Contract
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Execution Version FIRST AMENDMENT TO TERM CREDIT AGREEMENT This First Amendment to Term Credit Agreement (this “Amendment”) is made as of September 21, 2023, by and among: DESIGNER BRANDS INC., an Ohio corporation (the “U.S. Borrower”), DESIGNER BRANDS CANADA INC., an Ontario corporation (the “Canadian Borrower” and together with the U.S. Borrower, each a “Borrower” and collectively, the “Borrowers”), the undersigned Loan Parties party hereto, the undersigned Lenders party hereto, and PLC AGENT LLC, as administrative agent “the Administrative Agent”); in consideration of the mutual covenants herein contained and benefits to be derived herefrom. W I T N E S S E T H: WHEREAS, reference is made to that certain Term Credit Agreement, dated as of June 23, 2023 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”, and, as further amended pursuant to this Amendment, the “Amended Credit Agreement”), by, among others, (i) the Borrowers, (ii) the other Loan Parties from time to time party thereto, (iii) the Lenders from time to time party thereto, and (iv) the Administrative Agent; WHEREAS, the Borrowers have requested that the Administrative Agent and the Lenders provide for certain modifications to the Existing Credit Agreement, and the Administrative Agent and the Lenders are willing to do so, but only upon the terms and conditions set forth herein, including the Required DDTL Borrowing (as defined in Section 4); and WHEREAS, Section 9.02 of the Existing Credit Agreement provides that the Administrative Agent and the Lenders may amend the Existing Credit Agreement and the other Loan Documents. NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: Section 1. Defined Terms. Capitalized terms used in this Amendment shall have the respective meanings assigned to such terms in the Amended Credit Agreement unless otherwise defined herein. Section 2. Amendments to Existing Credit Agreement. Effective as of the First Amendment Effective Date and subject to the satisfaction of the conditions precedent set forth in Section 3, including for the avoidance of doubt the Required DDTL Borrowing (as defined in Section 4): the Existing Credit Agreement shall be amended to (i) delete the stricken text (indicated textually in the same manner as the following example: stricken text), (ii) add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) and (iii) move from its location the stricken text in green (indicated textually in the same manner as the following example: moved from text) into its new location the double-underlined text in green (indicated textually in the same manner as 11585138v3
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3 negotiations relating to this Amendment and the other Loan Documents executed in connection herewith and any other instruments and agreements executed by the Loan Parties in connection therewith or herewith, arising on or before the date hereof. Section 6. Counterparts. This Amendment 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 Amendment and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous letters of intent, commitment letters, agreements and understandings, oral or written, relating to the subject matter hereof. Delivery of an executed counterpart of a signature page of this Amendment by telecopy, pdf or other electronic transmission shall be as effective as delivery of a manually executed counterpart of this Amendment. Section 7. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK. Section 8. Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. Section 9. Effect of Amendment. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the other Credit Parties under the Amended Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Amended Credit Agreement or any other provision of either such agreement or any other Loan Document. Except as expressly modified herein, each and every term, condition, obligation, covenant and agreement contained in the Amended Credit Agreement or any other Loan Document is hereby ratified and re-affirmed in all respects and shall continue in full force and effect. The Loan Parties hereby acknowledge, confirm and agree that the Collateral Documents and any and all Liens previously granted to the Administrative Agent, for the benefit of the Credit Parties, shall continue to secure all applicable Obligations of the Loan Parties at any time and from time to time outstanding under the Amended Credit Agreement and the other Loan Documents, as such Obligations have been amended pursuant to this Amendment. From and after the date hereof, all references to the Amended Credit Agreement in any Loan Document shall, unless expressly provided otherwise, refer to the Credit Agreement as amended by this Amendment. This Amendment is a Loan Document executed pursuant to the Amended Credit Agreement and shall be construed, administered and applied in accordance with the terms and provisions thereof. [SIGNATURE PAGES FOLLOW]
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[Signature Page to First Amendment to Term Credit Agreement] IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written. U.S. BORROWER: DESIGNER BRANDS INC. By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Tax and Treasurer CANADIAN BORROWER: DESIGNER BRANDS CANADA INC. By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer DocuSign Envelope ID: F9751B4F-DE60-4E99-8E3C-C187897FF52C
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[Signature Page to First Amendment to Term Credit Agreement] OTHER LOAN PARTIES: DSW SHOE WAREHOUSE, INC. By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer BRAND CARD SERVICES LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer DSW INFORMATION TECHNOLOGY LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer ETAILDIRECT LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer DocuSign Envelope ID: F9751B4F-DE60-4E99-8E3C-C187897FF52C
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[Signature Page to First Amendment to Term Credit Agreement] EBUYS, INC. By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer DSW MS LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer DSW LEASED BUSINESS DIVISION LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer 810 AC LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer RETAIL VENTURES SERVICES, INC. By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer DocuSign Envelope ID: F9751B4F-DE60-4E99-8E3C-C187897FF52C
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[Signature Page to First Amendment to Term Credit Agreement] CAMUTO LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer DESIGNER BRAND LICENSING LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer VCJS LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer VCS GROUP LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer XXXXXXX XXXXXX LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer DocuSign Envelope ID: F9751B4F-DE60-4E99-8E3C-C187897FF52C
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[Signature Page to First Amendment to Term Credit Agreement] CCI OPERATIONS LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer VC FOOTWEAR LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer VC LINE BUILDING SERVICES LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer HOT ON TIME LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer SOLE SOCIETY GROUP, INC. By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer DocuSign Envelope ID: F9751B4F-DE60-4E99-8E3C-C187897FF52C
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[Signature Page to First Amendment to Term Credit Agreement] TOPO ATHLETIC LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer DESIGNER BRANDS PARTNERS LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer DBI BRANDS MANAGEMENT LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer DBI TRADE CO LLC By: Name: Xxxxx Xxxxxx Title: Senior Director – Global Compliance DocuSign Envelope ID: F9751B4F-DE60-4E99-8E3C-C187897FF52C
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[Signature Page to First Amendment to Term Credit Agreement] TOPO ATHLETIC LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer DESIGNER BRANDS PARTNERS LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer DBI BRANDS MANAGEMENT LLC By: Name: Xxxxx Xxxxxxx Title: Senior Vice President, Treasurer DBI TRADE CO LLC By: Name: Xxxxx Xxxxxx Title: Senior Director – Global Compliance DocuSign Envelope ID: 640E50E4-08CB-4F3F-8265-3BB9DB44A845
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ANNEX A Amended Credit Agreement [See attached.]
