relief,  penalties,  or  remedies sought or available include the forfeiture of any material property of any Borrower and/or  the imposition of any stay or other order, the effect of which could reasonably be to restrain in any  material way the conduct by the Borrowers, taken as a whole, of their business in the ordinary  course; or               (r)   except as otherwise permitted hereunder, the determination by the Parent  Borrower, whether by vote of the Parent Borrower’s board of directors or otherwise to: (i) suspend  the operation of the Borrowers’ business in the ordinary course except to the extent required in  accordance with applicable law or as required or requested by any Governmental Authority, (ii)  liquidate all or a material portion of the assets or store locations of all of the Borrowers (taken as  a whole), or (iii) employ an agent or other third party to conduct any so called store closing, store  liquidation or “Going Out Of Business” sales for all or a material portion of the assets or store  locations of all of the Borrowers (taken as a whole);   then, and in every such event (other than  an event with respect to any Borrower or any of its  Material  Subsidiaries  described  in clause (h)  or (i)  of  this  Article),  and at  any  time  thereafter                                        120 





 






   during the continuance of such event, the Agent may, and at the request of the Required Lenders  shall, by notice to the Parent Borrower, take either or both of the following actions, at the same or  different times:  (i) terminate the Commitments, and thereupon the Commitments shall terminate  immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in  part, in which case any principal not so declared to be due and payable may thereafter be declared  to be due and payable), and thereupon the principal of the Loans so declared to be due and payable,  together with accrued interest thereon and all fees and other obligations of the Borrowers accrued  hereunder, shall become due and payable immediately, without presentment, demand, protest or  other notice of any kind, all of which are hereby waived by the Borrowers; and (iii) require the  Borrowers  to  furnish  cash  collateral  in  an  amount  equal  to  103%  of  the  Letter  of  Credit  Outstandings,  and  in  case  of  any  event  with  respect  to  any  Borrower  or  any  of  its  Material  Subsidiaries described in clause (h) or (i) of this Article, the Commitments shall automatically  terminate and the principal of the Loans then outstanding, together with accrued interest thereon  and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become  due and payable, without presentment, demand, protest or other notice of any kind, all of which  are hereby waived by the Borrowers.         Section 8.02 When Continuing.          For all purposes under this Agreement, each Default and Event of Default that has occurred  shall be deemed to be continuing at all times thereafter unless it either (a) is cured or corrected to  the  reasonable  written  satisfaction  of  the  Lenders  in  accordance  with Section 10.02,  or  (b)  is  waived in writing by the Lenders in accordance with Section 10.02.         Section 8.03 Remedies on Default.          In case any one or more of the Events of Default shall have occurred and be continuing,  and whether or not the maturity of the Loans shall have been accelerated pursuant hereto, the Agent  may, and at the request of the Required Lenders shall, proceed to protect and enforce its rights and  remedies under this Agreement, the Notes or any of the other Loan Documents 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 Agent or the Lenders.  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.                                    ARTICLE IX                                                                            THE AGENT         Section 9.01 Authorization and Action.                (a)   Each Lender, on behalf of itself and any of its Affiliates that are Secured  Parties and an Issuing Lender hereby irrevocably appoints the entity named as Agent in the heading                                        121 





 






   of this Agreement and its successors and assigns to serve as the administrative agent and collateral  agent under the Loan Documents and each Lender and each Issuing Lender authorizes the Agent  to take such actions as agent on its behalf and to exercise such powers under this Agreement and  the other Loan Documents as are delegated to the Agent under such agreements and to exercise  such powers as are reasonably incidental thereto.  In addition, to the extent required under the laws  of any jurisdiction other than within the United States, each Lender and each Issuing Lender hereby  grants to the Agent any required powers of attorney to execute and enforce any Security Document  governed  by  the  laws  of  such  jurisdiction  on  such  Lender’s  or  such  Issuing  Lender’s  behalf.   Without limiting the foregoing, each Lender and each Issuing Lender hereby authorizes the Agent  to execute and deliver, and to perform its obligations under, each of the Loan Documents to which  the Agent is a party, and to exercise all rights, powers and remedies that the Agent may have under  such Loan Documents.               (b)   As to any matters not expressly provided for herein and in the other Loan  Documents (including enforcement or collection), the Agent shall not be required to exercise any  discretion or take any action, but shall be required to act or to refrain from acting (and shall be  fully protected in so acting or refraining from acting) upon the written instructions of the Required  Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the  terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be  binding upon each Lender and each Issuing Lender; provided, however, that the Agent shall not  be required to take any action that (i) the Agent in good faith believes exposes it to liability unless  the Agent receives an indemnification and is exculpated in a manner satisfactory to it from the  Lenders and the Issuing Lenders with respect to such action or (ii) is contrary to this Agreement  or any other Loan Document or applicable law, including any action that may be in violation of  the  automatic  stay  under  any  requirement  of  law  relating  to  bankruptcy,  insolvency  or  reorganization or relief of debtors or that may effect a forfeiture, modification or termination of  property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy,  insolvency  or  reorganization  or  relief  of  debtors;  provided,  further,  that  the  Agent  may  seek  clarification or direction from the Required Lenders prior to the exercise of any such instructed  action and may refrain from acting until such clarification or direction has been provided. Except  as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and  shall  not  be  liable  for  the  failure  to  disclose,  any  information  relating  to  any  Borrower,  any  Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the  Person serving as Agent or any of its Affiliates in any capacity.  Nothing in this Agreement shall  require the Agent to expend or risk its own funds or otherwise incur any financial liability in the  performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall  have reasonable grounds for believing that repayment of such funds or adequate indemnity against  such risk or liability is not reasonably assured to it.               (c)   In performing its functions and duties hereunder and under the other Loan  Documents, the Agent is acting solely on behalf of the Lenders and the Issuing Lenders (except in  limited circumstances expressly provided for herein relating to the maintenance of the Register),  and its duties are entirely mechanical and administrative in nature.  Without limiting the generality  of the foregoing:                     (i)   the Agent does not assume and shall not be deemed to have assumed        any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for                                        122 





 






         any Lender, Issuing Lender or Secured Party or holder of any other obligation other than        as expressly set forth herein and in the other Loan Documents, regardless of whether a        Default or an Event of Default has occurred and is continuing (and it is understood and        agreed that the use of the term “agent” (or any similar term) herein or in any other Loan        Document with reference to the Agent is not intended to connote any fiduciary duty or        other implied (or express) obligations arising under agency doctrine of any applicable law,        and that such term is used as a matter of market custom and is intended to create or reflect        only an administrative relationship between contracting parties); additionally, each Lender        agrees that it will not assert any claim against the Agent based on an alleged breach of        fiduciary  duty by  the  Agent  in  connection  with  this  Agreement  and/or  the  transactions        contemplated hereby; and                     (ii)  nothing in this Agreement or any Loan Document shall require the        Agent to account to any Lender for any sum or the profit element of any sum received by        the Agent for its own account.               (d)   The Agent may perform any 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 of their respective duties and  exercise  their  respective  rights  and  powers  through  their  respective  Related  Parties.   The  exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties  of the Agent and any such sub-agent, and shall apply to their respective activities pursuant to this  Agreement.  The Agent shall not be responsible for the negligence or misconduct of any sub-agent  except to the extent that a court of competent jurisdiction determines in a final and non-appealable  judgment that the Agent acted with gross negligence or willful misconduct in the selection of such  sub-agent.               (e)   None of any Syndication Agent, any Documentation Agent or any Arranger  shall have obligations or duties whatsoever in such capacity under this Agreement or any other  Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such  persons shall have the benefit of the indemnities provided for hereunder.               (f)   In case of the pendency of any proceeding with respect to any Borrower  under  any federal, state  or foreign bankruptcy, insolvency, receivership or similar law now or  hereafter  in  effect,  the  Agent  (irrespective  of  whether  the  principal  of  any  Loan  or  any  reimbursement obligation in respect of any LC Disbursement 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  any  Borrower)  shall  be  entitled  and  empowered  (but  not  obligated)  by  intervention in such proceeding or otherwise:                     (i)   to file and prove a claim for the whole amount of the principal and        interest  owing  and  unpaid  in  respect  of  the  Loans,  LC  Disbursements  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 Issuing Lenders and        the Agent (including any claim under Sections 2.10, 2.11, 2.12, 2.13, 2.26, 2.28 and 10.04)        allowed in such judicial proceeding; and                                         123 





 






                     (ii)  to  collect  and  receive  any  monies  or  other  property  payable  or        deliverable on any such claims and to distribute the same;   and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in  any such proceeding is hereby authorized by each Lender, each Issuing Lender and each other  Secured Party to make such payments to the Agent and, in the event that the Agent shall consent  to the making of such payments directly to the Lenders, the Issuing Lenders or the other Secured  Parties, to pay to the Agent any amount due to it, in its capacity as the Agent, under the Loan  Documents  (including  under Section 10.04).   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 Issuing  Lender  any  plan  of  reorganization,  arrangement,  adjustment  or  composition  affecting  the  Obligations or the rights of any Lender or Issuing Lender or to authorize the Agent to vote in  respect of the claim of any Lender or Issuing Lender in any such proceeding.               (g)   The provisions of this Article are solely for the benefit of the Agent, the  Lenders and the Issuing Lenders, and, except solely to the extent of the Borrowers’ right to consent  pursuant to and subject to the conditions set forth in this Article, no Borrower nor any Subsidiary,  or any of their respective Affiliates, shall have any rights as a third party beneficiary under any  such  provisions.   Each  Secured  Party,  whether  or  not  a  party  hereto,  will  be  deemed,  by  its  acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided  under the Loan Documents, to have agreed to the provisions of this Article.         Section 9.02 Administrative Agent’s Reliance, Indemnification, Etc..                (a)   Neither the Agent nor any of its Related Parties shall be (i) liable for any  action taken or omitted to be taken by such party, the Agent or any of its Related Parties under or  in connection with this Agreement or the other Loan Documents (x) with the consent of or at the  request of the Required Lenders (or such other number or percentage of the Lenders as shall be  necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the  circumstances  as  provided  in  the  Loan  Documents)  or  (y)  in  the  absence  of  its  own  gross  negligence or willful misconduct (such absence to be presumed unless otherwise determined by a  court of competent jurisdiction by a final and non-appealable judgment) or (ii) responsible in any  manner to any of the Lenders for any recitals, statements, representations or warranties made by  any Borrower or any officer thereof contained in this Agreement or any other Loan Document or  in any certificate, report, statement or other document referred to or provided for in, or received  by the Agent under or in connection with, this Agreement or any other Loan Document or for the  value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any  other Loan Document or for any failure of any Borrower to perform its obligations hereunder or  thereunder.               (b)   The Agent shall be deemed not to have knowledge of any Default unless  and until written notice thereof (stating that it is a “notice of default”) is given to the Agent by the  Parent Borrower, a Lender or an Issuing Lender, and 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 any Loan Document, (ii) the contents of any certificate, report or other document  delivered thereunder or in connection therewith, (iii) the performance or observance of any of the  covenants,  agreements  or  other  terms  or  conditions  set  forth  in  any  Loan  Document  or  the                                        124 





