Contract
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Exhibit 10.1 SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT This SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of August 3, 2018 (this “Second Amendment”), is by and among (i) Xxxxxxxxxxx & Banks Corporation, a Delaware corporation (the “Lead Borrower”), (ii) the Persons named on Schedule 1.01 to the Credit Agreement referred to below (collectively, the “Borrowers”) and (iii) Xxxxx Fargo Bank, National Association, as Lender and as L/C Issuer. W I T N E S S E T H: WHEREAS, the Borrowers, the Lender and the L/C Issuer are party to that certain Second Amended and Restated Credit Agreement dated as of July 12, 2012 (as amended, supplemented or otherwise modified from time to time in accordance with the terms thereof, the “Credit Agreement”), pursuant to which the Lender agreed, subject to the terms and conditions contained therein, to extend credit to the Borrowers in the form of a revolving credit facility; and WHEREAS, the Loan Parties and the Lender have agreed to amend the Credit Agreement as set forth herein, including without limitation, to add a new $5,000,000 revolving “first-in, last-out” tranche and to extend the maturity date of the credit facility. NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties signatory hereto agree as follows: 1. Defined Terms. All capitalized terms used herein and not otherwise defined shall have the same meaning herein as in the Credit Agreement. 2. Representations and Warranties. Each Loan Party hereby represents and warrants that (a) no Default or Event of Default has occurred and is continuing, and (b) after giving effect to this Second Amendment, all representations and warranties contained in the Credit Agreement and each other Loan Document are true and correct in all material respects on and as of the date hereof except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, (ii) in the case of any representation or warranty qualified by materiality, such representation or warranty is true and correct in all respects (subject to such qualification) and (iii) in the case of any representation or warranty qualified by knowledge, such representation or warranty is true and correct in all respects subject to such qualification. 3. Amendments to Credit Agreement. (a) The Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double- underlined text (indicated textually in the same manner as the following example: double- underlined text) as set forth in the agreement attached as Annex I hereto. (b) The Schedules attached as Annex II hereto hereby amend and restate the corresponding Schedules to the Credit Agreement in their entirety. (c) The Exhibits attached as Annex III hereto hereby amend and restate the corresponding Exhibits to the Credit Agreement in their entirety.
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their terms and hereby are ratified and confirmed in all respects. Except as expressly set forth herein, the execution, delivery, and performance of this Second Amendment shall not operate as a waiver of any right, power, or remedy of the Lender or any other Credit Party under the Credit Agreement or any other Loan Document, as in effect prior to the date hereof. Each Loan Party hereby ratifies and confirms in all respects all of its obligations under the Loan Documents to which it is a party and each Loan Party hereby ratifies and confirms in all respects any prior grant of a security interest under the Loan Documents to which it is party. 6. Release. In consideration of the agreements of the Lender contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Loan Party, on behalf of itself and its successors, assigns, and other legal representatives, hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges the Lender and its respective successors and assigns, and their respective present and former shareholders, Affiliates, trustees, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives (the Lender and all such other Persons being hereinafter referred to collectively as the “Releasees” and individually as a “Releasee”), of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever (individually, a “Claim” and collectively, “Claims”) of every name and nature, known or unknown, suspected or unsuspected, both at law and in equity, which such Loan Party or any of its successors, assigns or other legal representatives may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever which arises at any time on or prior to the day and date of this Second Amendment, including, without limitation, for or on account of, or in relation to, or in any way in connection with any of the Credit Agreement, or any of the other Loan Documents or transactions thereunder or related thereto. Each Loan Party understands, acknowledges and agrees that the release set forth above may be pleaded as a full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release. Each Loan Party agrees that no fact, event, circumstance, evidence or transaction which could now be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and unconditional nature of the release set forth herein. 7. No Novation; Entire Agreement. This Second Amendment evidences solely the amendment of certain specified terms and obligations of the Loan Parties under the Credit Agreement and is not a novation or discharge of any of the other obligations of the Loan Parties under the Credit Agreement. There are no other understandings, express or implied, among the Loan Parties or the Lender regarding the subject matter hereof or thereof. 8. Choice of Law. This Second Amendment shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the conflicts of law principles thereof, but including Section 5-1401 of the New York General Obligations Law. 9. Counterparts; Facsimile Execution. This Second Amendment may be executed in any number of counterparts and by different parties and separate counterparts, each of which when so executed and delivered shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Second Amendment by facsimile, .pdf, or other electronic transmission shall be as effective as delivery of a manually executed counterpart of this Second Amendment. Any party delivering an executed counterpart of this Second Amendment by facsimile also shall deliver a manually executed counterpart of this Second Amendment but the failure to deliver a manually executed - 3 -
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LENDER AND L/C ISSUER: XXXXX FARGO BANK, NATIONAL ASSOCIATION By: /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: Director [Signature Page to Second Amendment]
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ANNEX I Credit Agreement See attached.
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT1 Dated as of July 12, 2012, among XXXXXXXXXXX & BANKS CORPORATION, as the Lead Borrower For The Borrowers Named Herein, The Guarantors from time to time party hereto, and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Lender 1 As of the Second Amendment Effective Date.
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SCHEDULES 1.01 Borrowers 1.03 Existing Letters of Credit 5.01 Loan Parties Organizational Information 5.05 Supplement to Interim Financial Statements 5.06 Litigation 5.08(b)(1) Owned Real Estate 5.08(b)(2) Leased Real Estate 5.09 Environmental Matters 5.10 Insurance 5.13 Subsidiaries; Other Equity Investments 5.17 Intellectual Property Matters 5.18 Collective Bargaining Agreements 5.21(a) DDAs 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 9.02 Lender’s Office; Certain Addresses for Notices EXHIBITS Form of A Committed Loan Notice B-1 Revolving Note B-2 FILO Note C Compliance Certificate D Assignment and Assumption E Borrowing Base Certificate F Credit Card Notification G DDA Notification
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Lender, (c) is not subject to any Lien (other than in favor of the Lender), and (d) is on terms otherwise reasonably acceptable to the Lender. “ACH” means automated clearing house transfers. “Accommodation Payment” as defined in Section 9.20(d). “Account” means “accounts” as defined in the UCC. “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 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 a Controlling interest in the Equity Interests, of any Person, or (d) any acquisition of any Store locations from any Person (but not the opening of new individual Stores), in each case in any transaction or group of transactions which are part of a common plan. “Act” shall have the meaning provided in Section 9.16. “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 1/16 of one percent) equal to (i) the LIBO Rate for such Interest Period multiplied by (ii) the Statutory Reserve Rate; and (b) for any interest rate calculation with respect to any Base Rate Loan, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of one percent) equal to (i) the LIBO Rate for an Interest Period commencing on the date of such calculation and ending on the date that is thirty (30) days thereafter multiplied by (ii) the Statutory Reserve Rate. The Adjusted LIBO Rate will be adjusted automatically as of the effective date of any change in the Statutory Reserve Rate. “Adjusted Payment Conditions” means, at the time of determination with respect to any specified transaction or payment, that (a) no Default or Event of Default then exists or would arise as a result of entering into such transaction or the making of such payment, (b) the specified transaction or payment shall be funded solely with cash on hand (and not, for the avoidance of doubt, with the proceeds of any Loans), (c) immediately after giving effect to such transaction or payment, Pro Forma Excess Availability will be greater than $10,000,000, (d) no Loans shall have been outstanding during the twelve (12) months immediately preceding the date of such transaction or the making of such payment, and (e) no Loans are projected to be outstanding during the twelve (12) months immediately following the date of such transaction or the making of such payment. “Adjustment Date” means the first day of each Fiscal Quarter, commencing October 28, 2012. “Affiliate” means, with respect to any Person, (i) another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified, (ii) any director, officer, managing member, partner, trustee, or beneficiary of that Person, (iii) any other Person directly or indirectly holding twenty percent (20%) or more of any class of -2-
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the Equity Interests of that Person, and (iv) any other Person twenty percent (20%) or more of any class of whose Equity Interests is held directly or indirectly by that Person. “Agreement” means this Credit Agreement. “Allocable Amount” has the meaning specified in Section 9.20(d). “Anti-Corruption Laws” means the FCPA and all other applicable laws and regulations or ordinances concerning or relating to bribery, money laundering or corruption in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business. “Anti-Money Laundering Laws” means the applicable laws or regulations in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto. “Applicable Margin” means: (a) From and after the Second Amendment Effective Date until the first Adjustment Date following such date, the percentages set forth in Level II of the pricing grid below; and (b) From and after the first Adjustment Date following the Second Amendment Effective Date and on each Adjustment Date thereafter, the Applicable Margin shall be determined from the following pricing grid based upon the Average Daily Availability for the Fiscal Quarter immediately preceding such Adjustment Date; provided, that notwithstanding anything to the contrary set forth herein, upon the occurrence of an Event of Default, the Lender may immediately increase the Applicable Margin to that set forth in Level I (even if the requirements for a different Level have been met) and interest shall accrue at the Default Rate; provided, further, that if any Borrowing Base Certificates are at any time restated or otherwise revised (including as a result of an audit) or if the information set forth in such Borrowing Base Certificates otherwise proves to be false or incorrect such that the Applicable Margin would have been higher than was otherwise in effect during any period, without constituting a waiver of any Default or Event of Default arising as a result thereof, interest due under this Agreement shall be immediately recalculated at such higher rate for any applicable periods and shall be due and payable on demand. Applicable Applicable Applicable Margin for Margin for Margin for Applicable Revolving Revolving FILO Loans Margin for Standby Average Loans that Loans that that are FILO Loans Commercial Letter of Daily are LIBO are Base Rate LIBO Rate that are Base Letter of Credit Level Availability Rate Loans Loans Loans Rate Loans Credit Fee Fee 1.75% 0.75% 3.00% 2.00% 1.25% 1.75% I < $20,000,000 1.50% 0.50% 3.00% 2.00% 1.00% 1.50% II > $20,000,000 “Appraisal Percentage” means ninety percent (90%). -3-
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$1,000,000 in the aggregate at any time) are being paid in the ordinary course of the Borrowers’ business consistent with practices in effect on the Second Amendment Effective Date. “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 Commitments pursuant to Section 2.05, and (c) the date of termination of the Commitments 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 in calculating Appraised Value or otherwise or are excluded through eligibility criteria, such reserves as the Lender from time to time determines in its Permitted Discretion as being appropriate (a) to reflect the impediments to the Lender’s ability to realize upon the Collateral, (b) to reflect claims and liabilities that the Lender 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 Revolving Borrowing Base, or the 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 Lender’s Permitted Discretion, reserves based on: (i) rent at leased locations subject to landlords liens, past due rent, and up to three months future rent that would be payable to a landlord that has not executed and delivered a Collateral Access Agreement; (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 Lender in the Collateral; (iv) salaries, wages and benefits due to employees of any Borrower; (v) fifty percent (50%) of all Customer Credit Liabilities; (vi) Customer Deposits; (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 Lender in the Collateral; (ix) amounts due to vendors on account of consigned goods or on account of purchase money or “floor plan financing” payables (provided, that the Lender shall only implement Reserves pursuant to this clause (ix) after the occurrence of a Cash Dominion Event); (x) Cash Management Reserves; (xi) Bank Products Reserves; and (xii) royalties payable in respect of licensed merchandise. “Average Daily Availability” means, for any period of determination, an amount equal to the sum of Availability for each day of such period divided by the actual number of days in such period, as determined by the Lender, which determination shall be conclusive absent manifest error. “Bank Products” means any services of facilities provided to any Loan Party by the Lender 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 Lender from time to time determines in its 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 Xxxxx Fargo as its “prime rate” (and if such announced rate is below zero, the rate pursuant to this clause (c) shall be deemed to be zero). The “prime rate” is a rate set by -5-
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Xxxxx Fargo based upon various factors including Xxxxx 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 Xxxxx 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. “Beneficial Ownership Certificate” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association. “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230. “Blocked Account” has the meaning provided in Section 6.13(a)(ii). “Blocked Account Agreement” means with respect to an account established by a Loan Party, an agreement, in form and substance satisfactory to the Lender, establishing control (as defined in the UCC) of such account by the Lender and whereby the bank maintaining such account agrees, upon receipt of notice from the Lender following the occurrence and during the continuance of a Cash Dominion Event, to comply only with the instructions originated by the Lender without the further consent of any Loan Party. “Blocked Account Bank” means each bank with whom deposit accounts are maintained in which any funds of any of the Loan Parties from one or more DDAs are concentrated and with whom a Blocked Account Agreement has been, or is required to be, executed in accordance with the terms hereof. “Borrowers” has the meaning specified in the introductory paragraph hereto. “Borrowing” means a borrowing consisting of a Loan or Loans of the same Type and, in the case of LIBO Rate Loans, having the same Interest Period made by the Lender pursuant to Section 2.01. “Borrowing Base” means the Revolving Borrowing Base plus the FILO Borrowing Base. “Borrowing Base Certificate” means a certificate substantially in the form of Exhibit E hereto (with such changes therein as may be required by the Lender 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 Lender. “Business” means designing, sourcing, marketing and selling women’s apparel, accessories, personal care products and fragrances. “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 Lender’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. -6-
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“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 Xxxxx Fargo, and in the name of the Lender (or as the Lender shall otherwise direct), and under the sole and exclusive dominion and control of the Lender, in which deposits are required to be made in accordance with Section 2.03(f) or 8.02(c). “Cash Collateralize” has the meaning specified in Section 2.03(f). Derivatives of such term have corresponding meanings. “Cash Dominion Event” means either (i) the occurrence and continuance of any Default or Event of Default, or (ii) the failure of the Borrowers to maintain Availability at least equal to the greater of (a) $10,000,000, or (b) thirty percent (30%) of the Revolving Loan Cap (calculated without giving effect to the FILO Reserve). For purposes of this Agreement, the occurrence of a Cash Dominion Event shall be deemed continuing at the Lender’s option (i) so long as such Default or Event of Default has not been waived, and/or (ii) if the Cash Dominion Event arises as a result of the Borrowers’ failure to achieve Availability as required hereunder, until Availability has exceeded the greater of (x) $10,000,000, or (y) thirty percent (30%) of the Revolving Loan Cap (calculated without giving effect to the FILO Reserve), in each case, for sixty (60) consecutive calendar days, in which case a Cash Dominion Event shall no longer be deemed to be continuing for purposes of this Agreement; provided, that a Cash Dominion Event shall be deemed continuing (even if a Default or an Event of Default is no longer continuing and/or Availability exceeds the required amount for sixty (60) consecutive calendar days) at all times after a Cash Dominion Event has occurred and been discontinued on three (3) occasion(s) after the Second Amendment Effective Date. The termination of a Cash Dominion Event as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Cash Dominion Event in the event that the conditions set forth in this definition again arise. “Cash Management Reserves” means such reserves as the Lender, 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 Lender 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. -7-
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“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, however, for the purposes of this Agreement: (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued. “Change of Control” means an event or series of events by which: (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent, or other fiduciary or administrator of any such plan) 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 forty percent (40%) or more of the Equity Interests of the Lead Borrower entitled to vote for members of the board of directors or equivalent governing body of the Lead Borrower on a fully-diluted basis (and taking into account all such Equity Interests that such “person” or “group” has the right to acquire pursuant to any option right); or (b) during any period of twelve (12) consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Lead Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors); or (c) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Lead Borrower, or control over the Equity Interests of the Lead Borrower entitled to vote for members of the board -8-