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Execution Version Conformed through First Amendment dated as of September 21, 2023 TERM CREDIT AGREEMENT dated as of June 23, 2023 among DESIGNER BRANDS INC., as the Company and the U.S. Borrower, DESIGNER BRANDS CANADA INC. as the Canadian Borrower, The other LOAN PARTIES from time to time party hereto, The LENDERS from time to time party hereto, and PLC AGENT LLC, as Administrative Agent and Lead Arranger 11584747
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TABLE OF CONTENTS (continued) SECTION 3.14 Labor Matters 76 SECTION 3.15 Solvency 76 SECTION 3.16 Anti-Terrorism Laws, Anti-Corruption Laws and Sanctions 76 SECTION 3.17 EEA Financial Institutions 77 SECTION 3.18 Security Interest in Collateral 77 SECTION 3.19 Credit Card Agreements 77 SECTION 3.20 Plan Assets; Prohibited Transactions 77 SECTION 3.21 Beneficial Ownership Certificate 78 ARTICLE IV. CONDITIONS 78 SECTION 4.01 Closing Date 78 ARTICLE V. AFFIRMATIVE COVENANTS 81 SECTION 5.01 Financial Statements; Borrowing Base and Other Information 81 SECTION 5.02 Notices of Material Events and Delivery of Other Reports 84 SECTION 5.03 Preservation of Existence, Etc 86 SECTION 5.04 Payment of Liabilities, Including Taxes, Etc 86 SECTION 5.05 Maintenance of Insurance 87 SECTION 5.06 Maintenance of Properties 87 SECTION 5.07 Inspection Rights; Appraisals 88 SECTION 5.08 Keeping of Records and Books of Account 89 SECTION 5.09 Compliance with Laws and Material Contractual Obligations 89 SECTION 5.10 Use of Proceeds 89 SECTION 5.11 Anti-Terrorism Laws; International Trade Law Compliance 89 SECTION 5.12 Casualty 90 SECTION 5.13 [Reserved] 90 SECTION 5.14 Additional Collateral; Further Assurances 90 SECTION 5.15 Environmental Laws 91 SECTION 5.16 Canadian Pension Plans 91 SECTION 5.17 Post-Closing Covenants 92 ARTICLE VI. NEGATIVE COVENANTS 92 SECTION 6.01 Indebtedness 92 SECTION 6.02 Restricted Payments 97 SECTION 6.03 Limitations on Restrictive Agreements 101 SECTION 6.04 Sale of Equity Interests and Assets 102 SECTION 6.05 Affiliate Transactions 106 SECTION 6.06 Amendments of Certain Documents; Line of Business 108 SECTION 6.07 Liens 108 SECTION 6.08 Mergers, Amalgamations, Fundamental Changes, Etc 109 SECTION 6.09 Sanctions; Anti-Terrorism Laws 110 SECTION 6.10 Restrictions on Certain Subsidiaries 111 SECTION 6.11 Canadian Pension Plans 111 SECTION 6.12 Consolidated Net Leverage Ratio 111 SECTION 6.13 Disposal of Assets of IPCo JV and Other IP Entities 111 ARTICLE VII. EVENTS OF DEFAULT 111 ARTICLE VIII. THE ADMINISTRATIVE AGENT 115 SECTION 8.01 Appointment 115 SECTION 8.02 Rights as a Lender 116 SECTION 8.03 Duties and Obligations 116 SECTION 8.04 Reliance 116 ii 11584747
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TABLE OF CONTENTS (continued) SECTION 8.05 Actions through Sub-Agents 117 SECTION 8.06 Resignation 117 SECTION 8.07 Non-Reliance 118 SECTION 8.08 Other Agency Titles 118 SECTION 8.09 Not Partners or Co-Venturers; Administrative Agent as Representative of the Secured Parties 118 SECTION 8.10 Erroneous Payments 119 SECTION 8.11 No Reliance on Administrative Agent’s Customer Identification Program 120 ARTICLE IX. MISCELLANEOUS 120 SECTION 9.01 Notices 120 SECTION 9.02 Waivers; Amendments 122 SECTION 9.03 Expenses; Indemnity; Damage Waiver 125 SECTION 9.04 Successors and Assigns 127 SECTION 9.05 Survival 132 SECTION 9.06 Counterparts; Integration; Effectiveness; Electronic Execution 132 SECTION 9.07 Severability 132 SECTION 9.08 Right of Setoff 132 SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of Process 133 SECTION 9.10 WAIVER OF JURY TRIAL 134 SECTION 9.11 Headings 134 SECTION 9.12 Confidentiality 134 SECTION 9.13 Several Obligations; Nonreliance; Violation of Law 135 SECTION 9.14 USA PATRIOT Act 135 SECTION 9.15 Canadian Anti-Money Laundering Legislation 135 SECTION 9.16 Disclosure 136 SECTION 9.17 Appointment for Perfection 136 SECTION 9.18 Interest Rate Limitation 136 SECTION 9.19 No Advisory or Fiduciary Responsibility 136 SECTION 9.20 Obligations of Foreign Subsidiaries 137 SECTION 9.21 [Reserved] 137 SECTION 9.22 Judgment Currency 137 SECTION 9.23 Waiver of Immunity 138 SECTION 9.24 Process Agent 138 SECTION 9.25 Termination and Release of Collateral 138 SECTION 9.26 Publicity 139 SECTION 9.27 Acknowledgement and Consent to Bail-In of Affected Financial Institutions 139 SECTION 9.28 Certain ERISA Matters 139 ARTICLE X. U.S. GUARANTY 140 SECTION 10.01 Guaranty 140 SECTION 10.02 Guaranty of Payment 140 SECTION 10.03 No Discharge or Diminishment of Loan Guaranty 140 SECTION 10.04 Defenses Waived 141 SECTION 10.05 Rights of Subrogation 141 SECTION 10.06 Reinstatement; Stay of Acceleration 141 SECTION 10.07 Information 142 SECTION 10.08 [Reserved.] 142 SECTION 10.09 [Reserved.] 142 SECTION 10.10 Maximum Liability 142 iii 11584747
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TABLE OF CONTENTS (continued) SECTION 10.11 Contribution 142 SECTION 10.12 Liability Cumulative 143 SECTION 10.13 [Reserved] 143 SECTION 10.14 Common Enterprise 143 ARTICLE XI. CANADIAN GUARANTY 143 SECTION 11.01 Guaranty 143 SECTION 11.02 Guarantee of Payment 144 SECTION 11.03 No Discharge or Diminishment of Canadian Guaranty 144 SECTION 11.04 Defenses Waived 145 SECTION 11.05 Rights of Subrogation 145 SECTION 11.06 Reinstatement; Stay of Acceleration 145 SECTION 11.07 Information 145 SECTION 11.08 Maximum Canadian Liability 146 SECTION 11.09 Contribution 146 SECTION 11.10 Liability Cumulative 146 SECTION 11.11 Common Enterprise 147 ARTICLE XII. 147 SECTION 12.01 Appointment; Nature of Relationship 147 SECTION 12.02 Powers 147 SECTION 12.03 Employment of Agents 147 SECTION 12.04 Notices 147 SECTION 12.05 Successor Borrower Representative 148 SECTION 12.06 Execution of Loan Documents; Borrowing Base Certificate 148 SECTION 12.07 Reporting 148 iv 11584747
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TABLE OF CONTENTS (continued) SCHEDULES: Schedule 1.01(a) – Commitment Schedule Schedule 1.01(c) – Existing Owned Real Property Schedule 1.01(d) – Immaterial Subsidiaries Schedule 3.02 – Capitalization; Subsidiaries; Joint Ventures Schedule 3.10(a) – Real Property Schedule 3.10(b) – Intellectual Property Schedule 3.11 – Insurance Schedule 3.12 – Canadian Pension Plans Schedule 3.19 – Credit Card Arrangements Schedule 5.17 – Post-Closing Covenants Schedule 6.01 – Existing Indebtedness Schedule 6.02 – Existing Investments Schedule 6.03 – Existing Contractual Encumbrances and Restrictions Schedule 6.05 – Existing Affiliate Transactions Schedule 6.07 – Existing Liens EXHIBITS: Exhibit A – Form of Assignment and Assumption Exhibit B – Form of Note Exhibit C – Form of Borrowing Request Exhibit D – Form of Compliance Certificate Exhibit E – Reserved Exhibit F – Form of Joinder Agreement Exhibit G-1 – Form of U.S. Tax Certificate (For Foreign Lenders that are not Partnerships for U.S. Federal Income Tax Purposes) Exhibit G-2 – Form of U.S. Tax Certificate (For Foreign Participants that are not Partnerships for U.S. Federal Income Tax Purposes) Exhibit G-3 – Form of U.S. Tax Certificate (For Foreign Participants that are Partnerships for U.S. Federal Income Tax Purposes) Exhibit G-4 – Form of U.S. Tax Certificate (For Foreign Lenders that are Partnerships for U.S. Federal Income Tax Purposes) v 11584747
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TERM CREDIT AGREEMENT dated as of June 23, 2023, among DESIGNER BRANDS INC., an Ohio corporation (the “Company”), DESIGNER BRANDS CANADA INC., an Ontario corporation, the other Loan Parties from time to time party hereto, the Lenders from time to time party hereto, and PLC AGENT LLC, as Administrative Agent. WITNESSETH: The Borrowers have requested that the Lenders provide (i) a term loan on the Closing Date in the aggregate principal amount of $45,000,000 to the U.S. Borrower and a term loan on the Closing Date in the aggregate principal amount of $5,000,000 to the Canadian Borrower, and (ii) up to $85,000,000 ($76,500,000 to the USU.S. Borrower and $8,500,000 to the Canadian Borrower) pursuant to a delay draw term loan facility, and, in all cases, the Lenders have indicated their willingness to lend such term loans, severally and not jointly, on the terms and conditions set forth herein. In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows: ARTICLE I. DEFINITIONS SECTION 1.01 Defined Terms. As used in this Agreement, the following terms have the meanings specified below: “ABL Agent” means the “Administrative Agent” (or such similar defined term used therein) as such term is defined in the ABL Credit Agreement. “ABL Credit Agreement” means that certain Credit Agreement, dated as of March 30, 2022, by and among the Company, Designer Brands Canada, Inc., an Ontario corporation, the other Loan Parties from time to time party thereto, the lenders from time to time party thereto, and The Huntington National Bank, as administrative agent, as amended, amended and restated, supplemented, refinanced or otherwise modified from time to time in accordance with the ABL Intercreditor Agreement. “ABL Documents” means the “Loan Documents” (or such similar defined term used therein) under and as defined in the ABL Credit Agreement, as amended, amended and restated, supplemented, refinanced or otherwise modified from time to time in accordance with the ABL Intercreditor Agreement. “ABL Intercreditor Agreement” means the Intercreditor Agreement, in form and substance reasonably satisfactory to the Administrative Agent and the Company, to be entered into as of the Closing Date among the Administrative Agent, the ABL Agent and the Loan Parties, as the same may be amended, restated, supplemented or otherwise modified from time to time. “ABL Lenders” means the “Lenders” under the ABL Credit Agreement. “Account” means an “Account” as defined in Article 9 of the UCC or the PPSA, as applicable. “Account Debtor” means any Person that is or may become obligated to any Loan Party under, with respect to or on account of an Account or Credit Card Account. “Acquired Indebtedness” means, with respect to any specified Person: (1) Indebtedness of any other Person existing at the time such other Person is merged, consolidated or amalgamated with or into or became a Restricted Subsidiary of such specified Person, and (2) Indebtedness secured by a Lien 11584747
