Exhibit 10.1


 


[EXECUTION]


 


 


 



 


CREDIT
AGREEMENT


 

Dated as of February 2, 2018




among


 


THE
LOVESAC COMPANY 

as the Lead Borrower


 


SAC
ACQUISITION LLC 

as Guarantor


 


WELLS
FARGO BANK, NATIONAL ASSOCIATION 

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


 


and


 


The
Other Lenders Party Hereto


 


WELLS
FARGO BANK, NATIONAL ASSOCIATION,


as


Sole
Lead Arranger and Sole Bookrunner





 





 



 


 






     

     


    

 


TABLE
OF CONTENTS


 





	 	 	Page
	ARTICLE
    I DEFINITIONS AND ACCOUNTING TERMS	1
	 	1.01 Defined
    Terms	1
	 	1.02 Other
    Interpretive Provisions	43
	 	1.03 Accounting
    Terms	44
	 	1.04 Rounding	44
	 	1.05 Times
    of Day	44
	 	1.06 Letter
    of Credit Amounts	44
	ARTICLE
    II THE COMMITMENTS AND CREDIT EXTENSIONS	44
	 	2.01 Committed
    Loans; Reserves	44
	 	2.02 Borrowings,
    Conversions and Continuations of Committed Loans	45
	 	2.03 Letters
    of Credit	47
	 	2.04 Swing
    Line Loans	54
	 	2.05 Prepayments	56
	 	2.06 Termination
    or Reduction of Commitments	57
	 	2.07 Repayment
    of Loans	58
	 	2.08 Interest	58
	 	2.09 Fees	59
	 	2.10 Computation
    of Interest and Fees	59
	 	2.11 Evidence
    of Debt	59
	 	2.12 Payments
    Generally; Agent’s Clawback	60
	 	2.13 Sharing
    of Payments by Lenders	61
	 	2.14 Settlement
    Amongst Lenders	62
	 	2.15 Increase
    in Commitments	62
	ARTICLE
    III TAXES, YIELD PROTECTION AND ILLEGALITY; APPOINTMENT OF LEAD BORROWER	63
	 	3.01 Taxes	63
	 	3.02 Illegality	65
	 	3.03 Inability
    to Determine Rates	65
	 	3.04 Increased
    Costs; Reserves on LIBO Rate Loans	65
	 	3.05 Compensation
    for Losses	67
	 	3.06 Mitigation
    Obligations; Replacement of Lenders	67
	 	3.07 Survival	68
	 	3.08 Designation
    of Lead Borrower as Borrowers’ Agent	68
	ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	68
	 	4.01 Conditions
    of Initial Credit Extension	68
	 	4.02 Conditions
    to all Credit Extensions	71



 






    (i)


     


    

 


	ARTICLE
    V REPRESENTATIONS AND WARRANTIES	72
	 	5.01
    Existence, Qualification and Power	72
	 	5.02 Authorization;
    No Contravention	72
	 	5.03 Governmental
    Authorization; Other Consents	72
	 	5.04 Binding
    Effect	72
	 	5.05 Financial
    Statements; No Material Adverse Effect	73
	 	5.06 Litigation	73
	 	5.07 No Default	73
	 	5.08 Ownership
    of Property; Liens	74
	 	5.09 Environmental
    Compliance	74
	 	5.10 Insurance	75
	 	5.11 Taxes	75
	 	5.12 ERISA
    Compliance	75
	 	5.13 Subsidiaries;
    Equity Interests	76
	 	5.14 Margin
    Regulations; Investment Company Act;	76
	 	5.15 Disclosure	76
	 	5.16 Compliance
    with Laws	77
	 	5.17 Intellectual
    Property; Licenses, Etc	77
	 	5.18 Labor
    Matters	77
	 	5.19 Security
    Documents	77
	 	5.20 Solvency	78
	 	5.21 Deposit
    Accounts; Credit Card Arrangements	78
	 	5.22 Brokers	79
	 	5.23 Customer
    and Trade Relations	79
	 	5.24 Material
    Contracts	79
	 	5.25 Casualty	79
	 	5.26 OFAC/Sanctions	79
	ARTICLE
    VI AFFIRMATIVE COVENANTS	80
	 	6.01 Financial
    Statements	80
	 	6.02 Certificates;
    Other Information	81
	 	6.03 Notices	82
	 	6.04 Payment
    of Obligations	83
	 	6.05 Preservation
    of Existence, Etc	83
	 	6.06 Maintenance
    of Properties	83
	 	6.07 Maintenance
    of Insurance	84
	 	6.08 Compliance
    with Laws	85
	 	6.09 Books
    and Records; Accountants.	85
	 	6.10 Inspection
    Rights.	85
	 	6.11 Use
    of Proceeds	86
	 	6.12 Additional
    Loan Parties	86
	 	6.13 Cash
    Management	87
	 	6.14 Information
    Regarding the Collateral	88
	 	6.15 Physical
    Inventories	89
	 	6.16 Environmental
    Laws	89
	 	6.17 Further
    Assurances	89
	 	6.18 Compliance
    with Terms of Leaseholds	90
	 	6.19 Material
    Contracts	90



 






    (ii)


     


    

 


	ARTICLE
    VII NEGATIVE COVENANTS	90
	 	7.01
    Liens	90
	 	7.02 Investments	91
	 	7.03 Indebtedness;
    Disqualified Stock	91
	 	7.04 Fundamental
    Changes	91
	 	7.05 Dispositions	91
	 	7.06 Restricted
    Payments	91
	 	7.07 Prepayments
    of Indebtedness	92
	 	7.08
    Change in Nature of Business	92
	 	7.09
    Transactions with Affiliates	92
	 	7.10
    Burdensome Agreements	93
	 	7.11
    Use of Proceeds	93
	 	7.12
    Amendment of Material Documents	93
	 	7.13
    Fiscal Year	93
	 	7.14
    Deposit Accounts; Credit Card Processors	93
	 	7.15
    Excess Availability Covenant	93
	ARTICLE
    VIII EVENTS OF DEFAULT AND REMEDIES	94
	 	8.01
    Events of Default	94
	 	8.02
    Remedies Upon Event of Default	96
	 	8.03
    Application of Funds	97
	ARTICLE
    IX THE AGENT	98
	 	9.01
    Appointment and Authority	98
	 	9.02
    Rights as a Lender	98
	 	9.03
    Exculpatory Provisions	99
	 	9.04
    Reliance by Agent	99
	 	9.05
    Delegation of Duties	100
	 	9.06
    Resignation of Agent	100
	 	9.07
    Non-Reliance on Agent and Other Lenders	101
	 	9.08
    No Other Duties, Etc	101
	 	9.09
    Agent May File Proofs of Claim	101
	 	9.10
    Collateral and Guaranty Matters	102
	 	9.11
    Notice of Transfer	102
	 	9.12
    Reports and Financial Statements	102
	 	9.13
    Agency for Perfection	103
	 	9.14
    Indemnification of Agent	103
	 	9.15
    Relation among Lenders	103
	 	9.16
    Defaulting Lenders	104
	ARTICLE
    X MISCELLANEOUS	106
	 	10.01
    Amendments, Etc	106
	 	10.02
    Notices; Effectiveness; Electronic Communications	107
	 	10.03
    No Waiver; Cumulative Remedies	109
	 	10.04
    Expenses; Indemnity; Damage Waiver	109
	 	10.05
    Payments Set Aside	110
	 	10.06
    Successors and Assigns	111
	 	10.07
    Treatment of Certain Information; Confidentiality	114
	 	10.08
    Right of Setoff	115
	 	10.09
    Interest Rate Limitation	115
	 	10.10
    Counterparts; Integration; Effectiveness	115
	 	10.11
    Survival	115
	 	10.12
    Severability	116
	 	10.13
    Replacement of Lenders	116
	 	10.14
    Governing Law; Jurisdiction; Etc.	116
	 	10.15
    Waiver of Jury Trial	117
	 	10.16
    No Advisory or Fiduciary Responsibility	118
	 	10.17
    USA PATRIOT Act Notice	118
	 	10.18
    Foreign Asset Control Regulations	119
	 	10.19
    Time of the Essence	119
	 	10.20
    [Reserved]	119
	 	10.21
    Press Releases	119
	 	10.22
    Additional Waivers	119
	 	10.23
    No Strict Construction	120
	 	10.24
    Attachments	120
	 	10.25
    Keepwell	120













 






    (iii)


     


    

 


SCHEDULES


 


	 	2.01  Commitments
    and Applicable Percentages	 
	 	5.01  Loan
    Parties Organizational Information	 
	 	5.06  Litigation	 
	 	5.08(b)(1)  Owned
    Real Estate	 
	 	5.08(b)(2)  Leased
    Real Estate	 
	 	5.09  Environmental
    Matters	 
	 	5.10  Insurance	 
	 	5.13  Subsidiaries;
    Other Equity Investments; Equity Interests in the Borrower	 
	 	5.17  Intellectual
    Property Matters	 
	 	5.18  Collective
    Bargaining Agreements	 
	 	5.21(a)  Deposit
    Accounts	 
	 	5.21(b)  Credit
    Card Arrangements	 
	 	5.24  Material
    Contracts	 
	 	6.02  Financial
    and Collateral Reporting	 
	 	7.01  Existing
    Liens	 
	 	7.02  Existing
    Investments	 
	 	7.03  Existing
    Indebtedness	 
	 	7.09  Affiliate
    Transactions	 
	 	10.02  Agent’s
    Office; Certain Addresses for Notices	 




 


EXHIBITS


 


Form
of


 





	 	A  	LIBO
    Rate Loan Notice
	 	B   	Swing Line
    Loan Notice
	 	C-1	Note
	 	C-2	Swing Line
    Note
	 	D  	Compliance
    Certificate
	 	E  	Assignment
    and Assumption
	 	F  	Borrowing
    Base Certificate
	 	G	Credit Card
    Notification




 






    (iv)


     


    

 





CREDIT
AGREEMENT


 


This
CREDIT AGREEMENT (“Agreement”) is entered into as of February 2, 2018, among The Lovesac Company, a Delaware corporation
(the “Lead Borrower,” and together with any other Person that becomes party hereto as a borrower after the date hereof,
individually a “Borrower” and collectively, the “Borrowers”), SAC Acquisition LLC, a Delaware limited
liability company (“Parent,” and together with any other Person that becomes a party hereto as a guarantor after the
date hereof, individually, a “Guarantor” and collectively, “Guarantors”), each lender from time to time
party hereto (individually, a “Lender” and collectively, the “Lenders”), Wells Fargo Bank, National Association,
as Agent, L/C Issuer and Swing Line Lender.


 


The
Borrowers have requested that the Lenders provide a revolving credit facility, and the Lenders have indicated their willingness
to lend and the L/C Issuer has indicated its willingness to issue Letters of Credit, in each case on the terms and conditions
set forth herein.


 


In
consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:


 


ARTICLE
I


DEFINITIONS
AND ACCOUNTING TERMS


 


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


 


“Acceptable
Document of Title” means, with respect to any Inventory, a tangible, negotiable bill of lading or other Document (as defined
in the UCC) that (a) is issued by a common carrier which is not an Affiliate of the Approved Foreign Vendor or any Loan Party
which is in actual possession of such Inventory, (b) is issued to the order of a Loan Party or, if so requested by the Agent,
to the order of the Agent, (c) names the Agent as a notify party and bears a conspicuous notation on its face of the Agent’s
security interest therein, (d) is not subject to any Lien (other than in favor of the Agent), and (e) is on terms otherwise reasonably
acceptable to the Agent.


 


“ACH”
means automated clearing house transfers. “Accommodation Payment” as defined in Section 10.22(d).


 


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


 


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


 






    	 	1	 



     


    

 


“Act”
shall have the meaning provided in Section 10.7. “


 


Adjusted LIBO Rate” means:


 


(a)  for
any Interest Period with respect to any LIBO Borrowing, an interest rate per annum (rounded upwards, if necessary, to the next
one one-hundredth (1/100) of one percent (1%)) equal to (i) the LIBO Rate for such Interest Period multiplied by (ii) the Statutory
Reserve Rate; and


 


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


 


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


 


“Adjustment
Date” means the first day of each Fiscal Month, commencing March 1, 2018.


 


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


 


“Affiliate”
means, with respect to any Person, (a) another Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified, (b) any director, officer, managing member, partner,
trustee, or beneficiary of that Person, (c) any other Person directly or indirectly holding ten percent (10%) or more of any class
of the Equity Interests of that Person, and (d) any other Person ten percent (10%) or more of any class of whose Equity Interests
is held directly or indirectly by that Person.


 


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


 


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


 


Agent
Payment Account” means account no. 37235547964503951 of Agent at Wells Fargo, or such other account of Agent as Agent may
from time to time designate to Lead Borrower as the Agent Payment Account for purposes of this Agreement and the other Loan Documents.


 


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


 


“Aggregate
Commitments” means the Commitments of all the Lenders. As of the Closing Date, the Aggregate Commitments are $15,000,000.


 


“Agreement”
means this Credit Agreement.


 


“Allocable
Amount” has the meaning specified in Section 10.22(d).


 






    	 	2	 



     


    

 


“Applicable
Commitment Fee Percentage” means thirty-seven and one-half basis points (0.375%).


 


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


 


“Applicable
Margin” means:


 


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


 


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


 


	Level	 	 	Monthly Average
    Excess Availability	 	LIBOR Margin	 	 	Base Rate 
 Margin	 
	 	I	 	 	Greater than 50% of Aggregate Commitments	 	 	2.00	%	 	 	1.00	%
	 	II	 	 	Less than or equal to 50% of Aggregate Commitments	 	 	2.25	%	 	 	1.25	%



 


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


 






    	 	3	 



     


    

 


“Approved
Foreign Vendor” means a Foreign Vendor which (a) is located in any country acceptable to the Agent in its Permitted Discretion,
(b) has received timely payment or performance of all obligations owed to it by the Loan Parties, (c) has not asserted and has
no right to assert any reclamation, repossession, diversion, stoppage in transit, Lien or title retention rights in respect of
such Inventory, and (d), if so requested by the Agent, has entered into and is in full compliance with the terms of a Foreign
Vendor Agreement (provided, that, as of the date hereof, without limitation of the right of the Agent after the date hereof to
make such request, Agent has not requested a Foreign Vendor Agreement from any Foreign Vendor).


 


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


 


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


 


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


 


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


 


“Audited
Financial Statements” means the audited consolidated balance sheet of the Parent Borrower and its Subsidiaries for the Fiscal
Year ended January 29, 2017 and the related consolidated statements of income or operations, Shareholders’ Equity and cash
flows for such Fiscal Year of the Parent and its Subsidiaries, including the notes thereto.


 


“Availability Period” means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b)
the date of termination of the Aggregate Commitments pursuant to Section 2.06, and (c) the date of termination of the commitment
of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.


 


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


 






    	 	4	 



     


    

 


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


 


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


 


“Base
Rate” means, for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate, as in effect
from time to time, plus one-half of one percent (0.50%), (b) the Adjusted LIBO Rate plus one percent (1.00%), or (c) the rate
of interest in effect for such day as publicly announced from time to time by Wells Fargo as its “prime rate.” The
“prime rate” is a rate set by Wells Fargo based upon various factors including Wells Fargo’s costs and desired
return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced
at, above, or below such announced rate. Any change in such rate announced by Wells Fargo shall take effect at the opening of
business on the day specified in the public announcement of such change.


 


“Base
Rate Loan” means a Loan that bears interest based on the Base Rate. “Borrower Materials” has the meaning specified
in Section 6.02.


 


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


 


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


 


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


 


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


 


(b)  eighty-five
percent (85%) of the Eligible Wholesale Receivables (provided, that, in no event will the aggregate amount of Eligible Wholesale
Receivables included in the Borrowing Base at any time exceed twenty percent (20%) of the Loan Cap); plus


 


(c)  eighty-five
percent (85%) of the Net Recovery Percentage of Eligible Inventory multiplied by the Cost of such Eligible Inventory for the period
from December 16 of each year until October 14 of the immediately following year, which percentage shall increase to ninety percent
(90%) of the Net Recovery Percentage for the period from October 15 of each year until December 15 of such year (provided, that,
in no event will the aggregate amount of Eligible Inventory consisting of work-in-process that are sac liners and duffels included
in the Borrowing Base at any time exceed ten percent (10%) of the amount of Eligible Inventory, excluding such Eligible Inventory
consisting of (i) work-in-process and (ii) Eligible In-Transit Inventory); minus


 


(d)
Reserves.


 






    	 	5	 



     


    

 


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


 


“Business”
means the business engaged in by Borrowers on the Closing Date and similar, ancillary or related businesses.


 


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


 


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


 


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


 


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


 


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


 






    	 	6	 



     


    

 


“Cash
Equivalents” means (a) readily marketable obligations issued or directly and fully guaranteed or insured by the United States
of America or any agency or instrumentality thereof having maturities of not more than three hundred sixty (360) days from the
date of acquisition thereof; provided, that, the full faith and credit of the United States of America is pledged in support thereof;
(b) commercial paper issued by any Person organized under the laws of any state of the United States of America and rated at least
“Prime-1” (or the then equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade)
by S&P, in each case with maturities of not more than one hundred eighty (180) days from the date of acquisition thereof;
(c) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) (A)
is a Lender or (B) is organized under the laws of the United States of America, any state thereof or the District of Columbia
or is the principal banking subsidiary of a bank holding company organized under the laws of the United States of America, any
state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which
issues) commercial paper rated as described in clause (c) of this definition and (iii) has combined capital and surplus of at
least $1,000,000,000, in each case with maturities of not more than one hundred eighty (180) days from the date of acquisition
thereof; (d) fully collateralized repurchase agreements with a term of not more than thirty (30) days for securities described
in clause (a) above (without regard to the limitation on maturity contained in such clause) and entered into with a financial
institution satisfying the criteria described in clause (c) above or with any primary dealer and having a market value at the
time that such repurchase agreement is entered into of not less than one hundred percent (100%) of the repurchase obligation of
such counterparty entity with whom such repurchase agreement has been entered into; (e) Investments, classified in accordance
with GAAP as current assets of the Loan Parties, in any money market fund, mutual fund, or other investment companies that are
registered under the Investment Company Act of 1940, as amended, which are administered by financial institutions that have the
highest rating obtainable from either Moody’s or S&P, and which invest solely in one or more of the types of securities
described in clauses (a) through (d) above.


 


“Cash
Management Bank” means each bank with whom Deposit Accounts are maintained in which any funds of any of the Loan Parties
from one or more Deposit Accounts are concentrated and with whom a Control Agreement has been, or is required to be, executed
in accordance with the terms hereof.


 


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


 


“Cash
Management Services” means any cash management services or facilities provided to any Loan Party by the Agent or any of
its Affiliates, including, without limitation: (a) ACH transactions, (b) controlled disbursement services, treasury, depository,
overdraft, and electronic funds transfer services, (c) credit or debit cards, (d) credit card processing services, and (e) purchase
cards.


 


“CERCLA”
means the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq.


 


“CERCLIS”
means the Comprehensive Environmental Response, Compensation, and Liability Information System maintained by the United States
Environmental Protection Agency.


 


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


 


“Change
in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect
of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation
or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether
or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary,
(i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder
or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International
Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign
regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”,
regardless of the date enacted, adopted or issued.


 






    	 	7	 



     


    

 


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


 


(a)
at any time prior to a Qualifying IPO, the Sponsor shall cease to own and control legally and beneficially (free and clear of
all Liens), either directly or indirectly, equity securities in Parent representing more than sixty-six and two-thirds (66 2/3%)%
of the combined voting power of all of Equity Interests entitled to vote for members of the board of directors or equivalent governing
body of the Parent on a fully-diluted basis (and taking into account all such securities that Sponsor has the right to acquire
pursuant to any option right (as defined in clause (b) below));


 


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


 


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


 


(d)  any
“change in control” or “sale” or “disposition” or similar event as defined in any document
governing Material Indebtedness of any Loan Party; or


 


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


 


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


 


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


 


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


 


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


 


“Collection
Account” means any Deposit Account of a Loan Party that at any time receives, or is otherwise established for the purpose
of receiving, payments in respect of Credit Card Receivables, Accounts or other proceeds of any Collateral, including, without
limitation, the Deposit Accounts designated as Collection Accounts in Schedule 5.21(a).


 






    	 	8	 



     


    

 


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


 


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


 


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


 


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


 


“Committed
Increase” has the meaning specified in Section 2.15(a). “Committed Loan” has the meaning specified in
Section 2.01.


 


“Commodity
Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor
statute.


 


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


 


“Concentration
Account” means any Deposit Account of a Loan Party that at any time receives, or is otherwise established for the purpose
of receiving, payments from other Collection Accounts, including, without limitation, the Deposit Accounts designated as Concentration
Accounts in Schedule 5.21(a).


 


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


 


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


 


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


 






    	 	9	 



     


    

 


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


 


“Control
Agreement” means with respect to a Deposit Account or Securities Account established by a Loan Party, an agreement, in form
and substance reasonably satisfactory to the Agent, establishing control, pursuant to Section 9-104 of the UCC or other applicable
section of the UCC, of such account by the Agent and which provides for such other rights with respect thereto as Agent may reasonably
require.


 


“Controlled
Investment Affiliate” means, as to any Person, any other Person which directly or indirectly is in control of, is controlled
by, or is under common control with, such Person and is organized by such Person (or any Person controlling or controlled by such
Person) primarily for making equity or debt Investments, directly or indirectly, in Holdings or other portfolio companies of such
Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct
or cause the direction of the management or policies of such Person, whether by contract or otherwise.


 


“Cost”
means the lower of cost or market value of Inventory, based upon the Borrowers’ accounting practices, known to the Agent,
which practices are in effect on the Closing Date as such calculated cost is determined from invoices received by the Borrowers,
the Borrowers’ purchase journals or the Borrowers’ stock ledger. “Cost” does not include inventory capitalization
costs or other non-purchase price charges (such as freight) used in the Borrowers’ calculation of cost of goods sold.


 


“Credit
Card Agreements” means all agreements now or hereafter entered into by any Borrower or any Guarantor for the benefit of
any Borrower, in each case with any Credit Card Issuer or any Credit Card Processor, including, but not limited to, the agreements
set forth on Schedule 5.21(b) hereto.


 


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


 


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


 


“Credit
Card Notification” means a notification and acknowledgement substantially in the form of Exhibit G, which has been
executed on behalf of the applicable Loan Party and delivered to the applicable Credit Card Issuer or Credit Card Processor (with
evidence of such delivery received by Agent).


 


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


 






    	 	10	 



     


    

 


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


 


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


 


“Credit
Party Expenses” means, without limitation, (a) all reasonable and documented out-of-pocket expenses actually incurred
by the Agent and its Affiliates in connection with this Agreement and the other Loan Documents, including without limitation
(i) the reasonable and documented fees, charges and disbursements of (A) counsel for the Agent (other than, prior to a
Default or an Event of Default, allocated costs of in-house counsel), (B) outside consultants for the Agent, (C) appraisers,
(D) commercial finance examinations, and (E) all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of the Obligations, (ii) in connection with (A) the syndication of the credit
facilities provided for herein, (B) the preparation, negotiation, administration, management, execution and delivery of this
Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions thereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), (C) the enforcement or protection of their rights in
connection with this Agreement or the Loan Documents or efforts to preserve, protect, collect, or enforce the Collateral, or
(D) any workout, restructuring or negotiations in respect of any Obligations, and (iii) all customary fees and charges (as
adjusted from time to time) of the Agent with respect to the disbursement of funds (or the receipt of funds) to or for the
account of Borrowers (whether by wire transfer or otherwise), together with any out-of-pocket costs and expenses incurred in
connection therewith, and (b) with respect to the L/C Issuer, and its Affiliates, all reasonable and documented out-of-pocket
expenses actually incurred in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any
demand for payment thereunder; and (c) all reasonable out-of-pocket expenses incurred by the Credit Parties who are not the
Agent, the L/C Issuer or any Affiliate of any of them, after the occurrence and during the continuance of an Event of
Default, provided that such Credit Parties shall be entitled to reimbursement for no more than one counsel representing
all such Credit Parties (absent a conflict of interest in which case the Credit Parties may engage and be reimbursed for
additional counsel).