 






   occurrence  of  any  Default,  (iv)  the  sufficiency,  validity,  enforceability,  effectiveness  or  genuineness  of  any  Loan  Document  or  any  other  agreement,  instrument  or  document,  (v)  the  satisfaction of any condition set forth in Article V or elsewhere in any Loan Document, other than  to confirm receipt of items (which on their face purport to be such items) expressly required to be  delivered to the Agent or satisfaction of any condition that expressly refers to the matters described  therein being acceptable or satisfactory to the Agent, or (vi) the creation, perfection or priority of  Liens on the Collateral;               (c)   Without limiting the foregoing, the Agent (i) may treat the payee of any  promissory note as its holder until such promissory note has been assigned in accordance with  Section 10.06, (ii) may rely on the Register to the extent set forth in Section 10.06(c), (iii) may  consult with legal counsel (including counsel to the Borrowers), independent public accountants  and other experts selected by it, and shall not be liable for any action taken or omitted to be taken  in good faith by it in accordance with the advice of such counsel, accountants or experts, (iv) makes  no warranty or representation to any Lender or Issuing Lender and shall not be responsible to any  Lender or Issuing Lender for any statements, warranties or representations made by or on behalf  of  any  Borrower  in  connection  with  this  Agreement  or  any  other  Loan  Document,  (v)  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 an Issuing  Lender, may presume that such condition is satisfactory to such Lender or Issuing Lender unless  the  Agent  shall  have  received  notice  to  the  contrary  from  such  Lender  or  Issuing  Lender  sufficiently in advance of the making of such Loan or the issuance of such Letter of Credit and  (vi) shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement  or any other Loan Document by acting upon, any notice, consent, certificate or other instrument  or writing (which writing may be a fax, any electronic message, Internet or intranet website posting  or other distribution) or any statement made to it orally or by telephone and believed by it to be  genuine and signed or sent or otherwise authenticated by the proper party or parties (whether or  not such Person in fact meets the requirements set forth in the Loan Documents for being the maker  thereof).         Section 9.03 Posting of Communications.                (a)   The Borrowers agree that the Agent may, but shall not be obligated to, make  any  Communications  available  to  the  Lenders  and  the  Issuing  Lenders  by  posting  the  Communications  on  IntraLinksTM,  DebtDomain,  SyndTrak,  ClearPar  or  any  other  electronic  system chosen by the Agent to be its electronic transmission system (the “Approved Electronic  Platform”).               (b)   Although the Approved Electronic Platform and its primary web portal are  secured with generally-applicable security procedures and policies implemented or modified by  the  Agent  from  time  to  time  (including,  as  of  the  Second  Amendment  Effective  Date,  a  user  ID/password authorization system) and the Approved Electronic Platform is secured through a per- deal authorization method whereby each user may access the Approved Electronic Platform only  on a deal-by-deal basis, each Lender, each Issuing Lender and each Borrower acknowledges and  agrees that the distribution of material through an electronic medium is not necessarily secure, that  the Agent is not responsible for approving or vetting the representatives or contacts of any Lender  that are added to the Approved Electronic Platform, and that there may be confidentiality and other                                        125 





 






   risks associated with such distribution.  Each Lender, each Issuing Lender and each Borrower  hereby approves distribution of the Communications through the Approved Electronic Platform  and understands and assumes the risks of such distribution.               (c)   THE   APPROVED      ELECTRONIC     PLATFORM     AND     THE  COMMUNICATIONS  ARE  PROVIDED  “AS  IS”  AND  “AS  AVAILABLE”.  THE  APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY  OR  COMPLETENESS  OF  THE  COMMUNICATIONS,  OR  THE  ADEQUACY  OF  THE  APPROVED  ELECTRONIC  PLATFORM  AND EXPRESSLY DISCLAIM  LIABILITY FOR  ERRORS  OR  OMISSIONS  IN  THE  APPROVED  ELECTRONIC  PLATFORM  AND  THE  COMMUNICATIONS.  NO  WARRANTY  OF  ANY  KIND,  EXPRESS,  IMPLIED  OR  STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR  A  PARTICULAR  PURPOSE,  NON-INFRINGEMENT  OF  THIRD  PARTY  RIGHTS  OR  FREEDOM  FROM  VIRUSES  OR  OTHER  CODE  DEFECTS,  IS  MADE  BY  THE  APPLICABLE  PARTIES  IN  CONNECTION  WITH  THE  COMMUNICATIONS  OR  THE  APPROVED  ELECTRONIC  PLATFORM.  IN  NO  EVENT  SHALL  THE  AGENT,  ANY  ARRANGER, ANY DOCUMENTATION AGENT, ANY SYNDICATION AGENT OR ANY  OF  THEIR  RESPECTIVE  RELATED  PARTIES  (COLLECTIVELY,  “APPLICABLE  PARTIES”) HAVE ANY LIABILITY TO ANY BORROWER, ANY LENDER, ANY ISSUING  LENDER  OR  ANY  OTHER  PERSON  OR  ENTITY  FOR  DAMAGES  OF  ANY  KIND,  INCLUDING  DIRECT  OR  INDIRECT,  SPECIAL,  INCIDENTAL  OR  CONSEQUENTIAL  DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE)  ARISING  OUT  OF  ANY  BORROWER’S  OR  THE  AGENT’S  TRANSMISSION  OF  COMMUNICATIONS  THROUGH  THE  INTERNET  OR  THE  APPROVED  ELECTRONIC  PLATFORM.         “Communications”  means,  collectively,  any  notice,  demand,  communication,  information, document or other material provided by or on behalf of any Borrower pursuant to any  Loan Document or the transactions contemplated therein which is distributed by the Agent, any  Lender or any Issuing Lender by means of electronic communications pursuant to this Section,  including through an Approved Electronic Platform.               (d)   Each Lender and Issuing Lender agrees that notice to it (as provided in the  next  sentence)  specifying  that  Communications  have  been  posted  to  the  Approved  Electronic  Platform shall constitute effective delivery of the Communications to such Lender for purposes of  the Loan Documents.  Each Lender and Issuing Lender agrees (i) to notify the Agent in writing  (which could be in the form of electronic communication) from time to time of such Lender’s or  Issuing  Lender’s  (as  applicable) e-mail  address to which the  foregoing  notice  may  be  sent  by  electronic transmission and (ii) that the foregoing notice may be sent to such e-mail address.               (e)   Each Lender, each Issuing Lender and each Borrower agrees that the Agent  may,  but  (except  as  may  be  required  by  applicable  law)  shall  not  be  obligated  to,  store  the  Communications on the Approved Electronic Platform in accordance with the Agent’s generally  applicable document retention procedures and policies.                                         126 





 






               (f)   Nothing herein shall prejudice the right of the Agent, any Lender or any  Issuing Lender to give any notice or other communication pursuant to any Loan Document in any  other manner specified in such Loan Document.         Section 9.04 The  Agent  Individually.   With  respect  to  its  Commitment,  Loans  (including Swingline Loans) and Letters of Credit, the Person serving as the Agent shall have and  may exercise the same rights and powers hereunder and is subject to the same obligations and  liabilities as and to the extent set forth herein for any other Lender or Issuing Lender, as the case  may be.  The terms “Issuing Lenders”, “Lenders”, “Required Lenders”, “Required Supermajority  Lenders” and any similar terms shall, unless the context clearly otherwise indicates, include the  Agent in its individual capacity as a Lender, Issuing Lender or as one of the Required Lenders or  Required Supermajority Lenders, as applicable.  The Person serving as the Agent and its Affiliates  may accept deposits from, lend money to, own securities of, act as the financial advisor or in any  other advisory capacity for and generally engage in any kind of banking, trust or other business  with, any Borrower, any Subsidiary or any Affiliate of any of the foregoing as if such Person was  not acting as the Agent and without any duty to account therefor to the Lenders or the Issuing  Lenders.         Section 9.05 Successor Agent.                (a)   The Agent may resign at any time by giving thirty (30) days’ prior written  notice  thereof  to  the  Lenders,  the  Issuing  Lenders  and  the  Parent  Borrower,  whether  or  not  a  successor Agent has been appointed.  Upon any such resignation, the Required Lenders shall have  the right, to appoint a successor Agent.  If no successor Agent shall have been so appointed by the  Required  Lenders  and  shall  have  accepted  such  appointment  within  thirty  (30)  days  after  the  retiring Agent’s  giving  of  notice  of resignation,  then  the retiring Agent may, on  behalf of the  Lenders and the Issuing Lenders, appoint a successor Agent which shall be a bank with an office  in the United States of America or an Affiliate of any such bank.  In either case, such appointment  shall be subject to the prior written approval of the Parent Borrower (which approval may not be  unreasonably withheld and shall not be required while an Event of Default has occurred and is  continuing).   Upon  the  acceptance  of  any  appointment  as  Agent  by  a  successor  Agent,  such  successor Agent shall succeed to and become vested with, all the rights, powers, privileges and  duties of the retiring Agent.  Upon the acceptance of appointment as Agent by a successor Agent,  the retiring Agent shall be discharged from its duties and obligations under this Agreement and  the other Loan  Documents.   Prior to  any  retiring  Agent’s  resignation hereunder  as  Agent,  the  retiring Agent shall take such action as may be reasonably necessary to assign to the successor  Agent its rights as Agent under the Loan Documents.               (b)   Notwithstanding paragraph (a) of this Section, in the event no successor  Agent shall have been so appointed and shall have accepted such appointment within thirty (30)  days after the retiring Agent gives notice of its intent to resign, the retiring Agent may give notice  of  the  effectiveness  of  its  resignation  to  the  Lenders,  the  Issuing  Lender  and  the  Borrowers,  whereupon, on the date of effectiveness of such resignation stated in such notice, (i) the retiring  Agent shall be discharged from its duties and obligations hereunder  and  under the other Loan  Documents; provided that, solely for purposes of maintaining any security interest granted to the  Agent under any Security Document for the benefit of the Secured Parties, the retiring Agent shall  continue to be vested with such security interest as collateral agent for the benefit of the Secured                                        127 





 






   Parties and continue to be entitled to the rights set forth in such Security Document and Loan  Document, and, in the case of any Collateral in the possession of the Agent, shall continue to hold  such Collateral, in each case until such time as a successor Agent is appointed and accepts such  appointment in accordance with this Section (it being understood and agreed that the retiring Agent  shall have no duty or obligation to take any further action under any Security Document, including  any action required to maintain the perfection of any such security interest), and (ii) the Required  Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of  the retiring Agent until such time as the Required Lenders appoint a successor Agent as provided  for in paragraph (a) of this Section; provided that (A) all payments required to be made hereunder  or under any other Loan Document to the Agent for the account of any Person other than the Agent  shall be made directly to such Person and (B) all notices and other communications required or  contemplated to be given or made to the Agent shall directly be given or made to each Lender and  Issuing Lender.  Following the effectiveness of the Agent’s resignation from its capacity as such,  the  provisions  of  this  Article, Section 2.28(d)  and Section 10.04,  as  well  as  any  exculpatory,  reimbursement  and  indemnification  provisions  set  forth  in  any  other  Loan  Document,  shall  continue in effect for the benefit of such retiring 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  and  in  respect  of  the  matters  referred  to  in  the  proviso  under  paragraph (a) above.         Section 9.06 Acknowledgment of Lenders and Issuing Lenders.                (a)   Each Lender represents that it is engaged in making, acquiring or holding  commercial loans in the ordinary course of its business and that it has, independently and without  reliance upon the Agent, any Arranger, any Syndication Agent, any Documentation Agent, or any  other Lender, or any of the Related Parties of any of the foregoing, and based on such documents  and information as it has deemed appropriate, made its own credit analysis and decision to enter  into this Agreement as a Lender, and to make, acquire or hold Loans hereunder.  Each Lender also  acknowledges that it will, independently and without reliance upon the Agent, any Arranger, any  Syndication Agent, any Documentation Agent, or any other Lender, or any of the Related Parties  of  any  of  the  foregoing,  and  based  on  such  documents  and  information  (which  may  contain  material,  non-public  information  within  the  meaning  of  the  United  States  securities  laws  concerning the Borrowers and their Affiliates) as it shall from time to time deem  appropriate,  continue  to  make  its  own  decisions  in  taking  or  not  taking  action  under  or  based  upon  this  Agreement,  any  other  Loan  Document  or  any  related  agreement  or  any  document  furnished  hereunder or thereunder.               (b)   Each Lender, each Issuing Lender and each Swingline Lender by delivering  its signature page to this Agreement on the Effective Date, or delivering its signature page to an  Assignment and Assumption or any other Loan Document pursuant to which it shall become a  Lender  hereunder,  shall  be  deemed  to  have  acknowledged  receipt  of,  and  consented  to  and  approved,  each  Loan  Document  and  each  other  document  required  to  be  delivered  to,  or  be  approved by or satisfactory to, the Agent or the Lenders on the Effective Date or the effective date  of any such Assignment and Assumption or any other Loan Document pursuant to which it shall  have become a Lender hereunder.                                         128 