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encumbering any asset acquired by such specified Person. Acquired Indebtedness will be deemed to have been Incurred, with respect to clause (1) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary and, with respect to clause (2) of the preceding sentence, on the date of consummation of such acquisition of such assets. “Acquisition” means any transaction, or any series of related transactions, consummated on or after the Closing Date, by which any Loan Party or Restricted Subsidiary (a) acquires any business or division of a business or all or substantially all of the assets of any Person, whether through the purchase of assets, merger or otherwise or (b) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the Equity Interests of a Person which has ordinary voting power for the election of directors or other similar management personnel of a Person (other than Equity Interests having such power only by reason of the happening of a contingency) or a majority of the outstanding Equity Interests of a Person. “Additional Refinancing Amount” means, in connection with the Incurrence of any Refinancing Indebtedness, the aggregate principal amount of additional Indebtedness, Disqualified Stock or Preferred Stock Incurred to pay accrued and unpaid interest, premiums (including tender premiums), expenses, defeasance costs and fees in respect thereof. “Adjusted Term SOFR” means the sum of: (i) Term SOFR and (ii) 0.1000% (10.00 basis points). Adjusted Term SOFR will be determined by the Administrative Agent and adjusted monthly (as of the beginning of each month) as to all Loans then outstanding. “Administrative Agent” means PLC Agent LLC, in its capacity as administrative agent hereunder and under the other Loan Documents, and including any of its Affiliates performing any of the functions of the Administrative Agent at any time, and their successors in such capacity as provided in Article VIII. “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent, if any. “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution. “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the specified Person. “Affiliated Holders” means, with respect to any specified natural person, (a) such specified natural person’s parents, spouse, siblings, descendants, step children, step grandchildren, nieces and nephews and their respective spouses, (b) the estate, legatees and devisees of such specified natural person and each of the persons referred to in clause (a) of this definition, and (c) any company, partnership, trust or other entity or investment vehicle created for the benefit of, or Controlled by, such specified natural person or any of the persons referred to in clause (a) or (b) of this definition or the holdings of which are for the primary benefit of such specified natural person or any of the persons referred to in clause (a) or (b) of this definition or created by any such person for the benefit of any charitable organization or for a charitable purpose. “Affiliate Transaction” has the meaning specified in Section 6.05. “Agreement” means this Term Credit Agreement, as amended, restated, supplemented or otherwise modified from time to time. 2 11584747
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“Aggregate Commitments” means, at any time, the aggregate Commitments of all Lenders. “Aggregate Term Exposure” means, at any time, the aggregate Term Exposure of all the Lenders at such time. “Alternate Base Rate” means, for any day, a fluctuating interest rate per annum equal to the highest of: (a) the Floor, (b) the Prime Rate, (c) the Fed Funds Rate in effect on such day plus 0.50% and (d) Adjusted Term SOFR plus 1.00% per annum. Each change in the Prime Rate or the Federal Funds Rate, respectively, shall take effect at the opening of business on the day specified in the public announcement of such change. If the Alternate Base Rate is being used to determine the Applicable Reference Rate, Alternate Base Rate shall be determined without reference to clause (d) above. “AML Legislation” has the meaning specified in Section 9.15. “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction in which to the Company or any of its Subsidiaries is located or is doing material business from time to time concerning or relating to bribery or corruption and includes the Canadian Economic Sanctions and Export Control Laws. “Anti-Terrorism Laws” means those laws and sanctions relating to terrorism or money laundering, including Canadian Anti-Money Laundering & Anti-Terrorism Legislation, Executive Order No. 13224, the USA Patriot Act (Public Law 107-56), the Bank Secrecy Act (Public Law 91-508), the Trading with the Enemy Act (50 U.S.C. App. Section 1 et. seq.), the International Emergency Economic Powers Act (50 U.S.C. Section 1701 et. seq.), and the sanction regulations promulgated pursuant thereto by the Office of Foreign Assets Control, as well as laws relating to prevention and detection of money laundering in 18 U.S.C. Sections 1956 and 1957 (as any of the foregoing may from time to time be amended, renewed, extended or replaced, in each case in any jurisdiction in which any Loan Party or any of its Subsidiaries is located or is doing material business). “Applicable Percentage” means, with respect to any Lender, a percentage equal to a fraction the numerator of which is such Lender’s Commitment and the denominator of which is the Aggregate Commitments; provided that, after any Term Loans have been made, the Applicable Percentages shall be determined based upon the sum of such Lender’s share of (a) the Aggregate Term Exposure at that time, plus (b) the outstanding Commitments, if any; provided further that, in accordance with Section 2.20, so long as any Lender shall be a Defaulting Lender, such Defaulting Lender’s Commitments, if any, shall be disregarded in the calculations in this definition. “Applicable Margin” mean (a) with respect to any Loan bearing interest at the Adjusted Term SOFR component of the Applicable Reference Rate, 7.00% per annum and (b) with respect to any Loan bearing interest at the Alternate Base Rate component of the Applicable Reference Rate, 6.00% per annum. “Applicable Reference Rate” with respect to any Loan, an interest rate per annum equal to Adjusted Term SOFR; provided, however, that in the event that Adjusted Term SOFR is unavailable, subject to the last sentence of the definition of “Term SOFR”, the Applicable Reference Rate shall mean a per annum interest rate equal to the Alternate Base Rate. The Applicable Reference Rate will be determined and adjusted monthly (as of the beginning of each month) as to all Loans then outstanding. “Approved Fund” has the meaning assigned to such term in Section 9.04. “Article II JV” means Article II JV, LLC, a Delaware limited liability company. 3 11584747
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“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (other than an Ineligible Institution) (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent. “Availability” means “Availability” as defined in the ABL Credit Agreement as in effect on the date hereof or as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the ABL Intercreditor Agreement. “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution. “Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation or requirement for such EEA Member Country from time to time that is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings). “Bankruptcy Code” means title 11 of the United States Code, as amended. “Bankruptcy Event” means, with respect to any Person, when such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, interim receiver, monitor, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business, appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, unless such ownership interest results in or provides such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permits such Person (or such Governmental Authority or instrumentality), to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person. “BC/VC” means BC/VC Ventures LLC, a Delaware limited liability company. “Beneficial Owner” means, with respect to any U.S. Federal withholding Tax, the beneficial owner, for U.S. Federal income tax purposes, to whom such Tax relates. “Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation. “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230. “BIA” means the Bankruptcy and Insolvency Act (Canada), as amended. “Billing Statement” has the meaning assigned to such term in Section 2.18(g). 4 11584747
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“Blocked Person” means any of the following: (a) a Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order No. 13224; (b) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order No. 13224; (c) a Person that is named as a “specially designated national” on the most current list published by the U.S. Treasury Department Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list; or (d) a Person who is affiliated or associated with a Person listed above. “Board” means the Board of Governors of the Federal Reserve System of the U.S. “Borrower” or “Borrowers” means, individually or collectively, the U.S. Borrower and/or the Canadian Borrower, as applicable. “Borrower Representative” has the meaning assigned to such term in Section 12.01. “Borrowing” means (a) Term Loans of the same Type and Class made on the same date and (b) a Protective Advance. “Borrowing Base” means the “Borrowing Base” (collectively, including all components thereof, including, without limitation, the “U.S. Borrowing Base”, the “U.S. FILO Borrowing Base”, the “Canadian Borrowing Base” and “Canadian FILO Borrowing Base”) (or such similar defined terms used therein) as each such term is defined in the ABL Credit Agreement as in effect on the date hereof or as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the ABL Intercreditor Agreement. “Borrowing Base Certificate” means the “Borrowing Base Certificate” (or such similar defined term used therein) delivered pursuant to the ABL Credit Agreement with respect to the Borrowing Base as in effect on the date hereof or as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the ABL Intercreditor Agreement. “Borrowing Base Reporting Date” means twenty-five (25) days after the end of each fiscal month of the Company (or, if such day is not a Business Day, on the next succeeding Business Day); provided, however, during any Increased BBC Reporting Period, the Borrowing Base Reporting Date shall mean Wednesday of each week (or, if such day is not a Business Day, on the next succeeding Business Day). “Borrowing Request” means a request by the Borrower Representative for a Borrowing in accordance with Section 2.03, which shall be, in the case of any such written request, in the form of Exhibit C or any other form approved by the Administrative Agent. “BRX” means BRX DBI Joint Venture LLC, a Delaware limited liability company. “Business Day” means any day other than a Saturday, a Sunday, or other day on which the Administrative Agent is authorized or required to be closed. “Camuto Entities” means, collectively, Camuto LLC, a Delaware limited liability company and any Person that is a Subsidiary thereof. For the avoidance of doubt, each of CCI Operations LLC, an Ohio limited liability company, Camuto Overseas Holding Subsidiary, LLC, an Ohio limited liability company, Xxxxxxx Xxxxxx LLC, a Connecticut limited liability company, Sole Society Group, Inc., a Delaware corporation, VCJS LLC, a Connecticut limited liability company, VCS Group LLC, a Delaware limited liability company, Hot on time LLC, a Connecticut limited liability company, VC Line Building Services LLC, a Connecticut limited liability company, VC Footwear LLC, a Connecticut limited liability company, and Article II JV and BC/VC shall constitute a Camuto Entity. 5 11584747