 


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


 


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


 


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


 






    	 	11	 



     


    

 


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


 


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


 


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


 


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


 


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


 






    	 	12	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






    	 	13	 



     


    

 


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


 


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


 


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


 


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


 


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


 


“Eligible
In-Transit Inventory” means, as of any date of determination thereof, without duplication of other Eligible Inventory, In-Transit
Inventory:


 


(a)  which
has been shipped from a foreign location for receipt by a Borrower, but which has not yet been delivered to such Borrower, which
In-Transit Inventory has been in transit for forty-five (45) days or less from the date of shipment of such Inventory;


 


(b)  for
which the purchase order is in the name of a Borrower and title and risk of loss has passed to such Borrower;


 


(c)  for
which an Acceptable Document of Title has been issued, and in each case as to which the Agent has control (as defined in the UCC)
over the documents of title which evidence ownership of the subject Inventory (and including, if requested by the Agent, the receipt
by Agent of an executed Freight Forwarder Agreement);


 


(d)  which
is insured to the reasonable satisfaction of the Agent (including, without limitation, pursuant to marine cargo insurance);


 


(e)  the
Foreign Vendor with respect to such In-Transit Inventory is an Approved Foreign Vendor;


 


(f)  which
otherwise would constitute Eligible Inventory;


 


Provided,
that, the Agent may, in its Permitted Discretion, exclude any particular Inventory from the definition of “Eligible
In-Transit Inventory” in the event the Agent determines that such Inventory is subject to any Person’s right of reclamation,
repudiation, stoppage in transit or any event has occurred or is reasonably anticipated by the Agent to arise which may otherwise
adversely impact the ability of the Agent to realize upon such Inventory.


 






    	 	14	 



     


    

 


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


 


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


 


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


 


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


 


(d)  Inventory
that is not located at a location that is owned or leased by a Borrower, except (i) Inventory located in the United States of
America that is in transit between such owned or leased locations, including such Inventory in transit from a distribution center
to a retail store, (ii) Eligible In-Transit Inventory or (iii) Inventory on consignment at a location owned and operated by another
Person to the extent that the Borrowers have furnished the Agent with (A) any UCC financing statements and other documents that
the Agent may determine to be necessary to perfect its security interest in such Inventory at such location or to establish the
priority of its security interest with respect thereto, and (B) a Collateral Access Agreement executed by the Person owning and
operating any such location on terms reasonably acceptable to the Agent (and in any event including a Collateral Access Agreement
by Amalgamate Processing, Inc.);


 


(e)  Inventory
that is located in a distribution center or warehouse leased by a Borrower unless (i) the applicable lessor has delivered to the
Agent a Collateral Access Agreement or (ii) a Reserve based on amounts payable with respect to such location has been established
by the Agent;


 


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


 


(g)  Inventory
that is not subject to a perfected first-priority security interest in favor of the Agent;


 


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


 


(i)  Inventory
that has been sold but not yet delivered or as to which a Borrower has accepted a deposit (except in the case of Inventory as
to which a Borrower has accepted a deposit, to the extent that Reserves have been established in respect of such deposit);


 


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


 






    	 	15	 



     


    

 


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


 


“Eligible
Wholesale Receivables” means Accounts deemed by the Agent in its Permitted Discretion to be eligible for inclusion in the
calculation of the Borrowing Base arising from the sale of the Inventory of a Borrower (other than Credit Card Receivables) that
satisfies the criteria set forth herein at the time of creation and continues to meet the same at the time of such determination,
and in each case is acceptable to the Agent in its Permitted Discretion, and is not ineligible for inclusion in the calculation
of the Borrowing Base pursuant to any of clauses (a) through (s) below as determined by the Agent in its Permitted Discretion.
Without limiting the foregoing, to qualify as an Eligible Wholesale Receivable, an Account shall indicate no Person other than
a Borrower as payee or remittance party. In determining the amount to be so included, the face amount of an Account shall be reduced
by, without duplication, to the extent not reflected in such face amount, (i) the amount of all accrued and actual discounts,
claims, credits or credits pending, promotional program allowances, price adjustments, finance charges or other allowances (including
any amount that a Borrower may be obligated to rebate to a customer pursuant to the terms of any agreement or understanding (written
or oral)) and (ii) the aggregate amount of all cash received in respect of such Account but not yet applied by the Borrowers to
reduce the amount of such Eligible Wholesale Receivable. Except as otherwise agreed by the Agent, any Account included within
any of the following categories shall not constitute an Eligible Wholesale Receivable:


 


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


 


(b)  Accounts
that have been outstanding for more than thirty (30) days from the date of sale or for such other period as Agent may determine
after the Closing Date, based on the receipt by the Agent of satisfactory reporting of Accounts of Borrowers pursuant to a field
examination with respect to the Accounts of Borrowers after the Closing Date;


 


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


 


(d)  Accounts
owed by an account debtor and/or its Affiliates that together exceed ten percent (10%) of the amount of all Accounts at any one
time (except in the case of Accounts owed by Summit Retail Solutions Inc. for which such percentage shall be higher as of the
Closing Date and thereafter, subject to reduction by Agent from time to time upon notice to Lead Borrower), but the portion of
the Accounts of an account debtor and/or its Affiliates not in excess of the applicable percentage of the amount of all Accounts
that otherwise constitute Eligible Wholesale Receivables shall be deemed Eligible Wholesale Receivables;


 


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


 


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


 






    	 	16	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


(m)  Accounts
(i) owing from any Person that is also a supplier to or creditor of a Loan Party or any of its Subsidiaries unless such Person
has waived any right of setoff in a manner acceptable to the Agent or (ii) representing any manufacturer’s or supplier’s
credits, discounts, incentive plans or similar arrangements entitling a Loan Party or any of its Subsidiaries to discounts on
future purchase therefrom;


 


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


 


(o)  Accounts
arising out of sales to account debtors outside the United States unless such Accounts are fully backed by an irrevocable letter
of credit on terms, and issued by a financial institution, acceptable to the Agent and such irrevocable letter of credit is in
the possession of, and drawable by, the Agent;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






    	 	17	 



     


    

 


“Environmental
Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and
the protection of the environment or the release of any materials into the environment, including those related to hazardous substances
or wastes, air emissions and discharges to waste or public systems.


 


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


 


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


 


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


 


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


 


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


 


“ERISA
Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Loan Party or any ERISA Affiliate
from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA;
(c) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification to the
Lead Borrower or any ERISA Affiliate that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate,
the treatment of a plan amendment as a termination of a Pension Plan or a Multiemployer Plan under Sections 4041 or 4041A of ERISA,
or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension
Plan or Multiemployer Plan; (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but
not delinquent under Section 4007 of ERISA, upon the Lead Borrower or any ERISA Affiliate; or (g) the determination that any Pension
Plan is considered to be an “at-risk” plan, or that any Multiemployer Plan is considered to be in “endangered”
or “critical”
status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 or 305 of ERISA.


 






    	 	18	 



     


    

  


“Event
of Default” has the meaning specified in Section 8.01. An Event of Default shall be deemed to be continuing unless
and until that Event of Default has been duly waived as provided in Section 10.03 hereof.


 


“Excess
Availability” means, as of any date of determination thereof by the Agent, the result of: (a) the Loan Cap, minus (b) the
aggregate unpaid balance of Credit Extensions.


 


“Excluded
Accounts” means (a) Deposit Accounts that are specifically and exclusively used for payroll, payroll taxes and other employee
wage and benefit payments to or for the benefit of any Loan Party’s salaried employees, (b) Deposit Accounts that are specifically
and exclusively used for paying taxes, including sales taxes, (c) Deposit Accounts used for cash collateral pursuant to clauses
(c) and (d) of the definition “Permitted Encumbrances”, (d) Deposit Accounts for which the aggregate balance does
not exceed $150,000 at any time outstanding, and (e) Deposit Accounts that are zero balance accounts so that no funds are maintained
in such accounts for more than one (1) Business Day.


 


“Excluded
Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion
of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or
any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity
Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s
failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and
the regulations thereunder at the time the Guarantee of such Guarantor or the grant of such security interest becomes effective
with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such
exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security
interest is or becomes illegal.


 


“Excluded
Taxes” means, with respect to the Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made
by or on account of any obligation of the Loan Parties hereunder, (a) taxes imposed on or measured by its overall net income
(however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in
the case of any Lender, in which its applicable Lending Office is located, (b) any branch profits taxes imposed by the United
States or any similar tax imposed by any other jurisdiction in which any Loan Party is located, (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Lead Borrower under Section 10.13), any withholding tax
that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender’s failure or inability (other than as a
result of a Change in Law) to comply with Section 3.01(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional
amounts from the Loan Parties with respect to such withholding tax pursuant to Section 3.01(a), (d) any U.S. federal,
state or local backup withholding tax, and (e) any U.S. federal withholding tax imposed under FATCA.


 


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


 


“Existing
Credit Agreement” means the Loan and Security Agreement, dated as of May 14, 2014, between Siena Lending Group LLC, as Lender,
and SAC Acquisition LLC, as assumed by the Lead Borrower and as amended from time to time prior to the date hereof.


 






    	 	19	 



     


    

 


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


 


“Facility
Guaranty” means the Guaranty made by the Guarantors in favor of the Agent and the other Credit Parties, in form reasonably
satisfactory to the Agent, as the same now exists or may hereafter be amended, modified, supplemented, renewed, restated or replaced.


 


“FATCA”
means Sections 1471 through 1474 of the IRC, as of the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof.


 


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


 


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


 


“Fee
Letter” means the letter agreement, dated of even date herewith, among the Lead Borrower, the Agent and the Arranger.


 


“Fiscal
Month” means any fiscal month of any Fiscal Year, which month shall generally end on the Sunday closest to the last day
of each calendar month in accordance with the fiscal accounting calendar of the Loan Parties.


 


“Fiscal
Quarter” means any fiscal quarter of any Fiscal Year, which quarters shall generally end on the Sunday closest to the last
day of each of April, July, October and January of such Fiscal Year in accordance with the fiscal accounting calendar of the Loan
Parties.


 


“Fiscal
Year” means any period of twelve (12) consecutive months ending on the Sunday closest to January 31 of any calendar year.


 


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


 


“Foreign
Lender” means any Lender that is organized under the laws of a jurisdiction other than that in which the Lead Borrower is
resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.


 


“Foreign
Vendor” means a Person that sells In-Transit Inventory to a Borrower.


 






    	 	20	 



     


    

 


“Foreign
Vendor Agreement” means an agreement between a Foreign Vendor and the Agent in form and substance satisfactory to the Agent
and pursuant to which, among other things, the parties shall agree upon their relative rights with respect to In-Transit Inventory
of a Borrower purchased from such Foreign Vendor.


 


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


 


“Freight
Forwarder Agreement” means an agreement, in form and substance reasonably satisfactory to Agent, among a Borrower, a Freight
Forwarder or other carrier, and the Agent, in which the Freight Forwarder acknowledges that it has control over and holds the
documents evidencing ownership of the subject Inventory for the benefit of the Agent and agrees, upon notice from the Agent, to
hold and dispose of the subject Inventory solely as directed by the Agent and providing for such other rights with respect thereto
as Agent may reasonably require.


 


“Freight
Forwarders” means the persons as may be selected by any Borrower who are reasonably acceptable to Agent to handle the receipt
of Inventory within the United States of America and/or to clear Inventory through the Bureau of Customs and Border Protection
(formerly the Customs Service) or other domestic or foreign export control authorities or otherwise perform port of entry services
to process Inventory imported by Borrowers and Guarantors from outside the United States of America; each sometimes being referred
to herein individually as a “Freight Forwarder”.


 


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


 


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


 


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


 






    	 	21	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






    	 	22	 



     


    

 


“Indemnified
Taxes” means Taxes other than Excluded Taxes.


 


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


 


“Information” has the meaning specified in Section 10.07.


 


“Intellectual
Property” means all present and future: trade secrets, know-how and other proprietary information; trademarks, trademark
applications, internet domain names, service marks, trade dress, trade names, business names, designs, logos, slogans (and all
translations, adaptations, derivations and combinations of the foregoing) indicia and other source and/or business identifiers,
and all registrations or applications for registrations which have heretofore been or may hereafter be issued thereon throughout
the world; copyrights and copyright applications; (including copyrights for computer programs) and all tangible and intangible
property embodying the copyrights, unpatented inventions (whether or not patentable); patents and patent applications; industrial
design applications and registered industrial designs; license agreements related to any of the foregoing and income therefrom;
books, customer lists, records, writings, computer tapes or disks, flow diagrams, specification sheets, computer software, source
codes, object codes, executable code, data, databases and other physical manifestations, embodiments or incorporations of any
of the foregoing; all other intellectual property; and all common law and other rights throughout the world in and to all of the
foregoing.


 


“Intellectual
Property Security Agreements” means the Trademark Security Agreement and Patent Security Agreement, each dated as of the
Closing Date among the Loan Parties and the Agent, granting a Lien in the Intellectual Property and certain other assets of the
Loan Parties, as the same now exists or may hereafter be amended, modified, supplemented, renewed, restated or replaced.


 


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


 


“Interest
Period” means, as to each LIBO Rate Loan, the period commencing on the date such LIBO Rate Loan is disbursed or converted
to or continued as a LIBO Rate Loan and ending on the date one, two, or three months thereafter, as selected by the Lead Borrower
in its LIBO Rate Loan Notice; provided that:


 


(a)  any
Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;


 


(b)  any
Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period;


 


(c)  no
Interest Period shall extend beyond the Maturity Date; and


 






    	 	23	 



     


    

 


(d)
notwithstanding the provisions of clause (c), no Interest Period shall have a duration of less than one (1) month, and if any
Interest Period applicable to a LIBO Borrowing would be for a shorter period, such Interest Period shall not be available hereunder.


 


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


 


“Internal
Control Event” means a material weakness in, or fraud that involves management or other employees who have a significant
role in, the Parent’s and/or its Subsidiaries’ internal controls over financial reporting, in each case as described
in the Securities Laws (provided, that, in the case of such a material weakness, if such weakness has been corrected, it shall
cease to constitute an Internal Control Event).


 


“In-Transit
Inventory” means Inventory of a Borrower which is in the possession of a common carrier and is in transit from a Foreign
Vendor of a Borrower from a location outside of the continental United States to a location of a Borrower that is within the continental
United States.


 


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


 


“Inventory
Reserves” means such reserves as may be established from time to time by the Agent in its Permitted Discretion with respect
to the determination of the salability, at retail, of the Eligible Inventory, which reflect such other factors as affect the market
value of the Eligible Inventory or which reflect claims and liabilities that the Agent determines will need to be satisfied in
connection with the realization upon such Inventory. Without limiting the generality of the foregoing, Inventory Reserves may,
in the Agent’s Permitted Discretion, include (but are not limited to) reserves based on: (a) obsolescence; (b) seasonality;
(c) Shrink; (d) imbalance; (e) change in Inventory character; (f) change in Inventory composition; (g) change in Inventory mix;
(h) markdowns (both permanent and point of sale); (i) retail markdowns and markups inconsistent with prior period practice and
performance, industry standards, current business plans or advertising calendar and planned advertising events; and (j) out-of-date
and/or expired Inventory.


 


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


 


“IRS”
means the United States Internal Revenue Service.


 


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


 






    	 	24	 



     


    

 





“Issuer
Documents” means with respect to any Letter of Credit, the Letter Credit Application, the Standby Letter of Credit Agreement
or Commercial Letter of Credit Agreement, as applicable, and any other document, agreement and instrument entered into by the
L/C Issuer and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to any such Letter of Credit.


 


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


 


“Landlord
Lien State” means such state(s) in which a landlord’s claim for rent may have priority over the Lien of the Agent
in any of the Collateral.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






    	 	25	 



     


    

 


“Letter
of Credit” means each Standby Letter of Credit and each Commercial Letter of Credit issued hereunder.


 


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


 


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


 


“Letter
of Credit Expiration Date” means the day that is seven (7) days prior to the Maturity Date then in effect (or, if such day
is not a Business Day, the next preceding Business Day).


 


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


 


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


 


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


 


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


 


“LIBO
Rate” means for any Interest Period with respect to a LIBO Rate Loan, the rate per annum rate which appears on the Reuters
Screen LIBOR01 page as of 11:00 a.m., London time, on the second London Business Day preceding the first day of such Interest
Period (or if such rate does not appear on the Reuters Screen LIBOR01 Page, then the rate as determined by the Agent from another
recognized source or interbank quotation), for a term, and in an amount, comparable to the Interest Period and the amount of the
LIBO Rate Loan requested (whether as an initial LIBO Rate Loan or as a continuation of a LIBO Rate Loan or as a conversion of
a Base Rate Loan to a LIBO Rate Loan) by Borrowers in accordance with this Agreement (and, if any such rate is below zero, the
LIBO Rate shall be deemed to be zero), which determination shall be made by Agent and shall be conclusive in the absence of manifest
error. If such rate is not available at such time for any reason, then the “LIBO Rate” for such Interest Period shall
be the rate per annum determined by the Agent to be the rate at which deposits in Dollars for delivery on the first day of such
Interest Period in same day funds in the approximate amount of the LIBO Rate Loan being made, continued or converted by Wells
Fargo and with a term equivalent to such Interest Period would be offered to Wells Fargo by major banks in the London interbank
eurodollar market in which Wells Fargo participates at their request at approximately 11:00 a.m. (London time) two (2) Business
Days prior to the commencement of such Interest Period.


 


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


 


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


 






    	 	26	 



     


    

 


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


 


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


 


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


 


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


 


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


 


“Loan
Documents” means this Agreement, each Note, each Issuer Document, the Fee Letter, all Borrowing Base Certificates, the Control
Agreements, the Credit Card Notifications, the Security Documents, the Facility Guaranty, each Request for Credit Extension, and
any other instrument or agreement now or hereafter executed and delivered in connection herewith, or in connection with any transaction
arising out of any Cash Management Services and Bank Products provided by the Agent or any of its Affiliates, each as amended
and in effect from time to time; provided that for purposes of the definition of “Material Adverse Effect” and Article
VII, “Loan Documents” shall not include agreements relating to Cash Management Services and Bank Products.


 


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


 


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


 


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


 


“Material
Contract” means, with respect to any Person, each contract to which such Person is a party involving aggregate consideration
payable to or by such Person of $500,000 or more in any Fiscal Year or otherwise material to the business, condition (financial
or otherwise), operations, performance, properties or prospects of such Person.


 






    	 	27	 



     


    

 


“Material
Indebtedness” means Indebtedness (other than the Obligations) of the Loan Parties in an aggregate principal amount exceeding
$500,000. For purposes of determining the amount of Material Indebtedness at any time, (a) the amount of the obligations in respect
of any Swap Contract at such time shall be calculated at the Swap Termination Value thereof, (b) undrawn committed or available
amounts shall be included, and (c) all amounts owing to all creditors under any combined or syndicated credit arrangement shall
be included.


 


“Maturity
Date” means February 2, 2022.


 


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


 


“Monthly
Average Excess Availability” means, at any time, the average of the aggregate amount of Excess Availability for the immediately
preceding Fiscal Month as calculated by the Agent.


 


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


 


“Multiemployer
Plan” means any employee benefit plan of the type described in


 


Section
4001(a)(3) of ERISA, to which the Lead Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during
the preceding five plan years, has made or been obligated to make contributions.


 


“Net
Proceeds” means, with respect to any Disposition by any Loan Party or any of its Subsidiaries, or any Extraordinary Receipt
received or paid to the account of any Loan Party or any of its Subsidiaries, the excess, if any, of (i) the sum of cash and cash
equivalents received in connection with such transaction (including any cash or cash equivalents received by way of deferred payment
pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A)
the principal amount of any Indebtedness that is secured by the applicable asset by a Lien permitted hereunder which is senior
to the Agent’s Lien on such asset and that is required to be repaid (or to establish an escrow for the future repayment
thereof) in connection with such transaction (other than Indebtedness under the Loan Documents) and (B) the reasonable and customary
out-of-pocket expenses incurred by such Loan Party or such Subsidiary in connection with such transaction (including, without
limitation, appraisals, and brokerage, legal, title and recording or transfer tax expenses and commissions) paid by any Loan Party
to third parties (other than Affiliates)).


 


“Net
Recovery Percentage” means the fraction, expressed as a percentage (a) the numerator of which is the amount equal to the
recovery on the aggregate amount of the applicable category of Eligible Inventory at such time on a “net orderly liquidation
value” basis as set forth in the most recent acceptable inventory appraisal received by Agent in accordance with the requirements
of this Agreement, net of operating expenses, liquidation expenses and commissions reasonably anticipated in the disposition of
such assets and (b) the denominator of which is the original cost of the aggregate amount of the Eligible Inventory subject to
such appraisal.


 


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


 


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


 






    	 	28	 



     


    

 


“Note”
means (a) a promissory note made by the Borrowers in favor of a Lender evidencing Committed Loans made by such Lender, substantially
in the form of Exhibit C-1, and (b) the Swing Line Note, as each may be amended, supplemented or modified from time to
time.


 


“NPL”
means the National Priorities List under CERCLA.


 


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


 


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


 


“Organization
Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent
or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company,
the certificate or articles of formation or organization and operating agreement; (c) with respect to any partnership, joint venture,
trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization
and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate
or articles of formation or organization of such entity, and (d) in each case, all shareholder or other equity holder agreements,
voting trusts and similar arrangements to which such Person is a party or which is applicable to its Equity Interests and all
other arrangements relating to the Control or management of such Person.


 


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


 


“Other
Taxes” means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Loan Document.


 


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


 


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


 






    	 	29	 



     


    

 


“Parent”
means SAC Acquisition LLC, a Delaware limited liability company.


 


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


 


“Payment
Conditions” means with respect to any transaction or payment the following:


 


(a)  as
of the date of any such transaction or payment, and after giving effect thereto, no Default or Event of Default shall exist or
have occurred and be continuing,


 


(b)  as
of the date of any such transaction or payment, and after giving effect thereto, (i) in the case of an Acquisition, Investment
or other transaction or payment (other than a Restricted Payment), on a pro forma basis, Excess Availability (using the most recent
calculation of the Borrowing Base immediately prior to any such transaction or payment) shall be not less than the greater of
fifty percent (50.0%) of the Loan Cap or $7,500,000, or (ii) in the case of a Restricted Payment, on a pro forma basis, Excess
Availability (using the most recent calculation of the Borrowing Base immediately prior to any such transaction or payment) shall
be not less than the greater of forty percent (40.0%) of the Loan Cap or $6,000,000,


 


(c)  receipt
by Agent of projections for the nine (9) month period after the date of such transaction or payment showing, on a pro forma basis
after giving effect to such transaction or payment, minimum Excess Availability at all times during such period of not less than
the applicable amount under clause (b) above, and


 


(d)  Agent
shall have received a certificate of a Responsible Officer of Lead Borrower certifying as to compliance with the preceding clauses
and demonstrating (in reasonable detail) the calculations required thereby.


 


“PBGC”
means the Pension Benefit Guaranty Corporation. “PCAOB” means the Public Company Accounting Oversight Board.


 


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


 


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


 


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


 






    	 	30	 



     


    

 


(b)  the
Lead Borrower shall have furnished the Agent with thirty (30) days’ (or such shorter period as may be agreed by Agent) prior
written notice of such intended Acquisition and shall have furnished the Agent with a current draft of the acquisition documents
(and final copies thereof as and when executed), a summary of any due diligence undertaken by the Loan Parties in connection with
such Acquisition, appropriate financial statements of the Person which is the subject of such Acquisition, proforma projected
financial statements for the twelve (12) month period following such Acquisition after giving effect to such Acquisition (including
balance sheets, cash flows and income statements by month for the acquired Person, individually, and on a Consolidated basis with
all Loan Parties), and such other information as the Agent may reasonably require, all of which shall be reasonably satisfactory
to the Agent;


 


(c)  either
(i) the legal structure of the Acquisition shall be acceptable to the Agent in its discretion, or (ii) the Loan Parties shall
have provided the Agent with a favorable solvency opinion from an unaffiliated third party valuation firm reasonably satisfactory
to the Agent;


 


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


 


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


 


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


 


(g)  the
total consideration paid for all such Acquisitions (whether in cash, tangible property, notes or other property) after the Closing
Date shall not exceed in the aggregate the sum of $1,000,000; and


 


(h)  as
of the date of any such Acquisition, and after giving effect thereto, each of the Payment Conditions is satisfied.