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of directors or equivalent governing body of the Lead Borrower on a fully-diluted basis (and taking into account all such securities that such Person or Persons have the right to acquire pursuant to any option right) representing forty percent (40%) or more of the combined voting power of such securities; or (d) any “change in control” or “sale” or “disposition” or similar event as defined in any Organization Document of any Loan Party; or (e) the Lead Borrower 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 Lender), except where such failure is as a result of a transaction permitted by the Loan Documents. “Closing Date” means July 12, 2012. “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 Lender. “Collateral Access Agreement” means an agreement reasonably satisfactory in form and substance to the Lender executed by (a) a bailee or other Person in possession of Collateral, and (b) any landlord of Real Estate leased by any Loan Party, other than Stores, pursuant to which such Person (i) acknowledges the Lender’s Lien on the Collateral, (ii) releases or subordinates such Person’s Liens in the Collateral held by such Person or located on such Real Estate, (iii) provides the Lender with access to the Collateral held by such bailee or other Person or located in or on such Real Estate, (iv) as to any landlord, provides the Lender with a reasonable time to sell and dispose of the Collateral from such Real Estate, and (v) makes such other agreements with the Lender as the Lender may reasonably require. “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. “Commitments” means the Revolving Commitment and the FILO Commitment. “Committed Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of LIBO Rate Loans, pursuant to Section 2.02, which, if in writing, shall be substantially in the form of Exhibit A. “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute. “Competitor” means a Person, other than a Loan Party, who directly provides products or services that are the same or substantially similar to the products or services provided by, and that constitute a material part of the business of, the Loan Parties taken as a whole. -9-
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“Compliance Certificate” means a certificate substantially in the form of Exhibit C. “Concentration Account” has the meaning provided in Section 6.13(c). “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. “Consolidated EBITDA” means, at any date of determination, an amount equal to Consolidated Net Income of the Lead Borrower and its Subsidiaries on a Consolidated basis for the most recently completed Measurement Period, plus (a) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges, (ii) the provision for Federal, state, local and foreign income Taxes, (iii) depreciation and amortization expense and (iv) other non-recurring expenses reducing such Consolidated Net Income which do not represent a cash item (in each case of or by Lead Borrower and its Subsidiaries for such Measurement Period), minus (b) the following to the extent included in calculating such Consolidated Net Income: (i) Federal, state, local and foreign income tax credits and (ii) all non-recurring, non-cash items increasing Consolidated Net Income (in each case of or by Lead Borrower and its Subsidiaries for such Measurement Period), all as determined on a Consolidated basis in accordance with GAAP. “Consolidated Fixed Charge Coverage Ratio” means, at any date of determination, the ratio of (a) (i) Consolidated EBITDA minus (ii) unfinanced Capital Expenditures made during such period minus (iii) the aggregate amount of Federal, state, local and foreign income taxes paid in cash during such period, to (b) the sum of (i) Debt Service Charges plus (ii) the aggregate amount of all Restricted Payments, in each case, of or by Lead Borrower and its Subsidiaries for the most recently completed Measurement Period, all as determined on a Consolidated basis in accordance with GAAP. “Consolidated Interest Charges” means, for any Measurement Period, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under Swap Contracts, but excluding any non-cash or deferred interest financing costs, (b) all interest paid or payable with respect to discontinued operations and (c) the portion of rent expense with respect to such period under Capital Lease Obligations that is treated as interest in accordance with GAAP, in each case of or by Lead Borrower and its Subsidiaries for such Measurement Period, all as determined on a Consolidated basis in accordance with GAAP. “Consolidated Net Income” means, as of any date of determination, the net income of Lead Borrower and its Subsidiaries for the most recently completed Measurement Period, all as determined on a Consolidated basis in accordance with GAAP; provided, however, that there shall be excluded therefrom (a) extraordinary gains and extraordinary losses for such Measurement Period, (b) the income (or loss) of such Person during such Measurement Period in which any other Person has a joint interest, except to the extent of the amount of cash dividends or other distributions actually paid in cash to such Person during such period, (c) the income (or loss) of any Person during such Measurement Period accrued prior to the date it becomes a Subsidiary of the Lead Borrower or any of its Subsidiaries or is merged into or consolidated with the Lead Borrower or any of its Subsidiaries or that Person’s assets are acquired by the Lead Borrower or any of its Subsidiaries, and (d) the income of any direct or indirect Subsidiary of a Person to the extent that the declaration or payment of dividends or similar distributions by that Subsidiary of that income is not at the time permitted by operation of the terms of its Organization -10-
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Documents or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary, except that Lead Borrower’s equity in any net loss of any such Subsidiary for such Measurement Period shall be included in determining Consolidated Net Income. “Contractual Obligation” means, as to any Person, any provision of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. “Cost” means the lower of cost or market value of Inventory, based upon the Borrowers’ accounting practices in effect on the Second Amendment Effective Date. “Credit Card Advance Rate” means ninety percent (90%). “Credit Card Issuer” means 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, Xxxxx Xxxxxxx, World Financial Bank, 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 Lender. “Credit Card Processor” means 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 Notifications” has the meaning provided in Section 6.13(a)(i). “Credit Card Receivables” means each “Account” (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 issuer in connection with the sale of goods by a Loan Party, or services performed by a Loan Party, in each case in the ordinary course of its business. “Credit Extensions” mean each of the following: (a) a Borrowing and (b) an L/C Credit Extension. “Credit Party” or “Credit Parties” means (a) individually, (i) the Lender and its Affiliates, (ii) the L/C Issuer, (iii) any beneficiary of each indemnification obligation undertaken by any Loan Party under any Loan Document, (iv) any other Person to whom Obligations under this Agreement and other Loan Documents are owing, and (v) 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 out-of-pocket expenses incurred by the Lender and its Affiliates, in connection with this Agreement and the other Loan Documents, including without limitation (i) the reasonable fees, charges and disbursements of (A) counsel for the Lender, (B) outside consultants for the Lender, (C) appraisers, (D) commercial finance examinations, and (E) all such out-of-pocket expenses incurred during any workout, restructuring or -11-
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negotiations in respect of the Obligations, (ii) in connection with (A) the preparation, negotiation, administration, management, execution and delivery of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (B) the enforcement or protection of their rights in connection with this Agreement or the Loan Documents or efforts to preserve, protect, collect, or enforce the Collateral, or (C) any workout, restructuring or negotiations in respect of any Obligations, and (b) with respect to the L/C Issuer and its Affiliates, all reasonable out-of-pocket expenses incurred in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder; and (c) all customary fees and charges (as adjusted from time to time) of Lender with respect to the disbursement of funds (or the receipt of funds) to or for the account of Loan Parties (whether by wire transfer or otherwise), together with any out-of-pocket costs and expenses incurred in connection therewith. “Customer Credit Liabilities” means at any time, 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, and (b) outstanding merchandise credits of the Borrowers. “Customer Deposits” means at any time, the aggregate amount at such time of (a) deposits made by customers with respect to the purchase of goods or the performance of services and (b) layaway obligations of the Borrowers. “Customs Broker/Carrier Agreement” means an agreement in form and substance satisfactory to the Lender among a Borrower, a customs broker, freight forwarder, consolidator or carrier, and the Lender, in which the customs broker, freight forwarder, consolidator or carrier acknowledges that it has control over and holds the documents evidencing ownership of the subject Inventory for the benefit of the Lender and agrees, upon notice from the Lender, to hold and dispose of the subject Inventory solely as directed by the Lender. “DDA” means each checking, savings or other demand deposit account maintained by any of the Loan Parties. All funds in each DDA shall be conclusively presumed to be Collateral and proceeds of Collateral and the Lender shall have no duty to inquire as to the source of the amounts on deposit in any DDA. “DDA Notification” has the meaning provided therefor in Section 6.13(a)(iii). “Debt Service Charges” means, for any Measurement Period, the sum of (a) Consolidated Interest Charges paid or required to be paid for such Measurement Period, plus (b) principal payments made or required to be made on account of Indebtedness (excluding the Obligations and any Synthetic Lease Obligations but including, without limitation, Capital Lease Obligations) for such Measurement Period, in each case determined on a Consolidated basis in accordance with GAAP. “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. -12-
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“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 Standby Letters of Credit or Commercial Letters of Credit, as applicable, plus two percent (2%) per annum. “Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (whether in one transaction or in a series of transactions, and including any sale and leaseback transaction and any sale, transfer, license or other disposition) 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. “Dollars” and “$” mean lawful money of the United States. “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 $1,000,000,000; (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 Lender, and (ii) unless a Default or 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, Subsidiaries or (other than after the occurrence and during the continuance of a Specified Event of Default) Competitors. -13-
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“Eligible Credit Card Receivables” means at the time of any determination thereof, each Credit Card Receivable that satisfies the following criteria at the time of creation and continues to meet the same at the time of such determination: such Credit Card Receivable (i) has been earned by performance and represents the bona fide amounts due to a Borrower from a Credit Card Issuer or Credit Card Processor, and in each case originated in the ordinary course of business of such Borrower, and (ii) in each case is acceptable to the Lender in its Permitted Discretion, and is not ineligible for inclusion in the calculation of the Borrowing Base pursuant to any of clauses (a) through (j) below. Without limiting the foregoing, to qualify as an Eligible Credit Card 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, 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 Account but not yet applied by the Loan Parties to reduce the amount of such Credit Card Receivable. Except as otherwise agreed by the Lender, any Credit Card Receivable included within any of the following categories shall not constitute an Eligible Credit Card Receivable: (a) Credit Card Receivable which do not constitute an “Account” (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 Lender, 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 Lender pursuant to the Security Documents); (d) Credit Card Receivables which are disputed, as to which the Credit Card Issuer or Credit Card Processor has recourse to a Loan Party due to the creditworthiness of the cardholder, or with respect to which a claim, counterclaim, offset or chargeback has been asserted (to the extent of such claim, counterclaim, offset or chargeback); (e) Credit Card Receivables as to which the Credit Card Issuer or Credit Card Processor has the right due to the creditworthiness of the cardholder to require a Loan Party to repurchase the Accounts from such Credit Card Issuer or Credit Card Processor; (f) Credit Card Receivables due from a Credit Card Issuer or Credit Card Processor of the applicable credit card which is the subject of any bankruptcy or insolvency proceedings; (g) Credit Card Receivables which are not a valid, legally enforceable obligation of the applicable Credit Card Issuer or Credit Card Processor with respect thereto; (h) Credit Card Receivables which do not conform to all representations, warranties or other provisions in the Loan Documents relating to Credit Card Receivables; (i) Credit Card Receivables which are evidenced by “chattel paper” or an “instrument” of any kind unless such “chattel paper” or “instrument” is in the possession of the Lender, and to the extent necessary or appropriate, endorsed to the Lender; or -14-
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(j) Credit Card Receivables which the Lender determines in its discretion to be uncertain of collection or which do not meet such other reasonable eligibility criteria for Credit Card Receivables as the Lender may determine. (k) “Eligible In-Transit Inventory” means, as of any date of determination thereof, without duplication of other Eligible Inventory, In-Transit Inventory: (l) 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 sixty (60) days or less from the date of shipment of such Inventory; (m) For which the purchase order is in the name of a Borrower and title and risk of loss has passed to such Borrower; (n) For which an Acceptable Document of Title has been issued, and in each case as to which at all times on and after September 15, 2012, the Lender has control (as defined in the UCC) over the documents of title which evidence ownership of the subject Inventory pursuant to a Customs Broker/Carrier Agreement; (o) Which is insured to the reasonable satisfaction of the Lender (including, without limitation, marine cargo insurance); (p) the Foreign Vendor with respect to such In-Transit Inventory is an Approved Foreign Vendor; and (q) Which otherwise would constitute Eligible Inventory; provided, that the Lender may, in its discretion, exclude any particular Inventory from the definition of “Eligible In-Transit Inventory” in the event the Lender 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 Lender to arise which may otherwise adversely impact the ability of the Lender to realize upon such Inventory. “Eligible Inventory” means, as of the date of determination thereof, without duplication, (i) Eligible In-Transit Inventory, and (ii) items of Inventory of a Borrower that are finished goods, merchantable and readily saleable to the public in the ordinary course of the Borrowers’ business and deemed by the Lender in its Permitted Discretion to be eligible for inclusion in the calculation of the Borrowing Base, in each case that, except as otherwise agreed by the Lender, (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. Except as otherwise agreed by the Lender, in its 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); -15-
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(d) Inventory that is not located at a location that is owned or leased by a Borrower or at a warehouse with respect to which there exists an executed Collateral Access Agreement, except (i) Inventory in transit between such locations or locations which meet the criteria set forth in clause (ii) below, or (ii) to the extent that the Borrowers have furnished the Lender with (A) any UCC financing statements or other documents that the Lender may determine to be necessary to perfect its security interest in such Inventory at such location, and (B) a Collateral Access Agreement executed by the Person owning any such location on terms reasonably acceptable to the Lender; (e) Inventory that is located: (i) in a warehouse or distribution center leased by a Borrower unless the applicable lessor has delivered to the Lender a Collateral Access Agreement, or (ii) at any leased location in a Landlord Lien State unless the applicable lessor has delivered to the Lender a Collateral Access Agreement or the Lender has implemented Reserves for such location; (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 xxxx and hold goods; (g) Inventory that is not subject to a perfected first priority security interest in favor of the Lender; (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; (j) Inventory that is subject to any material 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 material dispute in respect of any such agreement; or (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 Lender has completed or received (A) an appraisal of such Inventory from appraisers satisfactory to the Lender and establishes Inventory Reserves (if applicable) therefor, and otherwise agrees that such Inventory shall be deemed Eligible Inventory, and (B) such other due diligence as the Lender may require, all of the results of the foregoing to be reasonably satisfactory to the Lender. “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. -16-
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“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 the Lead Borrower 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 of the Code). “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Lead Borrower 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 the Lead Borrower or any ERISA Affiliate from a Multiemployer Plan or notification 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 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; or (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. “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 9.01 hereof. “Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by such Loan Party 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 Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity -17-
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Exchange Act and the regulations thereunder at the time the Guarantee of such Loan Party 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 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, (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) any U.S. federal, state or local backup withholding tax, and (d) any U.S. federal withholding tax imposed under FATCA. “Executive Order” has the meaning set forth in Section 9.17. “Existing Credit Agreement” has the meaning specified in the introductory paragraph hereto. “Existing Letters of Credit” means those letters of credit identified on Schedule 1.03. “Extraordinary Receipt” means any cash received by or paid to or for the account of any Person not in the ordinary course of business, including tax refunds, pension plan reversions, proceeds of insurance (other than proceeds of business interruption insurance to the extent such proceeds constitute compensation for lost earnings), condemnation awards (and payments in lieu thereof), indemnity payments and any purchase price adjustments. “Facility Guaranty” means any Guarantee made by a Guarantor in favor of the Lender and the other Credit Parties, in form reasonably satisfactory to the Lender, as amended, modified, supplemented, renewed, restated or replaced. “FATCA” means current Section 1471 through 1474 of the Code or any amended version or successor provision that is substantively similar to and, in each case, any regulations promulgated thereunder and any interpretation and other guidance issued in connection therewith. “Factored Receivables” means any Accounts owed by a Loan Party which have been factored or sold by an account debtor of a Loan Party to Xxxxx Fargo or any of its Affiliates pursuant to a factoring arrangement or otherwise. “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 Xxxxx Fargo on such day on such transactions as determined by the Lender. “Fee Letter” means the letter agreement, dated as of July 12, 2012, among the Borrowers and Lender. -18-
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“FILO Advance Rate” means, with respect to the applicable period set forth below, the percentage set forth below opposite such period: Period FILO Advance Rate From the Second Amendment Effective 10.00% Date until September 30, 2018 From October 1, 2018 until December 31, 9.75% 2018 From January 1, 2019 until March 31, 9.50% 2019 From April 1, 2019 until June 30, 2019 9.25% From July 1, 2019 until September 30, 9.00% 2019 From October 1, 2019 until December 31, 8.75% 2019 From January 1, 2020 until March 31, 8.50% 2020 From April 1, 2020 until June 30, 2020 8.25% From July 1, 2020 until September 30, 8.00% 2020 From October 1, 2020 until December 31, 7.75% 2020 From January 1, 2021 until March 31, 7.50% 2021 From April 1, 2021 until June 30, 2021 7.25% From July 1, 2021 until September 30, 7.00% 2021 From October 1, 2021 until December 31, 6.75% 2021 From January 1, 2022 until March 31, 6.50% 2022 From April 1, 2022 until June 30, 2022 6.25% From July 1, 2022 until September 30, 6.00% 2022 From October 1, 2022 until December 31, 5.75% 2022 From January 1, 2023 until March 31, 5.50% 2023 From April 1, 2023 until June 30, 2023 5.25% -19-