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“Canada” means the country of Canada and any province or territory thereof. “Canadian Anti-Money Laundering & Anti-Terrorism Legislation” means the Criminal Code, R.S.C. 1985, c. C-46, the Proceeds of Crime Act and the United Nations Act, R.S.C. 1985, c. U-2 or any similar Canadian legislation, together with all rules, regulations and interpretations thereunder or related thereto including, without limitation, the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism and the United Nations Al-Qaida and Taliban Regulations promulgated under the United Nations Act. “Canadian Blocked Person” means any Person that is a “politically exposed foreign person” or “terrorist group” or similar person whose property or interests in property are blocked or subject to blocking pursuant to, or as described in, any Canadian Economic Sanctions and Export Control Laws. “Canadian Borrower” means Designer Brands Canada Inc. “Canadian Closing Date Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make the Closing Date Term Loans in U.S. Dollars to the Canadian Borrower on the Closing Date in accordance with Section 2.01(a). “Canadian Collateral” means any and all property of any Canadian Loan Party covered by the Collateral Documents and any and all other property of any Canadian Loan Party, now existing or hereafter acquired, that may at any time be or become subject to a security interest or Xxxx in favor of the Administrative Agent to secure the Canadian Secured Obligations. “Canadian Commitment” means, with respect to each Lender, the sum of its Canadian Closing Date Commitment and Canadian Delay Draw Commitment. Canadian Defined Benefit Plan” means a Canadian Pension Plan, which contains a “defined benefit provision,” as defined in subsection 147.1(1) of the ITA. “Canadian Delay Draw Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make Delay Draw Term Loans in U.S. Dollars to the Canadian Borrower in accordance with Section 2.01(b). “Canadian Economic Sanctions and Export Control Laws” means any Canadian laws, regulations or orders governing transactions in controlled goods or technologies or dealings with countries, entities, organizations, or individuals subject to economic sanctions and similar measures. “Canadian Guaranteed Obligation” has the meaning assigned to such term in Section 11.01. “Canadian Guarantor” means each Restricted Subsidiary of the Canadian Borrower that is listed on the signature pages hereto as a Canadian Guarantor or that becomes a party hereto as a Canadian Guarantor pursuant to Section 5.14, in each case, until such Subsidiary’s Canadian Guaranty is released in accordance herewith. “Canadian Guaranty” means Article XI of this Agreement. “Canadian Loan Parties” means, individually and collectively as the context may require, the Canadian Borrower and the Canadian Guarantors. “Canadian MEPP” means any plan that is a multi-employer pension plan as defined under the applicable federal or provincial pension standards legislation in Canada. 6 11584747
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“Canadian Obligated Party” has the meaning set forth in Section 11.02. “Canadian Obligations” means all unpaid principal of and accrued and unpaid interest on the Canadian Term Loans to the Canadian Borrower, all accrued and unpaid fees (including any Prepayment Premium) and all expenses, reimbursements, indemnities and other obligations of the Canadian Loan Parties to the Lenders or to any Lender, the Administrative Agent, or any indemnified party arising under the Loan Documents (including guarantee obligations and interest, costs, fees and other amounts accruing during the pendency of any proceeding under any Insolvency Laws, regardless of whether allowed or allowable in such proceeding). “Canadian Pension Event” means (a) the whole or partial withdrawal of a Loan Party from a Canadian Defined Benefit Plan during a plan year where any additional funding obligations of the Loan Party (other than the remittance of normal cost contributions owing in respect of periods up to the withdrawal date) would be triggered by such withdrawal; (b) the filing of a notice of intent to terminate in whole or in part a Canadian Defined Benefit Plan; (c) the treatment by a Governmental Authority of a Canadian Defined Benefit Plan amendment as a termination or partial termination; or (d) the appointment of a trustee by a Governmental Authority to administer the termination, in whole or in part, of a Canadian Defined Benefit Plan. Notwithstanding anything to the contrary herein, a Canadian Pension Event shall not include any event that relates to the partial wind-up or termination of solely the defined contribution component of a Canadian Defined Benefit Plan. “Canadian Pension Plans” means any plan, program or arrangement that is a pension plan that is required to be registered under any applicable Canadian federal or provincial pension standard legislation, whether or not registered under any such laws, which is maintained or contributed to by, or to which there is or may be an obligation to contribute by, a Loan Party in respect of any Person’s employment in Canada with such Loan Party, other than any Canadian MEPP or plans established by statute, which shall include, without limitation, the Canada Pension Plan maintained by the government of Canada and the Quebec Pension Plan maintained by the Province of Quebec. “Canadian Secured Obligations” means the Canadian Obligations. “Canadian Security Agreement” means the Canadian Security Agreement, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, dated as of the Closing Date, among the Canadian Loan Parties and the Administrative Agent, and, as the context requires, any other pledge or security agreement or deed of hypothec entered into, after the Closing Date by any other Canadian Loan Party (as required by this Agreement or any other Loan Document), as the same may be amended, restated, supplemented or otherwise modified from time to time. “Canadian Subsidiary” means any Subsidiary of the Company that has been formed or is organized under the laws of Canada or any province or territory thereof. “Canadian Term Loan” means any Term Loan made to the Canadian Borrower. “Capital Expenditures” means expenditures made or liabilities incurred for the acquisition of any fixed assets or improvements (or of any replacements or substitutions thereof or additions thereto) which have a useful life of more than one year and which, in accordance with GAAP, would be classified as capital expenditures. “Cash Equivalents” means: (a) direct obligations of the United States of America or Canada (or any provincial governments thereof) or any agency or instrumentality thereof or obligations backed by the full faith and credit of the United States of America or Canada (or any provincial governments 7 11584747
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thereof) maturing in twelve (12) months or less from the date of acquisition; (b) commercial paper maturing in one (1) year or less rated not lower than A-1, by S&P or P-1 by Xxxxx’x on the date of acquisition; (c) demand deposits, time deposits or certificates of deposit maturing within one year in commercial banks whose obligations are rated A-1, A or the equivalent or better by S&P on the date of acquisition; (d) money market or mutual funds whose investments are limited to those types of investments described in clauses (a)-(c) above; and (e) fully collateralized repurchase agreements with a term of not more than one hundred eighty (180) days for securities described in clause (a) above and entered into with commercial banks whose obligations are rated A-1, A or the equivalent or better by S&P on the date of acquisition, provided, that, for the avoidance of doubt, “Cash Equivalents” does not include any Credit Card Accounts. “Casualty” has the meaning assigned to such term in Section 5.12. “CCAA” means the Companies’ Creditors Arrangement Act (Canada), as amended. “CFC” means each Person that is a “controlled foreign corporation” within the meaning of Section 957(a) of the Code. “CFC Holdco” means a Domestic Subsidiary owning, directly or indirectly, no material assets other than equity interests of one or more CFCs. “Change in Control” means (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than a Permitted Holder, shall have acquired beneficial ownership of (within the meaning of Rule 13d-3 promulgated by the SEC under the Exchange Act), directly or indirectly, of more than twenty-five percent (25%) of the voting Equity Interests of the Company, (b) the Company ceases to own, directly or indirectly, one hundred percent (100%) of the fully diluted Equity Interests of any other Loan Party except with respect to this clause (b), in any transaction permitted hereunder, or (c) a “Change in Control” (or words of similar import) shall have occurred under the ABL Credit Agreement. “Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (i) the adoption or taking effect of any law, rule, regulation or treaty, (ii) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (iii) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines, interpretations or directives thereunder or issued in connection therewith (whether or not having the force of law) and (y) all requests, rules, regulations, guidelines, interpretations or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities (whether or not having the force of law), in each case pursuant to Basel III, shall in each case be deemed to be a Change in Law regardless of the date enacted, adopted, issued, promulgated or implemented. “Charges” has the meaning assigned to such term in Section 9.18. “CIP Regulations” shall have the meaning set forth in Section 8.11 hereof. “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are U.S. Term Loans or Canadian Term Loans. 8 11584747
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“Closing Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02). “Closing Date Term Loan” means a Loan made on the Closing Date pursuant to Section 2.01(a). “Closing Date U.S. Commitment” means the Commitment of a Lender to make a Closing Date Term Loan in U.S. Dollars to the U.S. Borrower on the Closing Date in the amounts reflected on Schedule 1.01(a). “Closing Date Canadian Commitment” means the Commitment of a Lender to make a Closing Date Term Loan in U.S. Dollars to the Canadian Borrower on the Closing Date in the amounts reflected on Schedule 1.01(a). “CME” means CME Group Benchmark Administration Limited. “Code” means the Internal Revenue Code of 1986, as amended from time to time. “Collateral” means any and all property owned, leased or operated by a Person covered by the Collateral Documents and any and all other property of any Loan Party, now existing or hereafter acquired, that may at any time be, become or be intended to be, subject to a security interest or Lien in favor of the Administrative Agent, on behalf of itself and the Lenders and other Secured Parties, to secure the U.S. Secured Obligations or the Canadian Secured Obligations. “Collateral Access Agreement” means any landlord waiver or other agreement, in form and substance satisfactory to the Administrative Agent in its Permitted Discretion, between the Administrative Agent and any third party (including any bailee, consignee, customs broker, or other similar Person) in possession of any Collateral or any landlord of any real property where any Collateral is or may be located, as such landlord waiver or other agreement may be amended, restated, supplemented or otherwise modified from time to time. “Collateral and Guaranty Requirement” means, at any time, the requirement that: (a) the Administrative Agent shall have received from the Company and each other Loan Party either (i) (A) in the case of each U.S. Loan Party, a counterpart of this Agreement and the U.S. Security Agreement, duly executed and delivered on behalf of such Person or (B) in the case of each Loan Party that is a Canadian Subsidiary, a counterpart of this Agreement and the Canadian Security Agreement, duly executed and delivered on behalf of such Person, or (ii) in the case of any Person that becomes a Subsidiary (other than Excluded Subsidiary) after the Closing Date, (A) a Joinder Agreement, duly executed and delivered on behalf of such Person, and (B) instruments in the form or forms specified in the applicable Security Agreement under which such Person becomes a party to the applicable Security Agreement, duly executed and delivered on behalf of such Person, together with such certificates, documents and opinions with respect to such Subsidiary as may reasonably be requested by the Administrative Agent; (b) the Administrative Agent shall have received all Intellectual Property security agreements, deposit account control agreements, securities account control agreements and other Collateral Documents required to be provided to it hereunder or under the applicable Security Agreement; (c) the Administrative Agent shall have received all Real Property Deliverables with respect to all Material Real Property; 9 11584747
