IS HEREBY
AMENDED TO INCLUDE, IN ADDITION AND NOT IN LIMITATION, THE FOLLOWING DEFINITIONS
IN THEIR PROPER ALPHABETICAL ORDER:
(A)
"EXISTING TERM LOAN" SHALL MEAN THE TERM LOAN MADE BY THE PARTIES TO THE
LOAN AGREEMENT AS TERM LOAN LENDERS TO BORROWERS PURSUANT TO SECTION 2.3 OF THE
LOAN AGREEMENT AS IN EFFECT IMMEDIATELY PRIOR TO THE AMENDMENT OF SUCH
SECTION AS PROVIDED FOR HEREIN AND THE FOURTH AMENDMENT EFFECTIVE DATE.
(B)
"FOURTH AMENDMENT" SHALL MEAN THIS FOURTH AMENDMENT TO AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT AMONG AGENT, DOCUMENTATION AGENT, LENDERS
AND BORROWERS.
(C)
"FOURTH AMENDMENT EFFECTIVE DATE" SHALL MEAN THE FIRST DATE ON WHICH ALL
OF THE CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THE FOURTH AMENDMENT SHALL
HAVE BEEN SATISFIED OR WAIVED IN WRITING.
(D)
"FOURTH AMENDMENT FEE LETTER" SHALL MEAN THE LETTER AGREEMENT, DATED OF
EVEN DATE HEREWITH, BY AND AMONG BORROWERS AND AGENT, SETTING FORTH CERTAIN FEES
PAYABLE BY BORROWERS TO AGENT FOR THE BENEFIT OF ITSELF AND LENDERS, AS THE SAME
NOW EXISTS OR MAY HEREAFTER BE AMENDED, MODIFIED, SUPPLEMENTED, EXTENDED,
RENEWED, RESTATED OR REPLACED.
(E)
"NET CASH PROCEEDS" SHALL MEAN THE AGGREGATE CASH PROCEEDS RECEIVED BY ANY
BORROWER OR GUARANTOR (I) IN RESPECT OF ANY SALE, LEASE, TRANSFER OR OTHER
DISPOSITION OF ANY ASSETS OR PROPERTIES, OR INTEREST IN ASSETS AND PROPERTIES,
IN EACH CASE OUTSIDE THE ORDINARY COURSE OF BUSINESS OF SUCH BORROWER OR
GUARANTOR, OR (II) AS PROCEEDS OF ANY LOANS OR OTHER FINANCIAL ACCOMMODATIONS
PROVIDED TO ANY BORROWER OR GUARANTOR (EITHER OF CLAUSE (I) OR (II) OF THIS
DEFINITION, A "SPECIFIED DISPOSITION"), IN EACH CASE NET OF (A) THE REASONABLE
COSTS RELATING TO SUCH SPECIFIED DISPOSITION (INCLUDING, WITHOUT LIMITATION,
LEGAL, ACCOUNTING AND INVESTMENT BANKING FEES, AND SALES COMMISSIONS), (B) THE
PORTION OF SUCH PROCEEDS DEPOSITED IN AN ESCROW ACCOUNT OR OTHERWISE REQUIRED TO
BE RESERVED PURSUANT TO THE PURCHASE AGREEMENTS RELATED TO SUCH SPECIFIED
DISPOSITION FOR PURCHASE PRICE ADJUSTMENTS OR INDEMNIFICATION PAYMENTS PAYABLE
BY SUCH BORROWER OR GUARANTOR TO THE PURCHASER THEREOF (BUT ONLY UNTIL SUCH TIME
AS SUCH PORTION OF SUCH PROCEEDS IS RECEIVED BY SUCH BORROWER OR GUARANTOR),
(C) TAXES PAID OR ESTIMATED TO BE PAYABLE AS A RESULT THEREOF (AFTER TAKING INTO
ACCOUNT ANY AVAILABLE TAX CREDITS OR DEDUCTIONS AND ANY TAX SHARING
ARRANGEMENTS), AND (D) AMOUNTS APPLIED TO THE REPAYMENT OF INDEBTEDNESS SECURED
BY A VALID AND ENFORCEABLE LIEN ON THE ASSET OR ASSETS THAT ARE THE SUBJECT OF
SUCH SPECIFIED DISPOSITION REQUIRED TO BE REPAID IN CONNECTION WITH SUCH
TRANSACTION. FOR PURPOSES OF
2
THIS DEFINITION, A SPECIFIED DISPOSITION DESCRIBED IN CLAUSE (I) ABOVE SHALL
EXCLUDE (X) SALES, LEASES, TRANSFERS AND OTHER DISPOSITIONS OF INVENTORY
PERMITTED UNDER SECTION 9.7(B)(VI) HEREOF, AND (Y) SALES AND OTHER DISPOSITIONS
OF DEFECTIVE, OBSOLETE, OUT-OF-SEASON OR SLOW MOVING INVENTORY TO A THIRD-PARTY
OFF-PRICE WHOLESALER, INCLUDING BEN ELIAS AND VALUE CITY, OR ANY OTHER PERSON
ENGAGED IN SUBSTANTIALLY THE SAME BUSINESS AS BEN ELIAS OR VALUE CITY AND
PERMITTED BY AGENT. NET CASH PROCEEDS SHALL EXCLUDE ANY NON-CASH PROCEEDS
RECEIVED BY