 






               (c)   Each Lender hereby agrees that (i) it has requested a copy of each Report  prepared by or on behalf of the Agent; (ii) the Agent (A) makes no representation or warranty,  express or implied, as to the completeness or accuracy of any Report or any of the information  contained therein or any inaccuracy or omission contained in or relating to a Report and (B) shall  not be liable for any information contained in any Report; (iii) the Reports are not comprehensive  audits or examinations, and that any Person performing any field examination will inspect only  specific  information  regarding  the  Borrowers  and  will  rely  significantly  upon  the  Borrowers’  books and records, as well as on representations of the Borrowers’ personnel and that the Agent  undertakes no obligation to update, correct or supplement the Reports; (iv) it will keep all Reports  confidential and strictly for its internal use, not share the Report with any Borrower or any other  Person except as otherwise permitted pursuant to this Agreement; and (v) without limiting the  generality of any other indemnification provision contained in this Agreement, (A) it will hold the  Agent and any such other Person preparing a Report harmless from any action the indemnifying  Lender may take or conclusion the indemnifying Lender may reach or draw from any Report in  connection with any extension of credit that the indemnifying Lender has made or may make to a  Borrower, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase  of, a Loan or Loans; and (B) it will pay and protect, and indemnify, defend, and hold the Agent  and any such other Person  preparing  a  Report harmless  from  and  against,  the  claims,  actions,  proceedings, damages, costs, expenses, and other amounts (including reasonable attorneys’ fees)  incurred by the Agent or any such other Person as the direct or indirect result of any third parties  who might obtain all or part of any Report through the indemnifying Lender.         Section 9.07 Collateral Matters.                (a)   Except  with  respect  to  the  exercise  of  setoff  rights  in  accordance  with  Section 10.10 or with respect to a Secured Party’s right to file a proof of claim in an insolvency  proceeding, no Secured Party shall have any right individually to realize upon any of the Collateral  or to enforce any Guarantee of the Obligations, it being understood and agreed that all powers,  rights and remedies under the Loan Documents may be exercised solely by the Agent on behalf of  the  Secured  Parties  in  accordance  with  the  terms  thereof.   In  its  capacity,  the  Agent  is  a  “representative” of the Secured Parties within the meaning of the term “secured party” as defined  in  the  UCC.   In the event  that  any  Collateral  is hereafter pledged by  any  Person  as  collateral  security  for  the  Obligations,  the  Agent  is  hereby  authorized,  and  hereby  granted  a  power  of  attorney, to execute and deliver on behalf of the Secured Parties any Loan Documents necessary  or appropriate to grant and perfect a Lien on such Collateral in favor of the Agent on behalf of the  Secured Parties.               (b)   In  furtherance  of  the  foregoing  and  not  in  limitation  thereof,  no  arrangements in respect  of Hedging Agreements  or other Bank Products the obligations under  which constitute Obligations, will create (or be deemed to create) in favor of any Secured Party  that is a party thereto any rights in connection with the management or release of any Collateral or  of the obligations of any Borrower under any Loan Document.  By accepting the benefits of the  Collateral,  each  Secured  Party  that  is  a  party  to  any  such  arrangement  in  respect  of  Hedging  Agreements or other Bank Products, as applicable, shall be deemed to have appointed the Agent  to serve as administrative agent and collateral agent under the Loan Documents and agreed to be  bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth  in this paragraph.                                        129 





 






               (c)   The Secured Parties irrevocably authorize the Agent, at its option and in its  discretion, to 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 Section 7.02(a).  The  Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or  warranty regarding the existence, value or collectability of the Collateral, the existence, priority or  perfection of the Agent’s Lien thereon or any certificate prepared by any Borrower in connection  therewith, nor shall the Agent be responsible or liable to the Lenders or any other Secured Party  for any failure to monitor or maintain any portion of the Collateral.         Section 9.08 Credit  Bidding.   The  Secured  Parties  hereby  irrevocably  authorize  the  Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations  (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations  pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly  or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale  thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363,  1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a  Borrower is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt  conducted by (or with the consent or at the direction of) the Agent (whether by judicial action or  otherwise) in accordance with any applicable law.  In connection with any such credit bid and  purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit  bid by the Agent at the direction of the Required Lenders on a ratable basis (with Obligations with  respect to contingent or unliquidated claims receiving contingent interests in the acquired assets  on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to  the liquidated portion of the contingent claim amount used in allocating the contingent interests)  for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition  vehicle or vehicles that are issued in connection with such purchase).  In connection with any such  bid (i) the Agent shall be authorized to form one or more acquisition vehicles and to assign any  successful credit bid to such acquisition vehicle or vehicles, (ii) each of the Secured Parties’ ratable  interests in the Obligations which were credit bid shall be deemed without any further action under  this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale,  (iii) the  Agent  shall  be  authorized  to  adopt  documents  providing  for  the  governance  of  the  acquisition  vehicle  or  vehicles  (provided  that  any  actions  by  the  Agent  with  respect  to  such  acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof,  shall be governed, directly or indirectly, by, and the governing documents shall provide for, control  by the vote of the Required Lenders or their permitted assignees under the terms of this Agreement  or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be,  irrespective of the termination of this Agreement and without giving effect to the limitations on  actions by the Required Lenders contained in Section 10.02 of this Agreement), (iv) the Agent on  behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured  Parties, ratably on account of the relevant Obligations which were credit bid, interests, whether as  equity, partnership interests, limited partnership interests or membership  interests, in any such  acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need  for any Secured Party or acquisition vehicle to take any further action, and (v) to the extent that  Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any  reason  (as  a  result  of  another  bid  being  higher  or  better,  because  the  amount  of  Obligations  assigned to the acquisition vehicle exceeds the amount of Obligations credit bid by the acquisition  vehicle or otherwise), such Obligations shall automatically be reassigned to the Secured Parties                                        130 





 






   pro  rata  with  their  original  interest  in  such  Obligations  and  the  equity  interests  and/or  debt  instruments issued by any acquisition vehicle on account of such Obligations shall automatically  be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further  action.   Notwithstanding  that the  ratable portion of the  Obligations  of  each Secured  Party are  deemed  assigned  to  the  acquisition  vehicle  or  vehicles  as  set  forth  in clause (ii)  above,  each  Secured Party shall execute such documents and provide such information regarding the Secured  Party (and/or any designee of the Secured Party which will receive interests in or debt instruments  issued by such acquisition vehicle) as the Agent may reasonably request in connection with the  formation  of  any  acquisition  vehicle,  the  formulation  or  submission  of  any  credit  bid  or  the  consummation of the transactions contemplated by such credit bid.         Section 9.09 Certain ERISA Matters.               (a)   Each Lender (x) represents and warrants, as of the date such Person became  a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party  hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent,  and each Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the  benefit of any Borrower, that at least one of the following is and will be true:                     (i)   such Lender is not using “plan assets” (within the meaning of the        Plan  Asset  Regulations)  of  one  or  more  Benefit  Plans  with  respect  to  such  Lender’s        entrance into, participation in, administration of and performance of the Loans, the Letters        of Credit, the Commitments or this Agreement,                     (ii)  the transaction exemption set forth in one or more PTEs, such as        PTE 84-14 (a class exemption for certain transactions determined by independent qualified        professional  asset  managers),  PTE  95-60  (a  class  exemption  for  certain  transactions        involving insurance company general accounts), PTE 90-1 (a class exemption for certain        transactions involving insurance company pooled separate accounts), PTE 91-38 (a class        exemption for certain transactions involving bank collective investment funds) or PTE 96-       23 (a class exemption for certain transactions determined by in-house asset managers), is        applicable with respect to such Lender’s entrance into, participation in, administration of        and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,                     (iii) (A)  such  Lender  is  an  investment fund managed by  a  “Qualified        Professional  Asset  Manager”  (within  the  meaning  of  Part  VI  of  PTE  84-14),  (B)  such        Qualified  Professional  Asset  Manager made the  investment decision on  behalf  of  such        Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit,        the  Commitments  and  this  Agreement,  (C)  the  entrance  into,  participation  in,        administration of and performance of the Loans, the Letters of Credit, the Commitments        and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of        PTE  84-14  and  (D)  to  the  best  knowledge  of  such  Lender,  the  requirements  of        subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance        into, participation in, administration of and performance of the Loans, the Letters of Credit,        the Commitments and this Agreement, or                                         131 





 






                     (iv)  such other representation, warranty and covenant as may be agreed        in writing between the Agent, in its sole discretion, and such Lender.               (b)   In addition, unless sub-clause (i) in the immediately preceding clause (a)  is true with respect to a Lender or such Lender has provided another representation, warranty and  covenant  as  provided in sub-clause (iv) in  the  immediately  preceding clause (a),  such  Lender  further (x) represents and warrants, as of the date such Person became a Lender party hereto, to,  and (y) covenants, from the date such Person became a Lender party hereto to the date such Person  ceases being a Lender party hereto, for the benefit of, the Agent, and each Arranger and their  respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of any Borrower,  that none of the Agent, any Arranger, any Syndication Agent, any Documentation Agent, or any  of their respective Affiliates is a fiduciary with respect to the Collateral or the assets of such Lender  (including in connection with the reservation or exercise of any rights by the Agent under this  Agreement, any Loan Document or any documents related to hereto or thereto).               (c)   The  Agent  and  each  Arranger,  Syndication  Agent  and  Documentation  Agent hereby inform the Lenders that each such Person is not undertaking to provide investment  advice or to give advice in a fiduciary capacity, in connection with the transactions contemplated  hereby, and that such Person has a financial interest in the transactions contemplated hereby in that  such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the  Loans, the Letters of Credit, the Commitments, this Agreement and any other Loan Documents,  (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an  amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the  Commitments by such Lender or (iii) may receive fees or other payments in connection with the  transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees,  commitment fees, arrangement fees,  facility fees, upfront fees, underwriting fees, ticking fees,  agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees,  letter  of  credit  fees,  fronting  fees,  deal-away  or  alternate  transaction  fees,  amendment  fees,  processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination  fees or fees similar to the foregoing.         Section 9.10 Flood Laws.  JPMorgan has adopted internal policies and procedures that  address requirements placed on federally regulated lenders under the National Flood Insurance  Reform Act of 1994 and related legislation (the “Flood Laws”).  JPMorgan, as administrative  agent or collateral agent on a syndicated facility, will post on the applicable electronic platform  (or otherwise distribute to each Lender in the syndicate) documents that it receives in connection  with the Flood Laws.  However, JPMorgan reminds each Lender and Participant in the facility  that, pursuant to the Flood Laws, each federally regulated Lender (whether acting as a Lender or  Participant in the facility) is responsible for assuring its own compliance with the flood insurance  requirements.                                    ARTICLE X                                                                         MISCELLANEOUS         Section 10.01 Notices.                                           132 