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(d) all documents and instruments, including UCC financing statements, PPSA registrations and registrations in respect of deeds of hypothec required by the Collateral Documents or this Agreement with the priority required by the Collateral Documents shall have been filed, registered or recorded or delivered to the Administrative Agent for filing, registration or recording; (e) the Administrative Agent shall have received the IPCo JV Consent and Pledge; and (f) each Loan Party shall have obtained all material consents and approvals required in connection with the execution and delivery of all Collateral Documents to which it is a party and the performance of its obligations thereunder. Notwithstanding the foregoing, any Subsidiary formed or acquired after the Closing Date and required to become a Loan Party shall not be required to comply with the foregoing requirements prior to the time specified in Section 5.14. The foregoing definition shall not require the creation or perfection of pledges of or security interests in, or legal opinions or other deliverables with respect to, particular assets of the Loan Parties, or the provision of Guarantees by any Subsidiary, if and for so long as the Administrative Agent, in consultation with the Company, determines that the cost of creating or perfecting such pledges or security interests in such assets, or obtaining legal opinions or other deliverables in respect of such assets, or providing such Guarantees, shall be excessive in view of the benefits to be obtained by the Lenders therefrom. The Administrative Agent may in its Permitted Discretion grant extensions of time for the creation and perfection of security interests in, or the delivery of legal opinions or other deliverables with respect to, particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Closing Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Closing Date) where it determines that such action cannot be accomplished without unreasonable effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Collateral Documents. Notwithstanding the foregoing, no action required to be taken by any Person to effect compliance by the Administrative Agent and the Lenders with any applicable Requirement of Law shall be deemed to cause unreasonable effort or expense hereunder. “Collateral Documents” means, collectively, the Security Agreements, the Mortgages, the ABL Intercreditor Agreement, the IPCo JV Consent and Pledge, any deposit account control agreement, any securities account control agreement, and any other agreements, instruments and documents executed in connection with this Agreement that are intended to create, perfect or evidence Liens to secure the Obligations, including, without limitation, all other security agreements, pledge agreements, mortgages, deeds of trust, the U.S. Guaranty or the Canadian Guaranty or any joinder or supplement hereto or any other Guarantee of all or any portion of the Obligations, subordination agreements, pledges, and collateral assignments, whether theretofore, now or hereafter executed by any Borrower or any other Loan Party and delivered to the Administrative Agent. “Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make Term Loans hereunder (including with respect to U.S. Closing Date Term Loan Commitments, U.S. Delay Draw Commitments, Canadian Closing Date Term Loan Commitments, and Canadian Delay Draw Commitments), as such commitment may be reduced pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s Commitment is set forth on the Commitment Schedule, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment, as applicable. The initial aggregate amount of all of the Lenders’ Commitments is $135,000,000. “Commitment Schedule” means the Schedule attached hereto as Schedule 1.01(a). “Communications” has the meaning assigned to such term in Section 9.01(d). 10 11584747
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“Company” has the meaning assigned to such term in the introductory paragraph hereof. “Company on a Consolidated Basis” means the consolidation of the Company and its Restricted Subsidiaries in accordance with GAAP. “Competitor” shall mean any Person that is an operating company and is engaged primarily in the same or similar business as the Company. “Compliance Certificate” means a certificate executed by a Financial Officer of the Borrower Representative in substantially the form of Exhibit D. “Conforming Changes” means, with respect to the use, administration of or any conventions associated with SOFR or any proposed Successor Rate or Term SOFR, as applicable, any conforming changes to the definitions of “Alternate Base Rate”, “SOFR”, “Term SOFR”, and “Adjusted Term SOFR”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document). “Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income or capital (however denominated) or that are franchise Taxes or branch profits Taxes. “Consideration” means with respect to any Permitted Acquisition, the aggregate of (without duplication) (i) the cash paid by any of the Loan Parties, directly or indirectly, to the seller in connection therewith, (ii) the Indebtedness incurred or assumed by any of the Loan Parties, whether in favor of the seller or otherwise and whether fixed or contingent, in connection therewith, (iii) any Guarantee given or incurred by any Loan Party in connection therewith, and (iv) any other cash or equity consideration given or obligation incurred by any of the Loan Parties in connection therewith, as each of the foregoing is recorded by the Loan Parties in accordance with GAAP. “Consolidated EBITDA” means, for any period of determination, without duplication, consolidated net income of the Company on a Consolidated Basis plus (i) the following (to the extent deducted from such calculation of consolidated net income): (a) depreciation, (b) amortization, (c) non-cash expenses related to stock based compensation, (d) other non-cash charges, non-cash expenses, or non-cash losses to net income (provided, however that cash payments made in such period or in any future period in respect of such non-cash charges, expenses or losses shall be subtracted from consolidated net income in calculating Consolidated EBITDA), (e) interest expense, (f) income tax expense, (g) restructuring charges or expenses (including integration costs, restructuring costs and severance costs related to acquisitions and to closure or consolidation of plants, facilities or locations and any expense related to any reconstruction, recommissioning or reconfiguration of fixed assets for alternate use) not to exceed $25,000,000 in the aggregate incurred prior to the Closing Date, minus (ii) non-cash credits or non-cash gains (to the extent included in such calculation of consolidated net income), in each case determined and consolidated for the Company and its Restricted Subsidiaries in accordance with GAAP; provided that the foregoing shall exclude the income (or deficit) of any Person 11 11584747
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(other than a Restricted Subsidiary) in which the Company or any of its Restricted Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Company or such Restricted Subsidiary in the form of dividends or similar distributions. “Consolidated Net Leverage Ratio” means, as of any date of determination, the ratio of (a) the result of (x) (i) Consolidated Total Debt as of such date minus (ii) Qualified Cash of the Loan Parties at such time to (b) Consolidated EBITDA for the most recently ended trailing twelve (12) month period prior to such date of determination. “Consolidated Total Debt” means, as at any date of determination for any Person, the aggregate principal amount (or stated balance sheet amount, if larger) of all Indebtedness of such Person and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP. “Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent: (1) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (2) to advance or supply funds: (A) for the purchase or payment of any such primary obligation; or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; or (3) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof. “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. “Covenant Testing Event” means any period (i) commencing at any time when Liquidity shall be less than $100,000,000, and (ii) ending when Liquidity shall have been greater than or equal to $100,000,000 for a period of forty-five (45) consecutive days. “Credit Card Accounts” means any “payment intangibles,” as defined in the UCC or PPSA, receivables or other rights to payment of a monetary obligation due to any Loan Party in connection with purchases of Inventory of such Loan Party in the ordinary course of business from (1) a credit card issuer or a credit card processor with respect to (a) credit cards issued by Visa, MasterCard, American Express, Discover, each of their respective Affiliates, and any other credit card issuers that are reasonably acceptable to the Administrative Agent, (b) private label credit cards of any Loan Party issued under non-recourse arrangements substantially similar to those in effect on the Closing Date or (c) debit cards issued by issuers or providers that are reasonably acceptable to the Administrative Agent or (2) PayPal, Inc., Stripe, Square, Venmo, Apple Pay, AfterPay or any other similar “Buy-Now, Pay Later’ product, or any other e-commerce service providers or electronic payment services providers. 12 11584747