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From July 1, 2023 until the Maturity Date 5.00% “FILO Borrowing Base” means, at any time of calculation, an amount equal to: (a) the face amount of Eligible Credit Card Receivables multiplied by the FILO Advance Rate; plus (b) the Cost of Eligible Inventory, net of Inventory Reserves, multiplied by the product of the FILO Advance Rate multiplied by the Appraised Value of Eligible Inventory (expressed as a percentage of Cost of Eligible Inventory) (provided that in no event shall Eligible In-Transit Inventory be included in the calculation of the Eligible Inventory for purposes of the FILO Borrowing Base). “FILO Commitment” means, the obligation of the Lender to make the FILO Loans to the Borrowers pursuant to Section 2.01(a), in an aggregate principal amount not to exceed $5,000,000. “FILO Loan” has the meaning specified in Section 2.01(a). “FILO Note” means a promissory note made by the Borrowers in favor of the Lender evidencing the FILO Loans made by the Lender, substantially in the form of Exhibit B-2. “FILO Reserve” means the amount, if any, by which the outstanding amount of the FILO Loans exceed the FILO Borrowing Base as the Lender determines in its reasonable discretion. “First Amendment” means that certain First Amendment to Second Amended and Restated Credit Agreement entered into by and among the Borrowers, the Lender and the L/C Issuer dated as of September 8, 2014. “First Amendment Effective Date” means September 8, 2014. “Fiscal Month” means any fiscal month of any Fiscal Year, which month shall generally end on the Saturday nearest 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 Saturday nearest to the last day of each April, July, October and January of such Fiscal Year in accordance with the fiscal accounting calendar of the Loan Parties. “Fiscal Year” means the fiscal year ended January 28, 2012 and any subsequent period of fifty- two (52) or fifty-three (53) consecutive weeks ending on the Saturday nearest to January 31 of each calendar year. “Foreign Assets Control Regulations” has the meaning set forth in Section 9.17. “Foreign Vendor” means a Person that sells In-Transit Inventory to a Borrower. “Foreign Vendor Agreement” means an agreement between a Foreign Vendor and the Lender in form and substance satisfactory to the Lender and pursuant to which, among other things, the parties shall -20-
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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. “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. “GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied. “Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra- national bodies such as the European Union or the European Central Bank). “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 (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning. “Guarantor” has the meaning specified in the introductory paragraph hereto and includes each Subsidiary of the Lead Borrower that shall be required to execute and deliver a Facility Guaranty pursuant to Section 6.12. “Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law. “Honor Date” has the meaning specified in Section 2.03(c)(i). -21-
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“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) All Attributable Indebtedness of such Person; (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person (including, without limitation, Disqualified Stock), or any warrant, right or option to acquire such Equity Interest, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and (h) all Guarantees of such Person in respect of any of the foregoing. For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. “Indemnified Taxes” means Taxes other than Excluded Taxes. “Indemnitee” has the meaning specified in Section 9.04(b). “Information” has the meaning specified in Section 9.07. “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 -22-
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(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, 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. “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, the first day after the end of each month and the Maturity Date. “Interest Period” means, as to each LIBO Rate Loan, the period commencing on the date such LIBO Rate Loan is disbursed or converted to or continued as a LIBO Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Lead Borrower in its Committed 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 (d) notwithstanding the provisions of clause (iii) no Interest Period shall have a duration of less than one (1) month, and if any Interest Period applicable to a LIBO Borrowing would be for a shorter period, such Interest Period shall not be available hereunder. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing. “Internal Control Event” means a material weakness in, or fraud that involves management or other employees who have a significant role in, the Lead Borrower’s and/or its Subsidiaries’ internal controls over financial reporting, in each case as described in the Securities Laws. “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. “Inventory Reserves” means such reserves as may be established from time to time by the Lender in its Permitted Discretion with respect to the determination of the saleability, at retail, of the Eligible Inventory, which reflect factors that affect the market value of the Eligible Inventory to the extent not reflected in Appraised Value or which reflect claims and liabilities that the Lender determines will need to be satisfied in connection with the realization upon the Inventory. -23-
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“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” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance). “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 a 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 Lender, 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 Lender 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 Lender 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, 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. “L/C Issuer” means (a) solely with respect to the Existing Letters of Credit and until such Existing Letters of Credit expire or are returned undrawn, Xxxxx Fargo, and (b) in all other instances, Xxxxx Fargo in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder. 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 -24-
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operation of any “rule” under the ISP or any article of UCP 600, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn. “Lead Borrower” has the meaning specified in the introductory paragraph hereto. “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. “Lender’s Office” means, the office or offices of the Lender’s address and as appropriate, account as set forth on Schedule 9.02 or such other address or account as the Lender may from time to time notify the Lead Borrower. “Letter of Credit” means each Standby Letter of Credit and each Commercial Letter of Credit issued hereunder and shall include the Existing Letters of Credit. “Letter of Credit Application” means an application for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer. “Letter of Credit Expiration Date” means the day that is five 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(h). “Letter of Credit Sublimit” means an amount equal to $12,500,000. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Commitment. A permanent reduction of the Revolving Commitment shall not require a corresponding pro rata reduction in the Letter of Credit Sublimit; provided, however, that if the Revolving Commitment is 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 Revolving Commitment. “LIBO Borrowing” means a Borrowing comprised of LIBO Rate Loans. “LIBO Rate” means, the rate per annum as published by ICE Benchmark Administration Limited (or any successor page or other commercially available source as the Lender may designate from time to time) as of 11:00 a.m., London time, two Business Days prior to the commencement of the requested Interest Period, 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 published rate is below zero, then the rate shall be deemed to be zero). Each determination of the LIBO Rate shall be made by the Lender and shall be conclusive in the absence of manifest error. “LIBO Rate Loan” means a Loan that bears interest at a rate based on the Adjusted LIBO Rate. “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 -25-
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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. “Loan” means, individually, a Revolving Loan or a FILO Loan, and collectively, all Revolving Loans and FILO Loans. “Loan Account” has the meaning assigned to such term in Section 2.10(a). “Loan Cap” means, at any time of determination, (i) the lesser of (a) the Revolving Commitment and (b) the Revolving Borrowing Base (without giving effect to the FILO Reserve) plus (ii) the lesser of (a) the FILO Commitment and (b) the FILO Borrowing Base. “Loan Documents” means this Agreement, the First Amendment, the Second Amendment, the Revolving Note, the FILO Note, each Issuer Document, all Borrowing Base Certificates, the Blocked Account Agreements, the DDA Notifications, the Credit Card Notifications, the Security Documents, any Facility Guaranty, the Fee Letter, the Second Amendment Fee Letter 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 Lender or any of its Affiliates, each as amended and in effect from time to time, “Loan Parties” means, collectively, the Borrowers and the Guarantors. “Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, assets, properties, liabilities (actual or contingent), or condition (financial or otherwise) of the Lead Borrower 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 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 Loan Party, each contract or agreement to which such Loan Party is a party (a) that is deemed to be a material contract or material definitive agreement under any Securities Laws applicable to such Loan Party, or (b) under which the Loan Parties receive a material portion of their revenue in the ordinary course of business. “Material Indebtedness” means Indebtedness (other than the Obligations) of the Loan Parties in an aggregate principal amount exceeding $5,000,000. For purposes of determining the amount of Material Indebtedness at any time, (a) the amount of the obligations in respect of any Swap Contract at such time shall be calculated at the Swap Termination Value thereof, (b) undrawn committed or available amounts shall be included, and (c) all amounts owing to all creditors under any combined or syndicated credit arrangement shall be included. “Maturity Date” means August 3, 2023. “Maximum Rate” has the meaning provided therefor in Section 9.09. -26-
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“Measurement Period” means, at any date of determination, the most recently completed twelve (12) Fiscal Months of the Lead Borrower. “Moody’s” means Xxxxx’x Investors Service, Inc. and any successor thereto. “Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Lead Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions. “Net Proceeds” means (a) with respect to any Disposition by any Loan Party or any of its Subsidiaries, or any Extraordinary Receipt received or paid to the account of any Loan Party or any of its Subsidiaries, the excess, if any, of (i) the sum of cash and cash equivalents received in connection with such transaction (including any cash or cash equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by a Lien permitted hereunder on the applicable asset which is senior to the Lender’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, other taxes paid in cash in connection with the consummation of such transaction, and commissions) paid by any Loan Party to third parties (other than Affiliates); and (b) with respect to the sale or issuance of any Equity Interest by any Loan Party or any of its Subsidiaries, or the incurrence or issuance of any Indebtedness by any Loan Party or any of its Subsidiaries, the excess of (i) the sum of the cash and cash equivalents received in connection with such transaction over (ii) the underwriting discounts and commissions, and other reasonable and customary out-of-pocket expenses, incurred by such Loan Party or such Subsidiary in connection therewith. “Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(iii). “Note” means (a) the Revolving Note, and (b) the FILO Note, as each may be amended, restated, 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 Office of Foreign Assets Control of the United States Department of the Treasury. -27-
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“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; and (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. “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 Lender or any of its Affiliates that 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 (i) with respect to Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Loans occurring on such date; and (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date. “Overadvance” means a Credit Extension to the extent that, immediately after its having been made, Availability is less than zero. “Participant” has the meaning specified in Section 9.06(b). “Payment Conditions” means, at the time of determination with respect to any specified transaction or payment, that (a) no Default or Event of Default then exists or would arise as a result of entering into such transaction or the making of such payment, and (b) immediately after giving effect to such transaction or payment, either (x) (i) the Pro Forma Availability Condition has been satisfied, (ii) the Trailing Twelve Month Availability Condition has been satisfied, (iii) Availability as of the date of such transaction or payment will be greater than thirty percent (30%) of the Revolving Loan Cap, and (iv) the Consolidated Fixed Charge Coverage Ratio for the twelve (12) months immediately preceding the date of such transaction or payment for which the Lender has received financial statements shall be equal to or greater than 1.10:1.00 after giving pro forma effect to such transaction or payment as if such transaction had been entered into or such payment had been made as of the first day of such twelve-month period, or (y) (i) Pro Forma Excess Availability following, and after giving effect to, such transaction or payment, will be greater than fifty percent (50%) of the Revolving Loan Cap, (ii) Trailing Twelve Month Excess Availability following, and after giving effect to, such transaction or payment, will be greater than fifty percent (50%) of the Revolving Loan Cap, and (iii) Availability as of the date of such transaction or payment will be greater than fifty percent (50%) of the Revolving Loan Cap. Prior to undertaking any transaction or payment which is subject to the Payment Conditions, the Loan Parties shall deliver to the Lender evidence of satisfaction of the conditions contained in clause (b) above on a basis (including, without limitation, giving due consideration to results for prior periods) reasonably satisfactory to the Lender. -28-
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“PBGC” means the Pension Benefit Guaranty Corporation. “PCAOB” means the Public Company Accounting Oversight Board. “Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Lead Borrower or any ERISA Affiliate or to which the Lead Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years. “Permitted Acquisition” means an Acquisition in which all of the following conditions are satisfied: (a) No Default or Event of Default then exists or would arise from the consummation of such Acquisition; (b) Such Acquisition shall have been approved by the Board of Directors of the Person (or similar governing body if such Person is not a corporation) which is the subject of such Acquisition and such Person shall not have announced that it will oppose such Acquisition or shall not have commenced any action which alleges that such Acquisition shall violate applicable Law; (c) The Lead Borrower shall have furnished the Lender with ten (10) days’ prior written notice of such intended Acquisition and shall have furnished the Lender 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, pro forma projected financial statements for the twelve (12) month period following such Acquisition after giving effect to such Acquisition (including balance sheets, cash flows 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 Lender may reasonably require, all of which shall be reasonably satisfactory to the Lender; (d) Either (i) the legal structure of the Acquisition shall be acceptable to the Lender in its discretion, or (ii) the Loan Parties shall have provided the Lender with a favorable solvency opinion from an unaffiliated third party valuation firm reasonably satisfactory to the Lender; (e) After giving effect to the Acquisition, if the Acquisition is an Acquisition of the Equity Interests, a Loan Party shall acquire and own, directly or indirectly, a majority of the Equity Interests in the Person being acquired and shall Control a majority of any voting interests or shall otherwise Control the governance of the Person being acquired; (f) Any assets acquired shall be utilized in, and if the Acquisition involves a merger, consolidation or Acquisition of Equity Interests, the Person which is the subject of such Acquisition shall be engaged in, a business otherwise permitted to be engaged in by a Borrower under this Agreement; (g) If the Person which is the subject of such Acquisition will be maintained as a Subsidiary of a Loan Party, or if the assets acquired in an acquisition will be transferred to a Subsidiary which is not then a Loan Party, such Subsidiary shall have been joined as a -29-
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“Borrower” hereunder or as a Guarantor, as the Lender shall determine, and the Lender shall have received a first priority security interest in such Subsidiary’s Equity Interests, Inventory, Accounts, and other personal property of the same nature as constitutes collateral under the Security Documents; (h) [Reserved]; and (i) The Loan Parties shall have satisfied the Payment Conditions. “Permitted Discretion” means a determination made in good faith and in the exercise of reasonable (from the perspective of a secured, asset-based lender in the retail industry) business or credit judgment. “Permitted Disposition” means any of the following: (a) Dispositions of inventory in the ordinary course of business; (b) bulk sales or 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 such Store closings and related Inventory Dispositions shall not exceed (i) in any Fiscal Year of the Lead Borrower 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 in such Fiscal Year) and (ii) in the aggregate from and after the Second Amendment Effective Date, twenty-five percent (25%) of the number of the Loan Parties’ Stores in existence as of the Second Amendment Effective Date (net of cumulative new Store openings since the Second Amendment Effective Date); provided, further, that all sales of Inventory in connection with Store closings which exceed, in any Fiscal Year of the Lead Borrower and its Subsidiaries, five percent (5%) of the number of the Loan Parties’ Stores as of the beginning of such Fiscal Year shall be in accordance with liquidation agreements in form and substance reasonably satisfactory to the Lender; provided, however, that the consolidation of Xxxxxxxxxxx & Banks Stores and XX Xxxxx Stores into MPW Stores shall be excluded from such limits set forth in the foregoing provisos; provided, further that all Net Proceeds received in connection with Store closings and related sales of Inventory are applied to the Obligations if then required in accordance with Section 2.04 hereof; (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 Lender, the Lender shall have entered into an intercreditor agreement with the Person operating such licensed department on terms and conditions reasonably satisfactory to the Lender; (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 replaced with similar property having at least equivalent value; (f) sales, transfers and Dispositions among the Loan Parties or by any Subsidiary to a Loan Party; -30-
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(g) sales, transfers and Dispositions by any Subsidiary which is not a Loan Party to another Subsidiary that is not a Loan Party; and (h) as long as no Default or Event of Default then exists or would arise therefrom, sales of Real Estate of any Loan Party (or sales of any Person or Persons created to hold such Real Estate or the Equity Interests in such Person or Persons), including sale-leaseback transactions involving any such Real Estate pursuant to leases on market terms, as long as, (A) such sale is made for fair market value, (B) the proceeds of such sale are utilized to repay the Obligations, and (C) in the case of any sale-leaseback transaction permitted hereunder, the Lender shall have received from each such purchaser or transferee a Collateral Access Agreement on terms and conditions reasonably satisfactory to the Lender. “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 made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations, other than any Lien imposed by ERISA; (d) Deposits to secure the performance of bids, trade contracts and leases (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 Second Amendment Effective Date and listed on Schedule 7.01 and any Permitted Refinancings thereof; (h) Liens on fixed or capital assets acquired by any Loan Party which are permitted under clause (c) of the definition of Permitted Indebtedness so long as (i) such Liens and the Indebtedness secured thereby are incurred prior to or within ninety (90) days after such acquisition, (ii) the Indebtedness secured thereby does not exceed the cost of acquisition of such fixed or capital assets and (iii) such Liens shall not extend to any other property or assets of the Loan Parties; (i) Liens in favor of the Lender; -31-