 






               (a)   Except in the case of notices and other communications expressly permitted  to be given by telephone or Electronic Systems (and subject in each case to paragraph (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 telecopy or  other electronic transmission, as follows:                     (i)   if to any Borrower, to it at Dillard’s, Inc., 1600 Cantrell Road, Little        Rock, Arkansas 72201, Attention: Chris Johnson, Principal Financial Officer (Telecopy        No. (501) 399-7502; E-mail: chris.johnson@dillards.com);                     (ii)  if to the Agent or to JPMorgan as an Issuing Lender or a Swingline        Lender  to  JPMorgan  Chase  Bank,  N.A.,  2200  Ross  Avenue,  9th  Floor,  Dallas,  Texas        75201,  Attention:  Credit  Risk  Manager/Portfolio  Manager  of  Dillard’s,  Inc.  (Telecopy        No. (214)  965-2594;  E-mail: arpan.x.patel@jpmorgan.com),  with  a  copy  to  Vinson  &        Elkins  L.L.P.,  Trammell  Crow  Center,  2001  Ross  Avenue,  Suite  3900,  Dallas,  Texas        75201,  Attention:  Erec  R.  Winandy  (Telecopy  No. (214)  999-7756;  E-mail:        ewinandy@velaw.com);                      (iii) if to any other Lender, to it at its address (or telecopy number) set        forth on its Administrative Questionnaire or on any Assignment and Assumption for such        Lender.   Any party hereto may change its address or telecopy number for notices and other communications  hereunder by notice to the other parties hereto.  All notices and other communications given to any  party hereto in accordance with the provisions of this Agreement shall be deemed to have been  given on the date of receipt.               (b)   Notices  and  other  communications  to  the  Lenders  hereunder  may  be  delivered  or  furnished  by  using  Electronic  Systems  or  Approved  Electronic  Platforms,  as  applicable, or pursuant to procedures approved by the Agent; provided that the foregoing shall not  apply  to  notices  pursuant  to Article II  or  to  certificates  delivered  pursuant  to Section 6.01(e)  unless otherwise agreed by the Agent and the applicable Lender.  Each of the Agent and the Parent  Borrower (on behalf of the Borrowers) may, in its discretion, agree to accept notices and other  communications  to  it  hereunder  by  Electronic  Systems  or  Approved  Electronic  Platforms,  as  applicable, pursuant to procedures approved by it; provided that approval of such procedures may  be limited to particular notices or communications.  Unless the Agent otherwise proscribes, all  such notices and other communications (i) sent to an e-mail address shall be deemed received upon  the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return  receipt  requested”  function,  as  available,  return  e-mail  or  other  written  acknowledgement),  provided  that  if  not  given  during  the  normal  business  hours  of  the  recipient,  such  notice  or  communication shall be deemed to have been given at the opening of business on the next Business  Day for the recipient, and (ii) posted to an Internet or intranet website shall be deemed received  upon  the  deemed  receipt  by  the  intended  recipient,  at  its  e-mail  address  as  described  in  the  foregoing clause (i), of notification that such notice or communication is available and identifying  the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, e- mail or other communication is not sent during the normal business hours of the recipient, such                                         133 





 






   notice or communication shall be deemed to have been sent at the opening of business on the next  Business Day of the recipient.           Section 10.02 Waivers; Amendments.                (a)   No Deemed Waivers; Remedies Cumulative.  No failure or delay by the  Administrative  Agent,  any  Issuing  Lender  or  any  Lender  in  exercising  any  right  or  power  hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single  or partial exercise of any such right or power, or any abandonment or discontinuance of steps to  enforce such a right or power, preclude any other or further exercise thereof or the exercise of any  other right or power.  The rights and remedies of the Administrative Agent, the Issuing Lenders  and  the  Lenders  hereunder  and  under  the  other  Loan  Documents  are  cumulative  and  are  not  exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision  of  this  Agreement  or  any  other  Loan  Document  or  consent  to  any  departure  by  any  Obligor  therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of  this Section, and then such waiver or consent shall be effective only in the specific instance and  for the purpose for which given.  Without limiting the generality of the foregoing, the execution  and delivery of this Agreement, the making of a Loan or the issuance of a Letter of Credit shall  not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any  Lender or any Issuing Lender may have had notice or knowledge of such Default at the time.               (b)   Amendments.   Except  as  provided  for  in Sections 2.09, 2.16  and 2.20,  neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be  waived, amended or modified except pursuant to an agreement or agreements in writing entered  into  by  the  Parent  Borrower  and  the  Required  Lenders  or  by  the  Parent  Borrower  and  the  Administrative Agent with the consent of the Required Lenders; provided that no such agreement  shall:                     (i)   increase the Commitment of any Lender without the written consent        of such Lender,                     (ii)  reduce  the  principal  amount  of  any  Loan  or  LC  Disbursement        outstanding to any Lender or reduce the rate of interest thereon (except in connection with        the  waiver  of  applicability  of  any  post-default  increase  in  interest  rates  pursuant  to        Section 2.13(d)), or reduce any fees payable to any Lender hereunder, without the written        consent of such Lender,                     (iii) postpone the scheduled date of payment of the principal amount of        any Loan or LC Disbursement outstanding to any Lender, or any interest thereon, or any        fees payable to any Lender hereunder, or reduce the amount of, waive or excuse any such        payment, or postpone the scheduled date of expiration of any Commitment of any Lender,        without the written consent of such Lender,                     (iv)  change Section 2.18(b), 2.18(c) or 2.18(d) in a manner that would        alter the pro rata sharing of payments required thereby without the written consent of each        Lender directly and adversely affected thereby,                                         134 





 






                     (v)   change any of the provisions of this Section or the percentage in the        definition of the term “Required Lenders” or any other provision hereof specifying the        number or percentage of Lenders required to waive, amend or modify any rights hereunder        or make any determination or grant any consent hereunder, without the written consent of        each Lender directly and adversely affected thereby, or                     (vi)  release  all  or  substantially  all  of  the  Subsidiary  Guarantors  from        their guarantee obligations under Article III without the written consent of each Lender,        and   provided, further, that no such agreement shall amend, modify or otherwise affect the rights or  duties of the Administrative Agent, any Issuing Lender or any Swingline Lender hereunder without  the prior written consent of the Administrative  Agent,  such  Issuing Lender or  such  Swingline  Lender, as the case may be.   Notwithstanding  the  foregoing  (but  subject  to  the  immediately  preceding  proviso),  (A)  any  amendment of the definition of the term “Applicable Rate” pursuant to the last sentence of such  definition shall require only the written consent of the Parent Borrower and the Required Lenders,  (B) no consent with respect to any amendment, waiver or other modification of this Agreement  shall be required of any Defaulting Lender, except with respect to any amendment, waiver or other  modification referred to in clause (i), (ii) or (iii) of the first proviso of this paragraph and then only  in the event such Defaulting Lender shall be directly affected by such amendment, waiver or other  modification,  (C)  the  Administrative  Agent  may  enter  into  one  or  more  security  agreements  (including mortgages and pledge agreements) in connection with any grant of a security interest  securing Indebtedness under this Agreement as contemplated by Sections 7.02(h) and 7.04 without  the consent of any Lender and (D) this Agreement may be amended (or amended and restated)  with  the  written  consent  of  the  Required  Lenders,  the  Administrative  Agent  and  the  Parent  Borrower (x) to add one or more additional credit facilities to this Agreement and to permit the  extensions of credit from time to time outstanding thereunder and the accrued interest and fees in  respect thereof to share in the benefits of this Agreement and the other Loan Documents and (y)  to  include  appropriately  the  Lenders  holding  such  credit  facilities  in  any  determination  of  the  Required Lenders.    Notwithstanding  the  foregoing,  the  Parent  Borrower,  Administrative  Agent  and  the  Issuing  Lenders may (i) reallocate the LC Sublimits among the Issuing Lenders without any further action  or consent of any other party to any Loan Document and (ii) the Parent Borrower, Administrative  Agent and any Issuing Lender may agree to increase or decrease the LC Sublimit of such Issuing  Lender.  The Administrative Agent shall promptly confirm to the Parent Borrower, the Issuing  Lenders and the Lenders the amount and the effective date of the revised sublimits.               (c)   Administrative Agent Execution.  The Administrative Agent may, but shall  have no obligation to, with the written concurrence of any Lender, execute amendments, waivers  or other modifications on behalf of such Lender.  Any amendment, waiver or other modification  effected in accordance with this Section 10.02 shall be binding upon each Person that is at the time  thereof a Lender and each Person that subsequently becomes a Lender.                                         135 





 






         Section 10.03 Special Amendment Rules.                (a)   Notwithstanding  anything  to  the  contrary  contained  herein,  no  such  agreement shall (i) change Section 6.02 of the Security Agreement or Section 6.02 of the Pledge  Agreement in a manner that would alter the pro rata sharing of payments required thereby, without  the written consent of each Lender directly and adversely affected thereby (other than a Defaulting  Lender),  (ii) change  any  of  the  provisions  of  this Section 10.03(a)  or Section 10.03(b)  or  the  definition  of  the  term  “Required  Supermajority  Lenders”  without  the  written  consent  of  each  Lender directly and adversely affected thereby (other than a Defaulting Lender), (iii) except as  provided in Section 10.03(c) below or in any Security Document, release all or substantially all of  the Collateral or subordinate the Obligations hereunder, or the Liens granted hereunder or under  the other Loan Documents, to any other Indebtedness or Lien, or permit any Liens on the Collateral  in favor of any other Person, which Liens are pari passu with the Liens of the Agent under the  Security Documents, as the case may be, without the prior written consent of each Lender (other  than any Defaulting Lender), (iv) any increase in the advance rates set forth in the definition of the  term “Borrowing Base”, without the prior written consent of each Lender (other than a Defaulting  Lender), (v) except for the release of a Subsidiary Borrower in connection with a transaction that  is  expressly  permitted  hereunder,  release  any  Borrower  from  its  obligations  under  any  Loan  Document, or limit its liability in respect of such Loan Document, without the written consent of  each Lender (other than a Defaulting Lender) or (vi) modify the definition of the term “Permitted  Overadvance” so as to increase the amount permitted under clause (b)(i) of such definition 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 (other than a Defaulting Lender).                (b)   Notwithstanding  anything  to  the  contrary  contained  herein,  no  such  agreement  shall  (i) change  the  definition  of  the  term  “Borrowing  Base”  or  any  component  definition thereof (other than any increase in advance rates set forth in the definition of the term  “Borrowing Base”, which shall be subject to Section 10.03(a)), if as a result thereof the amounts  available to be borrowed by the Borrowers would be increased, provided that the foregoing shall  not limit the Permitted Discretion of the Agent to change, establish or eliminate any Reserves and  (ii) modify the Excess Availability Threshold set forth in Section 7.08, in each case, without the  written  consent  of  the  Required  Supermajority  Lenders  and  provided  further  that  no  such  agreement shall amend, modify or otherwise affect the rights or duties of the Agent, the Issuing  Lenders  or  the  Swingline  Lenders  without  the  prior  written  consent  of  the  Agent,  the  Issuing  Lenders or the Swingline Lenders, as the case may be.               (c)   The  Lenders  and  the  Issuing  Lenders  hereby  irrevocably  authorize  the  Agent, at its option and in its sole discretion, to release any Liens granted to the Agent by the  Borrowers  on  any  Collateral  (i) upon  the  Payment  in  Full  of  all  Obligations,  and  the  cash  collateralization of all Unliquidated Obligations in a manner satisfactory to each affected Lender,  (ii) constituting property being sold or disposed of if the Borrower disposing of such property  certifies to the Agent that the sale or disposition is made in compliance with the terms of this  Agreement (and the Agent may rely conclusively on any such certificate, without further inquiry),  and to the extent that the property being sold or disposed of constitutes 100% of the Equity Interests  of a Subsidiary Borrower or the Subsidiary Borrower otherwise becomes an Excluded Subsidiary,  the Agent is authorized to release the Subsidiary Borrower and any Loan Guaranty provided by  such Subsidiary Borrower, (iii) constituting property leased to a Borrower under a lease which has                                        136 