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“Credit Card Agreement” means any agreement between (i) on the one hand, a Loan Party, and (ii) on the other hand (a) a credit card issuer or a credit card processor (including any credit card processor that processes purchases of Inventory from a Loan Party through debit cards) or (b) PayPal, Inc., Stripe, Square, Venmo, Apple Pay, AfterPay or any other similar “Buy-Now, Pay Later’ product, or any other e-commerce service providers or electronic payment services providers. “Credit Party” means the Administrative Agent or any other Lender. “Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default. “Defaulting Lender” means any Lender that (a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans or (ii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent and the Borrower Representative in writing that such failure is the result of such Xxxxxx’s good faith determination that a condition precedent to funding (specifically identified and including the particular Default, if any) has not been satisfied; (b) has notified any Borrower or any Credit Party in writing, or has made a public statement, to the effect that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Xxxxxx’s good faith determination that a condition precedent (specifically identified and including the particular Default, if any) to funding a Loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by a Credit Party or any Borrower, in each case, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund its Loans, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt by such Credit Party and such Borrower of such certification in form and substance satisfactory to them and the Administrative Agent, or (d) has become the subject of a Bankruptcy Event or a Bail-In Action. “Delay Draw Term Loan” means a Loan made on a date after the Closing Date pursuant to Section 2.01(b). “Delay Draw Commitment” means as to any Lender, the obligation of such Lender, if any, to make Delay Draw Term Loans in an aggregate principal amount not to exceed the amount set forth under the heading “Delay Draw Commitment” opposite such Lender’s name on Schedule 1.01(a) or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof (including in connection with assignments permitted hereunder). The original aggregate principal amount of the Delay Draw Commitments on the Closing Date is $85,000,000, comprised of $76,500,000 of U.S. Delay Draw Commitments and $8,500,000 of Canadian Delay Draw Commitments. “Delay Draw Commitment Period” means the period from and including the Closing Date through the earlier of (a) the date that is ninety (90) days after the Closing DateJanuary 31, 2024 and (b) the date on which the Delay Draw Commitments are zero ($0). “Delay Draw Conditions” means at any date of determination, that (a) no Default then exists or would arise as a result of the making of the subject Delay Draw Term Loans, (b) the representations and warranties contained in Article III and the other Loan Documents are true and correct in all material respects (except that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date, and that any 13 11584747
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representation or warranty which is subject to any materiality qualifier shall be required to be true and correct in all respects), (c) if a Covenant Testing Event has occurred and is continuing, the Loan Parties shall be in pro forma compliance with Section 6.12 after giving effect to the subject Delay Draw Term Loans and (d) the Borrowers shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that the conditions contained in the foregoing clauses (a), (b) and (c) have been satisfied, as applicable. “Designated Non-cash Consideration” means the Fair Market Value (as determined in good faith by the Company) of non-cash consideration received by the Company or a Restricted Subsidiary in connection with a Disposition that is so designated as Designated Non-cash Consideration pursuant to an officer’s certificate signed by a Financial Officer of the Company, setting forth such valuation, less the amount of Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash Consideration. “Disbursement Letter” means a disbursement letter, in form and substance reasonably satisfactory to the Administrative Agent, by and among the Loan Parties and the Administrative Agent and the other Persons party thereto, and the related funds flow memorandum describing the sources and uses of all cash payments in connection with the transactions contemplated to occur on the Closing Date. “Disposition” means with respect to any property, any sale, lease, sublease (as lessor or sublessor) license, sale and leaseback, assignment, conveyance, transfer, license or other disposition thereof (including by means of a “plan of division” under the Delaware Limited Liability Company Act or any comparable transaction under any similar law). The terms “Dispose” and “Disposed of” shall have correlative meanings. “Disqualified Institution” means, on any date, (a) any Person designated by the Company as a “Disqualified Institution” by written notice delivered to the Administrative Agent on or prior to the Closing Date and (b) any other Person that is a Competitor of the Company or any of its Subsidiaries, which Person has been designated by the Company as a “Disqualified Institution” by written notice to the Administrative Agent not less than five (5) Business Days prior to such date; provided that “Disqualified Institutions” shall exclude any Person that the Company has designated as no longer being a “Disqualified Institution” by written notice delivered to the Administrative Agent from time to time; provided further that, for the avoidance of doubt, a Competitor shall not include any bona fide debt fund or investment vehicle that is primarily engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business which is managed, sponsored or advised by any person controlling, controlled by or under common control with such Competitor or affiliate thereof, as applicable, and for which no personnel involved with the investment of such Competitor, as applicable, (1) makes any investment decisions or (2) has access to any information (other than information publicly available) relating to the Company or any entity that forms a part of the Company’s business (including Subsidiaries of the Company). “Disqualified Stock” means any Equity Interests which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than as a result of a change of control or asset sale), or is redeemable at the option of the holder thereof, in whole or in part (other than as a result of a change of control or asset sale), in each case at any time on or prior to the date that is 91 days after the Maturity Date, or (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) Indebtedness or (ii) any Equity Interests referred to in (a) above, in each case at any time prior to the date that is 91 days after the Maturity Date; provided, however, that only the portion of such Equity Interests which so matures or is mandatorily redeemable, is so 14 11584747
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redeemable at the option of the holder or is so convertible or exchangeable thereof prior to such date shall be deemed to be Disqualified Stock; provided, further, however, that if such Equity Interests are issued to any employee or to any plan for the benefit of employees of the Company or their Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Stock solely because it may be required to be repurchased by such Person in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided, further, that any class of Equity Interests of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Equity Interests that are not Disqualified Stock shall not be deemed to be Disqualified Stock. “Document” has the meaning assigned to such term in each Security Agreement, as applicable. “Dollar Amount” means (a) with regard to any calculation denominated in U.S. Dollars, the amount thereof, and (b) with regard to any calculation denominated in any other currency, the amount of U.S. Dollars which is equivalent to the amount so expressed in such currency at the Spot Rate on the relevant date of determination. “Domestic Subsidiary” means a Subsidiary organized under the laws of a jurisdiction located in the U.S. “Dominion Period” means (a) “Dominion Period” as defined in the ABL Credit Agreement as in effect on the date hereof or as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the ABL Intercreditor Agreement, or (b) a Default. “DQ List” has the meaning specified in Section 9.04(e). “Ebuys” means Ebuys, Inc., a California corporation. “EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country that is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country that is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country that is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent. “EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway. “EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution. “Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record. “Electronic System” means any electronic system, including email, Syndtrak, e-fax, Intralinks®, ClearPar® and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent and any of its respective Related Parties or any other Person, providing for access to data protected by passcodes or other security system. 15 11584747
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“Eligible Consigned Inventory” shall have the meaning set forth in the ABL Credit Agreement as in effect on the date hereof or as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the ABL Intercreditor Agreement. “Eligible Credit Card Accounts” shall have the meaning set forth in the ABL Credit Agreement as in effect on the date hereof or as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the ABL Intercreditor Agreement. “Eligible In-Transit Inventory” shall have the meaning set forth in the ABL Credit Agreement as in effect on the date hereof or as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the ABL Intercreditor Agreement. “Eligible Inventory” shall have the meaning set forth in the ABL Credit Agreement as in effect on the date hereof or as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the ABL Intercreditor Agreement. “Eligible Trade Accounts” shall have the meaning set forth in the ABL Credit Agreement as in effect on the date hereof or as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the ABL Intercreditor Agreement. “Environment” shall mean any surface water, groundwater, drinking water supply, land surface or subsurface strata or ambient air. “Environmental Indemnity” shall mean each environmental indemnity agreement, made by each Loan Party with respect to Mortgaged Property, in each case, in form and substance reasonably satisfactory to the Administrative Agent. “Environmental Laws” means all laws, rules, regulations, codes, ordinances, and all binding orders, decrees, judgments, injunctions, notices or agreements passed, adopted, issued, promulgated or entered into by any Governmental Authority, relating to protection of the environment, preservation or reclamation of natural resources, the management, Release or threatened Release of any Hazardous Material or to health and safety matters to the extent related to exposure to Hazardous Materials. “Environmental Liability” means (i) any obligation or responsibility of any Loan Party or any Restricted Subsidiary to comply with the terms of any order, decree, injunction, claim, notice or obligation of an agreement (including an Environmental Indemnity); or (ii) any obligation or responsibility of any Loan Party or any Restricted Subsidiary for damages, costs of environmental investigations or remediation, fines, or penalties of any Loan Party or any Restricted Subsidiary, either of which is resulting from or based upon (a) a violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) any exposure to any Hazardous Materials resulting in physical injury or property damage or a claim of such injury or property damage, (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 by or imposed upon any Loan Party or any Restricted Subsidiary with respect to the foregoing clauses (i) or (ii). “Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any of the foregoing (but excluding any debt security that is convertible into, or exchangeable for, Equity Interests). 16 11584747