 


“Permitted
Discretion” means, as used in this Agreement and the other Loan Documents with reference to the Agent, a determination made
in good faith in the exercise of its reasonable business judgment based on how an asset-based lender with similar rights providing
a credit facility of the type set forth herein would act in similar circumstances at the time with the information then available
to it.


 


“Permitted
Disposition” means any of the following:


 


(a)  Dispositions
of inventory in the ordinary course of business;


 


(b)  bulk
sales of other Dispositions of the Inventory of a Loan Party not in the ordinary course of business in connection with Store closings,
at arm’s length, provided, that, (i) such Store closures and related Dispositions of Inventory shall not exceed
(A) in any Fiscal Year of the Parent and its Subsidiaries, ten percent (10%) of the number of the Loan Parties’ Stores as
of the beginning of such Fiscal Year (net of new Store openings) and (B) in the aggregate from and after the Closing Date, fifteen
percent (15%) of the number of the Loan Parties’ Stores in existence as of the Closing Date (net of new Store openings),
(ii) all sales of Inventory in connection with Store closings shall be in accordance with liquidation agreements and with professional
liquidators reasonably acceptable to the Agent, and (iii) all Net Proceeds received in connection therewith are applied to the
Obligations if then required in accordance with Section 2.05 hereof;


 






    	 	31	 



     


    

 


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


 


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


 


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


 


(f)  sales,
transfers and Dispositions among the Loan Parties (other than to Parent except as permitted as a Permitted Investment) or by any
Subsidiary to a Loan Party; and


 


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


 


“Permitted
Encumbrances” means:


 


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


 


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


 


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


 


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


 


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


 


(f)  easements,
covenants, conditions, restrictions, building code laws, zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or materially interfere with the ordinary conduct of business of a Loan Party
and such other minor title defects or survey matters that are disclosed by current surveys that, in each case, do not materially
interfere with the current use of the real property;


 


(g)  Liens
existing on the Closing Date and listed on Schedule 7.01 and any Liens securing Indebtedness that is a Permitted Refinancing
of the Indebtedness securing such Liens existing on the Closing Date and listed on such schedule;


 






    	 	32	 



     


    

 


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


 


(i)  Liens
in favor of the Agent;


 


(j)  statutory
Liens of landlords and lessors in respect of rent not in default;


 


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


 


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


 


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


 


(n)  voluntary
Liens on property (other than property of the type included in the Borrowing Base) in existence at the time such property is acquired
pursuant to a Permitted Acquisition or on such property of a Subsidiary of a Loan Party in existence at the time such Subsidiary
is acquired pursuant to a Permitted Acquisition; provided, that, such Liens are not incurred in connection with or in anticipation
of such Permitted Acquisition and do not attach to any other assets of any Loan Party or any Subsidiary;


 


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


 


“Permitted
Indebtedness” means each of the following as long as no Default or Event of Default exists or would arise from the incurrence
thereof:


 


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


 


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


 


(c)  purchase
money Indebtedness of any Loan Party to finance the acquisition of any personal property consisting solely of fixed or capital
assets, including Capital Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets
or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof, provided,
that, (i) the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed $250,000 at any
time outstanding and (ii) if requested by the Agent, the Loan Parties shall use commercially reasonable efforts to cause the holders
of such Indebtedness to enter into a Collateral Access Agreement on terms reasonably satisfactory to the Agent;


 






    	 	33	 



     


    

 


(d)  obligations
(contingent or otherwise) of any Loan Party or any Subsidiary thereof existing or arising under any Swap Contract, provided,
that, (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose
of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of
speculation or taking a “market view;” and (ii) the aggregate Swap Termination Value thereof shall not exceed $100,000
at any time outstanding;


 


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


 


(f)  Indebtedness
incurred for the construction or acquisition or improvement of, or to finance or to refinance, any Real Estate owned by any Loan
Party (including therein any Indebtedness incurred in connection with sale-leaseback transactions permitted hereunder and any
Synthetic Lease Obligations), provided, that, (i) all Net Proceeds received in connection with any such Indebtedness are
applied to the Obligations, and (ii) the Loan Parties shall use commercially reasonable efforts to cause the holders of such Indebtedness
and the lessors under any sale-leaseback transaction to enter into a Collateral Access Agreement on terms reasonably satisfactory
to the Agent;


 


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


 


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


 


(i)  the
Obligations; and


 


(j)  Indebtedness
not otherwise specifically described herein in an aggregate principal amount not to exceed $250,000 at any time outstanding.


 


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


 


(a)
Investments in cash and Cash Equivalents, provided, that, notwithstanding the foregoing, no Investments in cash or Cash Equivalents
or additional Investments in the form of cash or Cash Equivalents in each case shall be permitted, except if no Loans are then
outstanding and no Letters of Credit are outstanding which have not been Cash Collateralized if then required to be Cash Collateralized,
except, that, notwithstanding that any Loans are outstanding (or such Letters of Credit), a Loan Party may from time to time in
the ordinary course of business consistent with its current practices as of the date hereof make deposits of cash or other immediately
available funds with proceeds of Revolving Loans in operating demand Deposit Accounts used for disbursements to the extent required
to provide funds for amounts drawn or anticipated to be drawn shortly on such accounts and such funds may be held in Cash Equivalents
consisting of overnight investments until so drawn (so long as (i) such funds and Cash Equivalents are not held more than two
(2) Business Days from the date of the initial deposit thereof) and there may be deposits of cash in Collection Accounts prior
to the transfer thereof to the Concentration Account and from the Concentration Account to the Agent Payment Account as provided
for herein and (ii) such Investments are pledged to the Agent as additional collateral for the Obligations pursuant to such agreements
as may be reasonably required by the Agent);


 






    	 	34	 



     


    




 


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


 


(c)  (i)
Investments by any Loan Party and its Subsidiaries in their respective Subsidiaries outstanding on the Closing Date, (ii) additional
Investments by any Loan Party and its Subsidiaries in Loan Parties (other than the Parent), (iii) additional Investments by Subsidiaries
of the Loan Parties that are not Loan Parties in other Subsidiaries that are not Loan Parties and (iv) additional Investments
by the Loan Parties in Subsidiaries that are not Loan Parties, provided, that, as of the date of any such Investment and after
giving effect thereto, (A) the aggregate amount of all such additional Investments subject to this clause (iv) shall not exceed
$250,000 at any time outstanding and (B) each of the Payment Conditions is satisfied and in no event shall any such Investment
be made with any asset or property other than cash or Cash Equivalents;


 


(d)  Investments
consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially
troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;


 


(e)  Guarantees
constituting Permitted Indebtedness;


 


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


 


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


 


(h)  advances
to officers, directors and employees of the Loan Parties and Subsidiaries in the ordinary course of business in an amount not
to exceed $75,000 to any individual at any time or in an aggregate amount not to exceed $150,000 at any time outstanding, for
travel, entertainment, relocation and similar ordinary business purposes;


 


(i)  Investments
constituting Permitted Acquisitions;


 


(j)  capital
contributions made by any Loan Party to a Borrower;


 


(k)  other
Investments not otherwise specifically described herein provided, that, as of the date of any such Investment and after giving
effect thereto, (A) the aggregate amount of all such additional Investments subject to this clause (k) shall not exceed $250,000
at any time outstanding and (B) each of the Payment Conditions is satisfied and in no event shall any such Investment be made
with any asset or property other than cash or Cash Equivalents.


 






    	 	35	 



     


    

 


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

 





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


 


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


 


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


 


(d) together
with all other Permitted Overadvances then outstanding, shall not (i) exceed ten percent (10%) of the Borrowing Base at any time
or (ii) unless a Liquidation is occurring, remain outstanding for more than forty-five (45) consecutive Business Days, unless
in each case, the Required Lenders otherwise agree.


 


provided,
that, the foregoing shall not (i) modify or abrogate any of the provisions of Section 2.03 regarding the Lenders’
obligations with respect to Letters of Credit or Section 2.04 regarding the Lenders’ obligations with respect to
Swing Line Loans, or (ii) result in any claim or liability against the Agent (regardless of the amount of any Overadvance) for
Unintentional Overadvances and such Unintentional Overadvances shall not reduce the amount of Permitted Overadvances allowed hereunder,
and 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 Aggregate Commitments (as in effect prior to any termination of the Commitments
pursuant to Section 2.06 or Section 8.02 hereof).


 


“Permitted
Refinancing” means, with respect to any Person, any Indebtedness issued in exchange for, or the net proceeds of which are
used to extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”), the Indebtedness
being Refinanced (or previous refinancings thereof constituting a Permitted Refinancing); provided, that, (a) the principal
amount (or accreted value, if applicable) of such Permitted Refinancing does not exceed the principal amount (or accreted value,
if applicable) of the Indebtedness so Refinanced (plus unpaid accrued interest and premiums thereon and underwriting discounts,
defeasance costs, fees, commissions and expenses), (b) the weighted average life to maturity of such Permitted Refinancing is
greater than or equal to the weighted average life to maturity of the Indebtedness being Refinanced (c) such Permitted Refinancing
shall not require any scheduled principal payments due prior to the Maturity Date in excess of, or prior to, the scheduled principal
payments due prior to such Maturity Date for the Indebtedness being Refinanced, (d) if the Indebtedness being Refinanced is subordinated
in right of payment to the Obligations under this Agreement, such Permitted Refinancing shall be subordinated in right of payment
to such Obligations on terms at least as favorable to the Credit Parties as those contained in the documentation governing the
Indebtedness being Refinanced (e) no Permitted Refinancing shall have direct or indirect obligors who were not also obligors of
the Indebtedness being Refinanced, or greater guarantees or security, than the Indebtedness being Refinanced, (f) such Permitted
Refinancing shall be otherwise on terms not materially less favorable to the Credit Parties than those contained in the documentation
governing the Indebtedness being Refinanced, including, without limitation, with respect to financial and other covenants and
events of default, (g) the interest rate applicable to any such Permitted Refinancing shall not exceed the then applicable market
interest rate, and (h) at the time thereof, no Default or Event of Default shall have occurred and be continuing.


 


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


 


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


 






    	 	36	 



     


    

 





“Platform”
has the meaning specified in Section 6.02.


 


“Portal” has the meaning specified in Section 2.02.


 


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


 


“Qualifying
IPO” means the issuance by Parent of its Securities in an underwritten primary public offering (other than a public offering
pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the U.S. Securities
and Exchange Commission (or any successor thereto) in accordance with the Securities Act (whether alone or in connection with
a secondary public offering).


 


“Qualified
ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at
the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation
or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations
promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time
by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Request
for Credit Extension” means (a) with respect to a Committed Borrowing, conversion or continuation of Committed Loans, an
electronic notice via the Portal or LIBO Rate Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application
and, if required by the L/C Issuer, a Standby Letter of Credit Agreement or Commercial Letter of Credit Agreement, as applicable,
and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.


 


“Required
Lenders” means, as of any date of determination, at least two Lenders holding more than fifty percent (50%) of the
Aggregate Commitments or, if the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C
Credit Extensions have been terminated pursuant to Section 8.02, at least two Lenders holding in the aggregate more
than fifty percent (50%) of the Total Outstandings (with the aggregate amount of each Lender’s risk participation and
funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for
purposes of this definition); provided, that, the Commitment of, and the portion of the Total Outstandings held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.


 






    	 	37	 



     


    

 


“Reserves”
means all Receivables Reserves, Inventory Reserves and Availability Reserves. To the extent that such Reserve is in respect of
amounts that may be payable to third parties, Agent may, at its option, deduct such Reserve from the amount equal to the Aggregate
Commitments, at any time that the Aggregate Commitments are less than the amount of the Borrowing Base.


 


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


 


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


 


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


 


“S&P”
means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.


 


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


 


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


 


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


 






    	 	38	 



     


    

 


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


 


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


 


“Securities
Account” has the meaning given to such term in the UCC.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Sponsor”
means, collectively, (a) Mistral SAC Holdings, LLC, (b) Satori Capital, LLC, Satori Capital Strategic Opportunities, LP and Satori
Capital III, LP and (c) any Controlled Investment Affiliate of either of the Persons set forth in clauses (a) or (b)
of this definition.


 






    	 	39	 



     


    

 


“Sponsor
Management Agreement” means (a) the Monitoring and Management Agreement, dated as of May 24, 2010, between Parent and Mistral
Capital Management, LLC and (b) the letter agreement, dated March 30, 2017, by and among Lead Borrower, Satori Capital, LLC, Satori
Capital Strategic Opportunities, LP and Satori Capital III, LP.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






    	 	40	 



     


    

 


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


 


“Swap
Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction
that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.


 


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


 


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


 


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


 


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


 


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


 


“Swing
Line Note” means the promissory note of the Borrowers substantially in the form of Exhibit C-2, payable to the order
of the Swing Line Lender, evidencing the Swing Line Loans made by the Swing Line Lender.


 


“Swing
Line Sublimit” means an amount equal to the lesser of (a) $2,500,000 and (b) the Aggregate Commitments. The Swing Line Sublimit
is part of, and not in addition to, the Aggregate Commitments.


 


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


 






    	 	41	 



     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“UFCA”
has the meaning specified in Section 10.22(d).


 


“UFTA” has the meaning specified in Section 10.22(d).


 


“Unfunded
Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over
the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension
Plan pursuant to Section 412 of the Code for the applicable plan year.


 


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


 






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


 


“UVTA”
has the meaning specified in Section 10.22(d).


 


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


 


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


 


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


 


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


 


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


 


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


 






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1.03 Accounting Terms.


 


(a)
Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement
shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner
consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.


 


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


 


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


 


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


 


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


 


ARTICLE
II


THE
COMMITMENTS AND CREDIT EXTENSIONS


 


2.01
Committed Loans; Reserves.


 


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


 


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


 






    	 	44	 



     


    

 





(ii) after
giving effect to any Committed Borrowing, the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment,


 


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


 


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


 


(b) The
Reserves as of the Closing Date are set forth in the Borrowing Base Certificate delivered pursuant to Section 4.01(c) hereof.


 


(c) The
Agent shall have the right, at any time and from time to time after the Closing Date in its Permitted Discretion to establish,
modify or eliminate Reserves. Agent will provide notice to Lead Borrower of any new categories of Reserves that may be established
after the Closing Date or any changes in the methodology of the calculation of an existing category of Reserves and will be available
to consult with Lead Borrower in connection with the basis for such new categories of Reserves to the extent Lead Borrower requests
in a reasonably timely manner, provided, that, no such notice shall be required at any time a Default or an Event of Default exists
or has occurred and is continuing, or a change solely as a result of mathematical calculations.


 


2.02
Borrowings, Conversions and Continuations of Committed Loans.


 


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


 


(b)
Each request for a Committed Borrowing consisting of a Base Rate Loan shall be made by electronic request of the Lead
Borrower through Agent’s Commercial Electronic Office Portal or through such other electronic portal provided by Agent
(the “Portal”). The Borrowers hereby acknowledge and agree that any request made through the Portal shall be
deemed made by a Responsible Officer of the Borrowers. Each request for a Committed Borrowing consisting of a LIBO Rate Loan
shall be made pursuant to the Lead Borrower’s submission of a LIBO Rate Loan Notice, which must be received by the
Agent not later than 11:00 a.m. three (3) Business Days prior to the requested date of any Borrowing or continuation of LIBO
Rate Loans, provided, that, notwithstanding anything to the contrary contained herein, except as Agent may expressly
otherwise agree in writing, the request for the initial Committed Loan or Swing Line Loan shall be received not less than
five (5) Business Days prior to the date that such Loan is made. Each LIBO Rate Loan Notice shall specify (i) the requested
date of the Borrowing or continuation, as the case may be (which shall be a Business Day), (ii) the principal amount of LIBO
Rate Loans to be borrowed or continued (which shall be in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof), and (iii) the duration of the Interest Period with respect thereto. If the Lead Borrower fails to specify an
Interest Period, it will be deemed to have specified an Interest Period of one month. On the requested date of any LIBO Rate
Loan, (i) in the event that Base Rate Loans are outstanding in an amount equal to or greater than the requested LIBO Rate
Loan, all or a portion of such Base Rate Loans shall be automatically converted to a LIBO Rate Loan in the amount
requested by the Lead Borrower, and (ii) if Base Rate Loans are not outstanding in an amount at least equal to the requested
LIBO Rate Loan, the Lead Borrower shall make an electronic request via the Portal for additional Base Rate Loans in an such
amount, when taken with the outstanding Base Rate Loans (which shall be converted automatically at such time), as is
necessary to satisfy the requested LIBO Rate Loan. If the Lead Borrower fails to make such additional request via the Portal
as required pursuant to clause (ii) of the foregoing sentence, then the Borrowers shall be responsible for all amounts due
pursuant to Section 3.05 hereof arising on account of such failure. If the Lead Borrower fails to give a timely notice
with respect to any continuation of a LIBO Rate Loan, then the applicable Committed Loans shall be converted to Base Rate
Loans, effective as of the last day of the Interest Period then in effect with respect to the applicable LIBO Rate
Loans.


 






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


 


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


 


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


 


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


 


(g) After
giving effect to all Committed Borrowings, all conversions of Committed Loans from one Type to the other, and all continuations
of Committed Loans as the same Type, there shall not be more than five (5) Interest Periods in effect with respect to LIBO Rate
Loans.


 


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


 






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2.03
Letters of Credit.


 


(a) Subject
to the terms and conditions of this Agreement, upon the request of the Lead Borrower made in accordance herewith, and prior to
the Maturity Date, the L/C Issuer agrees to issue a requested Letter of Credit for the account of the Loan Parties. By submitting
a request to the L/C Issuer for the issuance of a Letter of Credit, the Borrowers shall be deemed to have requested that the L/C
Issuer issue the requested Letter of Credit. Each request for the issuance of a Letter of Credit, or the amendment, renewal, or
extension of any outstanding Letter of Credit, shall be irrevocable and shall be made in writing pursuant to a Letter of Credit
Application by a Responsible Officer and delivered to the L/C Issuer and the Agent via telefacsimile or other electronic method
of transmission reasonably acceptable to the L/C Issuer not later than 11:00 a.m. at least two (2) Business Days (or such other
date and time as the Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the requested
date of issuance, amendment, renewal, or extension, except that the initial request for the issuance of a Letter of Credit hereunder
shall be not less than five (5) Business Days prior to the requested date of issuance. Each such request shall be in form and
substance reasonably satisfactory to the L/C Issuer and (i) shall specify (A) the amount of such Letter of Credit, (B) the date
of issuance, amendment, renewal, or extension of such Letter of Credit, (C) the proposed expiration date of such Letter of Credit,
(D) the name and address of the beneficiary of the Letter of Credit, and (E) such other information (including, the conditions
to drawing, and, in the case of an amendment, renewal, or extension, identification of the Letter of Credit to be so amended,
renewed, or extended) as shall be necessary to prepare, amend, renew, or extend such Letter of Credit, and (ii) shall be accompanied
by such Issuer Documents as the Agent or the L/C Issuer may request or require, to the extent that such requests or requirements
are consistent with the Issuer Documents that the L/C Issuer generally requests for Letters of Credit in similar circumstances.
The Agent’s records of the content of any such request will be conclusive absent manifest error.


 


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


 


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


 






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(d)
Any L/C Issuer (other than Wells Fargo or any of its Affiliates) shall notify the Agent in writing no later than the Business
Day immediately following the Business Day on which such L/C Issuer issued any Letter of Credit; provided, that,
(i) until the Agent advises any such L/C Issuer that the provisions of Section 4.02 are not satisfied, or (ii) unless the
aggregate amount of the Letters of Credit issued in any such week exceeds such amount as shall be agreed by the Agent and such
L/C Issuer, such L/C Issuer shall be required to so notify the Agent in writing only once each week of the Letters of Credit issued
by such L/C Issuer during the immediately preceding week as well as the daily amounts outstanding for the prior week, such notice
to be furnished on such day of the week as the Agent and such L/C Issuer may agree. Each Letter of Credit shall be in form and
substance reasonably acceptable to the L/C Issuer, including the requirement that the amounts payable thereunder must be payable
in Dollars. If the L/C Issuer makes a payment under a Letter of Credit, the Borrowers shall pay to Agent an amount equal to the
applicable Letter of Credit Disbursement on the Business Day such Letter of Credit Disbursement is made and, in the absence of
such payment, the amount of the Letter of Credit Disbursement immediately and automatically shall be deemed to be a Committed
Loan hereunder (notwithstanding any failure to satisfy any condition precedent set forth in Section 4.02 hereof) and, initially,
shall bear interest at the rate then applicable to Committed Loans that are Base Rate Loans. If a Letter of Credit Disbursement
is deemed to be a Committed Loan hereunder, the Borrowers’ obligation to pay the amount of such Letter of Credit Disbursement
to the L/C Issuer shall be automatically converted into an obligation to pay the resulting Committed Loan. Promptly following
receipt by the Agent of any payment from the Borrowers pursuant to this paragraph, the Agent shall distribute such payment to
the L/C Issuer or, to the extent that the Lenders have made payments pursuant to Section 2.03(e) to reimburse the L/C Issuer,
then to such Lenders and the L/C Issuer as their interests may appear.


 


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


 






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(f)
Each Borrower agrees to indemnify, defend and hold harmless each Credit Party (including the L/C Issuer and its branches, Affiliates,
and correspondents) and each such Person’s respective directors, officers, employees, attorneys and agents (each, including
the L/C Issuer, a “Letter of Credit Related Person”) (to the fullest extent permitted by Law) from and against any
and all claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and damages, and all
reasonable fees and disbursements of attorneys, experts, or consultants and all other costs and expenses actually incurred in
connection therewith or in connection with the enforcement of this indemnification (as and when they are incurred and irrespective
of whether suit is brought), which may be incurred by or awarded against any such Letter of Credit Related Person (other than
Taxes, which shall be governed by Section 3.01) (the “Letter of Credit Indemnified Costs”), and which arise
out of or in connection with, or as a result of:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






    	 	49	 



     


    

 


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


 


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


 


in
each case, including that resulting from the Letter of Credit Related Person’s own negligence; provided, that,
such indemnity shall not be available to any Letter of Credit Related Person claiming indemnification under clauses (i) through
(x) above to the extent that such Letter of Credit Indemnified Costs may be finally determined in a final, non-appealable judgment
of a court of competent jurisdiction to have resulted directly from the gross negligence or willful misconduct of the Letter of
Credit Related Person claiming indemnity. The Borrowers hereby agree to pay the Letter of Credit Related Person claiming indemnity
on demand from time to time all amounts owing under this Section 2.03(f). If and to the extent that the obligations of
the Borrowers under this Section 2.03(f) are unenforceable for any reason, the Borrowers agree to make the maximum contribution
to the Letter of Credit Indemnified Costs permissible under applicable Law. This indemnification provision shall survive termination
of this Agreement and all Letters of Credit.


 


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


 


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


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






    	 	51	 



     


    

 





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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






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(k)
Upon the request of the Agent, (i) if the L/C Issuer has honored any full or partial drawing request under any Letter of Credit
and such drawing has resulted in an L/C Obligation that remains outstanding, or (ii) if, as of the Letter of Credit Expiration
Date, any L/C Obligation for any reason remains outstanding, the Borrowers shall, in each case, immediately Cash Collateralize
the then Outstanding Amount of all L/C Obligations. Sections 2.05 and 8.02(c) set forth certain additional requirements
to deliver Cash Collateral hereunder. For purposes of this Section 2.03, Section 2.05 and Section 8.02(c),
“Cash Collateralize” means to pledge and deposit with or deliver to the Agent, for the benefit of the L/C Issuer
and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances in an amount equal to one hundred five
percent (105%) of the Outstanding Amount of all L/C Obligations (other than L/C Obligations with respect to Letters of Credit
denominated in a currency other than Dollars, which L/C Obligations shall be Cash Collateralized in an amount equal to one hundred
fifteen percent (115%) of the Outstanding Amount of such L/C Obligations), pursuant to documentation in form and substance satisfactory
to the Agent and the L/C Issuer (which documents are hereby Consented to by the Lenders). The Borrowers hereby grant to the Agent
a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing. Cash Collateral
shall be maintained in blocked, non-interest bearing deposit accounts at Wells Fargo. If at any time the Agent determines that
any funds held as Cash Collateral are subject to any right or claim of any Person other than the Agent or that the total amount
of such funds is less than the aggregate Outstanding Amount of all L/C Obligations, the Borrowers will, forthwith upon demand
by the Agent, pay to the Agent, as additional funds to be deposited as Cash Collateral, an amount equal to the excess of (x) such
aggregate Outstanding Amount over (y) the total amount of funds, if any, then held as Cash Collateral that the Agent determines
to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as Cash
Collateral, such funds shall be applied, to the extent permitted under applicable Laws, to reimburse the L/C Issuer and, to the
extent not so applied, shall thereafter be applied to satisfy other Obligations.