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(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 Second Amendment Effective 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; and (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 and securing obligations that are being contested in good faith by appropriate proceedings, (B) the applicable Loan Party or Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (C) such contest effectively suspends collection of the contested obligation and enforcement of any Lien securing such obligation. “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 Second Amendment Effective Date and listed on Schedule 7.03 and any Permitted Refinancing thereof; (b) Indebtedness of any Loan Party to any other Loan Party; (c) Purchase money Indebtedness of any Loan Party to finance the acquisition of any personal property consisting solely of fixed or capital assets, including Capital Lease Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof; provided, however, that the aggregate principal amount of Indebtedness permitted by this clause (c) shall not exceed $5,000,000 at any time outstanding; provided, further, that, if requested by the Lender, the Loan Parties shall cause the holders of such Indebtedness secured by Real Estate or other personal property material to the operation of the Business to enter into a Collateral Access Agreement on terms reasonably satisfactory to the Lender; (d) obligations (contingent or otherwise) of any Loan Party or any Subsidiary thereof existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks -32-
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associated with fluctuations in interest rates or foreign exchange rates, and not for purposes of speculation or taking a “market view;” provided, that the aggregate Swap Termination Value thereof shall not exceed $2,000,000 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 or other Real Estate; (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, the Loan Parties shall 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 Lender; (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 Lender; (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) Unsecured Indebtedness not otherwise specifically described herein in an aggregate principal amount not to exceed $10,000,000 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) readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof having maturities of not more than 360 days from the date of acquisition thereof; provided, that the full faith and credit of the United States of America is pledged in support thereof; (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 Xxxxx’x or at least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than 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 the 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 -33-
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definition and (iii) has combined capital and surplus of at least $1,000,000,000, in each case with maturities of not more than 180 days from the date of acquisition thereof; (d) Fully collateralized repurchase agreements with a term of not more than thirty (30) days for securities described in clause (a) above (without regard to the limitation on maturity contained in such clause) and entered into with a financial institution satisfying the criteria described in clause (c) above or with any primary dealer and having a market value at the time that such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such counterparty entity with whom such repurchase agreement has been entered into; (e) Investments, classified in accordance with GAAP as current assets of the Loan Parties, in any money market fund, mutual fund, or other investment companies that are registered under the Investment Company Act of 1940, as amended, which are administered by financial institutions that have the highest rating obtainable from either Xxxxx’x or S&P, and which invest solely in one or more of the types of securities described in clauses (a) through (d) above; (f) Investments existing on the Second Amendment Effective Date, and set forth on Schedule 7.02, but not any increase in the amount thereof or any other modification of the terms thereof; (g) (i) Investments by any Loan Party and its Subsidiaries in their respective Subsidiaries outstanding on the Second Amendment Effective Date, (ii) additional Investments by any Loan Party and its Subsidiaries in Loan Parties (other than the Lead Borrower), (iii) additional Investments by Subsidiaries of the Loan Parties that are not Loan Parties in other Subsidiaries that are not Loan Parties and (iv) so long as no Default or Event of Default has occurred and is continuing or would result from such Investment and the Payment Conditions are satisfied, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested after the Second Amendment Effective Date not to exceed $2,000,000; (h) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss; (i) Guarantees constituting Permitted Indebtedness; (j) Investments by any Loan Party in Swap Contracts entered into in the ordinary course of business and for bona fide business (and not speculative) purposes to protect against fluctuations in interest rates in respect of the Obligations; (k) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business; (l) advances to officers, directors and employees of the Loan Parties and Subsidiaries in the ordinary course of business in an amount not to exceed $250,000 to any individual at any time or in an aggregate amount not to exceed $500,000 at any time outstanding; (m) Investments constituting Permitted Acquisitions; -34-
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(n) Capital contributions made by any Loan Party to another Loan Party; (o) Investments in accordance with that certain Xxxxxxxxxxx & Banks Corporation and Subsidiaries Investment Policy dated December 3, 2014, approved by the Audit Committee and attached hereto as part of Schedule 7.02; and (p) Other Investments not otherwise specifically described herein and not exceeding $1,000,000 in the aggregate at any time outstanding. provided, however, that notwithstanding the foregoing, no such Investments specified in clauses (a) through (e) and clauses (o) and (p) shall be permitted unless (i) either (A) no Loans are then outstanding and, if required hereunder, all Letters of Credit required to be Cash Collateralized, are Cash Collateralized, or (B) the Investment is a temporary Investment pending expiration of an Interest Period for a LIBO Rate Loan, the proceeds of which Investment will be applied to the Obligations after the expiration of such Interest Period, and (ii) such Investments shall be pledged to the Lender as additional collateral for the Obligations pursuant to such agreements as may be reasonably required by the Lender. “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 if the amount of such payments in any Fiscal Year would be greater than the scheduled principal payments due with respect to the Indebtedness so Refinanced during such Fiscal Year, (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 the Lead Borrower or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate. “Prepayment Event” means: (a) Any Disposition (including pursuant to a sale and leaseback transaction) of any property or asset of a Loan Party other than to another Loan Party (provided that any Disposition -35-
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in an amount less than $2,000,000 prior to the occurrence of a Cash Dominion Event shall not be deemed a Prepayment Event); (b) Any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of (and payments in lieu thereof), any property or asset of a Loan Party in an amount in excess of $2,000,000, unless (i) the proceeds therefrom are required to be paid to the holder of a Lien on such property or asset having priority over the Lien of the Lender or (ii) prior to the occurrence of a Cash Dominion Event, the proceeds therefrom are deposited into a segregated account and utilized for purposes of replacing or repairing the assets in respect of which such proceeds, awards or payments were received within two hundred and seventy (270) days of the occurrence of the damage to or loss of the assets being repaired or replaced; (c) The issuance by a Loan Party of any Equity Interests, other than any such issuance of Equity Interests (i) to a Loan Party, (ii) as consideration for a Permitted Acquisition or (iii) to any employee, director, or consultant (including under any option plan) (provided that the issuance by the Loan Parties of any Equity Interests in an amount less than $2,000,000 prior to the occurrence of a Cash Dominion Event shall not be deemed a Prepayment Event); (d) The incurrence by a Loan Party of any Indebtedness for borrowed money other than Permitted Indebtedness(provided that the incurrence by the Loan Parties of any Indebtedness in an amount less than $2,000,000 prior to the occurrence of a Cash Dominion Event shall not be deemed a Prepayment Event); or (e) The receipt by any Loan Party of any Extraordinary Receipts (provided that any receipt by the Loan Parties of any Extraordinary Receipts in an amount less than $1,000,000 prior to the occurrence of a Cash Dominion Event shall not be deemed a Prepayment Event). “Pro Forma Availability Condition” means, for any date of calculation with respect to any transaction or payment, the Pro Forma Excess Availability following, and after giving effect to, such transaction or payment, will be greater than thirty percent (30%) of the Revolving Loan Cap. “Pro Forma Excess Availability” means, for any date of calculation, after giving pro forma effect to the transaction then to be consummated, the projected Availability at all times during any subsequent projected twelve (12) Fiscal Months. “Qualified ECP Guarantor” means, in respect of any Swap Obligation, any Borrower, any Guarantor or any other guarantor of the Obligations that has total assets exceeding $10,000,000 at the time such Swap Obligation is incurred or such other person as constitutes an “Eligible Contract Participant” (an “ECP”) as that term is defined 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 land, together with the buildings, structures, parking areas, and other improvements thereon, now or hereafter owned by any Loan Party or subject to any Lease, including all easements, rights-of-way, and similar rights relating thereto and all leases, tenancies, and occupancies thereof. “Receipts and Collections” has the meaning specified in Section 6.13(c). -36-
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“Registered Public Accounting Firm” has the meaning specified by the Securities Laws and shall be independent of the Lead Borrower and its Subsidiaries as prescribed by the Securities Laws. “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates. “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty (30) day notice period has been waived. “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Loans, a Committed Loan Notice, and (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. “Reserves” means all Inventory Reserves, Availability Reserves and the FILO Reserve. “Responsible Officer” means the chief executive officer, president, chief financial officer, treasurer, chief accounting officer, or assistant treasurer of a Loan Party or any of the other individuals designated in writing to the Lender 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. “Revolving Borrowing Base” means, at any time of calculation, an amount equal to: (a) the face amount of Eligible Credit Card Receivables multiplied by the Credit Card Advance Rate; plus (b) the Cost of Eligible Inventory, net of Inventory Reserves, multiplied by the product of the Appraisal Percentage multiplied by the Appraised Value of Eligible Inventory (expressed as a percentage of Cost of Eligible Inventory) (provided that in no event shall Eligible In-Transit Inventory included in Eligible Inventory included in the Revolving Borrowing Base exceed $7,500,000); minus (c) the FILO Reserve; -37-
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minus (d) the then amount of all Availability Reserves. “Revolving Commitment” means the obligation of the Lender to (a) make Revolving Loans to the Borrowers pursuant to Section 2.01(a) and (b) purchase participations in L/C Obligations, in an aggregate principal amount at any one time outstanding not to exceed $50,000,000, as such amount may be adjusted from time to time in accordance with this Agreement. “Revolving Loan” has the meaning set forth in Section 2.01(a). “Revolving Loan Cap” means, at any time of determination, the lesser of (a) the Revolving Commitment and (b) the Revolving Borrowing Base. “Revolving Note” means a promissory note made by the Borrowers in favor of the Lender evidencing the Revolving Loans made by the Lender, substantially in the form of Exhibit B-1. “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 Person named on the list of Specially Designated Nationals and Blocked Persons maintained by OFAC (“SDN”), OFAC’s consolidated Non-SDN list or any other Sanctions-related list maintained by any Governmental 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 sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes anti- terrorism laws and other sanctions laws, regulations or embargoes, including those imposed, administered or enforced from time to time by: (a) the United States of America, including those administered by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or through any existing or future executive order, (b) the United Nations Security Council, or (c) any other Governmental Authority with jurisdiction over any Credit Party or any Loan Party or any of their respective Subsidiaries or Affiliates. “S&P” means Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. and any successor thereto. “Xxxxxxxx-Xxxxx” means the Xxxxxxxx-Xxxxx Act of 2002. “SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions. “Second Amendment” means that certain Second Amendment to Second Amended and Restated Credit Agreement entered into by and among the Borrowers, the Lender and the L/C Issuer dated as of August 3, 2018. -38-
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“Second Amendment Effective Date” means August 3, 2018. “Second Amendment Fee Letter” means the letter agreement, dated as of August 3, 2018, among the Borrowers and Lender. “Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of 1934, Xxxxxxxx-Xxxxx, 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 Lender, as the same now exists or may hereafter be amended, modified, supplemented, renewed, restated or replaced. “Security Documents” means the Security Agreement, the Blocked Account Agreements, the DDA Notifications, the Credit Card Notifications, and each other security agreement or other instrument or document executed and delivered to the Lender pursuant to this Agreement or any other Loan Document granting a Lien to secure any of the Obligations. “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. “Solvent” and “Solvency” means, with respect to any Person on a particular date, that on such date (a) at fair valuation, excluding the impact of intercompany assets and liabilities which are eliminated in consolidation, all of the properties and assets of such Person are greater than the sum of the debts, including contingent liabilities, of such Person, (b) the present fair saleable value of the properties and assets of such Person is not less than the amount that would be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person is able to realize upon its properties and assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (d) such Person does not intend to, and does not believe that it will, incur debts beyond such Person’s ability to pay as such debts mature, and (e) such Person is not engaged in a business or a transaction, and is not about to engage in a business or transaction, for which such Person’s properties and assets would constitute unreasonably small capital after giving due consideration to the prevailing practices in the industry in which such Person is engaged. The amount of all guarantees at any time shall be computed as the amount that, in light of all the facts and circumstances existing at the time, can reasonably be expected to become an actual or matured liability. “Specified Event of Default” means the occurrence of (a) any Event of Default described in Sections 8.01(f) or (b) the Lender’s exercise of any of its remedies pursuant to Section 8.02 following any other Event of Default. “Spot Rate” has the meaning given to such term in Section 1.07 hereof. “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. -39-
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“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 Lender 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 the 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 (which may include any owned or leased real property, fixtures, equipment, inventory and other property related thereto) operated, or to be operated, by any Loan Party. “Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the Equity Interests having ordinary voting power for the election of directors or other governing body are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of a Loan Party. “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement. “Swap Obligation” means 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 xxxx-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 the Lender or any of its Affiliates). -40-
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“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property (including sale and leaseback transactions), in each case, creating obligations that do not appear on the balance sheet of such Person but which, upon the application of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment). “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. “Termination Date” means the earliest to occur of (i) the Maturity Date, (ii) the date on which the maturity of the Obligations is accelerated (or deemed accelerated) and the Commitments are irrevocably terminated (or deemed terminated) in accordance with Article VIII, or (iii) the termination of the Commitments in accordance with the provisions of Section 2.05(a) hereof. “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations. “Total Revolving Outstandings” means the aggregate Outstanding Amount of all Revolving Loans and all L/C Obligations. “Trading with the Enemy Act” has the meaning set forth in Section 9.17. “Trailing Twelve Month Availability Condition” means, for any date of calculation with respect to any transaction or payment, the Trailing Twelve Month Excess Availability following, and after giving effect to, such transaction or payment, will be greater than thirty percent (30%) of the Revolving Loan Cap. “Trailing Twelve Month Excess Availability” means, for any date of calculation, after giving pro forma effect to the transaction then to be consummated, the Average Daily Availability for each of the twelve (12) Fiscal Months immediately preceding the date of such transaction or payment for which the Lender has received financial statements. “Type” means, with respect to a Loan, its character as a Base Rate Loan or a LIBO Rate Loan. “UCC” or “Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that if a term is defined in Article 9 of the Uniform Commercial Code differently than in another Article thereof, the term shall have the meaning set forth in Article 9; provided, further, that if by reason of mandatory provisions of law, perfection, or the effect of perfection or non-perfection, of a security interest in any Collateral or the availability of any remedy hereunder is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “Uniform Commercial Code” means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection or availability of such remedy, as the case may be. “UCP 600” means the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce and in effect as of July 1, 2007 (or such later version thereof as may be in effect at the time of issuance). “UFCA” has the meaning specified in Section 9.20(d). -41-