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“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time. “ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with a Loan Party, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code. “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the failure to satisfy the “minimum funding standard” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by any Loan Party or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination or partial termination of any Plan; (e) the receipt by any Loan Party or any ERISA Affiliate from the PBGC of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by any Loan Party or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal of any Loan Party or any ERISA Affiliate from any Multiemployer Plan; (g) the receipt by any Loan Party or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Loan Party or any ERISA Affiliate of any notice, concerning the imposition upon any Loan Party or any ERISA Affiliate of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent (within the meaning of Title IV of ERISA), in “at-risk” status (as defined in Section 303(i) of ERISA or Section 430(i) of the Code) or in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA); (h) the failure to timely make a contribution required to be made with respect to any Plan or Multiemployer Plan; or (i) the conditions for imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Plan. “Erroneous Payment” shall have the meaning set forth in Section 8.10. “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time. “European Union” means the region comprised of member states of the European Union pursuant to the Treaty of Rome of March 25, 1957, as amended by the Single European Act 1986 and the Maastricht Treaty (signed February 7, 1992), as amended from time to time. “Event of Default” has the meaning assigned to such term in Article VII. “Excluded Asset” has the meaning assigned to such term in the applicable Security Agreement. “Excluded Domestic Subsidiary” means, collectively, (i) Article II JV, (ii) BC/VC, (iii) IPCo JV, (iv) Camuto Overseas Holding Subsidiary LLC, an Ohio limited liability company, and any other CFC Holdco, (v) any Domestic Subsidiary that is a direct or indirect Subsidiary of a CFC, and (vi) any other Domestic Subsidiary of any Loan Party formed or otherwise acquired after the Closing Date if the execution of a Joinder Agreement and the Guarantee of the U.S. Obligations would cause material adverse tax consequences to any Loan Party or any Affiliate of a Loan Party (pursuant to Section 956 of the Code and the United States Income Tax Regulations promulgated thereunder, or otherwise) in the reasonable, good-faith determination of the Company, in consultation with the Administrative Agent. 17 11584747
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“Excluded Subsidiary” means each (a) Immaterial Subsidiary, (b) Unrestricted Subsidiary, (c) Excluded Domestic Subsidiary (other than, with respect to the Canadian Obligations, any CFC Holdco that owns equity interests of one or more Canadian Subsidiaries), (d) Foreign Subsidiary (other than Canadian Subsidiaries with respect to the Canadian Obligations), (e) Subsidiary that is not a Wholly Owned Subsidiary, (f) Special Purpose Receivables Subsidiary, (g) Subsidiary that is prohibited by applicable law, rule or regulation or by any contractual obligation (if, with respect to any such contractual obligations, such contractual obligations were existing on the Closing Date or existing at the time of acquisition thereof after the Closing Date), in each case from guaranteeing the U.S. Obligations or Canadian Obligations, as applicable, or that would require governmental (including regulatory) consent, approval, license or authorization to provide a guarantee unless such consent, approval, license or authorization has been received, (h) any other Subsidiary if in the reasonable good faith determination of the Company, in consultation with the Administrative Agent, a guarantee by such Subsidiary would result in materially adverse tax consequences to the Company or any of its Subsidiaries and (i) any other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent (confirmed in writing by notice to the Company), the cost or other consequences of becoming a Guarantor shall be excessive in view of the benefits to be obtained by the Lenders therefrom; provided that any Subsidiary of the Company that is a borrower or guarantor of the obligations under the ABL Credit Agreement shall become a Guarantor hereunder, subject to Section 9.20. “Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income or capital (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes; (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrowers under Section 2.19(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to such Xxxxxx’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office; (c) Taxes attributable to such Recipient’s failure to comply with Section 2.17(f); (d) any U.S. Federal withholding Taxes imposed under FATCA; and (e) any Canadian federal withholding Taxes imposed on the payment as a result of having been made to a Recipient that, at the time of making such payment, (i) is a person with which a Loan Party does not deal at arm’s length (for the purposes of the ITA), or (ii) is a “specified shareholder” (as defined in subsection 18(5) of the ITA) of a Loan Party or does not deal at arm’s length (for the purposes of the ITA) with such a “specified shareholder” (other than where the non-arm’s length relationship arises, or where the Recipient is a “specified shareholder” or does not deal at arm’s length with a “specified shareholder”, in connection with or as a result of the Recipient having become a party to, received or perfected a security interest under or received or enforced any rights under, a Loan Document). “Existing Owned Real Property” means the real property owned by the Loan Parties as of the Closing Date and described on Schedule 1.01(c). “Extraordinary Receipts” means any cash received by the Company or any of its Restricted Subsidiaries not in the ordinary course of business (and not consisting of proceeds described in Section 2.11(b)(i) or (b)(ii) hereof), including, without limitation, (a) foreign, United States, federal, state, provincial, territorial or local tax refunds, (b) pension plan reversions, (c) judgments, proceeds of settlements or other consideration of any kind in connection with any cause of action (other than to the 18 11584747
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extent such judgments, proceeds of settlements or other consideration are (i) immediately payable to a Person that is not an Affiliate of the Company or any of its Restricted Subsidiaries or (ii) received by the Company or any of its Restricted Subsidiaries as reimbursement for any costs or damages previously incurred or any payment previously made by such Person), (d) condemnation awards (and payments in lieu thereof), (e) indemnity payments and (f) any purchase price adjustment received in connection with any purchase agreement. “Factoring Agreements” means receivables purchase or factoring agreements entered into by one or more Camuto Entities and The CIT Group/Commercial Services, Inc. or other factor, as such agreements may be amended, modified, supplemented, restated or replaced from time to time; provided that, amendments, modifications, restatements or replacements of the Factoring Agreements in effect on the Closing Date that are materially adverse to the interests of the Lenders shall be reasonably acceptable to the Administrative Agent; provided further that, other than pursuant to an unsecured guaranty by the Company or any of its Subsidiaries of the obligations of one or more Camuto Entities thereunder, none of the Company or any Restricted Subsidiary thereof (other than any Camuto Entity) shall become party to any such agreement pursuant to any such agreement, amendment, modification, supplement, restatement or replacement. “Fair Market Value” means, with respect to any asset or property, the price which could be negotiated in an arm’s-length transaction, for cash, between a willing seller and a willing and able buyer with neither party being compelled to buy or sell and, with respect to any Mortgage, the amount as reasonably determined by Administrative Agent based upon any recent appraisal, broker assessment of value or real property Tax assessment. “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities entered into in connection with the implementation of the foregoing. “Fed Funds Rate” means the rate per annum (rounded upwards, if necessary, to the nearest one hundredth of one percent (1/100 of 1%)) equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System on any day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided, however, that: (a) if the day for which such rate is to be determined is not a Business Day, the Fed Funds Rate for such day shall be such a rate on such transactions on the immediately preceding Business Day as so published on the next succeeding Business Day and (b) if the Fed Funds Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. “Fee Letter” means that certain fee letter, dated as of the Closing Date, executed by the Borrowers and the Administrative Agent, as amended, amended and restated, supplemented or otherwise modified from time to time by the parties thereto. “FILO Reserve” shall have the meaning set forth in the ABL Credit Agreement as in effect on the date hereof or as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the ABL Intercreditor Agreement. “Finance Lease” means, with respect to any Person, any lease of any real or personal property by such Person as lessee that, in conformity with GAAP, is accounted for as a finance lease on the balance sheet of such Person. 19 11584747
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“Finance Lease Obligations” means, with respect to any Person and a Finance Lease, the amount of the obligation of such Person as the lessee under such Finance Lease which would, in accordance with GAAP, appear as a liability on a balance sheet of such Person. “Financial Officer” means with respect to the Company, its President, Chief Executive Officer, Chief Financial Officer, Treasurer or Controller, or other duly elected officer of the Borrower Representative reasonably acceptable to the Administrative Agent. “First Amendment” means that certain First Amendment to Term Credit Agreement, dated as of September 21, 2023, by and among the Administrative Agent, the Loan Parties and the Lenders. “First Amendment Effective Date” has the meaning assigned to such term in the First Amendment. “Flood Laws” means, collectively, (i) the National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Reform Act of 2004 as now or hereafter in effect or any successor statute thereto, (iii) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto, and (iv) related legislation. “Floor” means a per annum rate of interest equal to 2.00%. “Foreign Benefit Event” means, with respect to any Foreign Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any applicable Law, or in excess of the amount that would be permitted under any applicable Requirements of Law absent a waiver from a Governmental Authority, (b) the failure to make the required contributions, under any applicable Requirement of Law, on or before the date such contributions are due, except where the failure to do so would not reasonably be expected to result in a material liability or is due to an administrative error that is corrected, (c) the receipt of a notice by a Governmental Authority relating to the intention to terminate any such Foreign Plan or to appoint a trustee or similar official to terminate any such Foreign Plan, or alleging the insolvency of any such Foreign Plan, (d) the incurrence of any additional liability by any Borrower, any Restricted Subsidiary of a Borrower or any Loan Party under applicable Requirements of Law on account of the complete or partial termination of such Foreign Plan or the complete or partial withdrawal of any participating employer therein or (e) the occurrence of any transaction that is prohibited under any applicable Requirements of Law and that would reasonably be expected to result in the incurrence of any material liability by any Borrower or any Restricted Subsidiary of a Borrower. “Foreign Lender” means (a) if a Borrower is a U.S. Person, a Lender, with respect to such Borrower, that is not a U.S. Person, and (b) if a Borrower is not a U.S. Person, a Lender, with respect to such Borrower, that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes. “Foreign Plan” means any plan established under the law of a jurisdiction other than the United States or Canada (or a state, province, territory or local government thereof) primarily for employees or former employees outside the United States of America and Canada, that is established, maintained or contributed to by a Borrower or any of its Restricted Subsidiaries or Affiliates and which provides pension, retirement or savings benefits through a trust or other funding vehicle, other than any state social security arrangements. “Foreign Subsidiary” means any Subsidiary which is not a Domestic Subsidiary. 20 11584747