 


(l)
The Borrowers shall pay to the Agent for the account of each Lender in accordance with its Applicable Percentage a Letter of Credit
fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Margin for LIBO Rate Loans multiplied
by the daily Stated Amount under each such Letter of Credit (whether or not such maximum amount is then in effect under such
Letter of Credit). For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of
the Letter of Credit shall be determined in accordance with Section 1.06. Letter of Credit Fees shall be (i) due and payable
on the first day after the end of each month commencing with the first such date to occur after the issuance of such Letter of
Credit, and after the Letter of Credit Expiration Date, on demand, and (ii) computed on a monthly basis in arrears. Notwithstanding
anything to the contrary contained herein, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default
Rate as provided in Section 2.08(b) hereof.


 


(m)
In addition to the Letter of Credit Fees as set forth in Section 2.03(l) above, the Borrowers shall pay immediately
upon demand to the Agent for the account of the L/C Issuer as nonrefundable fees, commissions, and charges (it being
acknowledged and agreed that any charging of such fees, commissions, and charges to the Loan Account pursuant to the
provisions of Section 2.02(d) shall be deemed to constitute a demand for payment thereof for the purposes of this Section
2.03(m)): (i) a fronting fee which shall be imposed by the L/C Issuer upon the issuance of each Letter of Credit of .125%
per annum of the face amount thereof, plus (ii) any and all other customary commissions, fees and charges then in
effect imposed by, and any and all expenses incurred by, the L/C Issuer, or by any adviser, confirming institution or entity
or other nominated person, relating to Letters of Credit, at the time of issuance of any Letter of Credit and upon the
occurrence of any other activity with respect to any Letter of Credit (including transfers, assignments of proceeds,
amendments, drawings, renewals or cancellations).


 






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


 


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


 


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


 


2.04
Swing Line Loans.


 


(a)
The Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender may, in reliance upon the agreements
of the other Lenders set forth in this Section 2.04, make loans (each such loan, a “Swing Line Loan”)
to the Borrowers from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at
any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated
with the Applicable Percentage of the Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting as Swing
Line Lender, may exceed the amount of such Lender’s Commitment; provided, that, after giving effect to any
Swing Line Loan, (i) the Total Outstandings shall not exceed Loan Cap, (ii) the aggregate Outstanding Amount of the Committed
Loans of any Lender at such time, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations
at such time, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans at such
time shall not exceed such Lender’s Commitment, (iii) the initial request for a Swing Line Loan shall be received by Swing
Line Lender not less than five (5) Business Days prior to the date such Swing Line Loan is to be made and (iv) the Borrowers shall
not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject
to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.04, prepay under Section 2.05,
and reborrow under this Section 2.04. Each Swing Line Loan shall bear interest only at the rate applicable to Base Rate
Loans. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product
of such Lender’s Applicable Percentage times the amount of such Swing Line Loan. The Swing Line Lender shall have
all of the benefits and immunities (A) provided to the Agent in Article IX with respect to any acts taken or omissions
suffered by the Swing Line Lender in connection with Swing Line Loans made by it or proposed to be made by it as if the term “Agent”
as used in Article IX included the Swing Line Lender with respect to such acts or omissions, and (B) as additionally provided
herein with respect to the Swing Line Lender.


 


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


 






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(c)
Refinancing of Swing Line Loans.


 


(i)
The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrowers (which hereby
irrevocably authorize the Swing Line Lender to so request on their behalf), that each Lender make a Base Rate Loan in an
amount equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such request
shall be made in accordance with the requirements of Section 2.02, without regard to the minimum and multiples
specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Loan Cap and the
conditions set forth in Section 4.02. Each Lender shall make an amount equal to its Applicable Percentage of the
amount of such outstanding Swing Line Loan available to the Agent in immediately available funds for the account of the Swing
Line Lender at the Agent’s Office not later than 1:00 p.m. on the day specified by the Swing Line Lender,
whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a
Base Rate Loan to the Borrowers in such amount. The Agent shall remit the funds so received to the Swing Line
Lender.


 


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


 


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


 






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


 


(d)
Repayment of Participations.


 


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


 


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


 


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


 


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


 


2.05
Prepayments.


 


(a)
The Borrowers may, upon irrevocable notice from the Lead Borrower to the Agent, at any time or from time to time voluntarily prepay
Committed Loans in whole or in part without premium or penalty; provided, that, (i) such notice must be received
by the Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of LIBO Rate Loans and (B) on the
date of prepayment of Base Rate Loans; (ii) any prepayment of LIBO Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a principal amount of $500,000
or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding.
Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if LIBO Rate
Loans, the Interest Period(s) of such Loans. The Agent will promptly notify each Lender of its receipt of each such notice, and
of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by the Lead Borrower, the
Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a LIBO Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with
any additional amounts required pursuant to Section 3.05. Each such prepayment shall be applied to the Committed Loans
of the Lenders in accordance with their respective Applicable Percentages.


 






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


 


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


 


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


 


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


 


2.06
Termination or Reduction of Commitments


 


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


 


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


 






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


 


2.07
Repayment of Loans.


 


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


 


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


 


2.08Interest.


 


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


 


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


 


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


 


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


 


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


 






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


 


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


 


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


 


2.10
Computation of Interest and Fees. All computations of fees and interest shall be made on the basis of a three hundred sixty
(360) day year (or three hundred sixty-five (365) or three hundred sixty-six (366) days, as the case may be, in the case of Base
Rate Loans) and actual days elapsed. Interest shall accrue on each outstanding Loan beginning, and including the day, such Loan
is made and until (but not including) the day on which such Loan (or such portion thereof) is paid, provided, that,
any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day.
Each determination by the Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent
manifest error.


 


2.11
Evidence of Debt.


 


(a) The
Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by the Agent (the “Loan
Account”) in the ordinary course of business. In addition, each Lender may record in such Lender’s internal records,
an appropriate notation evidencing the date and amount of each Loan from such Lender, each payment and prepayment of principal
of any such Loan, and each payment of interest, fees and other amounts due in connection with the Obligations due to such Lender.
The accounts or records maintained by the Agent and each Lender shall be conclusive absent manifest error of the amount of the
Credit Extensions made by the Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing
with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the
accounts and records of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence
of manifest error. Upon the request of any Lender made through the Agent, the Borrowers shall execute and deliver to such Lender
(through the Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender
may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments
with respect thereto. Upon receipt of an affidavit of a Lender as to the loss, theft, destruction or mutilation of such Lender’s
Note and upon cancellation of such Note, the Borrowers will issue, in lieu thereof, a replacement Note in favor of such Lender,
in the same principal amount thereof and otherwise of like tenor.


 


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


 






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2.12 Payments Generally; Agent’s Clawback.


 


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


 


(b)
(i) Funding by Lenders; Presumption by Agent. Unless the Agent shall have received notice from a Lender prior to the proposed
date of any Borrowing of LIBO Rate Loans (or in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date
of such Borrowing) that such Lender will not make available to the Agent such Lender’s share of such Borrowing, the Agent
may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or in the case
of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required
by Section 2.02) and may, in reliance upon such assumption, make available to the Borrowers a corresponding amount. In
such event, if a Lender has not in fact made its share of the applicable Committed Borrowing available to the Agent, then the
applicable Lender and the Borrowers severally agree to pay to the Agent forthwith on demand such corresponding amount in immediately
available funds with interest thereon, for each day from and including the date such amount is made available to the Borrowers
to but excluding the date of payment to the Agent, at (A) in the case of a payment to be made by such Lender, the greater of the
Federal Funds Rate and a rate determined by the Agent in accordance with banking industry rules on interbank compensation plus
any administrative processing or similar fees customarily charged by the Agent in connection with the foregoing, and (B) in the
case of a payment to be made by the Borrowers, the interest rate applicable to Base Rate Loans. If the Borrowers and such Lender
shall pay such interest to the Agent for the same or an overlapping period, the Agent shall promptly remit to the Borrowers the
amount of such interest paid by the Borrowers for such period. If such Lender pays its share of the applicable Committed Borrowing
to the Agent, then the amount so paid shall constitute such Lender’s Committed Loan included in such Committed Borrowing.
Any payment by the Borrowers shall be without prejudice to any claim the Borrowers may have against a Lender that shall have failed
to make such payment to the Agent.


 


(ii)
Payments by Borrowers; Presumptions by Agent. Unless the Agent shall have received notice from the Lead Borrower prior
to the time at which any payment is due to the Agent for the account of the Lenders or the L/C Issuer hereunder that the Borrowers
will not make such payment, the Agent may assume that the Borrowers have made such payment on such date in accordance herewith
and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due. In
such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the L/C Issuer, as the case may be,
severally agrees to repay to the Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in immediately
available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding
the date of payment to the Agent, at the greater of the Federal Funds Rate and a rate determined by the Agent in accordance with
banking industry rules on interbank compensation.


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






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2.14 Settlement Amongst Lenders


 


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


 


(b) The
Agent shall deliver to each of the Lenders promptly after a Settlement Date a summary statement of the amount of outstanding Committed
Loans and Swing Line Loans for the period and the amount of repayments received for the period. As reflected on the summary statement,
(i) the Agent shall transfer to each Lender its Applicable Percentage of repayments, and (ii) each Lender shall transfer to the
Agent (as provided below) or the Agent shall transfer to each Lender, such amounts as are necessary to insure that, after giving
effect to all such transfers, the amount of Committed Loans made by each Lender shall be equal to such Lender’s Applicable
Percentage of all Committed Loans outstanding as of such Settlement Date. If the summary statement requires transfers to be made
to the Agent by the Lenders and is received prior to 1:00 p.m. on a Business Day, such transfers shall be made in immediately
available funds no later than 3:00 p.m. that day; and, if received after 1:00 p.m., then no later than 3:00 p.m. on the next Business
Day. The obligation of each Lender to transfer such funds is irrevocable, unconditional and without recourse to or warranty by
the Agent. If and to the extent any Lender shall not have so made its transfer to the Agent, such Lender agrees to pay to the
Agent, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount
is paid to the Agent, equal to the greater of the Federal Funds Rate and a rate determined by the Agent in accordance with banking
industry rules on interbank compensation plus any administrative, processing, or similar fees customarily charged by the Agent
in connection with the foregoing.


 


2.15
Increase in Commitments.


 


(a)
Committed Increase. The Lead Borrower may from time to time make a written request to Agent for an increase in the Aggregate
Commitments by an amount (for all such requests) not exceeding $10,000,000 (the “Committed Increase”); provided,
that, (i) any such Committed Increase shall be in a minimum amount of $5,000,000, (ii) the amount of the Aggregate Commitments,
as the same may be increased pursuant to any Committed Increase, shall not exceed $25,000,000 at any time, (iii) the Lead Borrower
may make a maximum of two (2) such requests, (iv) as of the date of any such Committed Increase, and after giving effect thereto,
no Default or Event of Default shall exist or have occurred and be continuing, and (v) as to any such Committed Increase, Borrowers
shall have paid a fee to Wells Fargo for its own account in the amount equal to one-half percent (0.50%) of the amount of such
Committed Increase. Any such Committed Increase shall be effectuated as soon as reasonably practicable after the request of the
Lead Borrower therefor. Any such Committed Increase shall be provided solely by Wells Fargo (or any permitted assignee or Participant
of Wells Fargo) and shall otherwise be on the same terms as the existing facility under this Agreement. Upon the effective date
of any such Committed Increase (the “Increase Effective Date”) (i) the Aggregate Commitments under, and for
all purposes of, this Agreement shall be increased by the aggregate amount of such Committed Increase, and (ii) Schedule 2.01
shall be deemed modified, without further action, to reflect the revised Commitments and Applicable Percentages of the Lenders.


 


(b)
Conditions to Effectiveness of Committed Increase. As a condition precedent to each Committed Increase, (i) the Lead Borrower
shall deliver to the Agent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for
each Lender) signed by a Responsible Officer of such Loan Party (A) certifying and attaching the resolutions adopted by such Loan
Party approving or consenting to such Committed Increase, and (B) in the case of the Borrowers, certifying that, before and after
giving effect to such Committed Increase, (1) the representations and warranties contained in Article V and the other Loan
Documents are true and correct on and as of the Increase Effective Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes
of this Section 2.15, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall
be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01,
and (2) as of the Increase Effective Date for any such Committed Increase and after giving effect thereto, no Default or Event
of Default shall exist or have occurred and be continuing; (iii) the Borrowers shall have paid the fee provided for above to Wells
Fargo; (iv) if requested by the Agent, the Borrowers shall deliver to the Agent and the Lenders an opinion or opinions, in form
and substance reasonably satisfactory to the Agent, from counsel to the Borrowers reasonably satisfactory to the Agent and dated
such date; (v) the Borrowers shall have delivered such other instruments, documents and agreements as the Agent may reasonably
have requested; and (vii) as of the date of any such Committed Increase and after giving effect thereto, no Default or Event of
Default shall exist or have occurred and be continuing.


 


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


 






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ARTICLE
III


TAXES,
YIELD PROTECTION AND ILLEGALITY; 

APPOINTMENT OF LEAD BORROWER


 


3.01 Taxes.


 


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


 


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


 


(c)
Indemnification by the Loan Parties. The Loan Parties shall indemnify the Agent, each Lender and the L/C Issuer, within
ten (10) days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by the Agent, such Lender or
the L/C Issuer, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to the Lead Borrower by a Lender or the L/C Issuer
(with a copy to the Agent), or by the Agent on its own behalf or on behalf of the Agent, a Lender or the L/C Issuer, shall be
conclusive absent manifest error.


 






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(d)
Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrowers to
a Governmental Authority, the Lead Borrower shall deliver to the Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Agent.


 


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


 


Without
limiting the generality of the foregoing, in the event that any Borrower is resident for tax purposes in the United States, any
Foreign Lender shall deliver to the Lead Borrower and the Agent (in such number of copies as shall be requested by the recipient)
on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon
the request of the Lead Borrower or the Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:


 


(i) duly
completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the
United States is a party,


 


(ii) duly
completed copies of Internal Revenue Service Form W-8ECI,


 


(iii) in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x)
a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A)
of the Code, (B) a “10 percent shareholder” of the Borrowers within the meaning of section 881(c)(3)(B) of the Code,
or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) duly completed copies
of Internal Revenue Service Form W-8BEN, or


 


(iv) any
other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States Federal withholding
tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Lead Borrower
to determine the withholding or deduction required to be made.


 


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


 






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


 


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


 


3.04
Increased Costs; Reserves on LIBO Rate Loans.


 


(a) Increased
Costs Generally. If any Change in Law shall:


 


(i) impose,
modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets
of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement
reflected in the LIBO Rate) or the L/C Issuer;


 


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


 






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(iii)
impose on any Lender or the L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement
or LIBO Rate Loans made by such Lender or any Letter of Credit or participation therein;


 


and
the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBO Rate Loan (or
of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating
in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder (whether of principal,
interest or any other amount) then, upon request of such Lender or the L/C Issuer, the Borrowers will pay to such Lender or the
L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case
may be, for such additional costs incurred or reduction suffered.


 


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


 


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


 


(d)
Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the
foregoing provisions of this Section shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand
such compensation, provided that the Borrowers shall not be required to compensate a Lender or the L/C Issuer pursuant
to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine (9) months
prior to the date that such Lender or the L/C Issuer, as the case may be, notifies the Lead Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender’s or the L/C Issuer’s intention to claim compensation
therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month
period referred to above shall be extended to include the period of retroactive effect thereof).


 


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


 






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3.05
Compensation for Losses. Upon demand of any Lender (with a copy to the Agent) from time to time, the Borrowers shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:


 


(a) any
continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);


 


(b) any
failure by the Borrowers (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert
any Loan other than a Base Rate Loan on the date or in the amount notified by the Lead Borrower; or


 


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


 


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


 


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


 


3.06
Mitigation Obligations; Replacement of Lenders.


 


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


 


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


 






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


 


3.08
Designation of Lead Borrower as Borrowers’ Agent.


 


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


 


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


 


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


 


ARTICLE
IV


CONDITIONS
PRECEDENT TO CREDIT EXTENSIONS


 


4.01Conditions
of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension
hereunder is subject to satisfaction of the following conditions precedent:


 


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


 


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


 


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


 


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


 


(iv)
copies of each Loan Party’s Organization Documents and such other documents and certifications as the Agent may
reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly
existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation
of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in
such jurisdiction could not reasonably be expected to have a Material Adverse Effect;


 






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(v) a
favorable opinion of DLA Piper LLP (US), counsel to the Loan Parties, addressed to the Agent and each Lender, as to such matters
concerning the Loan Parties and the Loan Documents as the Agent may reasonably request;


 


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


 


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


 


(viii) a
payoff letter from Siena Lending Group LLC satisfactory in form and substance to the Agent evidencing that the Existing Credit
Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full,
and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being
released;


 


(ix) the
Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed
in blank, each duly executed by the applicable Loan Parties;


 


(x) all
other Loan Documents, each duly executed by the applicable Loan Parties;


 


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


 


(xii) (A)
all documents and instruments, including Uniform Commercial Code 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 intended to be created under the
Loan Documents and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of
the Agent, and (B) the Credit Card Notifications and Control Agreements required pursuant to Section 6.13 hereof, and (C)
Collateral Access Agreements as required by the Agent (and including a Collateral Access Agreement with Amalgamate Processing,
Inc, that also includes its agreement to provide certain services to Agent subject to certain conditions);


 






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


 


(b) After
giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment
of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such
establishment, Excess Availability shall be not less than $3,000,000.


 


(c) The
Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on December 31, 2017
and executed by a Responsible Officer of the Lead Borrower.


 


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


 


(e) There
shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.


 


(f) There
shall not have occurred any default of any Material Contract of any Loan Party.


 


(g) The
consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.


 


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


 


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


 


(j) The
Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable
“know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT
Act in each case, the results of which are satisfactory to the Agent.


 


(k) No
material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior
to the Closing Date.


 


(l) There
shall not have occurred any disruption or material adverse change in the United States financial or capital markets in general
that has had, in the reasonable opinion of the Agent, a material adverse effect on the market for loan syndications or adversely
affecting the syndication of the Loans.


 


The
Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the
Loan Parties.


 






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Without
limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified
in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have Consented to, approved or accepted
or to be satisfied with, each document or other matter required thereunder to be Consented to or approved by or acceptable or
satisfactory to a Lender unless the Agent shall have received notice from such Lender prior to the proposed Closing Date specifying
its objection thereto.


 


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


 


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


 


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


 


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


 


(d) No
event or circumstance which could reasonably be expected to result in a Material Adverse Effect shall have occurred; and


 


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


 


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


 






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ARTICLE
V


REPRESENTATIONS
AND WARRANTIES


 


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


 


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


 


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


 


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


 


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


 






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5.05 Financial Statements; No Material Adverse Effect.


 


(a) The
Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; (ii) fairly present in all material respects the financial condition of the Parent
and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with
GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all
Material Indebtedness and other liabilities, direct or contingent, of the Parent and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness.


 


(b) The
unaudited Consolidated balance sheet of the Parent and its Subsidiaries dated October 29, 2017and the related Consolidated statements
of income or operations, Shareholders’ Equity and cash flows for the Fiscal Quarter ended on that date (i) were prepared
in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein,
and (ii) fairly present the financial condition of the Parent and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal
year-end audit adjustments. Since the date of the Audited Financial Statements, there has been no event or circumstance, either
individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.


 


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


 


(d) The
Consolidated forecasted balance sheet and statements of income and cash flows of the Parent and its Subsidiaries delivered pursuant
to Section 6.01(d) were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair
in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Loan
Parties’ best estimate of its future financial performance.


 


5.06
Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Loan Parties,
threatened, at law, in equity, in arbitration or before any Governmental Authority, by or against any Loan Party or any of its
Subsidiaries or against any of its properties or revenues that (a) purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby, or (b) except as specifically disclosed in Schedule 5.06,
either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect.


 


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


 






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5.08
Ownership of Property; Liens


 


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


 


(b)
Schedule 5.08(b)(1) sets forth the address (including street address, county and state) of all Real Estate that is owned
by the Loan Parties and each of their Subsidiaries, together with a list of the holders of any mortgage or other Lien thereon
as of the Closing Date. Each Loan Party and each of its Subsidiaries has good, marketable and insurable fee simple title to
the Real Estate owned by such Loan Party or such Subsidiary, free and clear of all Liens, other than Permitted Encumbrances. Schedule
5.08(b)(2) sets forth the address (including street address, county and state) of all Leases of the Loan Parties,
together with a list of the lessor and its contact information with respect to each such Lease as of the Closing Date. Each
of such Leases is in full force and effect and the Loan Parties are not in default of the terms thereof.


 


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


 


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


 


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


 


5.09
Environmental Compliance


 


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


 


(b) To
the knowledge of the Loan Parties, except as otherwise set forth in Schedule 5.09, none of the properties currently or
formerly owned or operated by any Loan Party or any Subsidiary thereof is listed or proposed for listing on the NPL or on the
CERCLIS or any analogous foreign, state or local list or is adjacent to any such property; there are no and never have been any
underground or aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous
Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or
any Subsidiary thereof or, to the knowledge of the Loan Parties, on any property formerly owned or operated by any Loan Party
or Subsidiary thereof; there is no asbestos or asbestos-containing material on any property currently owned or operated by any
Loan Party or Subsidiary thereof; and Hazardous Materials have not been released, discharged or disposed of on any property currently
or formerly owned or operated by any Loan Party or any Subsidiary thereof.


 






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(c)
Except as otherwise set forth on Schedule 5,09, no Loan Party or any Subsidiary thereof is undertaking, and no Loan
Party or any Subsidiary thereof has completed, either individually or together with other potentially responsible
parties, any investigation or assessment or remedial or response action relating to any actual or threatened release,
discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order
of any Governmental Authority or the requirements of any Environmental Law; and all Hazardous Materials generated, used,
treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by any Loan
Party or any Subsidiary thereof have been disposed of in a manner not reasonably expected to result in material liability to
any Loan Party or any Subsidiary thereof.


 


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


 


5.11 Taxes. The
Loan Parties and their Subsidiaries have filed all Federal, state and other material tax returns and reports required to be
filed, and have paid all Federal, state and other material taxes, assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings being diligently conducted, for which adequate reserves have been provided in
accordance with GAAP, as to which Taxes no Lien has been filed and which contest effectively suspends the collection of the
contested obligation and the enforcement of any Lien securing such obligation. There is no proposed tax assessment against
any Loan Party or any Subsidiary that would, if made, have a Material Adverse Effect. No Loan Party or any Subsidiary thereof
is a party to any tax sharing agreement.


 


5.12
ERISA Compliance.


 


(a) The
Lead Borrower, each of its ERISA Affiliates, and each Plan is in compliance in all material respects with the applicable provisions
of ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the
IRS with respect thereto and, to the knowledge of the Lead Borrower, nothing has occurred which would prevent, or cause the loss
of, such qualification. The Loan Parties and each ERISA Affiliate have made all required contributions to each Plan subject to
Sections 412 or 430 of the Code and to each Multiemployer Plan, and no application for a funding waiver or an extension of any
amortization period pursuant to Sections 412 or 430 of the Code has been made with respect to any Plan. No Lien imposed under
the Code or ERISA exists or is likely to arise on account of any Plan or Multiemployer Plan.


 


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


 


(c)
(i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability;
(iii) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title
IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv)
neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (v) neither any Loan Party nor any ERISA Affiliate has engaged in a
transaction that could be subject to Sections 4069 or 4212(c) of ERISA.