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(ii) one (1) Business Day prior to the requested date of any Borrowing of Base Rate Loans. Each telephonic notice by the Lead Borrower pursuant to this Section 2.02(b) must be confirmed promptly by delivery to the Lender of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Lead Borrower. Each Borrowing of, conversion to or continuation of LIBO Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Except as provided in Section 2.03(c), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the Lead Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of LIBO Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Lead Borrower fails to specify a Type of Loan in a Committed Loan Notice or if the Lead Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable LIBO Rate Loans. If the Lead Borrower requests a Borrowing of, conversion to, or continuation of LIBO Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month. (c) Notwithstanding anything to the contrary contained in this Agreement, the Borrowers shall not request, and the Lender shall be under no obligation to fund, any Revolving Loan unless the Borrowers have borrowed the full amount available under the FILO Commitment. If any FILO Loan is prepaid in whole or in part pursuant to Section 2.04, any Loans to the Borrowers thereafter requested shall be FILO Loans until the maximum principal amount of the FILO Loans outstanding equals the FILO Commitment and thereafter shall be Revolving Loans. (d) 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 Lender shall use reasonable efforts to make funds available to the Borrowers by no later than 4:00 p.m. on the day of such requested Borrowing either by (i) crediting the account of the Lead Borrower on the books of Xxxxx 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 Lender by the Lead Borrower. (e) The Lender, 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 Lender shall advise the Lead Borrower of any such advance or charge promptly after the making thereof. Such action on the part of the Lender shall not constitute a waiver of the Lender’s rights and the Borrowers’ obligations under Section 2.04(b). Any amount which is added to the principal balance of the Loan Account as provided in this Section 2.02(e) shall bear interest at the interest rate then and thereafter applicable to Base Rate Loans. (f) 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 unless the Lender otherwise consents. (g) The Lender shall promptly notify the Lead Borrower of the interest rate applicable to any Interest Period for LIBO Rate Loans upon determination of such interest rate. At any -45-
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of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the Lender or L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the Lender and the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the Lender or the L/C Issuer may require. Additionally, the Lead Borrower shall furnish to the L/C Issuer and the Lender such other documents and information pertaining to such requested Letter of Credit issuance or amendment, and any Issuer Documents (including, if requested by the L/C Issuer, a Standby Letter of Credit Agreement or Commercial Letter of Credit Agreement, as applicable), as the L/C Issuer or the Lender may require. (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Lender (by telephone or in writing) that the Lender has received a copy of such Letter of Credit Application from the Lead Borrower and, if not, the L/C Issuer will provide the Lender with a copy thereof. Unless the L/C Issuer has received written notice from Lender or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied or unless the L/C Issuer would not be permitted, or would have no obligation, at such time to issue such Letter of Credit under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the applicable Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. (iii) If the Lead Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Standby Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided, that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Standby Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Standby Letter of Credit is issued. Unless otherwise directed by the Lender or the L/C Issuer, the Lead Borrower shall not be required to make a specific request to the Lender or the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lender shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Standby Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the Lender shall instruct the L/C Issuer not to permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Standby Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) the L/C Issuer has received notice (which may be by telephone or in writing) on or before the day that is five (5) Business Days before the Non- Extension Notice Date (1) from the Lender that it has elected not to permit such extension or (2) from the Lender or the Lead Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension. (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C -48-
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Issuer will also deliver to the Lead Borrower and the Lender a true and complete copy of such Letter of Credit or amendment. (c) Drawings and Reimbursements. (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the Lead Borrower and the Lender thereof not less than two (2) Business Days prior to the Honor Date (as defined below); provided, however, that any failure to give or delay in giving such notice shall not relieve the Borrowers of their obligation to reimburse the L/C Issuer and the Lender with respect to any such payment. On the date of any payment by the L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), unless (i) the Lead Borrower, in accordance with Section 2.02(b), has requested a Borrowing of LIBO Rate Loans to be disbursed on such date to reimburse such payment by the L/C Issuer, or (ii) on or before such date the Borrowers have deposited with the L/C Issuer cash in an amount sufficient to reimburse such payment by the L/C Issuer and directed the L/C Issuer that such cash is to be used to satisfy such payment, then the Borrowers shall be deemed to have requested a Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the amount of such payment, without regard to the minimum and multiples specified in Section 2.02(b) for the principal amount of Base Rate Loans, and without regard to whether the conditions set forth in Section 4.02 have been met. Any notice given by the L/C Issuer or the Lender pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided, that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice. (ii) The Lender’s obligation to make Loans to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(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 the Lender may have against the L/C Issuer, any Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or Event of Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing, and without regard to whether the conditions set forth in Section 4.02 have been met. (d) Obligations Absolute. The obligation of the Borrowers to reimburse the L/C Issuer for each drawing under each Letter of Credit shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following (provided that nothing herein shall prevent any Borrower from pursuing any claim it may have against the L/C Issuer as provided in Section 2.03(e)): (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document; (ii) the existence of any claim, counterclaim, setoff, defense or other right that the Borrowers or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction; (iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any -49-
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statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit; (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; (v) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrowers or any of their Subsidiaries; or (vi) the fact that any Default or Event of Default shall have occurred and be continuing. The Lead Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Lead Borrower’s instructions or other irregularity, the Lead Borrower will immediately notify the Lender and the L/C Issuer. The Borrowers shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid. (e) Role of L/C Issuer. The Lender and the Borrowers agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, the Lender, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to the Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lender, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; (iii) any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit or any error in interpretation of technical terms; or (iv) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrowers hereby assume all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrowers’ pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the Lender, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(d) or for any action, neglect or omission under or in connection with any Letter of Credit or Issuer Documents, including, without limitation, the issuance or any amendment of any Letter of Credit, the failure to issue or amend any Letter of Credit, or the honoring or dishonoring of any demand under any Letter of Credit, and such action or neglect or omission will bind the Borrowers; provided, however, that anything in Section 2.03(d) to the contrary notwithstanding, but subject to any applicable rules of the ISP and the UCP 600, the Borrowers may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrowers, to the extent, but only to the extent, of any direct, as opposed to consequential, exemplary or punitive damages suffered by the Borrowers which the Borrowers prove were caused by the L/C Issuer’s willful misconduct or gross -50-
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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 Lender 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; (v) a favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Lender 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 4.02(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 Lender required under the Loan Documents have been obtained and are in effect; (viii) the Security Agreement, the Blocked Account Agreements, the DDA Notifications, the Credit Card Notifications and certificates evidencing any stock being pledged under any of the foregoing, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties; (ix) all other Loan Documents required to be executed pursuant to the terms hereof as of such date, each duly executed by the applicable Loan Parties; (x) results of searches or other evidence reasonably satisfactory to the Lender (in each case dated as of a date reasonably satisfactory to the Lender) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances; (xi) (A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Lender 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 Lender, (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ material securities and investment accounts, and (D) Collateral Access Agreements as required by the Lender (but in no case with respect to any Store); and -61-
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(xii) such other assurances, certificates, documents, consents or opinions as the Lender 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, Availability shall be not less than $15,000,000. (c) The Lender shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on May 26, 2012, and executed by a Responsible Officer of the Lead Borrower. (d) The Lender 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) The Lender shall have received and be satisfied with (i) a detailed forecast for the Fiscal Year ending February 2, 2013, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices and (b) such other information (financial or otherwise) reasonably requested by the Lender. (f) 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. (g) There shall not have occurred any default of any Material Contract of any Loan Party the result of which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. (h) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document. (i) All fees and expenses required to be paid to the Lender on or before the Closing Date shall have been paid in full. (j) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Lender 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 Lender). (k) The Lender 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. (l) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date. (m) 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 Lender, -62-
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Borrowing Base as of the close of business as of the last day of the immediately preceding Fiscal Month (provided that the Appraised Value percentage applied to the Eligible Inventory set forth in each Borrowing Base Certificate shall be the percentage set forth in the most recent appraisal obtained by the Lender pursuant to Section 6.10 hereof for the applicable month in which such Borrowing Base Certificate is delivered), each Borrowing Base Certificate to be certified as complete and correct by a Responsible Officer of the Lead Borrower; provided, that at any time that an Accelerated Borrowing Base Delivery Event has occurred and is continuing, at the election of the Lender, such Borrowing Base Certificate shall be delivered on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day), as of the close of business on the immediately preceding Saturday; provided, further, that should any of the information contained in any Borrowing Base Certificate be incorrect or misleading in any material respect, the Lead Borrower shall advise the Lender in writing of such revisions or updates as may be necessary or appropriate to update or correct the same, in which case such revision or update shall be deemed to the have modified the applicable Borrowing Base Certificate if accepted by the Lender in writing; provided, further, that notwithstanding the foregoing proviso, no such revision or update to any Borrowing Base Certificate shall be deemed the Credit Parties’ waiver of any Default or Event or Default resulting from the matters disclosed therein; (d) 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 audit of any of them, including, without limitation, specifying any Internal Control Event; (e) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Lead Borrower, 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 Lender pursuant hereto; (f) The financial and collateral reports described on Schedule 6.02 hereto, at the times set forth in such Schedule; (g) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lender pursuant to Section 6.01 or any other clause of this Section 6.02; (h) 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 Lender may reasonably specify; (i) promptly after the Lender’s request therefor, copies of all Material Contracts and documents evidencing Material Indebtedness; (j) promptly, and in any event within five (5) Business Days after receipt thereof by any Loan Party, copies of each notice or other correspondence received from any Governmental Authority (including, without limitation, the SEC (or comparable agency in any applicable non-U.S. jurisdiction)) concerning any proceeding with, or investigation or possible investigation or other inquiry by such Governmental Authority regarding financial or other operational results of any Loan Party or any -73-
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(v) all Net Proceeds, and all other cash payments received by a Loan Party from any Person or from any source or on account of any Disposition or other transaction or event, including, without limitation, any Prepayment Event. (c) Each Blocked Account Agreement shall require upon notice from Lender, which notice shall be delivered only after the occurrence and during the continuance of a Cash Dominion Event, the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the concentration account maintained by the Lender at Xxxxx Fargo (the “Concentration Account”), of all cash receipts and collections received by each Loan Party from all sources (the “Receipts and Collections”), including, without limitation, the following: (i) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $5,000.00, as may be kept in the subject Blocked Account under the Borrowers’ policies as in effect on the Second Amendment Effective Date); (ii) all amounts required to be deposited into the Blocked Accounts pursuant to clause (b) above; and (iii) any other cash amounts received by any Loan Party from any other source, on account of any type of transaction or event; provided, however, the Lender may, in its sole discretion, permit the Loan Parties to have one or more “intermediate” Blocked Account Agreements, whereby such agreements would provide, upon notice from the Lender, which notice shall be delivered only after the occurrence and during the continuance of a Cash Dominion Event, the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) of all Receipts and Collections to another Blocked Account, as opposed to the Concentration Account. (d) The Concentration Account shall at all times be under the sole dominion and control of the Lender. The Lender shall cause all funds on deposit in the Concentration Account to be applied to the Obligations, which amounts shall be applied to the Obligations in the order proscribed in either Section 2.04(f) or Section 8.03 of this Agreement, as applicable. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Concentration Account, and (ii) the funds on deposit in the Concentration Account shall at all times be collateral security for all of the Obligations. In the event that, notwithstanding the provisions of this Section 6.13, any Loan Party receives or otherwise has dominion and control of any such cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the Lender, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Lender. (e) Upon the request of the Lender, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Lender not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above. (f) If the Lender does not require DDA Notifications to be delivered on the Closing Date in accordance with Section 6.13(a)(iii) above, then the Loan Parties shall, upon the request of the Lender at any time after the Closing Date, deliver to the Lender copies of DDA Notifications, which have been executed on behalf of the applicable Loan Party and delivered to each depository institution listed on Schedule 5.21(a). -80-
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benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were the Lender and had acquired its interest by assignment pursuant to Section 9.06(a) (c) Limitations upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04 than the 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. (d) Certain Pledges. The 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 the Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided, that no such pledge or assignment shall release the Lender from any of its obligations hereunder or substitute any such pledgee or assignee for the Lender as a party hereto. (e) 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. (f) Resignation as L/C Issuer after Assignment. Notwithstanding anything to the contrary contained herein, if at any time the Lender assigns all of its Commitment and Loans pursuant to subsection (a) above, Xxxxx Fargo may resign as L/C Issuer upon thirty (30) days prior written notice to the Lead Borrower. In the event of any such resignation as L/C Issuer, the Lead Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer; provided, however, that no failure by the Lead Borrower to appoint any such successor shall affect the resignation of Xxxxx Fargo as L/C Issuer unless none of the other Lenders has the capabilities to issue letters of credit sufficient to meet the reasonable business needs of the Borrowers and is willing to accept such appointment. If Xxxxx 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 Lender to make Base Rate Loans pursuant to Section 2.03(c)). Upon the appointment of a successor L/C Issuer, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Xxxxx Fargo to effectively assume the obligations of Xxxxx Fargo with respect to such Letters of Credit. 9.07 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 in connection with the transactions contemplated hereby (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 -95-
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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. 9.10 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 Lender and when the Lender 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 facsimile, pdf., or other electronic transmission shall be as effective as delivery of a manually executed counterpart of this Agreement. 9.11 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 9.04 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 Commitment 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 Lender may require such indemnities and collateral security as they shall reasonably deem necessary or appropriate to protect the Credit Parties against (x) loss on account of credits previously applied to the Obligations that may subsequently be reversed or revoked, (y) any obligations that may thereafter arise with respect to the Other Liabilities and (z) any Obligations that may thereafter arise under Section 9.04. 9.12 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. 9.13 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. (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 SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY -97-
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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 THE LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION IF REQUIRED TO REALIZE UPON ANY COLLATERAL. (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 9.02, EXCLUDING SERVICE OF PROCESS BY E-MAIL. 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 AND, EXCEPT AS PROVIDED IN THE LAST SENTENCE OF SECTION 9.13(b), EACH CREDIT PARTY, AGREES THAT ANY ACTION COMMENCED BY IT 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 ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS WITH RESPECT TO ANY SUCH ACTION. 9.14 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 -98-
![slide119](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal119.jpg)