 






   expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to  effect any sale or other disposition of such Collateral in connection with any exercise of remedies  of  the  Agent  and  the  Lenders  pursuant  to Article VIII.   Except  as  provided  in  the  preceding  sentence, the Agent will not release any Liens on Collateral without the prior written authorization  of  the  Required  Lenders;  provided  that,  the  Agent  may  in  its  discretion,  release  its  Liens  on  Collateral valued in the aggregate not in excess of $5,000,000 during any calendar year without  the prior written authorization of the Required Lenders (it being agreed that the Agent may rely  conclusively on one or more certificates of the Borrowers as to the value of any Collateral to be so  released, without further inquiry).  Any such release shall not in any manner discharge, affect, or  impair  the  Obligations  or  any  Liens  (other  than  those  expressly  being  released)  upon  (or  obligations of the Borrowers in respect of) all interests retained by the Borrowers, including the  proceeds of any sale, all of which shall continue to constitute part of the Collateral.  Any execution  and delivery by the Agent of documents in connection with any such  release shall be without  recourse to or warranty by the Agent.                (d)   Notwithstanding anything to the contrary contained in this Section 10.03 or  in Section 10.02 above, in the event that the Borrowers request that this Agreement or any other  Loan Document be modified, amended or waived in a manner which would require the consent of  the  Lenders  pursuant  to Section 10.02(b), Section 10.03(a)  or Section 10.03(b)  and  such  amendment  is  approved  by  the  Required  Lenders,  but  not  by  the  requisite  percentage  of  the  Lenders, the Borrowers, and the Required Lenders shall be permitted to amend this Agreement  without  the  consent  of  the  Lender  or  Lenders  which  did  not  agree  to  the  modification  or  amendment  requested  by  the  Borrowers  (such  Lender  or  Lenders,  collectively  the  “Minority  Lenders”) to provide for (w) the termination of the Commitment of each of the Minority Lenders,  (x) the addition to this Agreement of one or more other financial institutions, or an increase in the  Commitment of one or more of the Required Lenders, so that the aggregate Commitments after  giving  effect  to  such  amendment  shall  be  in the  same  amount  as  the  aggregate  Commitments  immediately before giving effect to such amendment, (y) if any Loans are outstanding at the time  of such amendment, the making of such additional Loans by such new or increasing Lender or  Lenders, as the case may be, as may be necessary to repay in full the outstanding Loans (including  principal, interest, and fees) of the Minority Lenders immediately before giving effect to such  amendment and (z) such other modifications to this Agreement or the Loan Documents as may be  appropriate and incidental to the foregoing.                (e)   No notice to or demand on any Borrower shall entitle any Borrower to any  other or further notice or demand in the same, similar or other circumstances.  Each holder of a  Note shall be bound by any amendment, modification, waiver or consent authorized as provided  herein, whether or not a Note shall have been marked to indicate such amendment, modification,  waiver or consent and any consent by a Lender, or any holder of a Note, shall bind any Person  subsequently  acquiring  a  Note,  whether  or  not  a  Note  is  so  marked.   No  amendment  to  this  Agreement shall be effective against the Borrowers unless signed by the Borrowers.               (f)   Notwithstanding anything to the contrary herein the Agent may, with the  consent of the Parent Borrower only, amend, modify or supplement this Agreement or any of the  other Loan Documents to cure any ambiguity, omission, mistake, defect or inconsistency.                                         137 





 






         Section 10.04 Expenses; Indemnity; Damage Waiver.  (a) The Borrowers shall jointly  and severally pay (i) all reasonable and documented out-of-pocket expenses incurred by the Agent  and its Affiliates, including the reasonable and documented fees, charges and disbursements of  counsel for the Agent, the Issuing Lenders and the Lenders, taken as a whole, outside consultants  for the Agent for appraisals and field examinations, in connection with the syndication of the credit  facilities provided for herein, the preparation and administration of the Loan Documents or any  amendments, modifications or waivers of the provisions thereof (whether or not the transactions  contemplated  hereby  or  thereby  shall  be  consummated),  (ii)  all  reasonable  and  documented  out-of-pocket  expenses  incurred  by  the  Issuing  Lenders  in  connection  with  the  issuance,  amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder,  and (iii) all reasonable and documented out-of-pocket expenses incurred by the Agent, the Issuing  Lenders or any Lender, including the reasonable and documented fees, charges and disbursements  of  counsel  and  any  outside  consultants  for  the  Agent,  the  Issuing  Lenders  or  any  Lender,  for  appraisals,  field  examinations,  and  environmental  site  assessments,  in  connection  with  the  enforcement or protection of its rights in connection with the Loan Documents, including its rights  under this Section, or in connection with the Loans made or Letters of Credit issued hereunder,  including  all  such  out-of-pocket  expenses  incurred  during  any  workout,  restructuring  or  negotiations in respect of such Loans or Letters of Credit; provided that the Administrative Agent,  the Collateral Agent, the Issuing Lenders, the Second Amendment Arrangers and the Lenders,  taken as a whole, shall be entitled to no more than one counsel and, if necessary, of a single local  counsel  in  each appropriate  jurisdiction  (which may  include  a  single special  counsel  acting  in  multiple jurisdictions) for all such Persons, taken as a whole (absent a conflict of interest in which  case such affected person may engage and be reimbursed for additional counsel).               (b)   The  Borrowers  shall,  jointly  and  severally,  indemnify  the  Agent,  each  Arranger,  each  Syndication  Agent,  each  Documentation  Agent,  each  Issuing  Lender  and  each  Lender, and each Related Party of any of the foregoing Persons (each such Person being called an  “Indemnitee”)  against,  and  hold  each  Indemnitee  harmless  from,  any  and  all  losses,  claims,  damages, penalties, liabilities and related expenses, including the reasonable and documented fees,  charges and disbursements of counsel for the Indemnitees and of any separate counsel that may be  required in light of any conflicting interests among Indemnitees, incurred by or asserted against  any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of  any Loan Document or any other agreement or instrument contemplated hereby, the performance  by  the  parties  to  the  Loan  Documents  of  their  respective  obligations  thereunder  or  the  consummation of the transactions contemplated by the Loan Documents or any other transactions  contemplated  hereby,  (ii)  any  Loan  or  Letter  of  Credit  or  the  use  of  the  proceeds  therefrom  (including any refusal by any Issuing Lender to honor a demand for payment under a Letter of  Credit if the documents presented in connection with such demand do not strictly comply with the  terms  of  such  Letter  of  Credit),  (iii)  any  actual  or  alleged  presence  or  release  of  Hazardous  Materials on or from any property currently or formerly owned or operated by any Borrower or  any of the Subsidiaries, or any Environmental Liability related in any way to any Borrower or any  of the Subsidiaries, (iv) the failure of a Borrower to deliver to the Agent the required receipts or  other required documentary evidence with respect to a payment made by a Borrower for Taxes  pursuant  to Section 2.28,  or  (v)  any  actual  or  prospective  claim,  litigation,  investigation  or  proceeding relating to any of the foregoing, whether or not such claim, litigation, investigation,  arbitration or proceeding is brought by any Borrower or their respective equity holders, Affiliates,  creditors or any other third Person and whether based on contract, tort or any other theory and                                        138 





 






   regardless of whether any Indemnitee is a party thereto, provided that such indemnity shall not, as  to any Indemnitee, be available to the extent that such losses, claims, damages, penalties, liabilities  or related expenses are determined by a court of competent jurisdiction by final and non-appealable  judgment to have resulted from the gross negligence, bad faith, willful misconduct or material  breach of any obligation under any Loan Document of such Indemnitee or any Affiliate of such  Indemnitee (or of any Related Party of such Indemnitee or any such Indemnitee’s Affiliates).  This  Section 10.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses  or damages arising from any non-Tax claim.                (c)   Each Lender severally agrees to pay any amount required to be paid by any  Borrower under paragraph (a) or (b) of this Section 10.04 to the Agent, each Issuing Lender and  each Swingline Lender, and each Related Party of any of the foregoing Persons (each, an “Agent  Indemnitee”) (to the extent not reimbursed by a Borrower and without limiting the obligation of  any Borrower to do so), ratably according to their respective Commitment Percentage in effect on  the date on which indemnification is sought under this Section (or, if indemnification is sought  after the date upon which the Commitments shall have terminated and the Loans shall have been  paid in full, ratably in accordance with such Commitment Percentage immediately prior to such  date), and indemnify and hold harmless from and against any and all losses, claims, damages,  penalties, liabilities and related expenses, including the fees, charges and disbursements of any  kind  whatsoever  that  may  at  any  time  (whether  before  or  after  the  payment  of  the  Loans)  be  imposed on, incurred by or asserted against such Agent Indemnitee in any way relating to or arising  out of the Commitments, this Agreement, any of the other Loan Documents or any documents  contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby  or any action taken or omitted by such Agent Indemnitee under or in connection with any of the  foregoing; 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 such Agent Indemnitee  in its capacity as such; provided, further, that no Lender shall be liable for the payment of any  portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,  expenses or disbursements that are found by a final and non-appealable decision of a court of  competent jurisdiction to have resulted from such Agent Indemnitee’s gross negligence or willful  misconduct.  The agreements in this Section shall survive the termination of this Agreement and  the Payment in Full of the Obligations.               (d)   To the extent permitted by applicable law, no party hereto shall assert, and  each party hereto hereby waives, any claim against any other party (i) for any damages arising  from the use by others of information or other materials obtained through telecommunications,  electronic or other information transmission systems (including the Internet) or (ii) on any theory  of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual  damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan  Document or any agreement or instrument contemplated hereby or thereby, the Transactions, any  Loan or Letter of Credit or the use of the proceeds thereof; provided that, nothing in this paragraph  (d) shall relieve any Borrower of any obligation it may have to indemnify an Indemnitee pursuant  to clause (a) or (b) of this Section or any other expense reimbursement or indemnity obligations  of any Borrower set forth herein or under any other Loan Document.  No Indemnitee shall be liable  for  any  damages  arising  from  the  use  by  any  recipient  of  any  information  or  other  materials  distributed  by  it  through  telecommunications,  electronic  or  other  information  transmission  systems, except to the extent they are determined by a final and non-appealable judgment of a                                        139 