 






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5.13 Subsidiaries;
Equity Interests. The Loan Parties have no Subsidiaries other than those specifically disclosed in Part (a) of Schedule
5.13, which Schedule sets forth the legal name, jurisdiction of incorporation or formation and authorized
Equity Interests of each such Subsidiary. All of the outstanding Equity Interests in such Subsidiaries have been validly
issued, are fully paid and non-assessable and are owned by a Loan Party (or a Subsidiary of a Loan Party) in the amounts
specified on Part (a) of Schedule 5.13 free and clear of all Liens except for those created under the Security
Documents. Except as set forth in Schedule 5.13, there are no outstanding rights to purchase any Equity Interests in
any Subsidiary. The Loan Parties have no equity investments in any other corporation or entity other than those specifically
disclosed in Part(b) of Schedule 5.13. All of the outstanding Equity Interests in the Loan Parties have been validly
issued, and are fully paid and non-assessable and are owned in the amounts specified on Part (c) of Schedule 5.13 free
and clear of all Liens except for those created under the Security Documents. The copies of the Organization Documents of
each Loan Party and each amendment thereto provided pursuant to Section 4.01 are true and correct copies of each such
document, each of which is valid and in full force and effect.


 


5.14
Margin Regulations; Investment Company Act;


 


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


 


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


 


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


 






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5.16 Compliance
with Laws. Each of the Loan Parties and each Subsidiary is in compliance (A) in all material respects with
the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in
such instances in which (i) such requirement of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (ii) the failure to comply therewith, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect and (B) with Section 10.17 and 10.18.


 


5.17
Intellectual Property; Licenses, Etc. The Loan Parties and their Subsidiaries own, or possess the right to use, all of
the Intellectual Property, licenses, permits and other authorizations that are reasonably necessary for the operation of their
respective businesses, without conflict with the rights of any other Person. To the knowledge of the Lead Borrower, no slogan
or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to
be employed, by any Loan Party or any Subsidiary infringes upon any rights held by any other Person except as could not reasonably
be expected to have a Material Adverse Effect. Except as specifically disclosed in Schedule 5.17, no claim or litigation
regarding any of the foregoing is pending or, to the knowledge of the Lead Borrower, threatened, which, either individually or
in the aggregate, could reasonably be expected to have a Material Adverse Effect.


 


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


 


5.19
Security Documents.


 


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


 






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


 


5.20
Solvency. After giving effect to the transactions contemplated by this Agreement, and before and after giving effect to
each Credit Extension, the Loan Parties, on a Consolidated basis, are Solvent. No transfer of property has been or will be made
by any Loan Party and no obligation has been or will be incurred by any Loan Party in connection with the transactions contemplated
by this Agreement or the other Loan Documents with the intent to hinder, delay, or defraud either present or future creditors
of any Loan Party.


 


5.21
Deposit Accounts; Credit Card Arrangements.


 


(a) Annexed
hereto as Schedule 5.21(a) is a list of all Deposit Accounts maintained by the Loan Parties as of the Closing Date, which
Schedule includes, with respect to each Deposit Account (i) the name and address of the depository; (ii) the account number(s)
maintained with such depository; (iii) a contact person at such depository; and (iv) the identification of each Cash Management
Bank.


 


(b)
Annexed hereto as Schedule 5.21(b) is a correct and complete list of all of the Credit Card Agreements and all other
agreements, documents and instruments existing on the Closing Date between or among any Loan Party, the Credit Card Issuers,
the Credit Card Processors and any of their Affiliates. The Credit Card Agreements constitute all of such agreements
necessary for each Borrower to operate its business as presently conducted with respect to credit cards and debit cards and
no Credit Card Receivables of any Borrower arise from purchases by customers of Inventory with credit cards or debit cards,
other than those which are issued by Credit Card Issuers with whom such Borrower has entered into one of the Credit Card
Agreements set forth on Schedule 5.21(b) hereto or with whom Borrower has entered into a Credit Card Agreement in
accordance with Section 5.21(b) hereof. Each of the Credit Card Agreements constitutes the legal, valid and binding
obligations of the Borrower that is party thereto and to the best of each Loan Party’s knowledge, the other parties
thereto, enforceable in accordance with their respective terms and is in full force and effect. No material default or
material event of default, or act, condition or event which after notice or passage of time or both, would constitute a
material default or a material event of default under any of the Credit Card Agreements (other than any Credit Card Agreement
with a Credit Card Issuer or Credit Card Processor where the sales using the applicable card are less than ten (10%) percent
of all such sales in the immediately preceding Fiscal Year) exists or has occurred that would entitle the other party thereto
to suspend, withhold or reduce amounts that would otherwise be payable to a Borrower. Each Borrower and the other parties
thereto have complied in all material respects with all of the terms and conditions of the Credit Card Agreements (other than
any Credit Card Agreement with a Credit Card Issuer or Credit Card Processor where the sales using the applicable card are
less than ten (10%) percent of all such sales in the immediately preceding Fiscal Year) to the extent necessary for such
Borrower to be entitled to receive all payments thereunder. Borrowers have delivered, or caused to be delivered to
Agent, true, correct and complete copies of all of the Credit Card Agreements.


 






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5.22
Brokers. No broker or finder brought about the obtaining, making or closing of the Loans or transactions contemplated by
the Loan Documents, and no Loan Party or Affiliate thereof has any obligation to any Person in respect of any finder’s or
brokerage fees in connection therewith.


 


5.23
Customer and Trade Relations. There exists no actual or, to the knowledge of any Loan Party, threatened, termination or
cancellation of, or any material adverse modification or change in the business relationship of any Loan Party with any supplier
material to its operations which could reasonably be expected to have a Material Adverse Effect.


 


5.24
Material Contracts. Schedule 5.24 sets forth all Material Contracts to which any Loan Party is a party or is bound
as of the Closing Date. The Loan Parties have delivered true, correct and complete copies of such Material Contracts to the Agent
on or before the Closing Date. The Loan Parties are not in breach or in default in any material respect of or under any Material
Contract and have not received any notice of the intention of any other party thereto to terminate any Material Contract.


 


5.25
Casualty. Neither the businesses nor the properties of any Loan Party or any of its Subsidiaries are affected by any fire,
explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public
enemy or other casualty (whether or not covered by insurance) that, either individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.


 


5.26
OFAC/Sanctions. No Loan Party nor any of its Subsidiaries is in violation of any Sanctions. No Loan Party nor any
of its Subsidiaries nor, to the knowledge of such Loan Party, any director, officer, employee, agent or Affiliate of such Loan
Party or such Subsidiary (a) is a Sanctioned Person or a Sanctioned Entity, (b) has any assets located in Sanctioned Entities,
or (c) derives revenues from investments in, or transactions with Sanctioned Persons or Sanctioned Entities. Each of the Loan
Parties and its Subsidiaries has implemented and maintains in effect policies and procedures designed to ensure compliance by
the Loan Parties and their Subsidiaries and their respective directors, officers, employees, agents and Affiliates with the Anti-corruption
Laws. Each of the Loan Parties and its Subsidiaries, and to the knowledge of each such Loan Party, each director, officer, employee,
agent and Affiliate of each such Loan Party and each such Subsidiary, is in compliance with the Anti-corruption Laws in all material
respects. No proceeds of any Loan made or Letter of Credit issued hereunder will be used to fund any operations in, finance any
investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Entity, or otherwise used in any manner
that would result in a violation of any applicable sanction by any Person (including any Credit Party or other individual or entity
participating in any transaction).


 






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ARTICLE
VI


AFFIRMATIVE
COVENANTS


 


So
long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied
(other than contingent indemnification obligations for which a claim has not been asserted) , or any Letter of Credit shall remain
outstanding, the Loan Parties shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02,
and 6.03) cause each Subsidiary to:


 


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


 


(a)
as soon as available, but in any event within ninety (90) days after the end of each Fiscal Year of the Parent (commencing with
the Fiscal Year ended 2017), a Consolidated balance sheet of the Parent and its Subsidiaries as at the end of such Fiscal Year,
and the related consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Year,
setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and prepared
in accordance with GAAP, such consolidated statements to be audited and accompanied by a report and unqualified opinion of a Registered
Public Accounting Firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally
accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or
any qualification or exception as to the scope of such audit;


 


(b)
as soon as available, but in any event within forty-five (45) days after the end of each of the first three (3) Fiscal Quarters
of each Fiscal Year of the Parent (commencing with the Fiscal Quarter ended April 29, 2018), a Consolidated balance sheet of the
Parent and its Subsidiaries as at the end of such Fiscal Quarter, and the related consolidated statements of income or operations,
Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended,
setting forth in each case in comparative form the figures for (A) such period set forth in the projections delivered pursuant
to Section 6.01(d) hereof, (B) the corresponding Fiscal Quarter of the previous Fiscal Year and (C) the corresponding portion
of the previous Fiscal Year, all in reasonable detail, such Consolidated statements to be certified by a Responsible Officer of
the Lead Borrower as fairly presenting the financial condition, results of operations, Shareholders’ Equity and cash flows
of the Parent and its Subsidiaries as of the end of such Fiscal Quarter in accordance with GAAP, subject only to normal year-end
audit adjustments and the absence of footnotes;


 


(c)
as soon as available, but in any event within thirty (30) days after the end of each of the Fiscal Months of each Fiscal Year
of the Parent (commencing with the Fiscal Month ended November 30, 2017), or forty-five (45) days after the end of each Fiscal
Month that is also the end of a Fiscal Quarter, a consolidated balance sheet of the Parent and its Subsidiaries as at the end
of such Fiscal Month, and the related consolidated statements of income or operations, Shareholders’ Equity and cash flows
for such Fiscal Month, and for the portion of the Parent’s Fiscal Year then ended, setting forth in each case in comparative
form the figures for (A) such period set forth in the projections delivered pursuant to Section 6.01(d) hereof, (B) the
corresponding Fiscal Month of the previous Fiscal Year and (C) the corresponding portion of the previous Fiscal Year, all in reasonable
detail, such consolidated statements to be certified by a Responsible Officer of the Lead Borrower as fairly presenting the financial
condition, results of operations, Shareholders’ Equity and cash flows of the Parent and its Subsidiaries as of the end of
such Fiscal Month in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes;


 


(d)
as soon as available, but in any event not later than the end of each Fiscal Year of the Parent, forecasts prepared by management
of the Lead Borrower, in form satisfactory to the Agent, of consolidated balance sheets and statements of income or operations
and cash flows of the Parent and its Subsidiaries and Excess Availability and the Borrowing Base, in each case on a monthly basis
for the immediately following Fiscal Year (including the Fiscal Year in which the Maturity Date occurs), and as soon as available,
any significant revisions to such forecast with respect to such Fiscal Year.


 






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


  


(a)
concurrently with the delivery of the financial statements referred to in Sections 6.01(a), 6.01(b) and 6.01(c)
(commencing with the delivery of the financial statements for the Fiscal Month ended on February 3, 2018), a duly completed Compliance
Certificate signed by a Responsible Officer of the Lead Borrower, and in the event of any change in generally accepted accounting
principles used in the preparation of such financial statements, the Lead Borrower shall also provide: (i) a statement of reconciliation
conforming such financial statements to GAAP and (ii) a copy of management’s discussion and analysis with respect to such
financial statements;


 


(b)
on the Thursday day of each week (or, if such day is not a Business Day, on the next succeeding Business Day), a Borrowing Base
Certificate showing the Borrowing Base as of the close of business as of the immediately preceding Sunday, each Borrowing Base
Certificate to be certified as complete and correct by a Responsible Officer of the Lead Borrower;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






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


 


6.03
Notices. Promptly notify the Agent of:


 


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


 


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


 


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


 


(d)
any dispute, litigation, investigation, proceeding or suspension between any Loan Party or any Subsidiary thereof and any Governmental
Authority or the commencement of, or any material development in, any litigation or proceeding affecting any Loan Party or any
Subsidiary thereof, including pursuant to any applicable Environmental Laws;


 


(e)
the occurrence of any ERISA Event;


 


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


 


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


  






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


 


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


 


(j)
the filing of any Lien for unpaid Taxes against any Loan Party;


 


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


 


(l)
any failure by any Loan Party to pay rent or such other amounts due at any distribution centers or warehouses.


 


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


 


6.04
Payment of Obligations. Pay and discharge as the same shall become due and payable, all its obligations and liabilities,
including (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, (b) all
lawful claims (including, without limitation, claims of landlords, warehousemen, customs brokers, freight forwarders, consolidators
and carriers) which, if unpaid, would by law become a Lien upon its property; and (c) all Indebtedness, as and when due and payable,
but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness, except, in
each case, where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) such Loan
Party has set aside on its books adequate reserves with respect thereto in accordance with GAAP, (c) such contest effectively
suspends collection of the contested obligation and enforcement of any Lien securing such obligation, (d) no Lien has been filed
with respect thereto and (e) the failure to make payment pending such contest could not reasonably be expected to result in a
Material Adverse Effect. Nothing contained herein shall be deemed to limit the rights of the Agent with respect to determining
Reserves pursuant to this Agreement.


 


6.05
Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence and good
standing under the Laws of the jurisdiction of its organization or formation except in a transaction permitted by Section 7.04
or 7.05; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary
or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect; and (c) preserve or renew all of its Intellectual Property, except to the extent such Intellectual
Property is no longer used or useful in the conduct of the business of the Loan Parties.


 


6.06
Maintenance of Properties. (a) Maintain, preserve and protect all of its material properties and equipment necessary in
the operation of its business in good working order and condition, ordinary wear and tear excepted; and (b) make all necessary
repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have
a Material Adverse Effect.


 






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6.07
Maintenance of Insurance.


 


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


 


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


 


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


 


(d)
Cause business interruption policies to name the Agent as a loss payee and to be endorsed or amended to include (i) a provision
to the effect that none of the Loan Parties, the Agent or any other party shall be a co-insurer and (ii) such other provisions
as the Agent may reasonably require from time to time to protect the interests of the Credit Parties.


 


(e)
Cause each such policy referred to in this Section 6.07 to also provide that it shall not be canceled, modified or
not renewed (i) by reason of nonpayment of premium except upon not less than ten (10) days’ prior written notice
thereof by the insurer to the Agent (giving the Agent the right to cure defaults in the payment of premiums) or (ii) for any
other reason except upon not less than thirty (30) days’ prior written notice thereof by the insurer to the
Agent.


 


(f)
Deliver to the Agent, prior to the cancellation, modification or non-renewal 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, including an insurance binder)
together with evidence satisfactory to the Agent of payment of the premium therefor.


 


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


 


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


 






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


 


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


 


6.09
Books and Records; Accountants.


 


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


 


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


 


6.10
Inspection Rights.


 


(a)
Permit representatives and independent contractors of the Agent to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts
with its directors, officers, and Registered Public Accounting Firm, and permit the Agent or professionals (including investment
bankers, consultants, accountants, and lawyers) retained by the Agent to conduct evaluations of the Loan Parties’ business
plan, forecasts and cash flows, all at the expense of the Loan Parties and at such reasonable times during normal business hours
and as often as may be reasonably desired, upon reasonable advance notice to the Lead Borrower; provided, that,
that when a Default or Event of Default exists the Agent (or any of its representatives or independent contractors) may do any
of the foregoing at the expense of the Loan Parties at any time during normal business hours and without advance notice.


 


(b)
Upon the request of the Agent after reasonable prior notice, permit the Agent or professionals (including investment bankers,
consultants, accountants, and lawyers) retained by the Agent to conduct commercial finance examinations and other evaluations,
including, without limitation, of (i) the Lead Borrower’s practices in the computation of the Borrowing Base and (ii) the
assets included in the Borrowing Base and related financial information such as, but not limited to, sales, gross margins, payables,
accruals and reserves. The Loan Parties shall pay the fees and expenses of the Agent and such professionals with respect to such
examinations and evaluations, provided, that, the Agent may conduct, or cause to be conducted, (A) not more than two (2) commercial
finance examinations each Fiscal Year at the expense of Borrowers so long as Excess Availability is not less than the greater
of thirty-five percent (35.0%) of the Loan Cap or $5,000,000 at any time during such Fiscal Year, or (B) if Excess Availability
is less than the greater of such amounts during such Fiscal Year, not more than three (3) commercial finance examinations in such
Fiscal Year at the expense of Borrowers. Notwithstanding the foregoing, the Agent may cause additional commercial finance examinations
to be undertaken (i) as it in its Permitted Discretion deems necessary or appropriate, at its own expense or, (ii) if required
by Law or if a Default or Event of Default shall have occurred and be continuing, at the expense of the Loan Parties and without
advance notice.


 






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(c)
Upon the request of the Agent after reasonable prior notice, permit the Agent or professionals (including appraisers) retained
by the Agent to conduct appraisals of the Collateral, including, without limitation, the assets included in the Borrowing Base.
The Loan Parties shall pay the fees and expenses of the Agent and such professionals with respect to such appraisals, provided,
that, the Agent may conduct, or cause to be conducted, (A) not more than two (2) inventory appraisals each Fiscal Year at the
expense of Borrowers so long as Excess Availability is not less than the greater of thirty-five percent (35.0%) of the Loan Cap
or $5,000,000 at any time during such Fiscal Year, or (B) if Excess Availability is less than the greater of such amounts during
such Fiscal Year, not more than three (3) inventory appraisals in such Fiscal Year at the expense of Borrowers. Notwithstanding
the foregoing, the Agent may cause additional appraisals to be undertaken (i) as it in its Permitted Discretion deems necessary
or appropriate, at its own expense or, (ii) if required by Law or if a Default or Event of Default shall have occurred and be
continuing, at the expense of the Loan Parties and without advance notice.


 


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


 


6.12
Additional Loan Parties. Notify the Agent at the time that any Person becomes a Subsidiary, and in each case promptly thereafter
(and in any event within fifteen (15) days), cause any such Person (a) which is not a CFC, to (i) become a Loan Party by executing
and delivering to the Agent a Joinder to this Agreement or a Joinder to the Facility Guaranty or such other documents as the Agent
shall deem appropriate for such purpose, (ii) grant a Lien to the Agent on such Person’s assets of the same type that constitute
Collateral to secure the Obligations, and (iii) deliver to the Agent documents of the types referred to in clauses (iii) and (iv)
of Section 4.01(a) and favorable opinions of counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to in clause (a)), and (b) if any Equity Interests or
Indebtedness of such Person are owned by or on behalf of any Loan Party, to pledge such Equity Interests and promissory notes
evidencing such Indebtedness (except that, if such Subsidiary is a CFC that is not joined as a Loan Party, the Equity Interests
of such Subsidiary to be pledged may be limited to sixty-five percent (65%) of the outstanding voting Equity Interests of such
Subsidiary and one hundred percent (100%) of the non-voting Equity Interests of such Subsidiary and such time period may be extended
based on local law or practice), in each case in form, content and scope reasonably satisfactory to the Agent. In no event shall
compliance with this Section 6.12 waive or be deemed a waiver or Consent to any transaction giving rise to the need to
comply with this Section 6.12 if such transaction was not otherwise expressly permitted by this Agreement or constitute
or be deemed to constitute, with respect to any Subsidiary, an approval of such Person as a Borrower or permit the inclusion of
any acquired assets in the computation of the Borrowing Base.


 






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6.13
Cash Management.


 


(a)
Each Loan Party shall establish and maintain, at its expense, Deposit Accounts and cash management services of a type and on terms,
and with the banks, set forth on Schedule 5.21(a) and, subject to Section 6.13(d) below, such other banks as such
Loan Party may hereafter select (such other banks, together with the banks set forth on Schedule 5.21(a), collectively,
the “Cash Management Banks” and individually, a “Cash Management Bank”). Each Loan Party
shall deliver, or cause to be delivered to Agent, (i) a Control Agreement with respect to each of its Deposit Accounts duly authorized,
executed and delivered by each Cash Management Bank where a Deposit Account is maintained, the applicable Loan Party and Agent;
provided, that, (A) Loan Parties shall not be required to deliver a Control Agreement with a Cash Management Bank as to any Deposit
Account that is an Excluded Account, and (B) Loan Parties shall not be required to deliver a Control Agreement with a Cash Management
Bank as to any Deposit Account that is exclusively used for receiving deposits from the Stores (other than any such Deposit Account
at Wells Fargo which shall each be subject to a Control Agreement), and (ii) satisfactory evidence that the Credit Card Notifications
as duly authorized, executed and delivered by the applicable Loan Party has been delivered to each Credit Card Issuer or Credit
Card Processor.


 


(b)
Each such Control Agreement shall provide, among other things, that (i) the Cash Management Bank will comply with any instructions
originated by Agent directing the disposition of the funds in such Deposit Account without further consent by the applicable Loan
Party, (ii) the Cash Management Bank waives, subordinates, and agrees not to exercise any rights of setoff or recoupment or any
other claim against the applicable Deposit Account other than for payment of its service fees and other charges directly related
to the administration of such Deposit Account and for returned checks or other items of payment, (iii) with respect to each Collection
Account (other than the Concentration Accounts) the Cash Management Bank will transfer each day by wire transfer or other electronic
funds transfer all funds in such account to a Concentration Account and with respect to each Concentration Account, the Cash Management
Bank will transfer each day by wire transfer or other electronic funds transfer all funds in such account to the Agent Payment
Account, provided, that, such Cash Management Bank shall not be required to transfer funds to the Agent Payment Account prior
to the date that Agent has received a request for the initial Loan (whether a Committed Loan or Swing Line Loan) or Letter of
Credit hereunder. All payments made to the Concentration Accounts, whether in respect of the Accounts, as proceeds of Inventory
or other Collateral or otherwise shall be treated as payments to Agent in respect of the Obligations and therefore shall constitute
the property of Agent and Lenders to the extent of the then outstanding Obligations. All funds received in the Agent Payment Account
shall be applied to the Obligations as provided in accordance with Section 8.03 of this Agreement to the extent then due
and payable.


 


(c)
Each Borrower shall direct all Credit Card Processors, Credit Card Issuers and other obligors in respect of any amounts payable
to Borrowers to make payment of all such amounts to the Collection Accounts pursuant to a Credit Card Notification which shall
have been executed on behalf of such Loan Party and delivered to such Loan Party’s Credit Card Issuers and Credit Card Processors,
including, but not limited to, the Credit Card Issuers and Credit Card Processors listed on Schedule 5.21(b). In addition,
each Borrower shall deposit, or cause to be deposited, any other all cash, checks, notes, instruments, and other items of payment,
in whatever form, that it receives to the Collection Accounts. In the event that, notwithstanding the provisions of this Section
6.13, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and
collections shall be held in trust by such Loan Party for the Agent, shall not be commingled with any of such Loan Party’s
other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be
deposited into a Collection Account or a Concentration Account.


 






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(d)
So long as no Event of Default has occurred and is continuing, upon not less than five (5) Business Days’ prior written
notice to Agent, Loan Parties may amend Schedule 5.21 to add or replace a Deposit Account or Cash Management Bank or Securities
Account or securities intermediary and shall upon such addition or replacement provide to Agent an amended Schedule 5.21;
provided, that, (i) such prospective Cash Management Bank or securities intermediary, as the case may be, shall be reasonably
satisfactory to Agent, and (ii) prior to the time of the opening of such Deposit Account or Securities Account (other than an
Excluded Account), the applicable Loan Party and such prospective Cash Management Bank or securities intermediary shall have executed
and delivered to Agent a Control Agreement (including any acknowledgement and agreement of the Cash Management Bank or securities
intermediary with respect thereto). Each Loan Party shall close any of its Deposit Accounts (and establish replacement Deposit
Accounts in accordance with the foregoing sentence) as promptly as practicable and in any event within forty-five (45) days after
notice from Agent that the operating performance, funds transfer, or procedures or performance of the Cash Management Bank with
respect to Deposit Accounts or Agent’s liability under any Control Agreement with such Cash Management Bank is no longer
satisfactory in Agent’s reasonable judgment.


 


(e)
Each Loan Party shall obtain an authenticated Control Agreement from each issuer of uncertificated securities, securities intermediary,
or commodities intermediary issuing or holding any financial assets or commodities to or for any Loan Party, or maintaining a
Securities Account for such Loan Party and with respect to any other investment property and no Loan Party will make, acquire,
or permit to exist Permitted Investments consisting of cash, Cash Equivalents, or amounts credited to Deposit Accounts or Securities
Accounts unless Agent has received a Control Agreement duly authorized, executed and delivered by the applicable bank or securities
intermediary where such cash, Cash Equivalents, Deposit Account or Securities Account are maintained with respect thereto, provided,
that, the Loan Parties shall not be required to deliver a Control Agreement with respect to any Excluded Account.