LENDER AND L/C ISSUER: XXXXX FARGO BANK, NATIONAL ASSOCIATION By: Name: Its Authorized Signatory Signature Page to Credit Agreement
![slide120](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal120.jpg)
ANNEX II Schedules to Credit Agreement See attached.
![slide121](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal121.jpg)
SCHEDULE 5.05 SUPPLEMENT TO INTERIM FINANCIAL STATEMENTS (MATERIAL INDEBTEDNESS) None.
![slide122](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal122.jpg)
SCHEDULE 5.06 LITIGATION None.
![slide123](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal123.jpg)
SCHEDULE 5.08(b)(1) OWNED REAL ESTATE None.
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SCHEDULE 5.08(b)(2) LEASED REAL ESTATE 0000 Xxxxxx Xxxx Xxxxx, Xxxxxxxx, XX 00000 See attached “Store Locations” list, current as of July 27, 2018.
![slide125](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal125.jpg)
Xxxxxxxxxxx & Banks Store Count as of 7/27/2018 Store # Division Center Name Address City State Zip Code Open Date 103 CBK Woodbury Lakes 0000 Xxxxxx Xxxx, Xxx #000 Xxxx X Xxxxxxxx XX 00000 9/14/2005 000 XXX Xxxxxxxx Xxxx 000 Xxxxxxxx Xxxx Xxxxxxxx XX 00000 2/1/2006 000 XXX Xxx Xxxx Xxxxxx 000 Xxx Xxxx Xxxxxx Xxxxx Xxx XX 00000 7/29/1981 000 XXX Xxxxxx Xxxx 000 Xxxx Xxxxxxx Xxxxxx, Xxx #X00 Xxxx xx Xxx XX 00000 2/28/1984 000 XXX Xxx Xxxxx Xxxx 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxx 000 Xxxxxxxx XX 00000 7/18/1984 000 XXX Xxxxxx Xxxx Xxxx 0000 Xxxxxx Xxxx Xxxxx, #000 Xxxx Xxx Xxxxxx XX 00000 8/6/1984 000 XXX Xxxxxxxxx Xxxx 0000 Xxxx 00xx Xxxxxx, Xxxx X00 Xxxxx Xxxxxx XX 00000 9/6/1985 000 XXX Xxxxxxx Xxxx 0000 Xxxxx Xxxxxx XX, #000 Xxxxx Xxxxxx XX 00000 3/10/1986 187 CBK Montclair on Center 00000 Xxxx Xxxxxx Xxxx Xxxxx XX 00000 7/31/1986 000 XXX Xxxxxxx Xxxx 0000 Xxxxx 0xx Xxxxxx, #000 Xxxxxx XX 00000 2/24/1987 000 XXX Xxxxx Xxxx Xxxx 0000 Xxxxxx Xxxxxx, #X00X Xxxxxxxxxxx XX 00000 6/14/2001 000 XXX Xxxxxxxxxx Xxxxxx Mall 00 Xxxxx Xxxxxxxx Xxxx, #X‐00 Xxxxxxxxxx XX 00000 3/5/1988 000 XXX Xxxxxx Xxxx 0000 Xxxx 00xx Xxxxxx, #000 Xxxxx Xxxxx XX 00000‐6512 7/27/1988 000 XXX Xxxxxxx Xxxx Center 000 Xxxxxxxxxx Xxxxxx, #000 Xxxxxxx XX 00000 5/29/1999 000 XXX Xxxxx Xxxxx Xxxxxx 000 Xxxxx Xxxxxxxxx, #0000 Xxxxx XX 00000 3/5/1993 303 CBK Bangor Mall 000 Xxxxxxxxxx Xxxxxx, #X0/X00 Xxxxxx XX 00000 3/9/2001 000 XXX Xxxx Xxxxx Xxxx 0000 Xxxxxxxxx Xxxx, #X00 Xxxxxx XX 00000 8/23/2002 000 XXX Xxxxx Xxxxxxx Xxxx 0000 Xxxxx Xxxxxxx Xxxxx, #X000 Xxxxxxxxxx XX 00000 3/9/2001 000 XXX Xxxxxxxxxx Xxxx 0000 Xxxxxxxx Xxxxxxx Xxxxx, #X00 Xxxxxxxxx XX 00000 4/6/2001 000 XXX Xxxxxx Xxxxxx Xxxx 0000 Xxxx Xxxx Xxxxxx, #000 Xxxxxxxxxx XX 00000 11/8/2002 387 CBK The Shops At Boardwalk 0000 Xxxxx Xxxxxxxxx Xxxxxx, #XX00 Xxxxxx Xxxx XX 00000 8/15/2003 000 XXX Xxxx Xxxx Xxxx 0000 Xxxxxxx Xxxxxx, Xxx 000 Xxxx Xxxxxxxxx XX 00000 6/18/1999 000 XXX Xxxxxx Xxxxx Xxxx 0000 X Xxxx Xxxxx Xxxx, Xxx 0000 Xxxxxx XX 00000 8/4/1994 000 XXX Xxxxxxxxxx Xxxx Center 0000 Xxxxxxxxxx Xxxx Xxxxxx, #0000 Xxxxxxxxxx XX 00000 6/11/1999 000 XXX Xxxxxxxx Xxxx 00000 Xxxx Xxxxxx Xxxx, #000 Xxxxxxxx XX 00000 1/12/1998 000 XXX Xxxxxx Xxxx 0000 X Xxxxxxxxx Xxxxxx, #X00 Xxxxxx XX 00000 9/27/2002 000 XXX Xxxxxxxx Xxxx Xxxx 0000 Xxxxxxxxxxx Xxxx, #000 Xxxxxxx XX 00000 3/18/2000 000 XXX Xxxxxxx Xxxx 0000 X Xxxxxxx Xxxxxxx, #000 Xxxxxxx XX 00000 3/9/2001 549 CBK The Town Center at Levis Comm 0000 Xxxxx Xxxxxxx Xxxx, Xxx 18‐A Xxxxxxxxxx XX 00000 10/26/2004 559 CBK The Xxxxxx Town Center 000 Xxxx Xxxxxx Xxxxxxxxxxx XX 00000 11/3/2006 1
![slide126](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal126.jpg)
Xxxxxxxxxxx & Banks Store Count as of 7/27/2018 Store # Division Center Name Address City State Zip Code Open Date 619 CBK The Orchard 0000 Xxxxxxx Xxxxxx, Xxx #0000 Xxx Xxxxxxxx XX 00000 11/2/2007 000 XXX Xxxx xx Xxxxxxxxx Xxxxxxx 0000 Xxxxxxxxx Xxxxxxx, #X000 Xxxxxxxxxxx XX 00000 9/8/2005 656 CBK The Promenade Shops at Cente 0000 Xxx Xxxx Xxxxx, Xxx #X000 Xxxxxxxx XX 00000 11/18/2005 000 XXX Xxxxxx Xxxx Xxxxx Center 0000 Xxxxx Xxxxxx Xxxx, Xxx X‐000 Xxxxxxxxx XX 00000 5/26/2007 000 XXX Xxxxx Xxxxx 0000 X Xxxxx Xx Xxxxx, #000 Xxxxxxxxx XX 00000 6/9/2006 684 CBK The Orchard Town Center 00000 Xxxxxxxx Xxxxxx, Xxx 000 Xxxxxxxxxxx XX 00000 4/3/2008 000 XXX Xxx Xxxxx Xxxx 0000 Xxxx Xxxxxxxxx Xxx, Xxx 000 Xxxxxxxx XX 00000 10/6/2000 000 XXX Xxxxxx Xxxx 000 Xxxx Xxxxxxx Xxxxxx, Xxx #X00 Xxxx xx Xxx XX 00000 8/18/2000 000 XXX Xxxxx Xxxx Xxxx 0000 Xxxxxx Xxxxxx, #X‐00 Xxxxxxxxxxx XX 00000 8/25/2000 000 XXX Xxxxxxx Xxxx 0000 Xxxxx Xxxxxx XX, Xxx 00 Xxxxx Xxxxxx XX 00000 9/15/2000 815 CJB Empire Mall 0000 Xxxx 00xx Xxxxxx, #000 Xxxxx Xxxxx XX 00000‐6523 9/15/2000 826 CJB Montclair on Center 00000 Xxxx Xxxxxx Xxxx Xxxxx XX 00000 3/23/2001 000 XXX Xxxxx Xxxxx Xxxxxx 000 X Xxxxxxxxx, #0000 Xxxxx XX 00000 4/20/2001 853 CJB Tippecanoe Mall 0000 Xxxxxxxx Xxxxxxx Xxxxx, #X00X Xxxxxxxxx XX 00000 8/10/2001 000 XXX Xxxxxxxxxx Xxxxxx Xxxx 00 Xxxxx Xxxxxxxx Xxxx, #X0X Xxxxxxxxxx XX 00000 8/10/2001 860 CJB Conestoga Mall 0000 Xxxx 00xx Xxxxxx, #X0X Xxxxx Xxxxxx XX 00000 10/10/2001 000 XXX Xxxxxxx Xxxx Center 000 Xxxxxxxxxx Xxxxxx, #000 Xxxxxxx XX 00000 4/12/2002 000 XXX Xxxxxxxxxx Xxxx Center 0000 Xxxxxxxxxx Xxxx Xxxxxx Xxxx, #0000 Xxxxxxxxxx XX 00000 6/4/2004 905 CJB Muncie Mall 0000 Xxxxxxxxx Xxxxxx, #X00 Xxxxxx XX 00000 9/26/2002 912 CJB Central Mall 0000 Xxxxx 0xx Xxxxxx, #00 Xxxxxx XX 00000 3/21/2003 000 XXX Xxxxxxxx Xxxx Xxxx 0000 Xxxxxxxxxxx Xxxx, #000 Xxxxxxx XX 00000 8/22/2003 000 XXX Xxxx Xxxx Xxxx 0000 Xxxxxxx Xxxxxx, Xxx 000 Xxxx Xxxxxxxxx XX 00000 9/5/2003 934 CJB Apple Blossom Mall 0000 Xxxxx Xxxxxxx Xxxxx, #X000 Xxxxxxxxxx XX 00000 3/12/2004 938 CJB Kirkwood Mall 000 Xxxxxxxx Xxxx Xxxxxxxx XX 00000 5/21/2004 949 CJB Bangor Mall 000 Xxxxxxxxxx Xxxxxx, #0000 Xxxxxx XX 00000 9/24/2004 000 XXX Xxx Xxxx Xxxxxx 000 Xxx Xxxx Xxxxxx Xxxxx Xxx XX 00000 5/13/2005 000 XXX Xxxxxx Xxxxx Xxxx 0000 X Xxxx Xxxxx Xxxx, Xxx 0000 Xxxxxx XX 00000 4/15/2005 979 CJB The Shops At Boardwalk 0000 Xxxxx Xxxxxxxxx Xxxxxx, #00 Xxxxxx Xxxx XX 00000 9/16/2005 982 CJB The Town Center at Levis Comm 0000 Xxxxx Xxxxxxx Xxxx Xxxxxxxxxx XX 00000 10/7/2005 000 XXX Xxxx Xxxxx Xxxx 0000 Xxxxxxxxx Xxxx, #XX00X Xxxxxx XX 00000 5/12/2006 2
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Xxxxxxxxxxx & Banks Store Count as of 7/27/2018 Store # Division Center Name Address City State Zip Code Open Date 997 CJB Shadow Lake Towne Center 0000 Xxxxx Xxxxxx Xxxx, Xxx X‐000 Xxxxxxxxx XX 00000 5/26/2007 1005 CJB Woodbury Lakes 0000 Xxxxxx Xxxx, Xxx 000 Xxxxxxxx XX 00000 5/5/2006 0000 XXX Xxxxxx Xxxx Xxxx 0000 Xxxxxx Xxxx Xxxxx, #000 Xxxx Xxx Xxxxxx XX 00000 4/13/2007 1029 CJB The Xxxxxx Town Center 000 Xxxx Xxxxxx Xxxxxxxxxxx XX 00000 11/3/2006 1042 CJB The Orchard Town Center 00000 Xxxxxxxx Xxxxxx, #000 Xxxxxxxxxxx XX 00000 4/3/2008 0000 XXX Xxxxxxxx Xxxx 00000 Xxxx Xxxxxx Xxxx, #000 Xxxxxxxx XX 00000 9/28/2007 1046 CJB The Orchard 0000 Xxxxxxx Xxxxxx, #0000 Xxx Xxxxxxxx XX 00000 11/2/2007 1067 CJB The Promenade Shops at Cente 0000 Xxx Xxxx Xxxxx, Xxx X000 Xxxxxxxx XX 00000 10/11/2007 1101 CJB Aspen Grove 0000 Xxxxx Xxxxx Xx Xxxxx, # 000 Xxxxxxxxx XX 00000 8/13/2010 3200 Outlet Albertville Premium Outlet 0000 Xxxxxxx Xxxxxx XX, Xxx #X000 Xxxxxxxxxxx XX 00000 9/24/2010 3201 Outlet The Legends 0000 Xxxxxxx Xxxx Xxxxxxx, Xxx X‐000 Xxxxxx Xxxx XX 00000 9/24/2010 3202 Outlet Birch Run Premium Outlets 00000 Xxxxx Xxxxx Xxxx, Xxx X000 Xxxxx Xxx XX 00000 4/15/2011 3203 Outlet Tanger Outlets ‐ Jeffersonville 0000 Xxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxxxxxxxx XX 00000 4/15/2011 0000 Xxxxxx Xxxxx Xxxx Premium Outlets 1911 Leesburg Grove City Road, Spc 1255 Xxxxx Xxxx XX 00000 4/15/2011 0000 Xxxxxx Xxxxxxxx Xxxxxxx Premium Outle 00000 000xx Xxxxxx, Xxx 00 Xxxxxxxx Xxxxxxx XX 00000 4/15/2011 3206 Outlet Tanger Outlets Branson 000 Xxxxxx Xxxxxxxxx, Xxx 000 Xxxxxxx XX 00000 7/8/2011 3207 Outlet Edinburgh Premium Outlet 0000 Xxxxxx Xxxxx, #X000 Xxxxxxxxx XX 00000 9/9/2011 0000 Xxxxxx Xxxxxxxxx Xxxxx Xxxxxx Xxxxxx 000 X Xxxxxx Xxxx, Xxx 0000 Xxxxxxx XX 00000 10/7/2011 3209 Outlet North Branch Outlets 00000 Xxxxxx Xxxxx, Xxx 000 Xxxxx Xxxxxx XX 00000 5/6/2011 3210 Outlet The Outlet Shoppes at Oklahom 0000 Xxxx Xxxx Xxxxxx, Xxx 000 Xxxxxxxx Xxxx XX 00000 8/4/2011 3211 Outlet Tanger Outlets Xxxxxx 0000 X. Xxxxxxxx Xxxx, Xxx X000 Xxxxxx XX 00000 5/6/2011 3212 Outlet Tanger Outlets Williamsburg 000 Xxxxxx Xxxxx Xxxxxxxxxxxx XX 00000‐9653 5/6/2011 3213 Outlet Outlets at Tuscola X000 Xxxxxxx Xxxx Xxxxxxx XX 00000 5/6/2011 0000 Xxxxxx Xxxxx Xxxx Premium Outlets 000 X Xxxx Xxxxxx XX, Xxxx X Xxxxx Xxxx XX 00000 9/9/2011 3215 Outlet Lebanon Premium Outlets Xxx Xxxxxx Xxxxxxx Xxxx, Xxx 000 Xxxxxxx XX 00000 9/9/2011 3216 Outlet Tanger Outlets Myrtle Beach 4635 Factory Stores Boulevard, #C210 Xxxxxx Xxxxx XX 00000 6/10/2011 3217 Outlet Lincoln City Outlet 0000 XX Xxxx Xxxxxx Xxxx Xxxx, Xxx 000 Xxxxxxx Xxxx XX 00000 6/10/2011 3218 Outlet Centralia Outlets 000 Xxxx Xxxx Xxxxxx, Xxx 000 Xxxxxxxxx XX 00000 6/10/2011 3219 Outlet Ohio Station Outlets 0000 Xxxx Xxxx Xxxx, Xxxx 000 Xxxxxxx XX 00000 7/22/2011 3220 Outlet The Outlet Shoppes at Oshkosh 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxx X000 Xxxxxxx XX 00000 6/10/2011 3
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Xxxxxxxxxxx & Banks Store Count as of 7/27/2018 Store # Division Center Name Address City State Zip Code Open Date 0000 Xxxxxx Xxxxxxx Xxxxx Premium Outlets 000 Xxxxxx Xxxx, Xxx X000 Xxxxxxx Xxxxx XX 00000 7/22/2011 3222 Outlet The Outlet Shoppes at Gettysbu 0000 Xxxxxxxxxx Xxxxxxx Xxxxx, Xxx 000 Xxxxxxxxxx XX 00000 3/16/2012 3225 Outlet Osage Beach Premium Outlets 0000 Xxxxx Xxxxx Xxxxxxx, Xxx #X‐0 Xxxxx Xxxxx XX 00000 8/23/2013 3229 Outlet Medford Outlet Center 0000 Xxxx Xxxxxxxx Xxxx, Xxx X000 Xxxxxxx XX 00000 3/23/2012 3231 Outlet Outlets at West Branch 0000 Xxxx Xxxx, Xxx 000 Xxxx Xxxxxx XX 00000 6/28/2013 3234 Outlet Tanger Outlets Pittsburgh 0000 Xxxxxx Xxxx, Xxx #000 Xxxxxxxxxx XX 00000 11/7/2013 3235 Outlet Tanger Outlets Xxxxxx 000 Xxxxxxx Xxxx, Xxx 000 Xxxxxx XX 00000 3/31/2016 3236 Outlet The Outlet Shoppes at Burlingto 000 Xxxxxxx Xxx Xxxxxxxxxx XX 00000 5/24/2013 3237 Outlet Waterloo Premium Outlets 000 Xxxxx Xxxxx 000, Xxx #X000 Xxxxxxxx XX 00000 8/1/2013 3238 Outlet St. Louis Premium Outlets 00000 Xxxxxx Xxxx, Xxx #000 Xxxxxxxxxxxx XX 00000 8/22/2013 3239 Outlet Rockvale Outlets 00 Xxxxx Xxxxxxxxxx Xxxxx, #000 Xxxxxxxxx XX 00000 5/1/2014 3240 Outlet Columbia Gorge Outlets 000 XX 000xx Xxx, #000 Xxxxxxxxx XX 00000 5/2/2014 3241 Outlet The Outlet Shoppes of the Blueg1155 Buck Creek Road, Spc A110 Xxxxxxxxxxxx XX 00000 7/30/2014 3242 Outlet Log Jam Outlet 0000 Xxxxx Xxxxx 0, #X00 Xxxx Xxxxxx XX 00000 5/8/2014 3243 Outlet Bend Factory Outlets 00000 Xxxxx Xxx 00, Xxx #000 Xxxx XX 00000 5/9/2014 3246 Outlet Outlets at Anthem 0000 X Xxxxxx Xxx, #0000 Xxxxxx XX 00000 3/5/2015 3247 Outlet Tanger Outlets Grand Rapids 350 84th Street SW, Spc 0000 Xxxxx Xxxxxxxx XX 00000 7/30/2015 3248 Outlet Twin Cities Premium Outlets 0000 Xxxxx Xxxxxxx Xxxxxxx, Xxx 000 Xxxxx XX 00000 8/14/2014 3249 Outlet Tanger Outlets Columbus 400 X. Xxxxxx Road, Space 1040 Xxxxxxx XX 00000 6/23/2016 3250 Outlet The Outlet Shoppes at Fremont 0000 Xxx XX 00, #X000 Xxxxxxx XX 00000 7/3/2014 3251 Outlet Charlotte Premium Outlets 0000 Xxx Xxxxxxx Xxx, Xxx #000 Xxxxxxxxx XX 00000 7/31/2014 0000 Xxxxxx Xxxxxx Xxxxx Crossings 0000 Xxxxxxx Xxxx, Xxx 0000 Xxxxxx Xxxxx XX 00000 8/29/2014 3254 Outlet Essex Outlets 00 Xxxxx Xxx, Xxx #000 Xxxxx Xxxxxxxx XX 00000 8/28/2014 3255 Outlet Tanger Outlets at Memphis 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000 Xxxxxxxxx XX 00000 11/19/2015 3257 Outlet Tucson Premium Outlets 0000 X. Xxxxxx Xxxxxx Xxxx, Xxx 000 Xxxxxx XX 00000 10/1/2015 3259 Outlet Fashion Outlets of Niagara Falls 0000 Xxxxxxxx Xxxx, Xxx #000 Xxxxxxx Xxxxx XX 00000 10/23/2014 3260 Outlet Tampa Premium Outlets 0000 Xxxxx Xxxxxxx Xxxxx, Xxx #000 Xxxx XX 00000 10/28/2015 3264 Outlet Carolina Premium Outlets 0000X Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxxx XX 00000 7/17/2015 3265 Outlet Tanger Outlets Blowing Rock 310 Shoppes on the Xxxxxxx Xxxx, Xxx #00 Xxxxxxx Xxxx XX 00000 4/3/2015 3266 Outlet Sanibel Outlets 00000 Xxxxxxxxx Xxxx, Xxx #0000 Xxxx Xxxxx XX 00000 7/3/2015 4
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Xxxxxxxxxxx & Banks Store Count as of 7/27/2018 Store # Division Center Name Address City State Zip Code Open Date 3267 Outlet Outlets at Kittery 000 XX Xxxxx 0, Xxx 000 Xxxxxxx XX 00000 4/3/2015 0000 Xxxxxx Xxxxxxxx Xxxxx Outlet Village 0 Xxxxxx Xxxxx, #X‐00 Xxxxx Xxxxxx XX 00000 2/25/2015 3269 Outlet Asheville Outlets 000 Xxxxxxx Xxxx, Xxx #000 Xxxxxxxxx XX 00000 5/1/2015 3270 Outlet Westbrook Outlets 000 Xxxx Xxxx Xxxxx, Xxx #X000 Xxxxxxxxx XX 00000 4/3/2015 0000 Xxxxxx Xx. Xxxxxxxxx Outlets 000 Xxxxxx Xxxx Xxxxxxxxx, Xxx #000 Xx. Xxxxxxxxx XX 00000 7/17/2015 3272 Outlet Seaside Factory Outlet Center 0000 X. Xxxxxxxxx Xxxxx, Xxx #000 Xxxxxxx XX 00000 5/29/2015 3274 Outlet Williamsburg Premium Outlets 0000‐00 Xxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000 11/25/2015 0000 Xxxxxx Xxx Xxxxxxx xx Xxxxxx Xxxx 00000 Bass Pro Parkway, Spc #B‐X000 Xxxxxx Xxxx XX 00000 10/15/2015 3276 Outlet Destiny USA 9090 Destiny USA Drive, Spc L204 Xxxxxxxx XX 00000 7/31/2015 3277 Outlet Tanger Outlet at Five Oaks 0000 Xxxxxxx, Xxx #000 Xxxxxxxxxxx XX 00000 9/18/2015 3278 Outlet Tanger Outlets Commerce 000 Xxxxxx X. Xxxxxx Xxxx, Xxx #000 Xxxxxxxx XX 00000 6/5/2015 3279 Outlet Tanger Outlets Terrell 000 Xxxxxx Xxxxx, Xxx #000 Xxxxxxx XX 00000 5/29/2015 3280 Outlet Tanger Outlets Rehoboth Beach 00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx #0000 Xxxxxxxx Xxxxx XX 00000 10/30/2015 3282 Outlet The Outlets at Sands Bethlehem 00 Xxxxx Xxxx, Xxx #000 Xxxxxxxxx XX 00000 8/14/2015 3285 Outlet Ellenton Premium Outlets 0000 Xxxxxxx Xxxxx Xxxx, Xxx 000 Xxxxxxxx XX 00000 7/31/2015 3286 Outlet Tanger Outlets Locust Grove 0000 Xxxxxx Xxxxx, Xxx #000 Xxxxxx Xxxxx XX 00000 7/31/2015 3287 Outlet Tanger Outlets Ocean City 00000 Xxxxx Xxxxxxx, Xxx #000 Xxxxx Xxxx XX 00000 7/31/2015 3288 Outlet Phoenix Premium Outlets 0000 Xxxxxxx Xxxxxxx Xxx, Xxx #000 Xxxxxxxx XX 00000 10/30/2015 3289 Outlet Calhoun Premium Outlets 000 Xxxxxxx Xxxx, Xxx #X000 Xxxxxxx XX 00000 1/8/2016 3290 Outlet Lighthouse Place Premium Outl 000 Xxxxxxxxxx Xxxxx, Xxx X000 Xxxxxxxx Xxxx XX 00000 7/31/2015 3293 Outlet Gloucester Premium Outlets 000 Xxxxxxx Xxxxxxx Xxxxx, Xxx #000 Xxxxxxxxx XX 00000 8/13/2015 3294 Outlet Outlets at Traverse Mountain 0000 Xxxxx Xxxxxxx Xxxx, Xxx 000 Xxxx XX 00000 3/18/2016 3295 Outlet Xxxxxxx Premium Outlets 0 Xxxxxxx Xxxxx Xxxx, Xxx 000 Xxxxxxx XX 00000 4/1/2016 3296 Outlet Cincinnati Premium Outlets 000 Xxxxxxx Xxxxxx Xxxxx, Xxx 000 Xxxxxx XX 00000 4/1/2016 3302 Outlet Outlets of Des Moines 000 Xxxx Xxx Xxxxx XX, Xxx #000 Xxxxxxx XX 00000 4/20/2018 3303 Outlet Outlets at Castle Rock 5050 Factory Shops Blvd., Spc 1020 Xxxxxx Xxxx XX 00000 6/3/2016 0000 Xxxxxx Xxxxxxxx Xxxxx Xxxx 00000 Xxxx Xxxxxx Xxxxxx, #000 Xxxxxxxx XX 00000 11/12/2012 3306 Outlet Tanger Outlets @ Foxwoods 000 Xxxxxxx Xxxx Xxxx Xxxxxxxxxxxx XX 00000 2/23/2018 4001 MPW Shoppes at Montage 0000 Xxxxxxx Xxxxxxxxx Xxxxxx XX 00000 7/31/2009 4003 MPW NewMarket Square 0000 Xxxxx Xxxxx Xxxx, Xxx 0000 Xxxxxxx XX 00000 8/26/2011 5
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Xxxxxxxxxxx & Banks Store Count as of 7/27/2018 Store # Division Center Name Address City State Zip Code Open Date 4005 MPW East Hills Mall 0000 Xxxxxxxxx Xxxx, Xxx 00 Xx. Xxxxxx XX 00000 4/15/2011 4006 MPW Rushmore Crossing 0000 Xxxxx Xxxxxx, Xxx #000 Xxxxx Xxxx XX 00000 3/7/2012 4007 MPW Lakeport Commons 0000 Xxxxxxxx Xxxx, Xxx 000 Xxxxx Xxxx XX 00000 3/4/2011 4008 MPW Summit Fair 930‐V Xxxxxxxxx Xxxx Xxxx Xxxx Xxxxxx XX 00000 10/7/2011 4010 MPW The Shoppes of Oak Park Height 0000 Xxxxxxx Xxxx Xxx Xxxx Xxxxxxx XX 00000 10/7/2011 4011 MPW Derby Marketplace 0000 X. Xxxx Xxxx, Xxx X‐00 Xxxxx XX 00000 9/16/2011 4012 MPW Chillicothe Mall 0000 Xxxxx Xxxxxx Xxxxxx, Xxx 000 Xxxxxxxxxxx XX 00000 4/1/2011 4013 MPW Cedar Mall 0000 Xxxxx Xxxx, #X0 Xxxx Xxxx XX 00000 8/10/2012 0000 XXX Xxxx xx Xxxxxxx 000 Xxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000 8/11/1992 0000 XXX Xxxxxxxxxx Xxxx 00 Xxxxxxxxxx Xxxx Xx. Xxxx XX 00000 8/17/2001 4016 MPW Columbia Center 0000 X Xxxxxxxx Xxxxxx Xxxx, #000 Xxxxxxxxx XX 00000 4/3/2014 0000 XXX Xxxxxxxxxxx Xxxx 000 Xxxxxxx Xxxx Xxxxx, #X0‐0 Xxxxxxxxx XX 00000 3/8/2002 4019 MPW Rimrock Mall 000 Xxxxx 00xx Xxxxxx Xxxx, #X‐1 Xxxxxxxx XX 00000 4/6/2001 4020 MPW Mesa Mall 0000 XX Xxx 0 & 00, #000 Xxxxx Xxxxxxxx XX 00000 8/17/2001 0000 XXX Xxxxxxxxxx Xxxxxxx 0000 Xxxxxxxx Xxxxx, Xxx X Xxxxxx XX 00000 5/25/2012 0000 XXX Xxxxxxx Xxxxxx Xxxx 000 XX 0xx Xxxxxx, #000 Xxxxx Xxxxxx XX 00000 5/8/1991 4029 MPW Palouse Mall 0000 Xxxx Xxxxxxx Xxxx, #X0 Xxxxxx XX 00000 10/3/2003 4033 MPW Great Northern Mall 000 Xxxxx Xxxxxxxx Xxxx Xxxxx Xxxxxxx XX 00000 5/23/2003 4037 MPW Midtown Mall 0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000 11/2/1994 0000 XXX Xxxxx Xxxxxx 000 Xxxxx Xxxxxx, #X00X Xxxxx XX 00000 3/9/2001 0000 XXX Xxxxxxxxxx Xxxx 0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000 6/8/2001 4053 MPW Eden Prairie Center 0000 Xxxxxx Xxxxx Xxxxx, #0000 Xxxx Xxxxxxx XX 00000 9/27/2013 4054 MPW Aberdeen Mall 0000 0xx Xxxxxx XX, #00 Xxxxxxxx XX 00000 11/13/1990 0000 XXX Xxxxxx Xxxxx Xxxx 0000 Xxx Xxxx Xxxx, #X‐000 Xxxxxxxxxxxx XX 00000 8/22/2003 4061 MPW Janesville Mall 0000 Xxxxxx Xxx, #000 Xxxxxxxxxx XX 00000 9/28/2007 4062 MPW Xxx Xxxx xx Xxxxxx Xxxxx 000 Xxxxxx Xxxxx Xxxxxx Xxxxx, X‐00x Xxxxxxxxx XX 00000 12/12/1998 4063 MPW Pyramid Mall Ithaca 00 Xxxxxxxxxx Xxxx, #X00 Xxxxxx XX 00000 8/16/2002 0000 XXX Xxxxxx Xxxxx Xxxxxx 000 Xxxxxx Xxxxx Xxxxxx Xxxxxx XX 00000 10/31/2002 4065 MPW Village Mall 0000 Xxxxx Xxxxxxxxx Xxxxxxxx XX 00000 8/18/1987 0000 XXX Xxxxxxxxxx Xxxx 000 Xxxxx 00xx Xxxxxx, Xxxx X00 Xxxx Xxxxx XX 00000 3/1/1980 6
![slide131](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal131.jpg)
Xxxxxxxxxxx & Banks Store Count as of 7/27/2018 Store # Division Center Name Address City State Zip Code Open Date 4069 MPW Eastview Mall 000 Xxxxxxxx Xxxx Xxxxxx XX 00000 12/4/1998 4074 MPW CoolSprings Galleria 0000 Xxxxxxxx Xxxx, #0000 Xxxxxxxx XX 00000 5/23/2003 4075 MPW The Streets of Indian Lake 000 Xxxxxx Xxxx Xxxx, Xxxx X, Xxx 000 Xxxxxxxxxxxxxx XX 00000 3/13/2008 4077 MPW The Mall at Whitney Field 000 Xxxxxxxxxx Xxxx, #00 Xxxxxxxxxx XX 00000 8/15/2003 4079 MPW Hickory Point Mall 0000 Xxxxxxx Xxxxx Xxxx, Xxx #0000 Xxxxxxx XX 00000 1/3/2014 4081 MPW The Shops at CenterPoint 0000 00xx Xxxxxx XX Xxxxx Xxxxxx XX 00000 2/24/2001 4082 MPW Northpark Mall 000 Xxxx Xxxxxxxx Xxxx, Xxx 00 Xxxxxxxxx XX 00000 2/26/2013 4083 MPW Richland Mall 000 Xxxxxxxx Xxxx Xxxxxxxxx XX 00000 4/13/2001 0000 XXX Xxxxx Xxxxx 0000 X Xxxxx Xxxxx Xxxx, Xxx X Xxxxxxxxx XX 00000 4/26/2013 4085 MPW Glenbrook Square 4201 Coldwater, #E10 Xxxx Xxxxx XX 00000 10/12/2001 4086 MPW Riverdale Village 00000 Xxxxxxxxx Xxxx, #000‐#000 Xxxx Xxxxxx XX 00000 9/21/2001 4087 MPW Xxxxxxxxx Xxxx 0000 Xxxxx Xxxxxxxx, #0000 Xxxxxxx XX 00000 10/4/2013 4088 MPW Pavilion Shopping Center 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxx 0 Xxxx Xxxxxxx XX 00000 10/3/2013 0000 XXX Xxxxxxxxx Xxxx 0000 Xxxxxxx Xxxxx Xxxxxxxxx, #000 Xxxxxxx XX 00000 3/30/1999 4090 MPW Rosedale Commons 0000 Xxxxxxxx Xxxxxx Xxxxx, Xxx #000 X&X Xxxxxxxxx XX 00000 1/24/2014 4091 MPW Novi Town Center 00000 Xxxxxxxx Xxxxx Xxxx XX 00000 6/5/2014 4092 MPW Clackamas Town Center 00000 XX 00xx Xxxxxx, #X000 Xxxxx Xxxxxx XX 00000 4/4/2014 4093 MPW Xxxxxxxxxxxx Mall 0000 Xxxxx 00, Xxx #XX0 Xxxxxxxxxx XX 00000 5/9/2014 4094 MPW Xxxxxx Fair Xxx Xxxxxx Xxxx Xxxxxxx, #000 Xxxxxxxxxx XX 00000 6/6/2014 4095 MPW Spokane Valley Mall 00000 Xxxx Xxxxxxx Xxxxxx, #0000 Xxxxxxx Xxxxxx XX 00000 6/20/2014 4098 MPW Columbia Mall 0000 Xxxxxxxxxx Xxxxx, #0000 Xxxxxxxx XX 00000 4/4/2014 4099 MPW Orchard Crossing 000 Xxxxxx Xxxx, #000 Xxxx Xxxxx XX 00000 4/25/2014 4100 MPW Birchwood Mall 0000 00xx Xxxxxx, #000 Xxxx Xxxxx XX 00000 4/11/2003 4101 MPW Peru Mall 0000 Xxxxx 000, Xxx #X0 Xxxx XX 00000 5/2/2003 0000 XXX XxxxxXxxx Xxxx 0000 00xx Xxxxxx, #000 Xxxxxx XX 00000 3/21/1981 4103 MPW Westwood Mall 0000 X Xxxxxxxx Xxx, #000 Xxxxxxx XX 00000 3/5/2004 4104 MPW New Towne Mall 000 Xxxx Xxxxxx XX, #000 Xxx Xxxxxxxxxxxx XX 00000 5/6/1999 4105 MPW SouthPointe Pavilions 0000 Xxxx Xxxx Xxxx, #X‐00 Xxxxxxx XX 00000 4/11/2003 4106 MPW Xxxxx Valley Mall 0000 Xxxxx Xxxx, Xxx 0000 Xxxxxxx XX 00000 8/13/2014 4107 MPW Polaris Fashion Place 0000 Xxxxxxx Xxxxxxx, #0000 Xxxxxxxx XX 00000 5/9/2014 7
![slide132](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal132.jpg)