 






   court of competent jurisdiction to have resulted from the bad faith, willful misconduct or gross  negligence of such Indemnitee or any of its Controlled Affiliates, Persons under common Control  or Controlling Persons, or any of their respective officers, directors, employees, agents or advisors,  or for any special, indirect, consequential or punitive damages in connection with this Agreement  or the other Loan Documents or the transactions contemplated hereby or thereby.               (e)   All amounts due under this Section shall be payable promptly after written  demand therefor.         Section 10.05 Designation of Parent Borrower as Borrowers’ Agent.                (a)   Each  Borrower  hereby  irrevocably  designates  and  appoints  the  Parent  Borrower as that Borrower’s agent (i) to execute the Fee Letter, and (ii) to obtain Loans and Letters  of Credit hereunder, the proceeds of which shall be available for those uses as those set forth  herein.  As the disclosed principal for its agent, each Borrower shall be obligated to the Agent and  each Lender on account of the amounts due under the Fee Letter, Loans so made and Letters of  Credit so issued hereunder as if made directly by the Lenders to such Borrower, notwithstanding  the manner by which such Loans and Letters of Credit are recorded on the books and records of  the Parent Borrower and of any Borrower.               (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 all other  Borrowers as if the Borrower so assuming were each other Borrower.               (c)   The Parent Borrower shall act as a conduit for each Borrower (including  itself, as a “Borrower”) on whose behalf the Parent Borrower has requested a Loan.                     (i)   The Parent Borrower shall cause the transfer of the proceeds of each        Loan to the (those) Borrower(s) on whose behalf such Loan was obtained.  Neither the        Agent nor any Lender shall have any obligation to see to the application of such proceeds.                     (ii)  If, for any reason, and at any time during the term of this Agreement,                           (A)   any Borrower, including the Parent Borrower, as agent for              the Borrowers, shall be unable to, or prohibited from carrying out the terms and              conditions of this Agreement (as determined by the Agent in the Agent’s sole and              absolute discretion); or                           (B)   the  Agent  deems  it  inexpedient  (in  the  Agent’s  sole  and              absolute discretion) to continue making Loans and cause Letters of Credit to be              issued to or for the account of any particular Borrower or its Subsidiaries, or to              channel such Loans and Letters of Credit through the Parent Borrower,         then the Lenders may make Loans directly to, and cause the issuance of Letters of Credit        directly for the account of such of the Borrowers as the Agent determines to be expedient,        which Loans may be made without regard to the procedures otherwise included herein.                                        140 





 






               (d)   In the  event  that  the  Agent  determines  to  forgo  the procedures  included  herein  pursuant  to  which  Loans  and  Letters  of  Credit  are  to  be  channeled  through  the  Parent  Borrower, then the Agent may designate one or more of the Borrowers to fulfill the financial and  other reporting requirements otherwise imposed herein upon the Parent Borrower.               (e)   Each of the Borrowers shall remain liable to the Agent and the Lenders for  the payment and performance of all Obligations (which payment and performance shall continue  to  be  secured  by  all  Collateral  granted  by  each  of  the  Borrowers)  notwithstanding  any  determination by the Agent to cease making Loans or causing Letters of Credit to be issued to or  for the benefit of any Borrower.               (f)   The authority of the Parent Borrower to request Loans on behalf of, and to  bind, the Borrowers, shall continue unless and until the Agent acts as provided in paragraph (c),  above, or the Agent actually receives                     (i)   written notice of: (A) the termination of such authority, and (B) the        subsequent  appointment  of  a  successor  Parent  Borrower,  which  notice  is  signed  by  a        Responsible Officer of each Borrower (other than the President of the Parent Borrower        being replaced) then eligible for borrowing under this Agreement; and                     (ii)  written notice from such successive Parent Borrower (A) accepting        such  appointment;  (B)  acknowledging  that  such  removal  and  appointment  has  been        effected by the respective Responsible Officer of such Borrowers eligible for borrowing        under  this  Agreement;  and  (C)  acknowledging  that  from  and  after  the  date  of  such        appointment, the newly appointed Parent Borrower shall be bound by the terms hereof, and        that as used herein, the term “Parent Borrower” shall mean and include the newly appointed        Parent Borrower.          Section 10.06 Successors and Assigns.  (a) The provisions of this Agreement shall be  binding upon and inure to the benefit of the parties hereto and their respective successors and  assigns permitted hereby (including any Affiliate of any Issuing Lender that issues any Letter of  Credit), except that no Borrower may assign or otherwise transfer any of its rights or obligations  hereunder without the prior written consent of each Lender (and any such attempted assignment  or transfer without such consent 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 (including any Affiliate of any Issuing Lender that issues  any Letter of Credit) and, to the extent expressly contemplated hereby, the Related Parties of each  of the Agent, the Issuing Lenders and the Lenders) any legal or equitable right, remedy or claim  under or by reason of this Agreement.               (b)   Any Lender may assign to one or more assignees all or a portion of its rights  and obligations under this Agreement (including all or a portion of its Commitment and the Loans  at  the  time  owing  to  it),  provided  that  (i)  except  in  the  case  of  an  assignment  to  an  Eligible  Assignee, or as a result of a merger of a Lender with an Eligible Assignee, or the sale of all of the  loan portfolio of a Lender to an Eligible Assignee, each of the Parent Borrower (but (A) only if no  Event of Default described in Section 8.01(a), Section 8.01(b), Section 8.01(h), Section 8.01(i),  or Section 8.01(j) then exists and (B) the Parent Borrower shall be deemed to have consented to                                        141 





 






   any assignment unless it shall object thereto by written notice (which may be by e-mail) to the  Agent within 10 Business Days after delivery of a written request for consent to such assignment,  which written request shall be provided to two Responsible Officers of the Parent Borrower, with  one such Responsible Officer being a Financial Officer), the Agent and each Issuing Lender must  give  their  prior  written  consent  to  such  assignment  (which  consent  shall  not  be  unreasonably  withheld or delayed), (ii) except in the case of an assignment to a Lender or an Affiliate of a Lender  or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans,  the amount of the Commitment or Loans of the assigning Lender subject to each such assignment  (determined as of the date the Assignment and Assumption with respect to such assignment is  delivered to the Agent) shall not be less than $10,000,000 unless the Agent otherwise consents,  (iii) each  partial  assignment  shall be made as  an assignment  of  a  proportionate part  of all  the  assigning Lender’s rights and obligations, (iv) the parties to each assignment shall execute and  deliver to the Agent an Assignment and Assumption, and, after completion of the syndication of  the Loans, together with a processing and recordation fee of $3,500, (v) no assignment shall be  made to any Borrower or any of their Affiliates and (vi) the assignee, if it shall not be a Lender,  shall deliver to the Agent an Administrative Questionnaire in which the assignee designates one  or more credit contacts to whom all syndicate level-information (which may contain material non- public information about the Parent Borrower, the other Borrowers and their Related Parties or  their  respective  securities)  will  be  made  available  and  who  may  receive  such  information  in  accordance with the assignee’s compliance procedures and applicable laws, including federal and  state securities laws.  Subject to acceptance and recording thereof pursuant to paragraph (d) of  this Section, from and after the effective date specified in each Assignment and Assumption the  assignee  thereunder shall  be a party hereto  and,  to  the extent of the interest assigned by  such  Assignment and Assumption, have the rights and obligations of a Lender under this Agreement,  and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment  and Assumption, be released from its obligations under this Agreement (and, in the case of an  Assignment and Assumption covering all of the assigning Lender’s rights and obligations under  this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the  benefits of Section 10.04).  Any assignment or transfer by a Lender of rights or obligations under  this  Agreement that  does  not  comply  with  this  paragraph  shall be  treated  for  purposes  of  this  Agreement as a sale by such Lender of a participation in such rights and obligations in accordance  with paragraph (e) of this Section.                (c)   The Agent, acting solely for this purpose as an agent of the Borrowers, shall  maintain at one of its offices in Dallas, Texas a copy of each Assignment and Assumption delivered  to  it  and  a  register  for  the  recordation  of  the  names  and  addresses  of  the  Lenders,  and  the  Commitment of, and principal amount (and stated interest) of the Loans and LC Disbursements  owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries  in the Register shall be conclusive absent manifest error and the Borrowers, the Agent, the Issuing  Lenders 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 Parent Borrower, any  Issuing Lender and any Lender, at any reasonable time and from time to time upon reasonable  prior notice.               (d)   Upon  its  receipt  of  (x)  a  duly  completed  Assignment  and  Assumption  executed by an assigning Lender and an assignee, or (y) to the extent applicable, an agreement                                        142 





 






   incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic  Platform as to which the Agent and the parties to the Assignment and Assumption are participants,  the assignee’s  completed  Administrative Questionnaire  (unless the assignee  shall  already  be  a  Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section  and any written consent to such assignment required by paragraph (b) of this Section, the Agent  shall accept such Assignment and Assumption and record the information contained therein in the  Register; provided that if either the assigning Lender or the assignee shall have failed to make any  payment  required  to  be  made  by  it  pursuant  to Section  2.03, 2.06(d)  or (e), 2.07, 2.18(d)  or  10.04(c), the Agent shall have no obligation to accept such Assignment and Assumption and record  the information therein in the Register unless and until such payment shall have been made in full,  together with all accrued interest thereon.  No assignment shall be effective for purposes of this  Agreement unless it has been recorded in the Register as provided in this paragraph.                (e)   Any Lender may, without the consent of the Borrowers, the Agent, or the  Issuing Lenders, sell participations to one or more banks or other entities (other than a Borrower  or any of its Affiliates) (a “Participant”) in all or a portion of such Lender’s rights and obligations  under this Agreement (including all or a portion of its Commitment and the Loans owing to it),  provided that (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 Borrowers, the Agent, the Issuing Lenders and the other Lenders shall  continue to deal solely and directly with such Lender in connection with such Lender’s rights and  obligations under this Agreement.  Any agreement or instrument pursuant to which a Lender sells  such a participation in the Commitments, the Loans and the Letters of Credit Outstandings shall  provide that such Lender shall retain the sole right to enforce the Loan Documents and to approve  any amendment, modification or waiver of any provision of the Loan Documents, provided that  such agreement or instrument may provide that such Lender will not, without the consent of the  Participant,  agree  to  any  amendment,  modification  or  waiver  described  in  the  first  proviso  to  Section 10.02(b) that directly and adversely affects such Participant.  The Borrowers agree that  each Participant shall be entitled to the benefits of Section 2.22(b), Section 2.26, and Section 2.28  (subject to the requirements and limitations therein, including the requirements of Section 2.28(f)  and Section 2.28(g), it being understood that the documentation required under Section 2.28(f)  and Section 2.28(g) shall be delivered to the participating Lender) to the same extent as if it were  a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section;  provided that such Participant (A) agrees to be subject to the provisions of Section 2.28 as if it  were an assignee under paragraph (b) of this Section, and (B) shall not be entitled to receive any  greater payment under Section 2.26 or Section 2.28, with respect to any participation, than its  participating Lender would have been entitled to receive.  To the extent permitted by law, each  Participant  also  shall  be  entitled  to  the  benefits  of Section 10.10  as  though  it  were  a  Lender,  provided such Participant agrees to be subject to Section 2.18(d) as though it were a Lender.  Each  Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrowers,  maintain a register on which it enters the name and address of each Participant and the principal  amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under  the  Loan  Documents  (the  “Participant  Register”);  provided  that  no  Lender  shall  have  any  obligation to disclose all or any portion of the Participant Register to any Person (including the  identity  of  any  Participant  or  any  information  relating  to  a  Participant’s  interest  in  any  Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) except  to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of                                        143 





 