 


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


 


6.14
Information Regarding the Collateral.


 


(a)
Furnish to the Agent at least thirty (30) days prior written notice of any change in: (i) any Loan Party’s 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
Loan Party’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 Loan Party’s organizational structure or jurisdiction of incorporation or
formation (provided, that, in no event will any Loan Party change its jurisdiction of organization to a jurisdiction outside of
the United States); or (iv) any Loan Party’s Federal Taxpayer Identification Number or organizational identification number
assigned to it by its state of organization. The Loan Parties agree not to effect or permit any change referred to in the preceding
sentence unless all filings have been made under the UCC or otherwise that are required in order for the Agent to continue at
all times following such change to have a valid, legal and perfected first priority security interest (subject as to priority,
to Permitted Liens) in all the Collateral for its own benefit and the benefit of the other Credit Parties.


 






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(b)
Should any of the information on any of the Schedules hereto become inaccurate or misleading in any material respect as a result
of changes after the Closing Date, the Lead Borrower shall advise the Agent in writing of such revisions or updates as may be
necessary or appropriate to update or correct the same. From time to time as may be reasonably requested by the Agent, the Lead
Borrower shall supplement each Schedule hereto, or any representation herein or in any other Loan Document, with respect to any
matter arising after the Closing Date that, if existing or occurring on the Closing Date, would have been required to be set forth
or described in such Schedule or as an exception to such representation or that is necessary to correct any information in such
Schedule or representation which has been rendered inaccurate thereby (and, in the case of any supplements to any Schedule, such
Schedule shall be appropriately marked to show the changes made therein). Notwithstanding the foregoing, no supplement or revision
to any Schedule or representation shall be deemed the Credit Parties’ consent to the matters reflected in such updated Schedules
or revised representations nor permit the Loan Parties to undertake any actions otherwise prohibited hereunder or fail to undertake
any action required hereunder from the restrictions and requirements in existence prior to the delivery of such updated Schedules
or such revision of a representation; nor shall any such supplement or revision to any Schedule or representation be deemed the
Credit Parties’ waiver of any Default or Event of Default resulting from the matters disclosed therein.


 


6.15
Physical Inventories. Except as otherwise consented to by the Agent


 


(a)
Cause not less than one (1) full physical inventory in each twelve (12) month period and at the Stores at the end of each Fiscal
Quarter consistent with current practices as of the date hereof, conducted by such inventory takers as are satisfactory to the
Agent and following such methodology as is consistent with the methodology used in the immediately preceding inventory or as otherwise
may be satisfactory to the Agent. The Agent, at the expense of the Loan Parties, may participate in and/or observe each scheduled
physical count of Inventory which is undertaken on behalf of any Loan Party. The Lead Borrower, within five (5) Business Days
following the completion of such inventory, shall provide the Agent with a reconciliation of the results of such inventory (as
well as of any other physical inventory or cycle counts undertaken by a Loan Party) and shall post such results to the Loan Parties’
stock ledgers and general ledgers, as applicable.


 


(b)
Permit the Agent, in its Permitted Discretion, if any Default or Event of Default exists, to cause additional such inventories
to be taken as the Agent determines (each, at the expense of the Loan Parties).


 


6.16
Environmental Laws. Except to the extent failure to comply could not reasonably be expected to result, individually or
in the aggregate, in a Material Adverse Effect (a) conduct its operations and keep and maintain its Real Estate in material compliance
with all Environmental Laws; (b) obtain and renew all environmental permits necessary for its operations and properties; and (c)
implement any and all investigation, remediation, removal and response actions that are appropriate or necessary to maintain the
value and marketability of the Real Estate or to otherwise comply with Environmental Laws pertaining to the presence, generation,
treatment, storage, use, disposal, transportation or release of any Hazardous Materials on, at, in, under, above, to, from or
about any of its Real Estate, provided, that, neither a Loan Party nor any of its Subsidiaries shall be required
to undertake any such cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested
in good faith and by proper proceedings and adequate reserves have been set aside and are being maintained by the Loan Parties
with respect to such circumstances in accordance with GAAP. 


 


6.17
Further Assurances.


 


(a)
Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including
the filing and recording of financing statements and other documents), that may be required under any applicable Law, or which
the Agent may request, to effectuate the transactions contemplated by the Loan Documents or to grant, preserve, protect or perfect
the Liens created or intended to be created by the Security Documents or the validity or priority of any such Lien, all at the
expense of the Loan Parties. The Loan Parties also agree to provide to the Agent, from time to time upon request, evidence satisfactory
to the Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents.


 






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 (b)
If any material assets are acquired by any Loan Party after the Closing Date (other than assets constituting Collateral under
the Security Documents that become subject to the perfected first-priority Lien under the Security Documents upon acquisition
thereof), notify the Agent thereof, and the Loan Parties will cause such assets to be subjected to a Lien securing the Obligations
and will take such actions as shall be necessary or shall be requested by the Agent to grant and perfect such Liens, including
actions described in paragraph (a) of this Section 6.17, all at the expense of the Loan Parties. In no event shall compliance
with this Section 6.17(b) waive or be deemed a waiver or Consent to any transaction giving rise to the need to comply with
this Section 6.17(b) if such transaction was not otherwise expressly permitted by this Agreement or constitute or be deemed
to constitute Consent to the inclusion of any acquired assets in the computation of the Borrowing Base.


 


(c)
Upon the request of the Agent, use commercially reasonable efforts to cause each of its Freight Forwarders to deliver an agreement
(including, without limitation, a Freight Forwarder Agreement) to the Agent covering such matters and in such form as the Agent
may reasonably require (provided, that, such agreement shall be required for any In-Transit Inventory the importation of which
is being handled by such Freight Forwarder to be Eligible In-Transit Inventory).


 


(d)
Upon the request of the Agent, use commercially reasonable efforts to cause any of its landlords at locations that contain books
and records with respect to Collateral (not otherwise available at any owned location of the Loan Parties) or with assets included
in the Borrowing Base (other than at a Store) to deliver a Collateral Access Agreement to the Agent in such form as the Agent
may reasonably require.


 


6.18
Compliance with Terms of Leaseholds. Except as otherwise expressly permitted hereunder, and except as could not reasonably
be expected to have a Material Adverse Effect, (a) make all payments and otherwise perform all obligations in respect of all Leases
to which any Loan Party or any of its Subsidiaries is a party, (b) keep such Leases in full force and effect, (c) not allow such
Leases to lapse or be terminated or any rights to renew such Leases to be forfeited or cancelled, (d) notify the Agent of any
default by any party with respect to such Leases and cooperate with the Agent in all respects to cure any such default, and (e)
cause each of its Subsidiaries to do the foregoing.


 


6.19
Material Contracts. (a) Perform and observe all the terms and provisions of each Material Contract to be performed or observed
by it, (b) maintain each such Material Contract in full force and effect, (c) enforce each such Material Contract in accordance
with its terms, (d) take all such action to such end as may be from time to time requested by the Agent, (e) upon request of the
Agent, make to each other party to each such Material Contract such demands and requests for information and reports or for action
as any Loan Party or any of its Subsidiaries is entitled to make under such Material Contract, and (f) cause each of its Subsidiaries
to do the foregoing.


 


ARTICLE
VII


NEGATIVE
COVENANTS


 


So
long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied,
or any Letter of Credit shall remain outstanding (other than contingent indemnification obligations for which a claim has not
been asserted), no Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly:


 


7.01
Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired or sign or file or suffer to exist under the UCC or any similar Law or statute of any jurisdiction a financing
statement that names any Loan Party or any Subsidiary thereof as debtor; sign or suffer to exist any security agreement authorizing
any Person thereunder to file such financing statement; sell any of its property or assets subject to an understanding or agreement
(contingent or otherwise) to repurchase such property or assets with recourse to it or any of its Subsidiaries; or assign or otherwise
transfer any accounts or other rights to receive income, other than, as to all of the above, Permitted Encumbrances.



 



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7.02
Investments. Make any Investments, except Permitted Investments.


 


7.03 Indebtedness;
Disqualified Stock. (a) Create, incur, assume, guarantee, suffer to exist or otherwise become or remain liable with
respect to, any Indebtedness, except Permitted Indebtedness; (b) issue Disqualified Stock, or (c) issue and sell any
other Equity Interests unless (i) such Equity Interests shall be issued solely by the Parent and not by a Subsidiary of a
Loan Party (provided, that, a Subsidiary of a Loan Party may issue Equity Interests so long as such Equity Interests are
issued to a Loan Party), (ii) such Equity Interests provide that all dividends and other Restricted Payments in respect
thereof shall be made solely in additional shares of such Equity Interests, in lieu of cash, and (iii) such Equity Interests
shall not be subject to redemption other than redemption at the option of the Loan Party issuing such Equity Interests and in
accordance with the limitations contained in this Agreement.


 


7.04
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, (or agree to do any of the foregoing),
except that, so long as no Default or Event of Default shall have occurred and be continuing prior to or immediately after giving
effect to any action described below or would result therefrom:


 


(a)
any Subsidiary which is not a Loan Party may merge with (i) a Loan Party, provided, that, the Loan Party shall be
the continuing or surviving Person, or (ii) any one or more other Subsidiaries which are not Loan Parties, provided, that,
when any wholly-owned Subsidiary is merging with another Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving
Person;


 


(b)
any Subsidiary which is a Loan Party may merge into any Subsidiary which is a Loan Party or into a Borrower, provided,
that, in any merger involving a Borrower, such Borrower shall be the continuing or surviving Person;


 


(c)
in connection with a Permitted Acquisition, any Subsidiary of a Loan Party may merge with or into or consolidate with any other
Person or permit any other Person to merge with or into or consolidate with it; provided, that, (i) the Person surviving
such merger shall be a wholly-owned Subsidiary of a Loan Party and such Person shall become a Loan Party in accordance with, and
to the extent required by, the provisions of Section 6.12 hereof, and (ii) in the case of any such merger to which any
Loan Party is a party, such Loan Party is the surviving Person.


 


7.05
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except Permitted Dispositions.


 


7.06
Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent
or otherwise) to do so, except that:


 


(a)
each Subsidiary of a Loan Party may make Restricted Payments to any Loan Party other than to the Parent;


 


(b)
the Loan Parties and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common
stock or other common Equity Interests of such Person;


 






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(c)
the Borrowers may make payments to Parent, the proceeds of which are used by Holdings substantially contemporaneously, to make
payments to Sponsor in accordance with the Sponsor Management Agreement as in effect on the Closing Date (i) in respect of management
fees in an aggregate amount not to exceed $150,000 in any Fiscal Year, and (ii) in respect of reimbursements of fees and expenses
(including any fees and expenses) in accordance with the terms of the Sponsor Management Agreement and indemnification obligations
to the extent actually incurred and required or contemplated to be reimbursed pursuant to the Sponsor Management Agreement as
in effect on the date hereof; provided, that, (A) the management fees and transaction fees described in clauses (i) and (ii) of
this paragraph shall not be paid at any time an Event of Default exists or has occurred and is continuing and (B) all accrued
management fees and transaction fees which were not permitted to be paid in cash at such time shall be permitted to be paid in
cash once no Event of Default is continuing.


 


7.07 Prepayments
of Indebtedness. Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any
manner any Indebtedness, or make any payment in violation of any subordination terms of any Subordinated Indebtedness, except
(a) regularly scheduled or mandatory repayments, repurchases, redemptions or defeasances of (i) Permitted Indebtedness (other
than Subordinated Indebtedness), and (ii) Subordinated Indebtedness in accordance with the subordination terms thereof or the
applicable subordination agreement relating thereto, (b) voluntary prepayments, repurchases, redemptions or defeasances of
(i) Permitted Indebtedness (but excluding on account of any Subordinated Indebtedness), provided, that, as of the date of
any such prepayment, repurchase, redemption or defeasance, and after giving effect thereto, each of the Payment Conditions is
satisfied, and (ii) Subordinated Indebtedness in accordance with the subordination terms thereof or the applicable
subordination agreement relating thereto, provided, that, as of the date of any such prepayment, repurchase, redemption or
defeasance, and after giving effect thereto, each of the Payment Conditions is satisfied, and (c) prepayment of such
Indebtedness with the proceeds of the Permitted Refinancing thereof.


 


7.08
Change in Nature of Business.


 


(a)
In the case of the Parent, engage in any business or activity other than (i) the direct or indirect ownership of all outstanding
Equity Interests in the other Loan Parties, (ii) maintaining its corporate existence, (iii) participating in tax, accounting and
other administrative activities as the parent of the consolidated group of companies, including the Loan Parties, (iv) the execution
and delivery of the Loan Documents to which it is a party and the performance of its obligations thereunder, and (v) activities
incidental to the businesses or activities described in clauses (i)(a) through (iv) of this Section 7.08(a).


 


(b)
In the case of each of the Loan Parties, engage in any line of business substantially different from the Business conducted by
the Loan Parties and their Subsidiaries on the Closing Date or any business substantially related or incidental thereto.


 


7.09
Transactions with Affiliates. Enter into, renew, extend or be a party to any transaction of any kind with any Affiliate
of any Loan Party, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as
favorable to the Loan Parties or such Subsidiary as would be obtainable by the Loan Parties or such Subsidiary at the time in
a comparable arm’s length transaction with a Person other than an Affiliate, provided, that, the foregoing
restriction shall not apply to (a) a transaction between or among the Loan Parties, (b) transactions described on Schedule
7.09 hereto, (c) advances for commissions, travel and other similar purposes in the ordinary course of business to directors,
officers and employees, (d) the issuance of Equity Interests in Parent to any officer, director, employee or consultant of Parent
or any of its Subsidiaries, (e) the payment of reasonable fees and out-of - pocket costs to directors, and compensation and employee
benefit arrangements paid to, and indemnities provided for the benefit of, directors, officers or employees of Parent or any of
its Subsidiaries, and (f) any issuances of securities of Parent (other than Disqualified Stock and other Equity Interests not
permitted hereunder) or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment
agreements, stock options and stock ownership plans (in each case in respect of Equity Interests in Parent) of Parent or any of
its Subsidiaries.


 






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7.10
Burdensome Agreements. Enter into or permit to exist any Contractual Obligation (other than this Agreement or any other
Loan Document) that (a) limits the ability of (i) any Subsidiary to make Restricted Payments or other distributions to any Loan
Party or to otherwise transfer property to or invest in a Loan Party, (ii) any Subsidiary to Guarantee the Obligations, (iii)
any Subsidiary to make or repay loans to a Loan Party, or (iv) the Loan Parties or any Subsidiary to create, incur, assume or
suffer to exist Liens on property of such Person in favor of the Agent; provided, that , this clause (iv) shall
not prohibit any negative pledge incurred or provided in favor of any holder of Indebtedness permitted under clauses (c) or (f)
of the definition of Permitted Indebtedness solely to the extent any such negative pledge relates to the property financed by
or the subject of such Indebtedness; or (b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted
to secure another obligation of such Person.


 


7.11
Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally
or ultimately, (a) to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others
for the purpose of purchasing or carrying margin stock or to refund Indebtedness originally incurred for such purpose; (b) to
make any payments to a Sanctioned Entity or a Sanctioned Person, to finance any investments in a Sanctioned Entity or a Sanctioned
Person, to fund any operations of a Sanctioned Entity or a Sanctioned Person), or in any other manner that would result in a violation
of Sanctions by any Person; or (c) for purposes other than those permitted under this Agreement.


 


7.12
Amendment of Material Documents. Amend, modify or waive any of a Loan Party’s rights under (a) its Organization Documents
in a manner materially adverse to the Credit Parties, or (b) any Material Contract or Material Indebtedness (other than on account
of any refinancing thereof otherwise permitted hereunder), in each case to the extent that such amendment, modification or waiver
would result in a Default or Event of Default under any of the Loan Documents, would be materially adverse to the Credit Parties
or otherwise would be reasonably likely to have a Material Adverse Effect.


 


7.13
Fiscal Year. Change the Fiscal Year of any Loan Party, or the accounting policies or reporting practices of the Loan Parties,
except as required by GAAP.


 


7.14
Deposit Accounts; Credit Card Processors. Open new Deposit Accounts or Securities Accounts unless the Loan Parties shall
have delivered to the Agent appropriate Control Agreements consistent with the provisions of Section 6.13 and otherwise
satisfactory to the Agent. No Loan Party shall maintain any Deposit Accounts or Securities Accounts or enter into any agreements
with Credit Card Issuers or Credit Card Processors other than as expressly contemplated herein or in Section 6.13 hereof.


 


7.15
Excess Availability Covenant. Permit Excess Availability at any time to be less than the greater of (a) ten percent (10%)
of the Loan Cap or (b) $1,000,000; provided, that, if at any time Excess Availability is less than $2,500,000, then $1,000,000
shall be increased to $1,500,000 for purposes of this Section 7.15(b).


 






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ARTICLE
VIII


EVENTS
OF DEFAULT AND REMEDIES


 


8.01
Events of Default. Any of the following shall constitute an Event of Default:


  


(a)
Non-Payment. The Borrowers or any other Loan Party fails to pay when and as required to be paid herein, (i) any amount
of principal of any Loan or any L/C Obligation, or deposit any funds as Cash Collateral in respect of L/C Obligations, or (ii)
any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) any other amount payable hereunder or under
any other Loan Document; or


 


(b)
Specific Covenants. (i) Any Loan Party fails to perform or observe any term, covenant or agreement contained in any of
Section 6.01, 6.02, 6.03, 6.05, 6.07, 6.10, 6.11, 6.12, 6.13 or
6.14 or Article VII; or (ii) any Guarantor fails to perform or observe any term, covenant or agreement contained in the
Facility Guaranty; or


 


(c)
Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection
(a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for fifteen
(15) days; or


 


(d)
Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by
or on behalf of any Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection
herewith or therewith (including, without limitation, any Borrowing Base Certificate), or in completing any request for a Borrowing
via the Portal, shall be incorrect or misleading in any material respect when made or deemed made; or


 


(e)
Cross-Default. (i) Any Loan Party or any Subsidiary thereof (A) fails to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Material Indebtedness (including undrawn
committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement),
or (B) fails to observe or perform any other agreement or condition relating to any such Material Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Material Indebtedness or the beneficiary or beneficiaries
of any Guarantee thereof (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause,
with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased
or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior
to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there
occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default
under such Swap Contract as to which a Loan Party or any Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract)
or (B) any Termination Event (as so defined) under such Swap Contract as to which a Loan Party or any Subsidiary thereof is an
Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Loan Party or such Subsidiary as a
result thereof is greater than $100,000; or


 


(f)
Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries institutes, consents to the institution of or declares
its intention to institute any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any material part of its property; or a proceeding shall be commenced or a petition filed, without
the application or consent of such Person, seeking or requesting the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed and the appointment continues undischarged, undismissed or unstayed
for thirty (30) calendar days or an order or decree approving or ordering any of the foregoing shall be entered; or any proceeding
under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the
consent of such Person and continues undismissed or unstayed for thirty (30) calendar days, or an order for relief is entered
in any such proceeding; or


 






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(g)
Inability to Pay Debts; Attachment. (i) Any Loan Party or any Subsidiary thereof becomes unable or admits in writing its
inability or fails generally to pay its debts as they become due in the ordinary course of business, or (ii) any writ or warrant
of attachment or execution or similar process is issued or levied against all or any material part of the property of any such
Person; or


 


(h)
Judgments. There is entered against any Loan Party or any Subsidiary thereof (i) one or more judgments or orders for the
payment of money in an aggregate amount (as to all such judgments and orders) exceeding $250,000 (to the extent not covered by
independent third-party insurance as to which the insurer has been notified of the potential claim and does not dispute coverage),
or (ii) any one or more non-monetary judgments that have, or could reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or
order, or (B) there is a period of ten (10) consecutive days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, is not in effect; or


 


(i)
ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of any Loan Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC
in an aggregate amount in excess of $250,000 or which would reasonably likely result in a Material Adverse Effect, or (ii) a Loan
Party or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment
with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess
of $250,000 or which would reasonably likely result in a Material Adverse Effect; or


 


(j)
Invalidity of Loan Documents. (i) Any provision of any Loan Document, at any time after its execution and delivery and
for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases
to be in full force and effect; or any Loan Party, any Subsidiary thereof or any Governmental Authority contests in any manner
the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it has any or further liability
or obligation under any provision of any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan
Document or seeks to avoid, limit or otherwise adversely affect any Lien purported to be created under any Security Document;
or (ii) any Lien purported to be created under any Security Document shall cease to be, or shall be asserted by any Loan Party,
any Subsidiary thereof or any Governmental Authority not to be, a valid and perfected Lien on any Collateral, with the priority
required by the applicable Security Document; or


 


(k)
Change of Control. There occurs any Change of Control; or


 


(l)
Cessation of Business. Except as otherwise expressly permitted hereunder, any Loan Party shall take any action, or any
Loan Party’s management or board of directors (or equivalent governing body) shall make a determination, in each case whether
or not yet formally approved, to (i) suspend the operation of all or a material portion of its business in the ordinary course,
(ii) suspend the payment of any material obligations in the ordinary course or suspend the performance under Material Contracts
in the ordinary course, (iii) commence the liquidation of all or a material portion of its assets or Store locations, or (iv)
employ an agent or other third party to conduct a program of closings, liquidations, or “going-out-of-business” sales
of any material portion of its business; or


 






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(m)
Loss of Collateral. There occurs any uninsured loss to any material portion of the Collateral; or


 


(n)
Breach of Contractual Obligation. Any Loan Party or any Subsidiary thereof fails to make any payment when due (whether
by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Material Contract or fails to
observe or perform any other agreement or condition relating to any such Material Contract or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or
to permit the counterparty to such Material Contract to terminate such Material Contract; or


 


(o)
Indictment. The indictment or institution of any legal process or proceeding against, any Loan Party or any Subsidiary
thereof, under any federal, state, municipal, and other criminal statute, rule, regulation, order, or other requirement having
the force of law for a felony;


 


(p)
Guaranty. The termination or attempted termination of any Facility Guaranty except as expressly permitted hereunder or
under any other Loan Document;


 


(q)
Subordination. (i) The subordination provisions of the documents evidencing or governing any Subordinated Indebtedness,
or provisions of any intercreditor agreement entered into by Agent after the date hereof, any such provisions being referred to
as the “Intercreditor Provisions”, shall, in whole or in part, terminate, cease to be effective or cease to be legally
valid, binding and enforceable against any holder of the applicable Indebtedness; or (ii) any Borrower or any other Loan Party
shall, directly or indirectly, disavow or contest in any manner (A) the effectiveness, validity or enforceability of any of the
Intercreditor Provisions, (B) that the Intercreditor Provisions exist for the benefit of the Credit Parties, or (C) in the case
of Subordinated Indebtedness, that all payments of principal of or premium and interest on the applicable Subordinated Indebtedness,
or realized from the liquidation of any property of any Loan Party, shall be subject to any of the Intercreditor Provisions.


 


8.02 Remedies
Upon Event of Default. If any Event of Default occurs and is continuing, the Agent may, or, at the request of
the Required Lenders shall, take any or all of the following actions:


 


(a)
declare the Commitments of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon such Commitments and obligation shall be terminated;


 


(b)
declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other Obligations
(other than Obligations under any Swap Contract) to be immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Loan Parties;


 


(c)
require that the Loan Parties Cash Collateralize the L/C Obligations; and


 






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(d)
whether or not the maturity of the Obligations shall have been accelerated pursuant hereto, proceed to protect, enforce and exercise
all rights and remedies of the Credit Parties under this Agreement, any of the other Loan Documents or applicable Law, including,
but not limited to, by suit in equity, action at law or other appropriate proceeding, whether for the specific performance of
any covenant or agreement contained in this Agreement and the other Loan Documents or any instrument pursuant to which the Obligations
are evidenced, and, if such amount shall have become due, by declaration or otherwise, proceed to enforce the payment thereof
or any other legal or equitable right of the Credit Parties; provided, however, that upon the occurrence of any
Event of Default with respect to any Loan Party or any Subsidiary thereof under Section 8.01(f), the obligation of each
Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid
principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable,
and the obligation of the Loan Parties to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective,
in each case without further act of the Agent or any Lender.