Xxxxxxxxxxx & Banks Store Count as of 7/27/2018 Store # Division Center Name Address City State Zip Code Open Date 4108 MPW Mission Mart Shopping Center 0000 Xxxxxxx Xxxxx Xxxxxxx XX 00000 1/9/2015 4109 MPW Holiday Village Mall 0000 00xx Xxxxxx Xxxxx, #0 Xxxxx Xxxxx XX 00000 3/13/2001 0000 XXX Xxxxxxxxxxxx Xxxx 000 Xxxxxxxxxxxx Xxxx, #000 Xxxxxxxxxxxx XX 00000 11/19/2004 4111 MPW Shenango Valley Mall 0000 Xxxx Xxxxx Xxxxxx, #000 Xxxxxxxxx XX 00000 8/23/2002 4112 MPW Xxxxxx Xxxxxx X000 Xxxxxx Xxxxxx Xxxxxx XX 00000 8/16/1978 0000 XXX Xxxx Xx. Xxxxxxxx 0000 Xxxxxxxxxxx Xxxx, #0000 Xxxxxxxxxx XX 00000 5/9/2014 4114 MPW Wilton Mall at Saratoga 0000 Xxxxx 00, #X000x Xxxxxxxx Xxxxxxx XX 00000 6/17/2005 4115 MPW Central Mall 0000 Xxxxxx Xxxxxx, Xxx #00 Xxxx Xxxxx XX 00000 8/23/1994 4116 MPW Prescott Gateway Mall 3250 Gateway Blvd, Spc 1064 Xxxxxxxx XX 00000 11/8/2002 4117 MPW Sunrise Mall 0000 Xxxxxxx Xxxx Xxxxxx Xxxxxxx XX 00000 4/8/2005 0000 XXX Xx. Xxxxxx Xxxx 000 Xxxx Xxxxx, Xxx #X00 Xxxxxxx XX 00000 11/19/2004 4119 MPW Xxxxxxxxxx Village 000 Xxxxxxx Xxxxx, #000 Xxxxx Xxxx XX 00000 9/26/2003 4120 MPW Arapahoe Crossings 0000 Xxxxxx Xxxx, Xxx #000 Xxxxxx XX 00000 3/14/2003 4123 MPW The Promenade at Evergreen W 000 Xxxxxxxxx Xxx, #000 Xxxxx Xxxxxxx XX 00000 10/29/2004 4124 MPW Concord Mall 0000 Xxxxxxx Xxxx, #000 Xxxxxxxxxx XX 00000 5/13/2005 4125 MPW Port Charlotte Town Center 0000 Xxxxxxx Xxxxx, #000 Xxxx Xxxxxxxxx XX 00000 11/15/2002 4126 MPW Xxxxxx Square 0000 Xxxxxx Xxxxxx Xxxx Xx. Xxxxxxxxxx XX 00000 9/27/2002 4127 MPW Westgate Mall 000 Xxxxx Xxxxx, Xxx 000 Xxxxxxx XX 00000 3/1/1994 4128 MPW Marshalltown Mall 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 9/27/1983 4129 MPW Quincy Place Mall 0000 Xxxxxx Xxxxxx, #00 Xxxxxxx XX 00000 11/2/1991 4130 MPW Westland Mall 000 Xxxxx Xxxx Xxxxxx, Xxx #0000 Xxxx Xxxxxxxxxx XX 00000 9/16/1981 4131 MPW Grand Teton Mall 0000 Xxxx 00xx Xxxxxx, Xxx 00 Xxxxx Xxxxx XX 00000 3/5/1993 0000 XXX Xxxxxxxxx Xxxx Xxxx 0000 XX Xxxxxxx 00 Xxxxx, #X00X Xxxxxxxxx XX 00000 5/20/2005 4133 MPW Xxxxxxxx Mall 0000 Xxxxx 00xx Xxxxxx, X00 Xxxxxx XX 00000 9/7/2001 4134 MPW Fayette Mall 0000 Xxxxxxxxxxxxx Xxxx, Xxx 000 Xxxxxxxxx XX 00000 5/21/2004 4135 MPW TownMall of Westminster 000 Xxxxx Xxxxxx Xxxxxx, Xxx 000 Xxxxxxxxxxx XX 00000 8/22/2003 4137 MPW Southland Center 00000 Xxxxxx Xxxx, #0000 Xxxxxx XX 00000 8/25/2006 4138 MPW Xxxx Xxxxx Center 0000 Xxxxxx Xxxxxx, #000 Xxxx XX 00000‐4791 10/17/2003 4140 MPW Oakdale Mall 601‐000 Xxxxx X Xxxxx, Xxx 00 Xxxxxxx Xxxx XX 00000 9/17/2004 0000 XXX Xxxxxxx Xxxxx Xxxx 0000 Xxxxxxx Xxxx, #000 Xxxxxxxxxxxxx XX 00000 11/17/2006 8
![slide133](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal133.jpg)
Xxxxxxxxxxx & Banks Store Count as of 7/27/2018 Store # Division Center Name Address City State Zip Code Open Date 4143 MPW Midway Mall 0000 Xxxxxx Xxxx Xxxxxx XX 00000 9/26/2003 4144 MPW Great Lakes Mall 0000 Xxxxxx Xxxxxx, #000 Xxxxxx XX 00000 6/1/2001 4148 MPW The Galleria 000 Xxxxxxxx Xxxxx, #000 Xxxxxxxxx XX 00000 10/11/2002 4149 MPW Xxxxxxxx Xxxx 000 Xxxx Xxxxxxxxxx Road, #H2 Xxxxxxxxx XX 00000 11/8/2002 4150 MPW Uniontown Mall 0000 Xxxx Xxx Xxxx, #000 Xxxxxxxxx XX 00000 11/1/2002 0000 XXX Xxxxxxxxx Xxxx 000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxxx XX 00000 11/1/1983 0000 XXX Xxxx Xxxx Xxxx 0000 Xxxx Xxxxx, #00 Xxxxx Xxx XX 00000 10/14/1982 4158 MPW Morgantown Mall 0000 Xxxx Xxxx, #000 Xxxxxxxxxx XX 00000 3/29/2002 4159 MPW Columbia Mall 0000 Xxxxx Xxxxxxxx Xxxx, #000 Xxxxx Xxxxx XX 00000 7/25/2014 0000 XXX Xxxxx Xxxxx Xxxx 0000 Xxxxx Xxxxxx, #000 Xxxxxxx XX 00000‐4840 3/20/2002 0000 XXX Xxxxxx Xxxxx Xxxx 0000 Xxxxxxxxx Xxxx, #000 Xxxxxxxx Xxxxxxx XX 00000 4/6/2001 4162 MPW Champlain Centre North 00 Xxxxxxxxxx Xxxx, #X‐000 Xxxxxxxxxxx XX 00000 2/13/2014 4163 MPW The Village at Jordan Creek 0000 Xxxxx Xxxxx Xxxx, #000 Xxxx Xxx Xxxxxx XX 00000 6/13/2014 4164 MPW Kalispell Center Mall 00 Xxxxx Xxxx Xxxxxx, #X000 Xxxxxxxxx XX 00000 8/1/2014 4165 MPW Cherryvale Mall 0000 Xxxxxxxx Xxxxxx, #X‐00 Xxxxxxxx XX 00000 8/22/2014 4166 MPW Skyway Regional Shopping Cent 0000 Xxxxxxxx Xxxxx Xxxx, Xxx 000 Xxxxxx XX 00000 10/8/2015 0000 XXX Xxxxxxxxx Xxxx 000 X. Xxxxx Xxxx Xx, #000 Xxxxxx XX 00000 7/11/2014 4168 MPW Xxxxxxx Mall 000 Xxxx X Xxxxxxx Xxxx, #000 Xxxxxxx XX 00000 4/13/2001 0000 XXX Xxxxxxxxxxx Xxxx 0000 Xxxxxxxxxxx Xxxx, #000 Xxxxxxxxxx XX 00000 4/13/2001 4170 MPW Ohio Valley Mall 00000 Xxxx Xxxx, #000 Xx. Xxxxxxxxxxx XX 00000 3/29/2002 4171 MPW Findlay Village Mall 0000 Xxxxxx Xxxxxx, #000 Xxxxxxx XX 00000 8/27/2004 4172 MPW Sandusky Mall 0000 Xxxxx Xxxx, #000 Xxxxxxxx XX 00000 8/16/2002 4173 MPW Millcreek Mall 000 Xxxxxxxxx Xxxx Xxxx XX 00000 3/8/2002 4174 MPW Nittany Mall 0000 Xxxx Xxxxxxx Xxxxxx, Xxx #000 Xxxxx Xxxxxxx XX 00000 3/6/2015 4175 MPW RiverTown Crossings 0000 Xxxxxxxxx Xxxx, #0000 Xxxxxxxxxx XX 00000 8/1/2014 4176 MPW Xxxxxx Mall 000 Xxxxxx Xxxx Xxxx, Xxx 000 Xxxxxxxxx XX 00000 9/1/2001 4177 MPW Xxxxxxxx Xxxxxx Xxxx 000 Xxxxxx Xxxxxx Xxxxxxxx XX 00000 2/23/1994 4178 MPW Xxxx Xxxxxx Mall 0000 Xxxx Xxxxxx Xxxxx XX Xxxxxxx XX 00000 9/1/1978 4179 MPW Watertown Mall 0000 0xx Xxxxxx XX, #00 Xxxxxxxxx XX 00000 10/30/1991 4180 MPW Carolina Mall 0000 XX Xxxxxxx 00 X, #000 Xxxxxxx XX 00000 4/23/2004 9
![slide134](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal134.jpg)
Xxxxxxxxxxx & Banks Store Count as of 7/27/2018 Store # Division Center Name Address City State Zip Code Open Date 4181 MPW Utica Corners 00000 Xxxx Xxxx, Xxx X000 Xxxxx XX 00000 8/1/2014 4182 MPW The Shoppes at Dawley Farms 000 Xxxxx Xxxxxxxx Xxxxx, Xxx 000 Xxxxx Xxxxx XX 00000 9/26/2014 4183 MPW Xxxxxxx Xxxxxxx Xxxxxx 0000 Xxxxx Xxxxxxxxx Road, Spc #11 Xxxxxxxxx Xxxxx XX 00000 9/12/2014 4184 MPW Maple Grove Crossing 0000 Xxxxxxxxx Xxxx Xxxxx, Xxxx 00 Xxxxx Xxxxx XX 00000 9/19/2014 4185 MPW Vancouver Mall 0000 XX Xxxxxxxxx Xxxx Xx, Xxx #000 Xxxxxxxxx XX 00000 9/12/2014 4186 MPW The Pinnacle at Turkey Creek 00000 Xxxxxxxx Xxxxx, Xxx #000 Xxxxxxxx XX 00000 8/21/2015 4188 MPW Monroeville Mall 000 Xxxxxxxxxxx Xxxx, #000 Xxxxxxxxxxx XX 00000 9/5/2014 4189 MPW Kitsap Mall 00000 Xxxxxxxxxx Xxx XX, #X00 Xxxxxxxxxx XX 00000 1/7/2015 4190 MPW Mid Rivers Mall 0000 Xxx Xxxxxx Xxxx Xxxxx Xx. Xxxxxx XX 00000 11/14/2014 0000 XXX Xxxxxx Xxxx Xxxx 4802 Valley View Blvd NW, #LA‐5 Xxxxxxx XX 00000 1/29/2015 0000 XXX Xxx Xxxx Xxxx 0000 Xxxxxx Xxxx, #X000 Xxx Xxxx XX 00000 8/18/2000 0000 XXX Xxxxxxxxx Xxxx 0000 Xxxx Xxxxxxxxxx, #00 Xxxxxxxx XX 00000 4/3/1998 4194 MPW Salmon Run Mall 21182 Salmon Run Mall Loop West, Spc #A104 Xxxxxxxxx XX 00000 10/3/2014 4195 MPW Laurel Park Place 00000 Xxxx Xxx Xxxx Xxxx, #X‐000 Xxxxxxx XX 00000 10/3/2014 4196 MPW Westridge Court 000 Xxxxx Xxxxx 00, Xxx #000 Xxxxxxxxxx XX 00000 8/28/2014 4197 MPW Carriage Crossing 0000 Xxxxxxxxx Xxxx Xxxxxx, #000 Xxxxxxxxxxxx XX 00000 10/3/2014 4198 MPW University Mall 0000 Xxxx Xxxx Xxxxxx, #0000 Xxxxxxxxxx XX 00000 4/30/2004 0000 XXX Xxxx Xxxx Xxxxxx 000 Xxxx Xxxx Xxxxxx, X0000 Xxxxxxxxx XX 00000 11/8/2002 4200 MPW Thunderbird Mall 0000 Xxxxx 00xx Xxxxxx, Xxx 00 Xxxxxxxx XX 00000‐3247 7/12/1992 4201 MPW The Crossroads 0000 X Xxxxxxxxx Xxx, #000 Xxxxxxx XX 00000 1/27/2015 4202 MPW West County Center 00 Xxxx Xxxxxx Xxxxxx, #0000 Xxx Xxxxx XX 00000 6/5/2015 4203 MPW Greenwood Mall 0000 Xxxxxxxxxxx Xxxx, #000 Xxxxxxx Xxxxx XX 00000 11/21/2014 4204 MPW Market Place Shopping Center 0000 Xxxxx Xxxx Xxxxxx, Xxx 000 Xxxxxxxxx XX 00000 11/14/2014 4205 MPW Shoppes on Ford Avenue 0000 Xxxx Xxxxxx, Xxx X Xxxxxxxxx XX 00000 1/30/2015 0000 XXX Xxxxx Xxxxx Xxxx 0000 Xxxxx Xxxxxx, #0000 Xxxx XX 00000 9/9/2005 4207 MPW Clearview Mall 000 Xxxxxxxxx Xxxxxx, Xxxx #000 Xxxxxx XX 00000 9/26/2003 4209 MPW Centrum Plaza 000 Xxxxx Xxxxxx Xxxxxxx XX 00000 2/22/1994 0000 XXX Xxxxx Xxxx Xxxx 000 00xx Xxxxxx XX, Xxxx #00 Xxxxxxx XX 00000 8/17/1993 4211 MPW Coral Ridge Mall 0000 Xxxxx Xxxxx Xxx, #000 Xxxxxxxxxx XX 00000 2/2/2018 4212 MPW Holiday Mall 000 Xxxxxxx Xxxxx Xxxxx, Xxx #0 Xxxxxx Xxxx XX 00000 8/19/1979 10
![slide135](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal135.jpg)
Xxxxxxxxxxx & Banks Store Count as of 7/27/2018 Store # Division Center Name Address City State Zip Code Open Date 4213 MPW Buffalo Mall 0000 0xx Xxxxxx XX, Xxx X0 Xxxxxxxxx XX 00000 8/19/1993 4214 MPW Lufkin Mall 0000 X Xxxxxxx Xxxxx, #0000 Xxxxxx XX 00000 10/8/2004 0000 XXX Xxxxxx Xxxxx Xxxx 000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxx 0000 Xxxxx XX 00000 11/8/2007 4217 MPW Mall of Abilene 0000 Xxxxxxx Xxx Xxxx, #0000 Xxxxxxx XX 00000 6/24/2005 4218 MPW Westgate Mall 0000 Xxxx Xxxxxxxxxx 00, Xxx #000 Xxxxxxxx XX 00000 3/28/2003 4220 MPW Firewheel Town Center 000 Xxxxx Xxxx Xxxxx, #X00 Xxxxxxx XX 00000 5/8/2009 4221 MPW Auburn Mall 000 Xxxxxx Xxxxxx, #0000 Xxxxxx XX 00000 10/20/2014 4222 MPW Marketplace at Augusta 0 Xxxxxxx Xxxx Xxxxx, Xxxxx 0 Xxxxxxx XX 00000 11/15/2007 4223 MPW Pinnacle Hills Promenade 0000 Xxxxxxxxx Xxxx, #0000 Xxxxxx XX 00000 10/4/2006 0000 XXX Xxxxxxxxx Xxxxxx Xxxx 511 Valley Mall Parkway, Spc B08 Xxxx Xxxxxxxxx XX 00000 8/16/1994 4228 MPW Kent Station 000 Xxxxxx Xxx, Xxx 000 Xxxx XX 00000 11/1/2006 0000 XXX Xxxxx Xxxxxx Xxxx 0000 Xxxxx Xxxx Xxxxxx, #0000 Xxxxx XX 00000 10/8/2004 4230 MPW Provo Towne Center 1200 Provo Xxxxx Xxxxxx Xxxx, #0000 Xxxxx XX 00000 10/28/1998 4231 MPW Red Cliffs Mall 0000 Xxxx Xxx Xxxxxx Xxxxx, #0000 Xx. Xxxxxx XX 00000 3/12/2004 0000 XXX Xxxx xx Xxx Xxxxxxxxx 0000 Xxxxx Xxxxxx Xxxxxx, #X000 Xxxxxxxxxx XX 00000 11/15/2002 4235 MPW Village at Sandhill 000 Xxxxxxxxx Xxxxx, Xxx 00 Xxxxxxxx XX 00000 5/26/2006 0000 XXX Xxxx xx Xxxxxxx 0000 Xxxxxx Xxxxx, #0000X Xxxxxx XX 00000 8/15/2003 0000 XXX Xxxxxxx Xxxxxx 0000 Xxxx Xxxxxx Xxxx, #00 Xxxxxxxxxx XX 00000 6/6/2003 4238 MPW Northgate Mall 000 Xxxxxxxxx Xxxx Xxxxxxxxxxx XX 00000 6/13/2003 4239 MPW Dover Mall 0000 X Xxxxxx Xxx, #0000 Xxxxx XX 00000 10/14/2005 0000 XXX Xxxxxx Xxxx 0000 Xxxx Xxxxxx Xxxxxx, #0000 Xxxxxxxxxxxx XX 00000 5/8/2015 4242 MPW Heritage Mall 0000 00xx Xxxxxx XX, #X000 Xxxxxx XX 00000 3/12/2015 4243 MPW Xxxxxxxxx Mall 000 XX Xxxxxxx Xxxxxxxxx, #0000 Xxxxxx XX 00000 5/1/2011 4244 MPW Grand Traverse Mall 0000 X Xxxxxxx Xxxx Xxxx, #000 Xxxxxxxx Xxxx XX 00000 4/11/2003 4245 MPW Greenway Station Shopping Cen 0000 Xxxxxx Xxx, Xxxxx 000 Xxxxxxxxx XX 00000 3/6/2015 4247 MPW The Monroe Marketplace 000 Xxxxxxxxxxx Xxxx, #X0 Xxxxxxxxxxx XX 00000 2/13/2015 0000 XXX Xxxxx Xxxxx Xxxx 0000 Xxxxxxxx Xxxxxxxx Xxxx, #X000 Xxxxxxxxx XX 00000 8/23/2002 4249 MPW University Mall 000 Xxxx Xxxxxxxxxx Xxxx, #X0X Xxxx XX 00000 3/10/2006 4250 MPW Magic Valley Mall 0000 Xxxx Xxxx Xxxx #000 Xxxx Xxxxx XX 00000 8/19/2005 0000 XXX Xxxxxxxxxx Xxxx Xxxx 0000 XX Xxxxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000 6/1/2007 11
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Xxxxxxxxxxx & Banks Store Count as of 7/27/2018 Store # Division Center Name Address City State Zip Code Open Date 4252 MPW The Lakes Mall 0000 Xxxxxx Xxxxxx, #0000 Xxxxxxxx XX 00000 8/15/2001 4253 MPW West Acres Shopping Center 0000 00xx Xxxxxx Xxxxx, #000 Xxxxx XX 00000 8/20/1979 4254 MPW Xxxxxxxx Town Center 00000 Xxxxx Xx, Xxx 000 Xxxxxxxxxxx XX 00000 5/1/2008 4255 MPW Midland Mall 0000 Xxxxxxx Xxxxxx, #000 Xxxxxxx XX 00000 11/12/2004 4256 MPW The Arboretum of South Barring 000 Xxxx Xxxxxxx Xxxx, Xxx X00 Xxxxx Xxxxxxxxxx XX 00000 4/10/2015 4257 MPW Germantown Plaza III N96 X00000 Xxxxxx Xxxx Xxxx, Xxxx #0 Xxxxxxxxxx XX 00000 4/17/2015 4258 MPW Xxxxxx Park 0000 Xxxx 000xx Xxxxxx, Xxx X‐0 Xxxxxxxx Xxxx XX 00000 4/24/2015 4259 MPW Shoppes on Six 000 Xxxxxx Xxxx 0 Xxxx, Xxxxx X Xxxxxxx XX 00000 9/4/2015 4260 MPW Superstition Springs Mall 0000 Xxxx Xxxxxxxx Xxxxxx, Xxx 0000 Xxxx XX 00000 4/15/2015 4261 MPW Xxxxxxx Xxxx 000 Xxxxx Xxxxxx xxx Xxx, #X0 & #F6 Xxxxxxx XX 00000 2/6/2015 4262 MPW Xxxxxxxxx Xxxxx Xxxxxx 0000 X. Xxxxxxxxx Xxxxx Center Dr, Spc #1253 Xxxxxxxx XX 00000 5/8/2015 4263 MPW Capital Mall 0000 Xxxxxxx Xxxx Xxxxx, #000 Xxxxxxxxx Xxxx XX 00000 2/10/1982 4264 MPW The Shops at Perry Crossing 000 Xxxxxxxxxxx Xxxx, Xxxxx 000 Xxxxxxxxxx XX 00000 8/28/2015 4266 MPW Xxxxxxx Xxxx 0000 Xxxx 0xx Xxxxxx, #M‐12 Bloomington IN 47401 4/5/2002 4267 MPW Chautauqua Mall 000 Xxxx Xxxxxxxxx Xxxxxx, #000 Xxxxxxxx XX 00000 9/24/2004 4268 MPW Xxxxxxx Xxxxx Mall 00000 Xxxxxxxxx Xxxxxx, #000 Xxxxxxx Xxxx XX 00000 4/18/2003 0000 XXX Xxx Xxxxx Xxxxxx Xxxx 000 Xxx Xxxxx Xxxx, #000 Xxxxxxxxxxxxxx XX 00000 8/10/2001 4270 MPW Short Pump Town Center 00000 X Xxxxx Xxxxxx, #0000 Xxxxxxxx XX 00000 8/19/2005 4272 MPW Salem Center 000 Xxxxxx Xxxxxx, #0000 Xxxxx XX 00000 6/11/2004 4273 MPW The Tower Shops at The Pinnacl 000 Xxxxxxxx Xxxxxxx, Xxx #000 Xxxxxxx XX 00000 5/12/2016 4274 MPW Alderwood Mall 3000 184 Street SW, Spc #398 Xxxxxxxx XX 00000 6/12/2015 4275 MPW Northwoods Mall 0000 Xxxx Xxx Xxxxxxxx Xxxxx, #XX‐0 Xxxxxx XX 00000 4/12/2002 0000 XXX Xxxxx Xxx Xxxxxxx Place 0000 Xxxxxxx Xxxxx Xxxx, #X Xxxxxxxx XX 00000 9/29/2006 0000 XXX Xxxxx Xxxxxx Xxxx 0000 Xxxxx Xxxxxx Xxxxxx Xxxxx, #000 Xxxxxxxxx XX 00000 5/17/2002 0000 XXX Xxxxxx Xxxxx Xxxx 000 Xxxxx 00xx Xxxxxx, #000 Xxxxx XX 00000 3/15/2002 4279 MPW Eastland Mall 0000 Xxxx Xxxxxx Xxxxxx, #0000 Xxxxxxxxxxx XX 00000 10/15/2004 4280 MPW Lycoming Mall 000 Xxxxxxxx Xxxx Xxxxxx, Xxx #000 Xxxxxxxxx XX 00000 9/20/2002 4281 MPW Southgate Mall 0000 Xxxxxx Xxxxxx, #X0 Xxxxxxxx XX 00000 7/3/2015 0000 XXX Xxxxxxx Xxxxxx Xxxx 0000 Xxxxx Xxxxxx Xxxx, #000 Xxxxx XX 00000 11/5/2004 4284 MPW Colonie Center 000 Xxxxxxx Xxxxxx, #000 Xxxxxx XX 00000 5/4/2015 12
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Xxxxxxxxxxx & Banks Store Count as of 7/27/2018 Store # Division Center Name Address City State Zip Code Open Date 4285 MPW Garden City Plaza 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0 & 0 Xxxxxx Xxxx XX 00000 10/27/1993 4286 MPW Frontier Mall 0000 Xxxx Xxxxx Xxxxxxxxx Xxxxxxxx XX 00000 4/7/1982 0000 XXX Xxxxx Xxxxxx Xxxxxx 000 Xxxx Xxx Xxxxxx, Xxx X0 Xxxxx XX 00000 10/28/2004 4289 MPW Xxxxx Mall 0000 Xxxxxxxx Xxxx Xxxxx, Xxx 0000 Xxxxxxxxxx XX 00000 3/12/2004 4290 MPW Xxxxxxx City Crossing 0000 Xxxxxxx Xxxxxx, Xxx #000 Xxxxxxx Xxxx XX 00000 8/7/2015 4291 MPW Liberal Plaza Shopping Center 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000 10/9/2015 4293 MPW The Shoppes on Burbank 0000 Xxxxxxx Xxxx, Xxxx 00 Xxxxxxx XX 00000 3/18/2016 4294 MPW Wilshire Plaza 0000 Xxxxx Xxxx Xxxxxxxxx XX 00000 9/15/2016 0000 XXX Xxxxxxxxxx Xxxxxx Xxxx 000 Xxxx Xxxxxx, #0 Xxxxxxx Xxxxx XX 00000 4/30/1991 4298 MPW Viking Plaza 0000 Xxxxxxx 00 Xxxxx, Xxx 0000 Xxxxxxxxxx XX 00000 4/15/1992 4299 MPW Greeley Mall 0000 Xxxxxxx Xxxx Xxxxxxx XX 00000 5/18/1983 4300 MPW Manhattan Town Center 000 Xxxxxxxxx Xxxx Xxxxxx, #000 Xxxxxxxxx XX 00000 10/25/1983 4301 MPW Time Square 0000 000xx Xxxxxx Xxxxx Xxxxxx XX 00000 11/1/1977 0000 XXX Xxxxxx Xxxxxx Xxxx 000 Xxxxx 00, #000 Xxxxxx XX 00000 4/23/1999 4304 MPW Xxxxxx Xxxx Mall 0000 Xxxxxx Xxxxx Xxx, #X00X Xxxxxx XX 00000 11/15/2007 4306 MPW Westgate Mall 00000 Xxxxxx Xxxxx, Xxx 00 Xxxxxx XX 00000 11/5/1991 4307 MPW Hilltop Mall 0000 Xxxxx 0xx Xxxxxx, Xxx 0 Xxxxxxx XX 00000 10/15/1992 4308 MPW Xxxxxxxxxx Mall 0000 Xxx 00 Xxxxx, #00 Xxxxxxxxxx XX 00000 11/12/1992 4309 MPW Monument Mall 0000 Xxxxxxxx Xxxx, #0 Xxxxxxxxxxx XX 00000 3/30/1993 4310 MPW Northridge Plaza 0000 Xxxxx Xxxxxxxx, #00 Xxxxxx XX 00000 4/7/1993 4311 MPW Yankton Mall 0000 Xxxxxxxx, #000 Xxxxxxx XX 00000 7/26/2018 4312 MPW Xxxxxx Xxxx 0000 Xxxxxxx Xxxxxx XX 00000 10/26/1993 0000 XXX Xxxxx Xxxxx Xxxx 000 Xxxxx Xxxxxxx Xxxx Xxxxxxxx XX 00000 2/16/1994 4315 MPW Pueblo Mall 0000 Xxxxxx Xxxxx Xxxxxx XX 00000 5/3/1994 0000 XXX Xxxxxx Xxxxxx Xxxx 0000 Xxxx Xxxxxxx Xxxxx Xxxxxxxx XX 00000 8/31/1994 4317 MPW Karcher Mall 0000 Xxxxxxxx Xxxxxxxxx, Xxx #0000 Xxxxx XX 00000 8/2/1994 4318 MPW Marshfield Mall 000 Xxxx Xxxx Xxxxxx Xxxxxxxxxx XX 00000 8/23/1994 4319 MPW Xxxxxxx Xxxxx Key Mall 0000 Xxxxxxxxxxx Xxxx, #000 Xxxxxxxxx XX 00000 4/12/2002 0000 XXX Xxxxxxxxx Xxxxxx Xxxx 00 Xxxx Xxxxxxxx Xxxx, #0000 Xxxxxxxxxxx XX 00000 3/9/2001 0000 XXX Xxxxxx Xxxxx Xxxx 0000 Xxxxx Xxxxx, #00/00 Xxxxx Xxxxxx XX 00000 5/18/2001 13
![slide138](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal138.jpg)
Xxxxxxxxxxx & Banks Store Count as of 7/27/2018 Store # Division Center Name Address City State Zip Code Open Date 4324 MPW Rockford Road Plaza 0000 Xxxxxxxx Xxxx Xxxxx, #000 Xxxxxxxx XX 00000 10/7/2011 4326 MPW Marketplace at Northglenn 000 Xxxx 000xx Xxxxxx, Xxxx X Xxxxxxxxxx XX 00000 5/3/2002 4328 MPW Towne East Square 0000 Xxxx Xxxxxxx Xxxxx, #X00 Xxxxxxx XX 00000 4/8/2004 4329 MPW Petoskey Town Center 0000 Xxxxxx Xxxxxx Xxxxxxxx XX 00000 6/28/1995 4330 MPW Sooner Mall 0000 Xxxx Xxxx Xxxxxx, #000 Xxxxxx XX 00000 6/13/2003 4332 MPW Xxxxxxxx Xxxx 0000 Xxxxxxxxxx‐Xxxxxx Xxxx, #0000 Xxxxx XX 00000 9/22/2000 4333 MPW Grand Central Mall 000 Xxxxx Xxxxxxx Xxxxxx, #000 Xxxxxx XX 00000 3/22/2002 0000 XXX Xxxxx Xxxxx Village 000 Xxxxx Xxxxx Xxxxxxx, #0000X Xxxxxxxxxx XX 00000 9/29/2000 4335 MPW Eastwood Towne Center 0000 Xxxxx Xxxxxx Xxxx, #X0 Xxxxxxx XX 00000 3/7/2003 4337 MPW Xxxxxx Mall 000 Xxxxxx Xxxx Xxxx, Xxx 000 Xxxxxxxxxxx XX 00000 6/6/2003 4338 MPW Harford Mall 000 Xxx Xxx Xxxx, #0 Xxx Xxx XX 00000 10/3/2003 0000 XXX Xxxxx Xxxxxx Xxxx 5000 Frederica Street, H10 & H12 Xxxxxxxxx XX 00000 10/24/2003 4340 MPW Village Centre 000 Xxxx 00xx Xxxxxx, X00 Xxxxxxxx XX 00000 8/15/2003 0000 XXX Xxxx Xxxxx Xxxx 0000 Xxxxxxxxxxx Xxx, #0000 Xxxxxxxx XX 00000 11/7/2003 4342 MPW Cottonwood Mall 10000 Coors Blvd Bypass NW, #C206 Xxxxxxxxxxx XX 00000 5/7/2004 4343 MPW Towne Mall 0000 X Xxxxx Xxx, #X000 Xxxxxxxxxxxxx XX 00000 11/21/2003 4344 MPW Diamond Run Mall Xxxxx 0 Xxxxx, #000 Xxxxxxx XX 00000 6/11/2004 0000 XXX Xxxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxx Xxxx, #000 Xxxxxxxx XX 00000 3/25/2005 4346 MPW Capitola Mall 0000 00xx Xxxxxx, #X00 Xxxxxxxx XX 00000 8/13/2004 4347 MPW University Mall 155 Dorset Street, #H8 South Xxxxxxxxxx XX 00000 9/10/2004 4348 MPW Somerset Mall 0000 XX Xxx 00 X, #00x Xxxxxxxx XX 00000 10/1/2004 0000 XXX Xxxxx Xxxxxx Xxxx 000 Xxxxxxxx Xxxx, #0 Xxxxxxx XX 00000 10/1/2004 4350 MPW Shawnee Mall 0000 Xxxxx Xxxxxxxx Xxxxxx, #0000 Xxxxxxx XX 00000 11/12/2004 4353 MPW Berkshire Mall 0000 Xxxxx Xxxx Xxxx, #000 Xxxxxxxxxx XX 00000 11/18/2005 4354 MPW Country Club Mall 0000 Xxxxx Xxxx, Xxxxx 000 XxXxxx XX 00000 3/16/2007 4355 MPW Mall at Xxxxxx Crossing 0000 Xxxxxx Xxxxxxxx Xxxx, #000 Xxxxxx XX 00000 9/16/2005 0000 XXX Xxxxxxx of Cranberry 00000 Xxxxx 00, #000 Xxxxxxxxx Xxxxxxxx XX 00000 3/23/2007 4358 MPW XxXxxx Mall 0000 Xxxxxxx Xxxx, Xxxx 0X XxXxxx XX 00000 8/18/2006 4359 MPW Volusia Mall 0000 X Xxxxxxxxxxxxx Xxxxxxxx, #000 Xxxxxxx Xxxxx XX 00000 8/25/2006 0000 XXX Xxxxx Xxxxxxx Xxxx 0000 X Xxxxxxxx Xxxx, Xxx 000 Xxxxxxxx Xxxx XX 00000 11/8/2007 14
![slide139](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal139.jpg)
Xxxxxxxxxxx & Banks Store Count as of 7/27/2018 Store # Division Center Name Address City State Zip Code Open Date 0000 XXX Xxxxxxx Place 0000 Xxxxxxxx Xxxx XX, Xxx 000 Xxxxxxxxxx XX 00000 3/6/2008 4364 MPW Southtown Center 0000 Xxxxxxxxx Xxxxxx, #000 Xxxxxxxxxxx XX 00000 3/9/2001 4365 MPW Fashion Place 0000 Xxxxx Xxxxx Xxxxxx, #0000 Xxxxxx XX 00000 3/11/2016 4366 MPW Willow Creek Crossing 000 Xxxxxxxxxx Xxxxx Xxxxx Xxxx XX 00000 7/3/2015 4367 MPW Xxxxxx Village 0000 Xxxxxx Xxxxxxx Xxxx, Xxx X00 Xxxxxx XX 00000 4/14/2016 0000 XXX Xxxxxx Xxxx 00000 Xxxxxx Xxxx Xxxx, #000 Xxxxxxxxxx XX 00000 3/11/2016 0000 XXX Xxxxxx Xxxx Xxxx 0000 Xxxxx Xxxx 00, #000 Xx Xxxxxx XX 00000 1/29/2016 4370 MPW Fashion Square Mall 0000 Xxxxxxx Xxxxxx Xxxx, Xxx 000 Xxxxxxx XX 00000‐2796 5/30/2003 4371 MPW Yorktown Shopping Center 000 Xxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 9/28/2007 4375 MPW Xxxxxxxxxxx Xxxx 0000 Xxxxx Xxxxxxxxx Ave, Spc #F04A Xxxxxxxxxxx XX 00000 3/25/2016 4376 MPW Galleria at Pittsburgh Xxxxx 000 Xxxxxxxxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000 7/14/2005 0000 XXX Xxxxxxxxxx Xxxxxx Xxxx 0000 X Xxxxx Xxxxx 00, #000x Xxxxxxxxxxx XX 00000 11/25/2005 0000 XXX Xx. Xxxxx Xxxxxx 134 St. Clair Square, Spc 000 Xxxxxxxx Xxxxxxx XX 00000 12/16/2016 4386 MPW XxXxxxxx Mall 0000 XxXxxxxx Xxxxx #000 Xxxxxxx XX 00000 1/27/2016 4387 MPW Branson Landing 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx Xxxxxxx XX 00000 3/4/2016 4388 MPW York Galleria 0000 Xxxxxxxxx Xxxx, Xxx 000 Xxxx XX 00000 6/4/1999 0000 XXX Xxxxxxx Xxxx 000 Xxxxxxx Xxxx Xxxxxxx XX 00000‐2462 2/1/2007 4392 MPW Burnsville Center 0000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 8/18/2000 4393 MPW Dakota Square 000 Xxxxxx Xxxxxx Xxxxx XX 00000 10/13/2000 0000 XXX Xxxxx Xxxx Xxxxxx 0000 Xxxx Xxxxxxx Xxxxx, #X00 Xxxxxxx XX 00000 9/28/1993 4395 MPW Huntington Mall 000 Xxxx Xxxx, Xxxx 000 Xxxxxxxxxxxxx XX 00000 3/10/2017 4396 MPW Apache Mall 000 Xxxxxx Xxxx, Xxx 0000 Xxxxxxxxx XX 00000 4/21/2017 4397 MPW Xxxxxxx Crossing 0000 X Xxxxxxx Xxx, Xxxxx 00 Xxxxxxxxxxx XX 00000 3/3/2017 4398 MPW Crossroads Center 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx X0000 Xx. Xxxxx XX 00000 4/14/2017 0000 XXX Xxxxxxxx Xxxx Xxxx 0000 Xxxxxx Xxxxxx, #000X Xxxxxxxxxx XX 00000 6/2/2000 4400 MPW Quincy Mall 0000 Xxxxxx Xxxx Xxxxxx XX 00000 5/5/2006 4401 MPW Eastland Mall 000 Xxxxx Xxxxx Xxxxx Xxxx, #000 Xxxxxxxxxx XX 00000 11/18/2016 4402 MPW Oakwood Mall 0000 Xxxx Xxxx, Xxx 00 Xxx Xxxxxx XX 00000 1/27/2017 0000 XXX Xxxxx Xxxx Xxxx 0000 Xxxxx Xxxxxxxx, Xxx 000 Xxxxxxxx XX 00000 4/14/2017 4404 MPW Xxxxx Xxxxx Xxxx 0000 Xxxxx XX Xxx 41, #H3 Terre Haute IN 47802 8/10/2001 15
![slide140](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal140.jpg)
Xxxxxxxxxxx & Banks Store Count as of 7/27/2018 Store # Division Center Name Address City State Zip Code Open Date 4405 MPW Lima Mall 2400 Elida Road, #158 Lima OH 45805 3/20/1998 4406 MPW Sunset Plaza 1700 Market Lane, #200 Norfolk NE 68701 10/10/2003 4407 MPW Big Creek Crossing (fka ‐ The Ma 2918 Vine Street, #60 Hays KS 67601 5/1/1998 4409 MPW Metro Crossing Shopping Cente 3606 Metro Drive, Ste 200 Council Bluffs IA 51501 9/10/2009 4410 MPW South County Center 316 South County Center Way St. Louis MO 63129 9/28/2017 4411 MPW The Shops at South Town 10450 South State Street, Space 1110 Sandy UT 84070 9/14/2017 4412 MPW Great Northern Mall 4155 State Route 31, #B106 Clay NY 13041 9/28/2001 4413 MPW Kandi Mall 1605 South 1st Street, #C10/11 Willmar MN 56201 5/18/2007 4414 MPW Foothills Mall 145 Foothills Mall Drive, #48/#50 Maryville TN 37801 10/13/2006 4415 MPW Crestview Hills Town Center 2815 Town Center Boulevard, #2020 Crestview Hills KY 41017 3/1/2006 4419 MPW Rogue Valley Mall 1600 N Riverside Drive, #2041 Medford OR 97501 10/8/1999 16
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SCHEDULE 5.09 ENVIRONMENTAL MATTERS None.
![slide142](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal142.jpg)
SCHEDULE 5.10 INSURANCE See attached schedule.