   Credit or other obligation is  in  registered form under Section 5f.103-1(c) of the United  States  Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest  error, and such Lender shall treat each person whose name is recorded in the Participant Register  as the owner of such participation for all purposes of this Agreement notwithstanding any notice  to the contrary.  For the avoidance of doubt, the Agent (in its capacity as administrative agent)  shall have no responsibility for maintaining a Participant Register.               (f)   Any Lender may at any time pledge or assign a security interest in all or any  portion of its rights under this Agreement to secure obligations of such Lender, including any  pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not  apply to any such pledge or assignment of a security interest, provided that no such pledge or  assignment of a security interest shall release a Lender from any of its obligations hereunder or  substitute any such pledgee or assignee for such Lender as a party hereto.         Section 10.07 Survival.  All covenants, agreements, representations and warranties made  by the Borrowers in the Loan Documents and in the certificates or other instruments delivered in  connection with or pursuant to this Agreement or any other Loan Document shall be considered to  have been relied upon by the other parties hereto and shall survive the execution and delivery of  the Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless  of any investigation made by any such other party or on its behalf and notwithstanding that the  Agent, any Issuing Lender or any Lender may have had notice or knowledge of any Default or  incorrect representation or warranty at the time any credit is extended hereunder, and shall continue  in full force and effect as long as the principal of or any accrued interest on any Loan or any fee  or any other amount payable under this Agreement is outstanding and unpaid or any Letter of  Credit  is  outstanding  and  so  long  as  the  Commitments  have  not  expired  or  terminated.   The  provisions of Section 2.22(b), Section 2.26, Section 2.28 and Section 10.04 and Article IX shall  survive and remain in full force and effect regardless of the consummation of the transactions  contemplated hereby, the termination of this Agreement or any provision hereof and the Payment  in Full of the Obligations.         Section 10.08 Counterparts;  Integration;  Effectiveness.   This  Agreement  may  be  executed in counterparts (and by different parties hereto on different counterparts), each of which  shall constitute an original, but all of which when taken together shall constitute a single contract.   This Agreement, the other Loan Documents and any separate letter agreements with respect to (a)  fees payable to the Agent and (b) increases or reductions of the LC Sublimit of the Issuing Lenders  constitute the entire contract among the parties constitute the entire contract among the parties  relating  to  the  subject  matter  hereof  and  supersede  any  and  all  previous  agreements  and  understandings,  oral  or  written,  relating  to  the  subject  matter  hereof.   Except  as  provided  in  Section 5.01, this Agreement shall become effective when it shall have been executed by the Agent  and the Lenders and when the Agent shall have received counterparts hereof that, when taken  together, bear the signatures of each of the other parties hereto, and thereafter shall be binding  upon and inure to the benefit of the parties hereto and their respective successors and assigns.   Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other  electronic transmission shall be effective as delivery of a manually executed counterpart of this  Agreement.  The words “execution,” “signed,” “signature,” “delivery,” and words of like import  in or relating to any document to be signed in connection with this Agreement and the transactions  contemplated hereby or thereby shall be deemed to include Electronic Signatures, deliveries or the                                        144 





 






   keeping of records in electronic form, each of which shall be of the same legal effect, validity or  enforceability as a manually executed signature, physical delivery thereof or the use of a paper- based recordkeeping system, as the case may be, to the extent and as provided for in any applicable  law, including the Federal Electronic Signatures in Global and National Commerce Act, the New  York State Electronic Signatures and Records Act, or any other similar state laws based on the  Uniform  Electronic  Transactions  Act;  provided  that  nothing  herein  shall  require  the  Agent  to  accept  electronic  signatures  in  any  form  or  format  without  its  prior  written  consent.   THIS  WRITTEN  AGREEMENT  REPRESENTS  THE  FINAL  AGREEMENT  BETWEEN  THE  PARTIES  AND  MAY  NOT  BE  CONTRADICTED  BY  EVIDENCE  OF  PRIOR,  CONTEMPORANEOUS,       OR    SUBSEQUENT     ORAL    AGREEMENTS      OF    THE  PARTIES.   THERE  ARE  NO  UNWRITTEN  ORAL  AGREEMENTS  BETWEEN  THE  PARTIES.         Section 10.09 Severability.   Any  provision of any  Loan Document held to  be  invalid,  illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent  of  such  invalidity,  illegality  or  unenforceability  without  affecting  the  validity,  legality  and  enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a  particular jurisdiction shall not invalidate such provision in any other jurisdiction.         Section 10.10 Right  of  Setoff.   If  an  Event  of  Default  shall  have  occurred  and  be  continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time  to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or  special, time or demand, provisional or final) at any time held and other obligations at any time  owing by such Lender or its Affiliates to or for the credit or the account of the Borrowers against  any of and all the obligations of the Borrowers now or hereafter existing under this Agreement  held by such Lender or its Affiliate, irrespective of whether or not such Lender or its Affiliate shall  have  made  any  demand  under  the  Loan  Documents  and  although  such  obligations  may  be  contingent or unmatured or are owed to a branch office or Affiliate of such Lender different from  the branch office or Affiliate holding such deposit or obligated on such indebtedness; provided  that no amount received pursuant to this Section 10.10 from any Borrower shall be applied to any  Excluded Hedging Obligation of any Borrower and provided further that in the event that any  Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid  over  immediately  to  the  Agent  for  further  application  in  accordance  with  the  provisions  of  Section 2.31 and, pending such payment, shall be segregated by such Defaulting Lender from its  other funds and deemed held in trust for the benefit of the Agent, the Issuing Lenders, and the  Lenders, and (y) the Defaulting Lender shall provide promptly to the Agent a statement describing  in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such  right of setoff.  The rights of each Lender under this Section are in addition to other rights and  remedies (including other rights of setoff) that such Lender or its Affiliate may have.  In no event  may a Lender or its Affiliates set off and apply the Other Store Proceeds against such obligations.   Each Lender (including any Defaulting Lender) and each Issuing Lender agrees to notify the Parent  Borrower and the Administrative Agent promptly after any such application made by such Lender,  provided that the failure to give such notice shall not affect the validity of such application.         Section 10.11 Governing Law; Jurisdiction; Consent to Service of Process.                                          145 





 






               (a)   THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED  IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.               (b)   Each of the parties hereto agrees that any suit for the enforcement of this  Agreement or any other Loan Document may be brought in any New York state or federal court  sitting  in  the  Borough  of  Manhattan  in  New  York  City  and  consent  to  the  non-exclusive  jurisdiction of such courts.  Each of the parties hereto hereby waives any objection which they may  now or hereafter have to the venue of any such suit or any such court or that such suit is brought  in an inconvenient forum.               (c)   Each party to this Agreement irrevocably consents to service of process in  the manner provided for notices in Section 10.01.  Nothing in this Agreement or any other Loan  Document will affect the right of any party to this Agreement to serve process in any other manner  permitted by law.         Section 10.12 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.         Section 10.13 Headings.  Article and Section headings and the Table of Contents used  herein are for convenience of reference only, are not part of this Agreement and shall not affect  the construction of, or be taken into consideration in interpreting, this Agreement.         Section 10.14 Interest  Rate  Limitation.   Notwithstanding  anything  herein  to  the  contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and  other  amounts  that  are  treated  as  interest  on  such  Loan  under  applicable  law  (collectively  the  “Charges”),  shall  exceed  the  maximum  lawful  rate  (the  “Maximum  Rate”)  that  may  be  contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance  with applicable law, the rate of interest payable in respect of such Loan hereunder, together with  all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent  lawful, the interest and Charges that would have been payable in respect of such Loan but were  not payable as a result of the operation of this Section shall be cumulated and the interest and  Charges payable to such Lender in respect of other Loans or periods shall be increased (but not  above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at  the NYFRB Rate to the date of repayment, shall have been received by such Lender.                                         146 





 






         Section 10.15 Additional Waivers.                (a)   The Obligations are the joint and several obligations of each Borrower.  To  the fullest extent permitted by applicable law, the obligations of each Borrower hereunder shall  not be affected by (i) the failure of the Agent or any other Secured Party to assert any claim or  demand  or  to  enforce  or  exercise  any  right  or  remedy  against  any  other  Borrower  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, any other Loan Document, or any other agreement, including with respect to any other  Borrower  of  the  Obligations  under  this  Agreement,  or  (iii)  the  failure  to  perfect  any  security  interest in, or the release of, any of the security held by or on behalf of the Agent or any other  Secured Party.               (b)   The  obligations  of  each  Borrower  hereunder  shall  not  be  subject  to  any  reduction, limitation, impairment or termination for any reason (other than the Payment in Full of  the Obligations), including any claim of waiver, release, surrender, alteration or compromise of  any of the Obligations, and shall not be subject to any defense or set-off, counterclaim, recoupment  or  termination  whatsoever  by  reason  of  the  invalidity,  illegality  or  unenforceability  of  the  Obligations or otherwise.  Without limiting the generality of the foregoing, the obligations of each  Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any  Agent or any other Secured 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,  by  any  default,  failure  or  delay,  willful  or  otherwise,  in  the  performance 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 Borrower or that would otherwise operate as a discharge of  any Borrower as a matter of law or equity (other than the Payment in Full of the Obligations).               (c)   To the fullest extent permitted by applicable law, each Borrower waives any  defense based on or arising out of any defense of any other Borrower 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 Borrower, other than the Payment in Full of the Obligations.  The Agent and the other  Secured Parties may, at their election, foreclose on any security held by one or more of them by  one or more judicial or nonjudicial 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 Borrower, or exercise any other right or remedy available to them against any other  Borrower, without affecting or impairing in any way the liability of any Borrower hereunder except  to the extent that all the Obligations have been Paid in Full.  Pursuant to applicable law, each  Borrower 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 Borrower against any other Borrower, as the case may be, or any  security.               (d)   Upon  payment  by  any  Borrower  of  any  Obligations,  all  rights  of  such  Borrower against any other Borrower 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 Payment in Full of the Obligations.  In addition, any indebtedness  of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of                                        147 





 






   payment to the prior Payment in Full of the Obligations.  None of the Borrowers will demand, sue  for, or otherwise attempt to collect any such indebtedness.  If any amount shall erroneously be paid  to any Borrower on account of (i) such subrogation, contribution, reimbursement, indemnity or  similar right or (ii) any such indebtedness of any Borrower, 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  the Loan Documents.         Section 10.16 No Fiduciary Duty, etc.                 (a)   Each  Borrower  acknowledges  and  agrees,  and  acknowledges  its  Subsidiaries’ understanding, that no Credit Party will have any obligations except those obligations  expressly set forth herein and in the other Loan Documents and each Credit Party is acting solely  in the capacity of an arm’s length contractual counterparty to each Borrower with respect to the  Loan  Documents  and  the  transactions  contemplated  herein  and  therein  and  not  as  a  financial  advisor or a fiduciary to, or an agent of, any Borrower or any other person.  Each Borrower agrees  that it will not assert any claim against any Credit Party based on an alleged breach of fiduciary  duty by such Credit Party in connection with this Agreement and the transactions contemplated  hereby.  Additionally, each Borrower acknowledges and agrees that no Credit Party is advising  any Borrower as to any legal, tax, investment, accounting, regulatory or any other matters in any  jurisdiction.  Each Borrower shall consult with its own advisors concerning such matters and shall  be  responsible  for  making  its  own  independent  investigation  and  appraisal  of  the  transactions  contemplated  herein  or  in  the  other  Loan  Documents,  and  the  Credit  Parties  shall  have  no  responsibility or liability to any Borrower with respect thereto.               (b)   Each  Borrower  further  acknowledges  and  agrees,  and  acknowledges  its  Subsidiaries’ understanding, that each Credit Party, together with its Affiliates, is a full service  securities  or  banking  firm  engaged  in  securities  trading  and  brokerage  activities  as  well  as  providing investment banking and other financial services.  In the ordinary course of business, any  Credit Party may provide investment banking and other financial services to, and/or acquire, hold  or sell, for its own accounts and the accounts of customers, equity, debt and other securities and  financial  instruments  (including  bank  loans  and other  obligations) of, any  Borrower and other  companies with which any Borrower may have commercial or other relationships.  With respect  to any securities and/or financial instruments so held by any Credit Party or any of its customers,  all rights in respect of such securities and financial instruments, including any voting rights, will  be exercised by the holder of the rights, in its sole discretion.               (c)   In addition, each Borrower acknowledges and agrees, and acknowledges its  Subsidiaries’  understanding,  that  each  Credit  Party  and  its  affiliates  may  be  providing  debt  financing,  equity  capital  or  other  services  (including  financial  advisory  services)  to  other  companies in respect of which a Borrower may have conflicting interests regarding the transactions  described herein and otherwise.  No Credit Party will use confidential information obtained from  any  Borrower  by  virtue  of  the  transactions  contemplated  by  the  Loan  Documents  or  its  other  relationships  with  such  Borrower in  connection  with the performance  by  such  Credit  Party of  services  for  other  companies,  and  no  Credit  Party  will  furnish  any  such  information  to  other  companies.  Each Borrower also acknowledges that no Credit Party has any obligation to use in                                         148 