 


No
remedy herein is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of
Law.


 


Each
of the Lenders agrees that it shall not, unless specifically requested to do so in writing by Agent, take or cause to be taken
any action, including, the commencement of any legal or equitable proceedings to enforce any Loan Document against any Loan Party
or to foreclose any Lien on, or otherwise enforce any security interest in, or other rights to, any of the Collateral.


 


8.03
Application of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically
become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth
in the proviso to Section 8.02), any amounts received on account of the Obligations shall be applied by the Agent in the
following order:


 


First,
to payment of that portion of the Obligations (excluding the Other Liabilities) constituting fees, indemnities, Credit Party Expenses
and other amounts (including fees, charges and disbursements of counsel to the Agent and amounts payable under Article III)
payable to the Agent;


 


Second,
to payment of that portion of the Obligations (excluding the Other Liabilities) constituting indemnities, Credit Party Expenses,
and other amounts (other than principal, interest and fees) payable to the Lenders and the L/C Issuer (including fees, charges
and disbursements of counsel to the respective Lenders and the L/C Issuer and amounts payable under Article III), ratably
among them in proportion to the amounts described in this clause Second payable to them;


 


Third,
to the extent not previously reimbursed by the Lenders, to payment to the Agent of that portion of the Obligations constituting
principal and accrued and unpaid interest on any Permitted Overadvances;


 


Fourth,
to the extent that Swing Line Loans have not been refinanced by a Committed Loan, payment to the Swing Line Lender of that portion
of the Obligations constituting accrued and unpaid interest on the Swing Line Loans;


 


Fifth,
to payment of that portion of the Obligations constituting accrued and unpaid interest on the Committed Loans and other Obligations,
and fees (including Letter of Credit Fees but excluding any Early Termination Fees), ratably among the Lenders and the L/C Issuer
in proportion to the respective amounts described in this clause Fifth payable to them;


 


Sixth,
to the extent that Swing Line Loans have not been refinanced by a Committed Loan, to payment to the Swing Line Lender of that
portion of the Obligations constituting unpaid principal of the Swing Line Loans;


 


Seventh,
to payment of that portion of the Obligations constituting unpaid principal of the Committed Loans, ratably among the Lenders
in proportion to the respective amounts described in this clause Seventh held by them;


 






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Eighth,
to the Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit;


 


Ninth,
to payment of all other Obligations (including without limitation the cash collateralization of unliquidated indemnification obligations,
but excluding any Other Liabilities), ratably among the Credit Parties in proportion to the respective amounts described in this
clause Ninth held by them;


 


Tenth,
to payment of that portion of the Obligations arising from Cash Management Services to the extent secured under the Security Documents,
ratably among the Credit Parties in proportion to the respective amounts described in this clause Tenth held by them;


 


Eleventh,
to payment of all other Obligations arising from Bank Products to the extent secured under the Security Documents, ratably among
the Credit Parties in proportion to the respective amounts described in this clause Eleventh held by them; and


 


Last,
the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Loan Parties or as otherwise required
by Law.


 


Subject
to Section 2.03(g), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause
Eighth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit
as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above.


 


ARTICLE
IX


THE
AGENT


 


9.01
Appointment and Authority. Each of the Lenders and the Swing Line Lender hereby irrevocably appoints Wells Fargo to act
on its behalf as the Agent hereunder and under the other Loan Documents (other than the Swap Contracts) and authorizes the Agent
to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof (including,
without limitation, acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure
any of the Obligations), together with such actions and powers as are reasonably incidental thereto. The provisions of this Article
are solely for the benefit of the Agent, the Lenders and the L/C Issuer, and no Loan Party or any Subsidiary thereof shall have
rights as a third party beneficiary of any of such provisions.


 


9.02
Rights as a Lender. The Person serving as the Agent hereunder shall have the same rights and powers in its capacity as
a Lender as any other Lender and may exercise the same as though they were not the Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person
serving as the Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money
to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Loan
Parties or any Subsidiary or other Affiliate thereof as if such Person were not the hereunder and without any duty to account
therefor to the Lenders.


 






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9.03
Exculpatory Provisions. The Agent shall not have any duties or obligations except those expressly set forth herein and
in the other Loan Documents. Without limiting the generality of the foregoing, the Agent:


  


(a)
shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred
and is continuing;


 


(b)
shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby or by the other Loan Documents that the Agent is required to exercise as directed in writing
by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the
other Loan Documents), provided, that, the Agent shall not be required to take any action that, in its opinion or
the opinion of its counsel, may expose the Agent to liability or that is contrary to any Loan Document or applicable law; and


 


(c)
shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to the Loan Parties or any of its Affiliates that is communicated to or
obtained by the Person serving as the Agent or any of its Affiliates in any capacity.


 


The
Agent shall not be liable for any action taken or not taken by it (i) with the Consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as the Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of its own gross
negligence or willful misconduct as determined by a final and non-appealable judgment of a court of competent jurisdiction.


 


The
Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until notice describing such Default
or Event of Default is given to the Agent by the Loan Parties, a Lender or the L/C Issuer. Upon the occurrence of a Default or
Event of Default, the Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed
by the Applicable Lenders. Unless and until the Agent shall have received such direction, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to any such Default or Event of Default as it shall deem
advisable in the best interest of the Credit Parties. In no event shall the Agent be required to comply with any such directions
to the extent that the Agent believes that its compliance with such directions would be unlawful.


 


The
Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event
of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document or the creation, perfection or priority of any Lien purported to be created by the Security
Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article
IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Agent.


 


9.04
Reliance by Agent. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing (including, but not limited to, any electronic
message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone
and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must
be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Agent may presume that such condition is satisfactory to such
Lender or the L/C Issuer unless the Agent shall have received written notice to the contrary from such Lender or the L/C Issuer
prior to the making of such Loan or the issuance of such Letter of Credit. The Agent may consult with legal counsel (who may be
counsel for any Loan Party), independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.


 






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9.05
Delegation of Duties. The Agent may perform any and all of its duties and exercise its rights and powers hereunder or under
any other Loan Document by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory
provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as
well as activities as the Agent.


 


9.06
Resignation of Agent.


 


(a)
The Agent may at any time give written notice of its resignation to the Lenders and the Lead Borrower. Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, in consultation with the Lead Borrower, to appoint a successor,
which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States.
If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty
(30) days after the retiring Agent gives notice of its resignation, then the retiring Agent may on behalf of the Lenders and the
L/C Issuer, appoint a successor Agent meeting the qualifications set forth above; provided that if the Agent shall notify
the Lead Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless
become effective in accordance with such notice and (1) the retiring Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any Collateral held by the Agent on behalf of the Lenders
or the L/C Issuer under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such
time as a successor Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or
through the Agent shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the Required Lenders
appoint a successor Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Agent
hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
(or retired) Agent, and the retiring Agent shall be discharged from all of its duties and obligations hereunder or under the other
Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrowers to a
successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Lead Borrower and such
successor. After the retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article
and Section 10.04 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Agent was acting as Agent
hereunder.


 


(b)
Any resignation by Wells Fargo as Agent pursuant to this Section shall also constitute its resignation as Swing Line Lender and
the resignation of Wells Fargo as L/C Issuer. Upon the acceptance of a successor’s appointment as Agent hereunder, (i) such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer
and Swing Line Lender, (ii) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties
and obligations hereunder or under the other Loan Documents, and (iii) the successor L/C Issuer shall issue letters of credit
in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory
to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.


 






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9.07
Non-Reliance on Agent and Other Lenders. Each Lender and the L/C Issuer acknowledges that it has, independently and without
reliance upon the Agent or any other Lender or any of their Related Parties and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and the L/C Issuer
also acknowledges that it will, independently and without reliance upon the Agent or any other Lender or any of their Related
Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions
in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder. Except as provided in Section 9.12, the Agent shall not have any duty or responsibility
to provide any Credit Party with any other credit or other information concerning the affairs, financial condition or business
of any Loan Party that may come into the possession of the Agent.


 


9.08
No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Bookrunners, Arrangers, Syndication
Agent or Documentation Agent listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement
or any of the other Loan Documents, except in its capacity as the Agent, a Lender or the L/C Issuer hereunder.


 


9.09
Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial
proceeding relative to any Loan Party, the Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Agent shall have made any
demand on the Loan Parties) shall be entitled and empowered, by intervention in such proceeding or otherwise


 


(a)
to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations
and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order
to have the claims of the Lenders, the L/C Issuer, the Agent and the other Credit Parties (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer, the Agent, such Credit Parties and their respective
agents and counsel and all other amounts due the Lenders, the L/C Issuer, the Agent and such Credit Parties under Sections
2.03(i) and 2.03(j) as applicable, 2.09 and 10.04) allowed in such judicial proceeding; and


 


(b)
to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;


 


and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Lender and the L/C Issuer to make such payments to the Agent and, if the Agent shall consent to the
making of such payments directly to the Lenders and the L/C Issuer, to pay to the Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Agent and its agents and counsel, and any other amounts due the Agent under Sections
2.09 and 10.04.


 


Nothing
contained herein shall be deemed to authorize the Agent to authorize or consent to or accept or adopt on behalf of any Lender
or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of
any Lender or the L/C Issuer or to authorize the Agent to vote in respect of the claim of any Lender or the L/C Issuer in any
such proceeding.


 






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9.10
Collateral and Guaranty Matters. The Credit Parties irrevocably authorize the Agent, at its option and in its discretion,


 


(a)
to release any Lien on any property granted to or held by the Agent under any Loan Document (i) upon termination of the Aggregate
Commitments and payment in full of all Obligations (other than contingent indemnification obligations for which no claim has been
asserted) and the expiration, termination or Cash Collateralization of all Letters of Credit, (ii) that is sold or to be sold
as part of or in connection with any sale permitted hereunder or under any other Loan Document, or (iii) if approved, authorized
or ratified in writing by the Applicable Lenders in accordance with Section 10.01;


 


(b)
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 clause (h) of the definition of Permitted Encumbrances;


 


(c)
to release any Guarantor from its obligations under the Facility Guaranty if such Person ceases to be a Subsidiary as a result
of a transaction permitted hereunder.


 


Upon
request by the Agent at any time, the Applicable Lenders will confirm in writing the Agent’s authority to release or subordinate
its interest in particular types or items of property, or to release any Guarantor from its obligations under the Facility Guaranty
pursuant to this Section 9.10. In each case as specified in this Section 9.10, the Agent will, at the Loan Parties’
expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence
the release of such item of Collateral from the assignment and security interest granted under the Security Documents or to subordinate
its interest in such item, or to release such Guarantor from its obligations under the Facility Guaranty, in each case in accordance
with the terms of the Loan Documents and this Section 9.10.


 


9.11
Notice of Transfer. The Agent may deem and treat a Lender party to this Agreement as the owner of such Lender’s portion
of the Obligations for all purposes, unless and until, and except to the extent, an Assignment and Acceptance shall have become
effective as set forth in Section 10.06.


 


9.12
Reports and Financial Statements. By signing this Agreement, each Lender:


 


(a)
agrees to furnish the Agent with a summary of all Other Liabilities due or to become due to such Lender. In connection with any
distributions to be made hereunder, the Agent shall be entitled to assume that no amounts are due to any Lender on account of
Other Liabilities unless the Agent has received written notice thereof from such Lender;


 


(b)
is deemed to have requested that the Agent furnish such Lender, promptly after they become available, copies of all Borrowing
Base Certificates and financial statements required to be delivered by the Lead Borrower hereunder and all commercial finance
examinations and appraisals of the Collateral received by the Agent (collectively, the “Reports”);


 


(c)
expressly agrees and acknowledges that the Agent makes no representation or warranty as to the accuracy of the Reports, and shall
not be liable for any information contained in any Report;


 


(d)
expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, that the Agent or any other party
performing any audit or examination will inspect only specific information regarding the Loan Parties and will rely significantly
upon the Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel;


 






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(e)
agrees to keep all Reports confidential in accordance with the provisions of Section 10.07 hereof; and


 


(f)
without limiting the generality of any other indemnification provision contained in this Agreement, agrees: (i) to hold the Agent
and any such other Lender preparing a Report harmless from any action the indemnifying Lender may take or conclusion the indemnifying
Lender may reach or draw from any Report in connection with any Credit Extensions that the indemnifying Lender has made or may
make to the Borrowers, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a
Loan or Loans; and (ii) to pay and protect, and indemnify, defend, and hold the Agent and any such other Lender preparing a Report
harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including attorney costs)
incurred by the Agent and any such other Lender preparing a Report as the direct or indirect result of any third parties who might
obtain all or part of any Report through the indemnifying Lender.


 


9.13
Agency for Perfection. Each Lender hereby appoints each other Lender as agent for the purpose of perfecting Liens for the
benefit of the Agent and the Lenders, in assets which, in accordance with Article 9 of the UCC or any other applicable Law of
the United States can be perfected only by possession. Should any Lender (other than the Agent) obtain possession of any such
Collateral, such Lender shall notify the Agent thereof, and, promptly upon the Agent’s request therefor shall deliver such
Collateral to the Agent or otherwise deal with such Collateral in accordance with the Agent’s instructions.


 


9.14
Indemnification of Agent. Without limiting the obligations of the Loan Parties hereunder, the Lenders hereby agree to indemnify
the Agent, the L/C Issuer and any Related Party, as the case may be, ratably according to their Applicable Percentages, from and
against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Agent, the L/C Issuer and their
Related Parties in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted
to be taken by the Agent, the L/C Issuer and their Related Parties in connection therewith; provided, that, no Lender
shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent’s, the L/C Issuer’s and their Related Parties’ gross negligence
or willful misconduct as determined by a final and nonappealable judgment of a court of competent jurisdiction.


 


9.15
Relation among Lenders. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions
of, or (except as otherwise set forth herein in case of the Agent) authorized to act for, any other Lender.


 






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9.16
Defaulting Lenders.


 


(a)
Notwithstanding the provisions of Section 2.14 hereof, the Agent shall not be obligated to transfer to a Defaulting Lender
any payments made by the Borrowers to the Agent for the Defaulting Lender’s benefit or any proceeds of Collateral that would
otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, the Agent
shall transfer any such payments (i) first, to the Swing Line Lender to the extent of any Swing Line Loans that were made by the
Swing Line Lender and that were required to be, but were not, paid by the Defaulting Lender, (ii) second, to the L/C Issuer, to
the extent of the portion of a Letter of Credit Disbursement that was required to be, but was not, paid by the Defaulting Lender,
(iii) third, to each Non-Defaulting Lender ratably in accordance with their Commitments (but, in each case, only to the extent
that such Defaulting Lender’s portion of a Loan (or other funding obligation) was funded by such other Non-Defaulting Lender),
(iv) to the Cash Collateral Account, the proceeds of which shall be retained by the Agent and may be made available to be re-advanced
to or for the benefit of the Borrowers (upon the request of the Lead Borrower and subject to the conditions set forth in Section
4.02) as if such Defaulting Lender had made its portion of the Loans (or other funding obligations) hereunder, and (v) from
and after the date on which all other Obligations have been paid in full, to such Defaulting Lender. Subject to the foregoing,
the Agent may hold and, in its discretion, re-lend to the Borrowers for the account of such Defaulting Lender the amount of all
such payments received and retained by the Agent for the account of such Defaulting Lender. Solely for the purposes of voting
or consenting to matters with respect to the Loan Documents (including the calculation of Applicable Percentages in connection
therewith) and for the purpose of calculating the fee payable under Section 2.09(a), such Defaulting Lender shall be deemed
not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero; provided, that the foregoing
shall not apply to any of the matters governed by Section 10.01(a) through (c). The provisions of this Section
9.16 shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the Non-Defaulting
Lenders, the Agent, the L/C Issuer, and the Borrowers shall have waived, in writing, the application of this Section 9.16
to such Defaulting Lender, or (z) the date on which such Defaulting Lender pays to the Agent all amounts owing by such Defaulting
Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by the Agent, provides adequate assurance
of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred
and is continuing, any remaining cash collateral held by the Agent pursuant to Section 9.16(b) shall be released to the
Borrowers). The operation of this Section 9.16 shall not be construed to increase or otherwise affect the Commitment of
any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder,
or to relieve or excuse the performance by any Borrower of its duties and obligations hereunder to the Agent, the L/C Issuer,
the Swing Line Lender, or to the Lenders other than such Defaulting Lender. Any failure by a Defaulting Lender to fund amounts
that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall
entitle the Borrowers, at their option, upon written notice to the Agent, to arrange for a substitute Lender to assume the Commitment
of such Defaulting Lender, such substitute Lender to be reasonably acceptable to the Agent. In connection with the arrangement
of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute
and deliver a completed form of Assignment and Assumption in favor of the substitute Lender (and agrees that it shall be deemed
to have executed and delivered such document if it fails to do so) subject only to being paid its share of the outstanding Obligations
(other than any Other Liabilities, but including (1) all interest, fees (except any Commitment Fees or Letter of Credit Fees not
due to such Defaulting Lender in accordance with the terms of this Agreement), and other amounts that may be due and payable in
respect thereof, and (2) an assumption of its Applicable Percentage of its participation in the Letters of Credit); provided,
that, any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any
of the Credit Parties’ or the Loan Parties’ rights or remedies against any such Defaulting Lender arising out of or
in relation to such failure to fund. In the event of a direct conflict between the priority provisions of this Section 9.16
and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto
that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the
event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section
9.16 shall control and govern.


 


(b)
If any Swing Line Loan or Letter of Credit is outstanding at the time that a Lender becomes a Defaulting Lender then:


 


(i)
such Defaulting Lender’s participation interest in any Swing Line Loan or Letter of Credit shall be reallocated among the
Non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the Outstanding Amount
sum of all Non-Defaulting Lenders’ Credit Extensions after giving effect to such reallocation does not exceed the total
of all Non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 4.02 are satisfied at such
time;


 






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(ii)
if the reallocation described in clause (b)(i) above cannot, or can only partially, be effected, the Borrowers shall within one
Business Day following notice by the Agent (x) first, prepay such Defaulting Lender’s participation in any outstanding Swing
Line Loans (after giving effect to any partial reallocation pursuant to clause (b)(i) above) and (y) second, cash collateralize
such Defaulting Lender’s participation in Letters of Credit (after giving effect to any partial reallocation pursuant to
clause (b)(i) above), pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory
to the Agent, for so long as such L/C Obligations are outstanding; provided, that the Borrowers shall not be obligated
to cash collateralize any Defaulting Lender’s participations in Letters of Credit if such Defaulting Lender is also the
L/C Issuer;


 


(iii)
if the Borrowers cash collateralize any portion of such Defaulting Lender’s participation in Letters of Credit Exposure
pursuant to this Section 9.16(b), the Borrowers shall not be required to pay any Letter of Credit Fees to the Agent for
the account of such Defaulting Lender pursuant to Section 2.03 with respect to such cash collateralized portion of such
Defaulting Lender’s participation in Letters of Credit during the period such participation is cash collateralized;


 


(iv)
to the extent the participation by any Non-Defaulting Lender in the Letters of Credit is reallocated pursuant to this Section
9.16(b), then the Letter of Credit Fees payable to the Non-Defaulting Lenders pursuant to Section 2.03 shall be adjusted
in accordance with such reallocation;


 


(v)
to the extent any Defaulting Lender’s participation in Letters of Credit is neither cash collateralized nor reallocated
pursuant to this Section 9.16(b), then, without prejudice to any rights or remedies of the L/C Issuer or any Lender hereunder,
all Letter of Credit Fees that would have otherwise been payable to such Defaulting Lender under Section 2.03 with respect
to such portion of such participation shall instead be payable to the L/C Issuer until such portion of such Defaulting Lender’s
participation is cash collateralized or reallocated;


 


(vi)
so long as any Lender is a Defaulting Lender, the Swing Line Lender shall not be required to make any Swing Line Loan and the
L/C Issuer shall not be required to issue, amend, or increase any Letter of Credit, in each case, to the extent (x) the Defaulting
Lender’s Applicable Percentage of such Swing Line Loans or Letter of Credit cannot be reallocated pursuant to this Section
9.16(b) or (y) the Swing Line Lender or the L/C Issuer, as applicable, has not otherwise entered into arrangements reasonably
satisfactory to the Swing Line Lender or the L/C Issuer, as applicable, and the Borrowers to eliminate the Swing Line Lender’s
or L/C Issuer’s risk with respect to the Defaulting Lender’s participation in Swing Line Loans or Letters of Credit;
and


 


(vii)
The Agent may release any cash collateral provided by the Borrowers pursuant to this Section 9.16(b) to the L/C Issuer
and the L/C Issuer may apply any such cash collateral to the payment of such Defaulting Lender’s Applicable Percentage of
any Letter of Credit Disbursement that is not reimbursed by the Borrowers pursuant to Section 2.03.


 






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ARTICLE
X


MISCELLANEOUS


 


10.01
Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document (other than Swap
Contracts), and no Consent to any departure by any Loan Party therefrom, shall be effective unless in writing signed by the Agent,
with the Consent of the Required Lenders, and the Lead Borrower or the applicable Loan Party, as the case may be, and acknowledged
by the Agent, and each such waiver or Consent shall be effective only in the specific instance and for the specific purpose for
which given; provided, that, no such amendment, waiver or consent shall:


 


(a)
increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written
Consent of such Lender;


 


(b)
as to any Lender, postpone any date fixed by this Agreement or any other Loan Document for (i) any scheduled payment (including
the Maturity Date) or mandatory prepayment of principal, interest, fees or other amounts due hereunder or under any of the other
Loan Documents without the written Consent of such Lender entitled to such payment, or (ii) any scheduled or mandatory reduction
or termination of the Aggregate Commitments hereunder or under any other Loan Document without the written Consent of such Lender;


 


(c)
as to any Lender, reduce the principal of, or the rate of interest specified herein on, any Loan held by such Lender, or (subject
to clause (iv) of the second proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other
Loan Document to or for the account of such Lender, without the written Consent of each Lender entitled to such amount; provided,
that, only the Consent of the Required Lenders shall be necessary to amend the definition of “Default Rate”
or to waive any obligation of the Borrowers to pay interest or Letter of Credit Fees at the Default Rate;


 


(d)
as to any Lender, change Section 2.13 or Section 8.03 in a manner that would alter the pro rata sharing of payments
required thereby without the written Consent of such Lender;


 


(e)
change any provision of this Section or the definition of “Required Lenders”, or any other provision hereof specifying
the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination
or grant any consent hereunder, without the written Consent of each Lender;


 


(f)
except as expressly permitted hereunder or under any other Loan Document, release, or limit the liability of, any Loan Party without
the written Consent of each Lender;


 


(g)
except for Permitted Dispositions, release all or substantially all of the Collateral from the Liens of the Security Documents
without the written Consent of each Lender;


 


(h)
except as provided in Section 2.15, increase the Aggregate Commitments without the written Consent of each Lender;


 


(i)
change the definition of the term “Borrowing Base” or any component definition thereof if as a result thereof the
amounts available to be borrowed by the Borrowers would be increased without the written Consent of each Lender, provided,
that, the foregoing shall not limit the Permitted Discretion of the Agent to change, establish or eliminate any
Reserves;


 


(j)
modify the definition of Permitted Overadvance so as to increase the amount thereof or, except as provided in such definition,
the time period for which a Permitted Overadvance may remain outstanding without the written Consent of each Lender; and


 






    	 	106	 



     


    

 


(k)
except as expressly permitted herein or in any other Loan Document, subordinate the Obligations hereunder or the Liens granted
hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be without the written Consent
of each Lender; and, provided, that, (i) no amendment, waiver or Consent shall, unless in writing and signed by
the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or
any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or Consent shall,
unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of
the Swing Line Lender under this Agreement; (iii) no amendment, waiver or Consent shall, unless in writing and signed by the Agent
in addition to the Lenders required above, affect the rights or duties of the Agent under this Agreement or any other Loan Document;
and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto.


 


Notwithstanding
anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management
Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider
or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder
be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the
other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Loan Party.