![slide143](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal143.jpg)
Christopher & Banks Insurance Policy Schedule Effective 2/1/2018 Insurance Coverage Insurance Provider Policy Dates Broker Commercial Property Affiliated FM 2/1/18 – 1/31/19 Willis Towers Watson Cargo Travelers Property Casualty Company 2/1/18 – 1/31/19 Willis Towers Watson Commercial General Crum & Forster – The North River Insurance 2/1/18 – 1/31/19 Willis Towers Watson Liability Company (United States Fire Insurance Company) Commercial Auto Crum & Forster – The North River Insurance 2/1/18 – 1/31/19 Willis Towers Watson Company (United States Fire Insurance Company) Workers’ Compensation Crum & Forster – The North River Insurance 2/1/18 – 1/31/19 Willis Towers Watson and Employers Liability Company (United States Fire Insurance Company) International Package Continental Insurance Company (CNA) 2/1/18 – 1/31/19 Willis Towers Watson Commercial Umbrella Everest (Primary Layer) - $25M 2/1/18 – 1/31/19 Willis Towers Watson Continental Insurance Company (CNA) (Secondary Layer) - $25M Excess Follow Form Continental Insurance Company (CNA) 2/1/18 – 1/31/19 Willis Towers Watson liability Surety – Fundraising Westfield Insurance Company September 30, 2018 – Willis Towers Watson Bond - Alabama September 30, 2019 Surety – Fundraising Westfield Insurance Company December 31, 2017 – Willis Towers Watson Bond – Massachusetts December 31, 2018 Surety – Custom’s Bond C.A. Shea – OneBeacon Atlantic Specialty June 2018 – June 2019 Willis Towers Watson Insurance Cyber Insurance Coverage Lloyds of London Syndicates 10/1/17 – 10/31/18 Willis Towers Watson Primary Directors & National Union Fire Ins. Co of Pittsburgh 2/1/18 – 1/31/19 Willis Towers Watson Officers Liability (AIG) - $10M 1st Excess Directors & Endurance Risk Solutions Assurance Co 2/1/18 – 1/31/19 Willis Towers Watson Officers Liability (Sompo) - $10M x $10M 2nd Excess Directors & Continental Casualty Company (CNA) 2/1/18 – 1/31/19 Willis Towers Watson Officers Liability $10M x $20M 3rd Excess Directors & XL Specialty Insurance Company 2/1/18 – 1/31/19 Willis Towers Watson Officers Liability $5M x $30M 4th Excess Directors & Beazley Insurance Company 2/1/18 – 1/31/19 Willis Towers Watson Officers Liability $10M x $35M 5th Excess Directors & National Union Fire Insurance Co of 2/1/18 – 1/31/19 Willis Towers Watson Officers Liability Pittsburgh (AIG) $10M x $45M Primary Employment National Union Fire Ins. Co of Pittsburgh - 2/1/18 – 1/31/19 Willis Towers Watson Practices Liability $5M 1st Excess Employment AXIS Insurance Company - $5M x $5M 2/1/18 – 1/31/19 Willis Towers Watson Practices Liability Fiduciary Liability National Union Fire Ins. Co of Pittsburgh 2/1/18 – 1/31/19 Willis Towers Watson Crime Coverage Federal Insurance Company (Chubb) 2/1/18 – 1/31/19 Willis Towers Watson
![slide144](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal144.jpg)
SCHEDULE 5.13 SUBSIDIARIES; OTHER EQUITY INVESTMENTS (a) Ownership of Christopher & Banks, Inc. and Christopher & Banks Company: Owner Issuer Type of # of Equity Certificate Percentage Equity Interests Number Ownership Interests Christopher & Banks Christopher & Common 1,000 Shares 3 100% Corporation Banks, Inc. Stock Christopher & Christopher & Common 1,000 Shares 1 100% Banks, Inc. Banks Company Stock (b) None.
![slide145](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal145.jpg)
SCHEDULE 5.17 INTELLECTUAL PROPERTY MATTERS Trademarks See attached “Trademarks” list. Patents None. Claims and Litigation None.
![slide146](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal146.jpg)
ATTACHMENT 1 Trademarks Trademark Owner Registration Date Status Registration No. Christopher & May 29, 2018 Registered 5,481,754 Banks Company Christopher & July 17, 2012 Registered 4,176,007 Banks Company Christopher & December 8, 2009 Registered 3,723,759 Banks Company Christopher & June 1, 2010 Registered 3,797,571 Banks Company Christopher & November 29, 2011 Registered 4,062,718 Banks Company cj banks Christopher & May 4, 2010 Registered 3,786,187 Banks Company C.J. BANKS Christopher & July 3, 2001 Registered 2,466,691 Banks Company christopher & banks Christopher & December 8, 2009 Registered 3,723,169 Banks Company CHRISTOPHER & BANKS Christopher & April 19, 1988 Registered 1,485,374 Banks Company Christopher & January 25, 2000 Registered 2,311,711 Banks Company Christopher & March 21, 2000 Registered 2,331,821 Banks Company EASY WEAR. EVERY WEAR. Christopher & August 19, 2014 Registered 4,590,384 Banks Company EVERY DAY, WOMEN DO AMAZING Christopher & July 2, 2013 Registered 4,361,752 THINGS Banks Company March 12, 2013 Registered 4,302,044 FRIENDSHIP Christopher & December 7, 2010 Registered 3,887,711 Banks Company Christopher & March 14, 2017 Registered 5,159,900 Banks Company Christopher & October 16, 2012 Registered 4,227,243 Banks Company HERITAGE CORD Christopher & August 12, 2014 Registered 4,585,770 Banks Company
![slide147](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal147.jpg)
Trademark Owner Registration Date Status Registration No. IT’S A PROPORTION NOT A SIZE Christopher & December 1, 2009 Registered 3,719,274 Banks Company Life. You Wear It Well. Christopher & May 15, 2012 Registered 4,144,120 Banks Company RELAXED. RESTYLED. Christopher & August 19, 2014 Registered 4,590,293 Banks Company SIGNATURE COMFORT Christopher & May 20, 2014 Registered 4,533,748 Banks Company Christopher & October 29, 2013 Registered 4,425,549 Banks Company Signature Slimming Christopher & August 12, 2014 Registered 4,585,757 Banks Company Christopher & September 8, 2015 Registered 4,809,457 Banks Company Christopher & September 8, 2015 Registered 4,809,455 Banks Company Christopher & September 8, 2015 Registered 4,809,458 Banks Company Christopher & September 8, 2015 Registered 4,809,456 Banks Company TUMMY SLIMMER Christopher & July 30, 2013 Registered 4,375,557 Banks Company
![slide148](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal148.jpg)
SCHEDULE 5.18 LABOR MATTERS None.
![slide149](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal149.jpg)
SCHEDULE 5.21(a) DDAS Information is on file with Lender.
![slide150](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal150.jpg)
SCHEDULE 5.21(b) CREDIT CARD ARRANGEMENTS Information is on file with Lender.
![slide151](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal151.jpg)
SCHEDULE 5.24 MATERIAL CONTRACTS 1. Bank Card Merchant Agreement, dated February 21, 2007, between Fifth Third Processing Solutions and Christopher & Banks Corporation (“Bank Card Merchant Agreement”). 2. First Amendment to Bank Card Merchant Agreement, dated September 26, 2007, between Fifth Third Bank and Christopher & Banks Corporation. 3. Second Amendment to Bank Card Merchant Agreement, dated August 29, 2008, between Fifth Third Bank and Christopher & Banks Corporation. 4. Third Amendment to Bank Card Merchant Agreement, dated June 18, 2010, among Fifth Third Processing Solutions, Fifth Third Bank and Christopher & Banks Corporation. 5. Fourth Amendment to Bank Card Merchant Agreement, dated August 26, 2011, among Vantiv, LLC and Fifth Third Bank and Christopher & Banks Corporation. 6. Fifth Amendment to Bank Merchant Agreement, dated June 27, 2013, among Vantiv, LLC, Fifth Third Bank and Christopher & Banks Corporation. 7. Special Amendment to the Bank Merchant Agreement, dated September 14, 2015, among Vantiv, LLC and Fifth Third Bank and Christopher & Banks Corporation. 8. Second Special Amendment to Bank Card Merchant Agreement, dated April 9, 2016, among Vantiv, LLC f/k/a Fifth Third Processing Solutions, LLC and Fifth Third Bank and Christopher & Banks Corporation. 9. Restated and Amended Master Services Agreement, dated October 25, 2007, between Accretive Commerce, Inc. and Christopher & Banks, Inc. 10. Restated and Amended Statement of Work, dated October 25, 2007, between Accretive Commerce, Inc. and Christopher & Banks, Inc. 11. Amendment to Restated and Amended Master Services Agreement, effective as of March 17, 2008, by and between GSI Commerce South, Inc. and Christopher & Banks, Inc. 12. Amendment No. 1 to Restated and Amended Statement of Work and to the Amended and Restated Master Services Agreement, effective as of February 28, 2011, by and between GSI Commerce South, Inc. and Christopher & Banks, Inc. 13. Amendment No. 2 to Restated and Amended Statement of Work, effective as of April 20, 2012, by and between GSI Commerce South, Inc. and Christopher & Banks, Inc. 14. Amendment No. 3 to Restated and Amended Master Services Agreement and Restated and Amended Statement of Work, effective as of July 6, 2015, by and between eBay Enterprise, Inc. and Christopher & Banks, Inc.
![slide153](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal153.jpg)
SCHEDULE 7.01 EXISTING LIENS Christopher & Banks Corporation Lienholder Amount of Property/Asset Secured Obligation Secured N/A Christopher & Banks, Inc. Lienholder Amount of Property/Asset Secured Obligation Secured N/A Christopher & Banks Company Lienholder Amount of Property/Asset Secured Obligation Secured N/A
![slide154](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal154.jpg)
SCHEDULE 7.02 INVESTMENTS None. INVESTMENT POLICY See attached.
![slide156](https://www.sec.gov/Archives/edgar/data/883943/000088394318000134/cbsecondamendmentfinal156.jpg)
Statement of Purpose The purpose of this Investment Policy (the “Policy”) is to establish guidelines for the investment of the general funds of Christopher & Banks Corporation and its subsidiaries (“the Company”). Specifically, the Policy: 1. Identifies investment objectives; 2. Specifies investment authority and responsibility; and 3. Establishes investment portfolio guidelines. The Company believes a sound Investment Policy is essential to developing strategies that ensure the investment objectives of the Company are achieved. Policy Review & Approval Senior management, with the assistance of its investment advisers, if any, shall annually review the Policy with the Audit Committee of the Company’s Board of Directors. Changes in this Policy must be approved by the Audit Committee of the Board of Directors, and following any such revisions or approvals, the updated Policy will be provided to the other members of the Company’s Board of Directors. Investment Objectives The Company’s primary investment objectives are, in order of importance, as follows: 1. Safety of principal; 2. Maintenance of adequate liquidity; and 3. Maximization of after-tax, after-fees return on investment. Investment Committee There shall be an Investment Committee consisting of (i) the Chief Executive Officer (“CEO”), (ii) the Chief Financial Officer (“CFO”), (iii) the Vice President, Controller (“Controller”) and (iv) the Vice President, Tax and Treasury (“VP Tax”) (collectively, the “Committee”). The Committee shall meet periodically and at any meeting at which the CEO and two (2) or more other members are present the Committee shall have the authority to retain investment advisers, open securities accounts, and transfer cash or securities between sub-portfolios, securities custodial accounts or the Company’s cash concentration account. Any one member of the Committee may transfer cash between the Company’s cash concentration account and its money market account or other operating account utilized for meeting the Company’s immediate liquidity needs, consistent with the Company’s internal control procedures. The Committee also may take one or more of the above actions by unanimous written consent. Investment Advisers The Company may choose to hire the services of one or more investment management firms and give such parties discretionary authority over individual security selection and transaction execution, provided that each such firm and its affiliates may not have more than seventy-five percent (75%) of the Company’s investable assets under its management at any one time and that they agree in writing to: 1. Manage the Company’s assets in accordance with all applicable laws and regulations and this Policy; - 2 -
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2. Promptly inform the Company of material events related to the credit markets as a whole as well as those matters effecting the safety or liquidity of any of the Company’s specific investments; 3. Contact a member of the Committee promptly upon the occurrence of any of the following events: (i) a security held in the portfolio is placed on “Negative Outlook” or “CreditWatch with Negative Implications”; (ii) a security held in the portfolio is downgraded and note whether or not it causes the credit quality of that security to fall below the minimum standards stated in this Policy; or (iii) the value of the investments under its management decreases by the lesser of $500,000 or five percent (5%).* 4. Conduct the purchase and sale of securities designed to receive the best price and execution, provided that, in any individually managed portfolio, no securities shall be sold that result in a loss of $10,000 or more without the prior written approval of the CEO and either the CFO or VP Tax; 5. Provide monthly written reports within 10 days following the last trading day of the month describing portfolio holdings, transactions, and performance. Such reports must be made available to the Company via the manager’s or custodian’s website or in paper copy; 6. In the event of a change in the Company’s tax status, the Company will inform the managers of the portfolios effected who will then be responsible for factoring such change into the portfolio’s reported after-tax yield; 7. Promptly inform the Company of matters pertinent to the placement of its assets with the investment management firm such as significant changes in ownership and relevant personnel changes; 8. Meet in person with Company management at least quarterly or more often if deemed necessary by the Company; 9. Attend the Company’s Audit Committee meetings if requested by management or the Committee; 10. At least annually, review and recommend changes to this Investment Policy as appropriate; and 11. Limit fund transfers to and from the Company’s securities custodial accounts to its designated cash concentration account. * Note: Promptly following any notice under Section 3(iii) above, a member of the Investment Committee shall promptly notify the members of the Audit Committee. In addition, a member of the Investment Committee shall also promptly notify the members of the Audit Committee if the value in the aggregate of the investable assets covered by this Policy decreases by the lesser of $500,000 or five percent (5%). Legal & Regulatory Compliance The management and investment of Company funds is to be done in full compliance with all applicable laws and regulations and shall be reviewed and modified as necessary to comply with changes in laws and regulations. Investment Guidelines The Company will maintain adequate cash to meet its daily, weekly, and monthly liquidity needs in bank accounts or money market funds. Remaining corporate funds shall be invested only in Eligible Investments and further classified into one of three sub-portfolios – Enhanced Cash, Short Duration and Intermediate Duration – each as further described in Tables I and II below. The amount of funds allocated to each sub-portfolio may change over time as directed by the Company. - 3 -
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SCHEDULE 7.03 EXISTING INDEBTEDNESS None.
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ANNEX III Exhibits to Credit Agreement See attached.
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EXHIBIT B-1 FORM OF REVOLVING NOTE REVOLVING NOTE $_______________ _______________, ____ FOR VALUE RECEIVED, the undersigned (individually, a “Borrower” and, collectively, the “Borrowers”), jointly and severally promise to pay to the order of Wells Fargo Bank, National Association (hereinafter, with any subsequent holders, the “Lender”), One Boston Place, 18th Floor, Boston, MA 02108, the principal sum of ___________________ ($______________), or, if less, the aggregate unpaid principal balance of Revolving Loans made by the Lender to or for the account of any Borrower pursuant to the Second Amended and Restated Credit Agreement dated as of July 12, 2012 (as amended, modified, supplemented or restated and in effect from time to time, the “Credit Agreement”) by and among the Borrowers and the Lender. This is a “Revolving Note” to which reference is made in the Credit Agreement and is subject to all terms and provisions thereof. The principal of, and interest on, this Revolving Note shall be payable at the times, in the manner, and in the amounts as provided in the Credit Agreement and shall be subject to prepayment and acceleration as provided therein. Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Credit Agreement. The Lender’s books and records concerning the Revolving Loans, the accrual of interest thereon, and the repayment of such Revolving Loans, shall be prima facie evidence of the indebtedness to the Lender hereunder. No delay or omission by the Lender in exercising or enforcing any of such Lender’s powers, rights, privileges, remedies, or discretions hereunder shall operate as a waiver thereof on that occasion nor on any other occasion. No waiver of any Event of Default shall operate as a waiver of any other Event of Default, nor as a continuing waiver of any such Event of Default. Each Borrower, and each endorser and guarantor of this Revolving Note, waives presentment, demand, notice, and protest, and also waives any delay on the part of the holder hereof. Each Borrower assents to any extension or other indulgence (including, without limitation, the release or substitution of Collateral) permitted by the Lender with respect to this Revolving Note and/or any Collateral or any extension or other indulgence with respect to any other liability or any collateral given to secure any other liability of any Borrower or any other Person obligated on account of this Revolving Note. This Revolving Note shall be binding upon each Borrower, and each endorser and guarantor hereof, and upon their respective successors, assigns, and representatives, and shall inure to the benefit of the Lender and its successors, endorsees, and assigns. The liabilities of each Borrower, and of any endorser or guarantor of this Revolving Note, are joint and several, provided, however, the release by the Lender of any one or more such Persons shall not release any other Person obligated on account of this Revolving Note. Each reference in this Revolving Note to any Borrower, any endorser, and any guarantor, is to such Person individually; each reference to 8734644
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the Borrowers, the endorsers or the guarantors is to all such Persons jointly. No Person obligated on account of this Revolving Note may seek contribution from any other Person also obligated unless and until all of the Obligations have been paid in full in cash. THIS REVOLVING NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES THEREOF, BUT INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. EACH OF THE BORROWERS 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 SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS REVOLVING NOTE OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE BORROWERS 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 BORROWERS 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 REVOLVING NOTE OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS REVOLVING NOTE OR ANY OTHER LOAN DOCUMENT AGAINST ANY OF THE BORROWERS OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. EACH OF THE BORROWERS 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 REVOLVING NOTE OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO ABOVE. EACH OF THE BORROWERS 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. Each Borrower makes the following waiver knowingly, voluntarily, and intentionally, and understands that the Lender, in the establishment and maintenance of their respective relationship with the Borrowers contemplated by this Revolving Note, are each relying thereon. EACH BORROWER, EACH GUARANTOR, ENDORSER AND SURETY, AND THE LENDER, BY ITS ACCEPTANCE HEREOF, 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 REVOLVING NOTE OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH BORROWER (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 THE LENDER HAS BEEN INDUCED TO ENTER 2
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INTO THE CREDIT AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS HEREIN. [Signature Page to Follow] 3
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EXHIBIT B-2 FORM OF FILO NOTE FILO NOTE $_______________ _______________, ____ FOR VALUE RECEIVED, the undersigned (individually, a “Borrower” and, collectively, the “Borrowers”), jointly and severally promise to pay to the order of Wells Fargo Bank, National Association (hereinafter, with any subsequent holders, the “Lender”), One Boston Place, 18th Floor, Boston, MA 02108, the principal sum of ___________________ ($______________), or, if less, the aggregate unpaid principal balance of FILO Loans made by the Lender to or for the account of any Borrower pursuant to the Second Amended and Restated Credit Agreement dated as of July 12, 2012 (as amended, modified, supplemented or restated and in effect from time to time, the “Credit Agreement”) by and among the Borrowers and the Lender. This is a “FILO Note” to which reference is made in the Credit Agreement and is subject to all terms and provisions thereof. The principal of, and interest on, this FILO Note shall be payable at the times, in the manner, and in the amounts as provided in the Credit Agreement and shall be subject to prepayment and acceleration as provided therein. Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Credit Agreement. The Lender’s books and records concerning the FILO Loans, the accrual of interest thereon, and the repayment of such FILO Loans, shall be prima facie evidence of the indebtedness to the Lender hereunder. No delay or omission by the Lender in exercising or enforcing any of such Lender’s powers, rights, privileges, remedies, or discretions hereunder shall operate as a waiver thereof on that occasion nor on any other occasion. No waiver of any Event of Default shall operate as a waiver of any other Event of Default, nor as a continuing waiver of any such Event of Default. Each Borrower, and each endorser and guarantor of this FILO Note, waives presentment, demand, notice, and protest, and also waives any delay on the part of the holder hereof. Each Borrower assents to any extension or other indulgence (including, without limitation, the release or substitution of Collateral) permitted by the Lender with respect to this FILO Note and/or any Collateral or any extension or other indulgence with respect to any other liability or any collateral given to secure any other liability of any Borrower or any other Person obligated on account of this FILO Note. This FILO Note shall be binding upon each Borrower, and each endorser and guarantor hereof, and upon their respective successors, assigns, and representatives, and shall inure to the benefit of the Lender and its successors, endorsees, and assigns. The liabilities of each Borrower, and of any endorser or guarantor of this FILO Note, are joint and several, provided, however, the release by the Lender of any one or more such Persons shall not release any other Person obligated on account of this FILO Note. Each reference in this FILO Note to any Borrower, any endorser, and any guarantor, is to such Person individually; each reference to the 8734696
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Borrowers, the endorsers or the guarantors is to all such Persons jointly. No Person obligated on account of this FILO Note may seek contribution from any other Person also obligated unless and until all of the Obligations have been paid in full in cash. THIS FILO NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES THEREOF, BUT INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. EACH OF THE BORROWERS 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 SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS FILO NOTE OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE BORROWERS 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 BORROWERS 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 FILO NOTE OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS FILO NOTE OR ANY OTHER LOAN DOCUMENT AGAINST ANY OF THE BORROWERS OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. EACH OF THE BORROWERS 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 FILO NOTE OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO ABOVE. EACH OF THE BORROWERS 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. Each Borrower makes the following waiver knowingly, voluntarily, and intentionally, and understands that the Lender, in the establishment and maintenance of their respective relationship with the Borrowers contemplated by this FILO Note, are each relying thereon. EACH BORROWER, EACH GUARANTOR, ENDORSER AND SURETY, AND THE LENDER, BY ITS ACCEPTANCE HEREOF, 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 FILO NOTE OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH BORROWER (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 THE LENDER HAS BEEN INDUCED TO ENTER 2
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INTO THE CREDIT AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS HEREIN. [Signature Page to Follow] 3