 






   connection  with  the  transactions  contemplated  by  the  Loan  Documents,  or  to  furnish  to  any  Borrower, confidential information obtained from other companies.         Section 10.17 Confidentiality.                (a)   The Borrowers hereby agree that the Agent and each Lender may issue and  disseminate to the public general information describing this Agreement, including the name and  address of the Parent Borrower.               (b)   The  Agent  and  each  Lender  agrees  to  keep  confidential  all  non-public  information provided to it by or on behalf of any Borrower pursuant to or in connection with this  Agreement that is designated by the provider thereof as confidential; provided that nothing herein  shall prevent the Agent or any Lender from disclosing any such information (i) to the Agent, any  other Lender or any Affiliate thereof, (ii) subject to an agreement to comply with the provisions of  this Section, to any actual or prospective transferee, assignee or participant or any direct or indirect  counterparty to any Hedging Agreement (or any professional advisor to such counterparty), (iii)  to its employees, directors, agents, attorneys, accountants and other professional advisors or those  of any of its Affiliates, (iv) upon the request or demand of any Governmental Authority, (v) in  response  to  any  order  of  any  court  or  other  Governmental  Authority  or  as  may  otherwise  be  required pursuant to any requirement of law, (vi) to the extent required by applicable law or if  required  to  do  so  in  connection  with  any  litigation  or  similar  proceeding,  (vii)  that  has  been  publicly disclosed, (viii) to the National Association of Insurance Commissioners or any similar  organization or any nationally recognized rating agency that requires access to information about  a Lender’s investment portfolio in connection with ratings issued with respect to such Lender, (ix)  in connection with the exercise of any remedy hereunder or under any other Loan Document, (x)  that becomes available to the Agent or any Lender on a nonconfidential basis from a source other  than the Borrowers, or (xi) any nationally recognized rating agency.  Notwithstanding anything to  the  contrary  herein  contained,  each  party  (and  their  respective  employees,  representatives  and  other agents) may disclose to any Person the tax treatment and tax structure of the transactions  contemplated by this Agreement and all materials (including opinions or other tax analyses) that  are provided to such party relating to such tax treatment and tax structure.         Section 10.18 Non-Public Information.                (a)   EACH  LENDER,  EACH  ISSUING  LENDER  AND  THE  AGENT  ACKNOWLEDGES  THAT  INFORMATION  FURNISHED  TO  IT  PURSUANT  TO  OR  IN  CONNECTION  WITH  THIS  AGREEMENT  OR  THE  OTHER  LOAN  DOCUMENTS  MAY  INCLUDE  MATERIAL  NON-PUBLIC  INFORMATION  CONCERNING  THE  PARENT  BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND  CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE  USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH  MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH APPLICABLE LAW,  INCLUDING FEDERAL AND STATE SECURITIES LAWS.               (b)   ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND  AMENDMENTS, FURNISHED BY ANY BORROWER OR THE AGENT PURSUANT TO,  OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT OR THE OTHER LOAN                                        149 





 






   DOCUMENTS WILL BE SYNDICATE LEVEL INFORMATION, WHICH MAY CONTAIN  MATERIAL NON-PUBLIC INFORMATION ABOUT THE PARENT BORROWER AND ITS  RELATED  PARTIES  OR  THEIR  RESPECTIVE  SECURITIES.   ACCORDINGLY,  EACH  LENDER AND EACH ISSUING LENDER REPRESENTS TO THE PARENT BORROWER  AND  THE  AGENT  THAT  IT  HAS  IDENTIFIED  IN  ITS  ADMINISTRATIVE  QUESTIONNAIRE  A  CREDIT  CONTACT  WHO  MAY  RECEIVE  INFORMATION  THAT  MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS  COMPLIANCE  PROCEDURES  AND  APPLICABLE  LAW,  INCLUDING  FEDERAL  AND  STATE SECURITIES LAWS.         Section 10.19 USA PATRIOT Act.  Each Lender that is subject to the requirements of  the USA PATRIOT Act hereby notifies the Borrowers that pursuant to the requirements of the  USA  PATRIOT  Act,  it  is  required  to  obtain,  verify  and  record  information  that  identifies  the  Borrowers,  which  information  includes  the  name  and  address  of  the  Borrowers  and  other  information that will allow such Lender to identify the Borrowers in accordance with the USA  PATRIOT Act.           Section 10.20 Specified  Subsidiaries.   For  the  avoidance  of  doubt,  the  assets  of  the  Specified Subsidiaries are not and shall not be  required to be pledged as Collateral under this  Agreement or any other Loan Document and none of the Specified Subsidiaries are or shall be  deemed to be a Borrower, a Loan Guarantor or a Grantor (as defined in the Security Agreement).   The Agent and the Lenders hereby agree that at all times, including, without limitation, (a) if an  Event of Default has occurred and is continuing or (b) if the Lenders become judgment creditors  and seek to attach or levy upon any assets of the Parent Borrower or any of its Subsidiaries to  enforce any such judgment, DICL will continue to be operated in compliance with the regulatory  guidelines required by the Bermuda Monetary Authority and the Arkansas Insurance Department.         Section 10.21 Marketing Consent.  The Parent Borrower hereby authorizes JPMorgan  and its affiliates (collectively, the “JPMCB Parties”), at their respective sole expense, but without  any prior approval by the Parent Borrower, to include the Parent Borrower’s name and logo in  advertising slicks posted on their internet sites, in pitchbooks or sent in mailings to prospective  customers  and  to  give  such  other  publicity  to  this  Agreement  as  each  may  from  time  to  time  determine in its sole discretion.  The JPMCB Parties shall not use any Subsidiary Borrower’s name  or any Subsidiary Borrower’s logo without the prior written approval of such Subsidiary Borrower  and the Parent Borrower.  Notwithstanding the foregoing, the JPMCB Parties shall not publish the  Borrowers’ names in a newspaper or magazine without obtaining the Borrowers’ prior written  approval.  The foregoing authorization shall remain in effect unless and until the Parent Borrower  notifies the JPMCB Parties in writing that such authorization is revoked.         Section 10.22 Acknowledgement  and  Consent  to  Bail-In  of  Affected  Financial  Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other  agreement, arrangement or understanding among any such parties, each party hereto acknowledges  that any liability of any Affected Financial Institution arising under any Loan Document, to the  extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of  the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to  be bound by:                                         150 





 






               (a)   the  application  of  any  Write-Down  and  Conversion  Powers  by  the  applicable Resolution Authority to any such liabilities arising hereunder which may be payable to  it by any party hereto that is an Affected Financial Institution; and               (b)   the  effects  of  any  Bail-In  Action  on  any  such  liability,  including,  if  applicable:                     (i)   a reduction in full or in part or cancellation of any such liability;                     (ii)  a conversion of all, or a portion of, such liability into shares or other        instruments  of  ownership  in  such  Affected  Financial  Institution,  its  parent  entity,        undertaking, or a bridge institution that may be issued to it or otherwise conferred on it,        and that such shares or other instruments of ownership will be accepted by it in lieu of any        rights with respect to any such liability under this Agreement or any other Loan Document;        or                     (iii) the variation of the terms of such liability in connection with the        exercise  of  the  Write-Down  and  Conversion  Powers  of  the  applicable  Resolution        Authority.         Section 10.23 Acknowledgement Regarding Any Supported QFCs.  To the extent that  the  Loan  Documents  provide  support,  through  a  guarantee  or  otherwise,  for  any  Hedging  Agreement  or  any  other  agreement  or  instrument  that  is  a  QFC  (such  support,  “QFC  Credit  Support”  and  each  such  QFC,  a  “Supported  QFC”),  the  parties  acknowledge  and  agree  as  follows with respect to the resolution power of the Federal Deposit Insurance Corporation under  the  Federal  Deposit  Insurance  Act  and  Title  II  of  the  Dodd-Frank  Wall  Street  Reform  and  Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special  Resolution  Regimes”)  in  respect  of  such  Supported  QFC  and  QFC  Credit  Support  (with  the  provisions below applicable notwithstanding that the Loan Documents and any Supported QFC  may in fact be stated to be governed by the laws of the State of New York and/or of the United  States or any other state of the United States):   In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes  subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported  QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such  Supported QFC and such QFC Credit Support, and any rights in property securing such Supported  QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent  as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC  and  such  QFC  Credit  Support  (and  any  such  interest,  obligation  and  rights  in  property)  were  governed by the laws of the United States or a state of the United States.  In the event a Covered  Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S.  Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply  to such Supported QFC or any QFC Credit Support that may be exercised against such Covered  Party are permitted to be exercised to no greater extent than such Default Rights could be exercised  under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were  governed by the laws of the United States or a state of the United States. Without limitation of the  foregoing, it is understood and agreed that rights and remedies of the parties with respect to a                                        151 





 






   Defaulting  Lender  shall  in  no  event  affect  the  rights  of  any  Covered  Party  with  respect  to  a  Supported QFC or any QFC Credit Support.         Section 10.24 Several Obligations; Violation of Law.  The respective obligations of the  Lenders hereunder are several and not joint and the failure of any Lender to make any Loan or  perform  any  of  its  obligations  hereunder  shall  not  relieve  any  other  Lender  from  any  of  its  obligations hereunder.  Each Lender hereby represents that it is not relying on or looking to any  margin  stock  (as  defined  in  Regulation  U  of  the  Board)  for  the  repayment  of  the  Borrowings  provided  for  herein.   Anything  contained  in  this  Agreement  to  the  contrary  notwithstanding,  neither any Issuing Lender nor any Lender shall be obligated to extend credit to the Borrowers in  violation of any requirement of law.         Section 10.25 Disclosure.  Each Borrower, each Lender and each Issuing Lender hereby  acknowledges  and  agrees  that  the  Agent  and/or  its  Affiliates  from  time  to  time  may  hold  investments in, make other loans to or have other relationships with any of the Borrowers and their  respective Affiliates.         Section 10.26 Appointment  for  Perfection.   Each  Lender  hereby  appoints  each  other  Lender as its agent for the purpose of perfecting Liens, for the benefit of the Agent and the other  Secured Parties, in assets which, in accordance with Article 9 of the UCC or any other applicable  law can be perfected only by possession or control.  Should any Lender (other than the Agent)  obtain possession or control 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.                         [balance of page left intentionally blank]                                        152