 


If
any Lender does not Consent (a “Non-Consenting Lender”) to a proposed amendment, waiver, consent or release
with respect to any Loan Document that requires the Consent of each Lender and that has been approved by the Required Lenders,
the Lead Borrower may replace such Non-Consenting Lender in accordance with Section 10.13; provided, that,
such amendment, waiver, consent or release can be effected as a result of the assignment contemplated by such Section (together
with all other such assignments required by the Lead Borrower to be made pursuant to this paragraph).


 


10.02
Notices; Effectiveness; Electronic Communications.


 


(a)
Notices Generally. Except as provided in subsection (b) below, all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent
by telecopier as follows:


 


(i)
if to the Loan Parties, the Agent, the L/C Issuer or the Swing Line Lender, to the address, telecopier number, electronic mail
address specified for such Person on Schedule 10.02; and


 


(ii)
if to any other Lender, to the address, telecopier number, electronic mail address specified in its Administrative Questionnaire.


 


Notices
sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when
received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business
hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient).
Notices delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided
in such subsection (b).


 


(b)
Electronic Communications. Notices and other communications to the Loan Parties, the Lenders and the L/C Issuer hereunder
may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Agent, provided, that, the foregoing shall not apply to notices to any Lender or the L/C Issuer
pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified the Agent that it is incapable of
receiving notices under such Article by electronic communication. The Agent may, in its discretion, agree to accept notices and
other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided, that,
approval of such procedures may be limited to particular notices or communications.


 






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Unless
the Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at
the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or
intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e -mail address as described
in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address
therefor.


 


(c)
The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED
BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING
ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES
OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall
the Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to any Loan
Party, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether
in tort, contract or otherwise) arising out of the Loan Parties’ or the Agent’s transmission of Borrower Materials
through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court
of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct
of such Agent Party; provided, that, in no event shall any Agent Party have any liability to any Loan Party, any
Lender, the L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to
direct or actual damages).


 


(d)
Change of Address, Etc. Each of the Loan Parties, the Agent, the L/C Issuer and the Swing Line Lender may change its address
or telecopier for notices and other communications hereunder, or, solely with respect to communications, may change its telephone
number, by notice to the other parties hereto. Each other Lender may change its address or telecopier number for notices and other
communications hereunder by notice to the Lead Borrower, the Agent, the L/C Issuer and the Swing Line Lender. In addition, each
Lender agrees to notify the Agent from time to time to ensure that the Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii)
accurate wire instructions for such Lender.


 


(e)
Reliance by Agent, L/C Issuer and Lenders. The Agent, the L/C Issuer and the Lenders shall be entitled to rely and act
upon any notices (including, without limitation, all Requests for Credit Extensions) purportedly given by or on behalf of the
Loan Parties even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed
by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Loan Parties shall indemnify the Agent, the L/C Issuer, each Lender and the Related Parties of each of them from
all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or
on behalf of the Loan Parties (including, without limitation, pursuant to any Requests for Credit Extensions). All telephonic
communications with the Agent may be recorded by the Agent, and each of the parties hereto hereby consents to such recording.


 



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10.03
No Waiver; Cumulative Remedies. No failure by any Credit Party to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder or under any other Loan Document preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges provided herein and
in the other Loan Documents are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. Without
limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver
of any Default or Event of Default, regardless of whether any Credit Party may have had notice or knowledge of such Default or
Event of Default at the time.


 


10.04
Expenses; Indemnity; Damage Waiver.


 


(a)
Costs and Expenses. The Borrowers shall pay all Credit Party Expenses.


 


(b)
Indemnification by the Loan Parties. The Loan Parties shall indemnify the Agent (and any sub-agent thereof), each other
Credit Party, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless (on an after tax basis) from, any and all losses, claims, causes of action, damages,
liabilities, settlement payments, and reasonable, documented out-of-pocket costs, and related expenses (including the reasonable
documented out-of-pocket fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by any Borrower or any other Loan Party arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation
of the transactions contemplated hereby or thereby, or, in the case of the Agent (and any sub-agents thereof) and their Related
Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use
or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter
of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit,
any bank advising or confirming a Letter of Credit or any other nominated person with respect to a Letter of Credit seeking to
be reimbursed or indemnified or compensated, and any third party seeking to enforce the rights of a Borrower, beneficiary, nominated
person, transferee, assignee of Letter of Credit proceeds, or holder of an instrument or document related to any Letter of Credit),
(iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by any Loan Party
or any of its Subsidiaries, or any Environmental Liability related in any way to any Loan Party or any of its Subsidiaries, (iv)
any claims of, or amounts paid by any Credit Party to, a Cash Management Bank or other Person which has entered into a control
agreement with any Credit Party hereunder, or (v) any actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Borrower
or any other Loan Party or any of the Loan Parties’ directors, shareholders or creditors, and regardless of whether any
Indemnitee is a party thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the comparative,
contributory or sole negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a court of competent jurisdiction
by final and nonappealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee
or (B) result from a claim brought by a Borrower or any other Loan Party against an Indemnitee for material breach of such Indemnitee’s
obligations hereunder or under any other Loan Document, if the Borrowers or such Loan Party has obtained a final and nonappealable
judgment in its favor on such claim as determined by a court of competent jurisdiction or (C) result from a dispute that does
not involve an act or omission of any Loan Party or its Affiliates and that is solely by an Indemnitee against another Indemnitee
and does not involve any Indemnitee in its capacity as, or in fulfilling its role as, an agent or arranger under this Agreement.


 






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(c)
Reimbursement by Lenders. Without limiting their obligations under Section 9.14 hereof, to the extent that the Loan
Parties for any reason fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by
it, each Lender severally agrees to pay to the Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the case
may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability
or related expense, as the case may be, was incurred by or asserted against the Agent (or any such sub-agent) or the L/C Issuer
in its capacity as such, or against any Related Party of any of the foregoing acting for the Agent (or any such sub-agent) or
L/C Issuer in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions
of Section 2.12(d).


 


(d)
Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Law, the Loan Parties shall not assert,
and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or
Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications,
electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct
of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.


 


(e)
Payments. All amounts due under this Section shall be payable on demand therefor.


 


(f)
Survival. The agreements in this Section shall survive the resignation of the Agent and the L/C Issuer, the assignment
of any Commitment or Loan by any Lender, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.


 


10.05
Payments Set Aside. To the extent that any payment by or on behalf of the Loan Parties is made to any Credit Party, or
any Credit Party exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into
by such Credit Party in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding
under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had
not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Agent upon demand its Applicable Percentage
(without duplication) of any amount so recovered from or repaid by the Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations
of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations
and the termination of this Agreement.


 






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10.06
Successors and Assigns.


 


(a) Successors
and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that no Loan Party may assign or
otherwise transfer any of its rights or obligations hereunder or under any other Loan Document without the prior written
Consent of the Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions of Section 10.06(b), (ii) by way of
participation in accordance with the provisions of subsection Section 10.06(d), or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of Section 10.06(f) (and any other attempted assignment or transfer by any
party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of
the Credit Parties) any legal or equitable right, remedy or claim under or by reason of this Agreement.


 


(b)
Assignments by Lenders. Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its Commitment(s) and the Loans (including for purposes of
this Section 10.06(b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided
that any such assignment shall be subject to the following conditions:


 


(i)
Minimum Amounts.


 


(A)
in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender,
no minimum amount need be assigned; and


 


(B)
in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose
includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans
of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Agent or, if “Trade Date” is specified in the Assignment and Assumption, as
of the Trade Date, shall not be less than $5,000,000 unless each of the Agent and, so long as no Default or Event of Default has
occurred and is continuing, the Lead Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed
and shall be deemed given if the Lead Borrower has not responded to a request for such consent within seven (7) Business Days);
provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members
of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated
as a single assignment for purposes of determining whether such minimum amount has been met;


 


(ii)
Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning
Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans;


 


(iii)
Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B)
of this Section and, in addition:


 


(A)
the consent of the Lead Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) a Default
or Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate
of a Lender or an Approved Fund; and


 






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(B)
the consent of the Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect
of any Commitment if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with
respect to such Lender; and


 


(C)
the consent of the L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that
increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding);
and


 


(D)
the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment
in respect of the assignment of any Commitment.


 


(iv)
Assignment and Assumption. The parties to each assignment shall execute and deliver to the Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500, provided, however, that the Agent may, in its sole discretion,
elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it shall not be a Lender, shall
deliver to the Agent an Administrative Questionnaire.


 


Subject
to acceptance and recording thereof by the Agent pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released
from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to
the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with respect to facts and circumstances occurring
prior to the effective date of such assignment. Upon request, the Borrowers (at their expense) shall execute and deliver a Note
to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply
with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with Section 10.06(d).


 


(c)
Register. The Agent, acting solely for this purpose as an agent of the Borrowers, shall maintain at the Agent’s Office
a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, absent manifest
error, and the Loan Parties, the Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Lead Borrower and any Lender at any reasonable time and from time to time upon reasonable
prior notice.


 


(d)
Participations. Any Lender may at any time, without the consent of, or notice to, the Loan Parties or the Agent, sell participations
to any Person (other than a natural person or the Loan Parties or any of the Loan Parties’ Affiliates or Subsidiaries) (each,
a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations
and/or Swing Line Loans) owing to it); provided, that, (i) such Lender’s obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Loan Parties, the Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this Agreement. Any Participant shall agree in
writing to comply with all confidentiality obligations set forth in Section 10.07 as if such Participant was a Lender hereunder.


 






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Any
agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the
sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to Section 10.01 that affects such Participant.
Subject to subsection (e) of this Section, the Loan Parties agree that each Participant shall be entitled to the benefits of Sections
3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant
to Section 10.06(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section
10.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.13 as though it were
a Lender.


 


(e)
Limitations upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section
3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold
to such Participant, unless the sale of the participation to such Participant is made with the Lead Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01
unless the Lead Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit
of the Loan Parties, to comply with Section 3.01(e) as though it were a Lender.


 


(f)
Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under
this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.


 


(g)
Electronic Execution of Assignments. The words “execution,” “signed,” “signature,”
and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records
in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature
or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.


 


(h)
Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding anything to the contrary contained herein,
if at any time Wells Fargo assigns all of its Commitment and Loans pursuant to subsection (b) above, Wells Fargo may, (i) upon
thirty (30) days' notice to the Lead Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon thirty (30) days' notice
to the Lead Borrower, Wells Fargo may resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing
Line Lender, the Lead Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender
hereunder; provided, that, no failure by the Lead Borrower to appoint any such successor shall affect the resignation of Wells
Fargo as L/C Issuer or Swing Line Lender, as the case may be. If Wells Fargo resigns as L/C Issuer, it shall retain all the rights,
powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders
to make Base Rate Loans pursuant to Section 2.03(c)). If Wells Fargo resigns as Swing Line Lender, it shall retain all
the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations
in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing
Line Lender, (A) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring L/C Issuer or Swing Line Lender, as the case may be, and (B) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements reasonably
satisfactory to Wells Fargo to effectively assume the obligations of Wells Fargo with respect to such Letters of Credit.


 






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10.07
Treatment of Certain Information; Confidentiality. Each of the Credit Parties agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, funding sources, attorneys, advisors and representatives (it being
understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c)
to the extent required by applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto,
(e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty
(or its advisors) to any swap or derivative transaction relating to any Loan Party and its obligations, (g) with the consent of
the Lead Borrower or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to any Credit Party or any of their respective Affiliates on a non-confidential basis from a
source other than the Loan Parties.


 


For
purposes of this Section, “Information” means all information received from the Loan Parties or any Subsidiary thereof
relating to the Loan Parties or any Subsidiary thereof or their respective businesses, other than any such information that is
available to any Credit Party on a non-confidential basis prior to disclosure by the Loan Parties or any Subsidiary thereof, provided
that, in the case of information received from any Loan Party or any Subsidiary after the Closing Date, such information is clearly
identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided
in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree
of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.


 


Each
of the Credit Parties acknowledges that (a) the Information may include material non-public information concerning the Loan Parties
or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information
and (c) it will handle such material non-public information in accordance with applicable Law, including Federal and state securities
Laws.


 






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10.08
Right of Setoff. If an Event of Default shall have occurred and be continuing or if any Lender shall have been served with
a trustee process or similar attachment relating to property of a Loan Party, each Lender, the L/C Issuer and each of their respective
Affiliates is hereby authorized at any time and from time to time, after obtaining the prior written consent of the Agent or the
Required Lenders, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any
time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of the Borrowers or any other
Loan Party against any and all of the Obligations now or hereafter existing under this Agreement or any other Loan Document to
such Lender or the L/C Issuer, regardless of the adequacy of the Collateral, and irrespective of whether or not such Lender or
the L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of the
Borrowers or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender or the L/C Issuer
different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender, the L/C
Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights
of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to
notify the Lead Borrower and the Agent promptly after any such setoff and application, provided that the failure to give
such notice shall not affect the validity of such setoff and application.


 


10.09
Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable
Law (the “Maximum Rate”). If the Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to
the Borrowers. In determining whether the interest contracted for, charged, or received by the Agent or a Lender exceeds the Maximum
Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense,
fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate,
and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.


 


10.10
Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto
in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute
a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject
matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed
by the Agent and when the Agent shall have received counterparts hereof that, when taken together, bear the signatures of each
of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy, pdf or other
electronic transmission shall be as effective as delivery of a manually executed counterpart of this Agreement.


 


10.11
Survival. All representations and warranties made hereunder and in any other Loan Document or other document delivered
pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Credit Parties, regardless of any investigation made
by any Credit Party or on their behalf and notwithstanding that any Credit Party may have had notice or knowledge of any Default
or Event of Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any
other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding. Further, the provisions
of Sections 3.01, 3.04, 3.05 and 10.04 and Article IX shall survive and remain in full force
and effect regardless of the repayment of the Obligations, the expiration or termination of the Letters of Credit and the Commitments
or the termination of this Agreement or any provision hereof. In connection with the termination of this Agreement and the release
and termination of the security interests in the Collateral, the Agent may require such indemnities and collateral security as
it shall reasonably deem necessary or appropriate to protect the Credit Parties against (a) loss on account of credits previously
applied to the Obligations that may subsequently be reversed or revoked, (b) any obligations that may thereafter arise with respect
to the Other Liabilities and (c) any Obligations that may thereafter arise under Section 10.04 other than contingent indemnification
obligations for which a claim or demand for payment has not been made and other than contingent indemnification obligations in
respect of matters or circumstances that are not known to Agent, any Lender or any Loan Party that might result in any loss, cost,
damage or expense (including attorneys’ fees and legal expenses) for which Agent or any Lender is entitled to indemnification
hereunder or under any other Loan Document.


 






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10.12
Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable,
(a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall
not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid
or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal,
invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


10.13
Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrowers are required
to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section
3.01, or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrowers may, at their sole expense and
effort, upon notice to such Lender and the Agent, require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in, and consents required by, Section 10.06), all of its interests, rights
and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment), provided that:


 


(a)
the Borrowers shall have paid to the Agent the assignment fee specified in Section 10.06(b);


 


(b)
such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section
3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the
case of all other amounts);


 


(c)
in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be
made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;
and


 


(d)
such assignment does not conflict with applicable Laws.


 


A
Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender
or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.


 


10.14
Governing Law; Jurisdiction; Etc.


 


(a)
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF, BUT INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.


 






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(b)
SUBMISSION TO JURISDICTION. EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT
COURT OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE LOAN PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, IN SUCH FEDERAL COURT. EACH OF THE LOAN PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL
BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING
IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY CREDIT PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.


 


(c)
WAIVER OF VENUE. EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE LOAN PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.


 


(d)
SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN
SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW.


 


(e)
ACTIONS COMMENCED BY LOAN PARTIES. EACH LOAN PARTY AGREES THAT ANY ACTION COMMENCED BY ANY LOAN PARTY ASSERTING ANY CLAIM OR COUNTERCLAIM
ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT SOLELY IN A COURT OF THE STATE
OF NEW YORK SITTING IN NEW YORK COUNTY OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AS THE AGENT
MAY ELECT IN ITS SOLE DISCRETION, AND CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS WITH RESPECT TO ANY SUCH ACTION.


 


10.15
Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 






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10.16 No
Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby, the
Loan Parties each acknowledge and agree that: (i) the credit facility provided for hereunder and any related arranging or
other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of
any other Loan Document) are an arm’s-length commercial transaction between the Loan Parties, on the one hand, and the
Credit Parties, on the other hand, and each of the Loan Parties is capable of evaluating and understanding and understands
and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents
(including any amendment, waiver or other modification hereof or thereof); (ii) in connection with the process leading
to such transaction, the each Credit Party is and has been acting solely as a principal and is not the financial advisor,
agent or fiduciary, for the Loan Parties or any of their respective Affiliates, stockholders, creditors or employees or any
other Person; (iii) none of the Credit Parties has assumed or will assume an advisory, agency or fiduciary responsibility in
favor of the Loan Parties with respect to any of the transactions contemplated hereby or the process leading thereto,
including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of
whether any of the Credit Parties has advised or is currently advising any Loan Party or any of its Affiliates on other
matters) and none of the Credit Parties has any obligation to any Loan Party or any of its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; (iv)
the Credit Parties and their respective Affiliates may be engaged in a broad range of transactions that involve interests
that differ from those of the Loan Parties and their respective Affiliates, and none of the Credit Parties has any obligation
to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Credit Parties
have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the
transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document)
and each of the Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate. Each of the Loan Parties hereby waives and releases, to the fullest extent permitted by law, any claims that it
may have against each of the Credit Parties with respect to any breach or alleged breach of agency or fiduciary duty.


 


10.17
USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined) and the Agent (for itself and not
on behalf of any Lender) hereby notifies the Loan Parties that pursuant to the requirements of the USA Patriot Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record
information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information
that will allow such Lender or the Agent, as applicable, to identify each Loan Party in accordance with the Act. Each Loan Party
is in compliance, in all material respects, with the Patriot Act. No part of the proceeds of the Loans will be used by the Loan
Parties, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political
party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business
or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.


 






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10.18
Foreign Asset Control Regulations. Neither of the advance of the Loans nor the use of the proceeds of any thereof will
violate the Trading With the Enemy Act (50 U.S.C. § 1 et seq., as amended) (the “Trading With the Enemy Act”)
or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended)
(the “Foreign Assets Control Regulations”) or any enabling legislation or executive order relating thereto
(which for the avoidance of doubt shall include, but shall not be limited to (a) Executive Order 13224 of September 21, 2001 Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001))
(the “Executive Order”) and (b) the Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56)). Furthermore, none of the Borrowers or their Affiliates (a)
is or will become a “blocked person” as described in the Executive Order, the Trading With the Enemy Act or the Foreign
Assets Control Regulations or (b) engages or will engage in any dealings or transactions, or be otherwise associated, with any
such “blocked person” or in any manner violative of any such order.


 


10.19
Time of the Essence. Time is of the essence of the Loan Documents.


 


10.20
[Reserved].


 


10.21
Press Releases. Each Loan Party consents to the publication by the Agent, any Lender or their respective representatives
of advertising material, including any “tombstone,” press release or comparable advertising, on its website or in
other marketing materials of Agent, relating to the financing transactions contemplated by this Agreement using any Loan Party’s
name, product photographs, logo, trademark or other insignia. The Agent or such Lender shall provide a draft reasonably in advance
of any advertising material, “tomb stone” or press release to the Lead Borrower for review and comment prior to the
publication thereof. The Agent reserves the right to provide to industry trade organizations and loan syndication and pricing
reporting services information necessary and customary for inclusion in league table measurements.


 


10.22
Additional Waivers.


 


(a)
The Obligations are the joint and several obligation of each Loan Party. To the fullest extent permitted by Applicable Law, the
obligations of each Loan Party shall not be affected by (i) the failure of any Credit Party to assert any claim or demand or to
enforce or exercise any right or remedy against any other Loan Party under the provisions of this Agreement, any other Loan Document
or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of,
this Agreement or any other Loan Document, or (iii) the failure to perfect any security interest in, or the release of, any of
the Collateral or other security held by or on behalf of the Agent or any other Credit Party.


 


(b)
The obligations of each Loan Party shall not be subject to any reduction, limitation, impairment or termination for any reason
(other than the indefeasible payment in full in cash of the Obligations after the termination of the Commitments), including any
claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense
or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any
of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Loan Party hereunder
shall not be discharged or impaired or otherwise affected by the failure of the Agent or any other Credit Party to assert any
claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or
modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of
the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Loan Party
or that would otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the indefeasible payment
in full in cash of all the Obligations after the termination of the Commitments).


 



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(c)
To the fullest extent permitted by applicable Law, each Loan Party waives any defense based on or arising out of any defense of
any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any
cause of the liability of any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations and
the termination of the Commitments. The Agent and the other Credit Parties may, at their election, foreclose on any security held
by one or more of them by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure,
compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other
right or remedy available to them against any other Loan Party, without affecting or impairing in any way the liability of any
Loan Party hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and the Commitments
have been terminated. Each Loan Party waives any defense arising out of any such election even though such election operates,
pursuant to applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such
Loan Party against any other Loan Party, as the case may be, or any security.


 


(d)
Each Borrower is obligated to repay the Obligations as joint and several obligors under this Agreement. Upon payment by any Loan
Party of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right
of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of
payment to the prior indefeasible payment in full in cash of all the Obligations and the termination of the Commitments. In addition,
any indebtedness of any Loan Party now or hereafter held by any other Loan Party is hereby subordinated in right of payment to
the prior indefeasible payment in full of the Obligations and no Loan Party will demand, sue for or otherwise attempt to collect
any such indebtedness. If any amount shall erroneously be paid to any Loan Party on account of (i) such subrogation, contribution,
reimbursement, indemnity or similar right or (ii) any such indebtedness of any Loan Party, such amount shall be held in trust
for the benefit of the Credit Parties and shall forthwith be paid to the Agent to be credited against the payment of the Obligations,
whether matured or unmatured, in accordance with the terms of this Agreement and the other Loan Documents. Subject to the foregoing,
to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting
Loans made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation
Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification
from, and be reimbursed by, each of the other Borrowers in an amount, for each of such other Borrowers, equal to a fraction of
such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator
of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable
Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be
asserted against such Borrower hereunder without (a) rendering such Borrower “insolvent” within the meaning of Section
101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”), Section 2 of the
Uniform Fraudulent Conveyance Act (“UFCA”) or the applicable section of the Uniform Voidable Transactions Act
(the “UVTA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section
548 of the Bankruptcy Code, Section 4 of the UFTA, Section 5 of the UFCA, or the applicable section of the UVTA, or (c) leaving
such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4
of the UFTA, Section 5 of the UFCA or the applicable section of the UVTA.


 


10.23
No Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement.
In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement.


 


10.24
Attachments. The exhibits, schedules and annexes attached to this Agreement are incorporated herein and shall be considered
a part of this Agreement for the purposes stated herein, except that in the event of any conflict between any of the provisions
of such exhibits and the provisions of this Agreement, the provisions of this Agreement shall prevail.


 


10.25
Keepwell. Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes
to provide such funds or other support as may be needed from time to time by each other Loan Party to honor all of its obligations
under the Facility Guaranty in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be
liable under this Section 10.25 for the maximum amount of such liability that can be hereby incurred without rendering
its obligations under this Section 10.25, or otherwise under the Facility Guaranty, voidable under applicable Law relating
to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor
under this Section shall remain in full force and effect until payment in full of the Obligations. Each Qualified ECP Guarantor
intends that this Section 10.25 constitute, and this Section 10.25 shall be deemed to constitute, a “keepwell,
support, or other agreement” for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the
Commodity Exchange Act.


 


 


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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the date first above written.


 


	 	THE LOVESAC COMPANY
	 	 	 
	 	By:	/s/ Donna Dellomo
	 	Name:	Donna Dellomo
	 	Title:	CFO
	 	 	 
	 	SAC ACQUISITION LLC
	 	 	 
	 	By:	/s/ Shawn Nelson
	 	Name:	Shawn Nelson
	 	Title:	CEO





 


 


 


 


 


 


 


[Signature Page to Credit Agreement (Lovesac)]






     


     


    

 


	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Agent, as a Lender, as L/C Issuer and as Swing Line Lender
	 	 	 
	 	By:	/s/ William Chan
	 	Name:	William Chan
	 	Title:	Director


 


 


 


 


 


 


 


 


[Signature Page to Credit Agreement (Lovesac)]