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“GAAP” means accounting principles generally accepted in the U.S., consistently applied. “Governmental Authority” means the government of the United States of America, Canada, any other nation or any political subdivision thereof, whether provincial, territorial, 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 body exercising such powers or functions, such as the European Union or the European Central Bank). “Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not include (i) warranties or indemnities made in trade contracts, asset sale agreements, acquisition agreements, commitment letters, engagement letters and brokerage and deposit agreements in the ordinary course of business, and warranties and indemnities to lenders in any documents evidencing Indebtedness permitted pursuant to Section 6.01 with respect to the guarantor, (ii) any indemnities made in connection with liability of a Person’s directors, officers and employees in their capacities as such as permitted by applicable law, (iii) any contingent liability arising from the endorsement of negotiable or other instruments for deposit or collection in the ordinary course of business, and (iv) any continuing liability of the Company or its Subsidiaries as a lessee under a lease after such lease has been assigned or subleased by such Person. “Guaranteed Obligations” means U.S. Guaranteed Obligations or Canadian Guaranteed Obligations, as the context requires. “Guarantors” means all U.S. Guarantors and Canadian Guarantors. “Hazardous Material” means: (a) any substance, material, or waste that is included within the definitions of “hazardous substances,” “hazardous materials,” “hazardous waste,” “toxic substances,” “toxic materials,” “toxic waste,” or words of similar import in any Environmental Law; (b) those substances listed as hazardous substances by the United States Department of Transportation (or any successor agency) (49 C.F.R. 172.101 and amendments thereto) or by the Environmental Protection Agency (or any successor agency) (40 C.F.R. Part 302 and amendments thereto); and (c) any substance, material, or waste that is (i) petroleum, petroleum derivative or fraction, or a petroleum by-product, (ii) asbestos or asbestos-containing material, (iii) polychlorinated biphenyls, (iv) ozone depleting substances, (v) radon gas or (vi) a pesticide, herbicide, or other substance regulated under the Federal Insecticide, Fungicide and Rodentide Act (“FIFRA”), 7 U.S.C. §136 et seq. “Immaterial Subsidiary” shall mean any Subsidiary (other than a Borrower) designated by the Borrower Representative to the Administrative Agent as an “Immaterial Subsidiary” and that meets each of the following criteria as of the last day of the most recent fiscal quarter for which financial statements have been delivered to the Administrative Agent pursuant to Sections 5.01(a) or (b): (a) such Subsidiary and its Subsidiaries accounted for less than (x) 2.5% of Total Assets at such date and (y) 2.5% of the 21 11584747
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consolidated revenues of the Company and its Subsidiaries for the most recent four fiscal quarter period ending on such date, (b) all Immaterial Subsidiaries and their respective Subsidiaries accounted for less than (x) 5.0% of Total Assets at such date and (y) 5.0% of the consolidated revenues of the Company and its Subsidiaries for the most recent four fiscal quarter period ending on such date, and (c) such Subsidiary and its Subsidiaries do not own any Material Real Property, Material Intellectual Property, or Equity Interests of the IPCo JV; provided, that no Subsidiary shall be or be designated as an “Immaterial Subsidiary” if such Subsidiary has provided a Guaranty of, or pledged any Collateral as security for, the obligations under the ABL Credit Agreement (unless such Guaranty or pledge, as applicable, is released prior to or substantially concurrently with such designation). Each Immaterial Subsidiary as of the Closing Date shall be set forth in Schedule 1.01(d), and the Borrower Representative shall update such Schedule from time to time after the Closing Date as necessary to reflect all Immaterial Subsidiaries at such time (the selection of Subsidiaries to be added to or removed from such Schedule to be made as the Borrowers may determine). “Increased BBC Reporting Period” means (a) any period during which any Event of Default has occurred and is continuing or (b) any period (i) commencing at any time when Availability shall be less than the greater of (x) $63,000,000 and (y) 12.5% of the Maximum Credit Amount (calculated without giving effect to the FILO Reserve), in either case, for a period of three (3) consecutive Business Days and (ii) ending when Availability shall have been greater than or equal to the greater of (x) $63,000,000 and (y) 12.5% of the Maximum Credit Amount (calculated without giving effect to the FILO Reserve), in either case, for a period of thirty (30) consecutive days. “Increased Financial Reporting Period” means any period (i) commencing at any time when Availability shall be less than thereafter, the greater of (x) $78,750,000 and (y) 15% of the Maximum Credit Amount (calculated without giving effect to the FILO Reserve), in either case, for a period of three (3) consecutive Business Days, and (ii) ending when Availability shall have been greater than or equal to the greater of (x) $78,750,000 and (y) 15% of the Maximum Credit Amount (calculated without giving effect to the FILO Reserve), in either case, for a period of thirty (30) consecutive days. “Incur” means issue, assume, guarantee, incur or otherwise be or become liable for; provided, however, that any Indebtedness or Equity Interests of a Person existing at the time such person becomes a Subsidiary (whether by merger, amalgamation, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Subsidiary. “Incurred” and “Incurrence” shall have like meanings. “Indebtedness” means, with respect to any Person: (1) the principal amount of any indebtedness of such Person, whether or not contingent, (a) in respect of borrowed money, (b) evidenced by bonds, notes, debentures or similar instruments or letters of credit, bankers’ acceptances or similar facilities (or, without duplication, reimbursement agreements in respect thereof), (c) representing the deferred and unpaid purchase price of any property (except any such balance that constitutes (i) a trade payable or similar obligation to a trade creditor Incurred in the ordinary course of business, (ii) any earn-out obligations until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP, (iii) obligations accounted for as an operating lease in conformity with GAAP, and (iv) liabilities accrued in the ordinary course of business), (d) in respect of Finance Lease Obligations, and (e) all monetary obligations that qualify as indebtedness on the balance sheet of such Person in accordance with GAAP under any receivables factoring, receivable sales or similar transactions and all attributable indebtedness calculated in accordance with GAAP under any synthetic lease, tax ownership/operating lease, off-balance sheet financing or similar financing; 22 11584747
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(2) to the extent not otherwise included, any obligation of such Person to be liable for, or to pay, as obligor, guarantor or otherwise, the obligations referred to in clause (1) of another Person (other than by endorsement of negotiable instruments for collection in the ordinary course of business); and (3) to the extent not otherwise included, Indebtedness of another Person secured by a Lien on any asset owned by such Person (whether or not such Indebtedness is assumed by such Person); provided, however, that the amount of such Indebtedness will be the lesser of: (a) the Fair Market Value (as determined in good faith by the Company) of such asset at such date of determination, and (b) the amount of such Indebtedness of such other Person; provided, however, that, notwithstanding the foregoing, Indebtedness shall be deemed not to include (1) Xxxxxxxxxx Obligations incurred in the ordinary course of business and not in respect of borrowed money; (2) deferred or prepaid revenues; (3) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller; (4) trade and other ordinary course payables and accrued expenses arising in the ordinary course of business; (5) in the case of the Company and the Subsidiaries, (x) all intercompany Indebtedness solely among the Company and the Restricted Subsidiaries having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business and (y) intercompany liabilities in connection with cash management, tax and accounting operations of the Company and the Subsidiaries; and (6) any Swap Agreement Obligations; provided that such agreements are entered into for bona fide hedging purposes of the Company and the Subsidiaries (as determined in good faith by the board of directors or senior management of the Company, whether or not accounted for as a hedge in accordance with GAAP) and, in the case of any foreign exchange contract, currency swap agreement, futures contract, option contract or other similar agreement, such agreements are related to business transactions of the Company and the Subsidiaries entered into in the ordinary course of business and, in the case of any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement or other similar agreement or arrangement, such agreements substantially correspond in terms of notional amount, duration and interest rates, as applicable, to Indebtedness of the Company or the Subsidiaries Incurred without violation of this Agreement. Notwithstanding anything in this Agreement to the contrary, Indebtedness shall not include, and shall be calculated without giving effect to, the effects of Financial Accounting Standards Board Accounting Standards Codification 815 (or any other Accounting Standards Codification or Financial Accounting Standards having a similar result or effect or any successor thereto) to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Agreement as a result of accounting for any embedded derivatives created by the terms of such Indebtedness; and any such amounts that would have constituted Indebtedness under this Agreement but for the application of this sentence shall not be deemed an Incurrence of Indebtedness under this Agreement. “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by, or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in subsection (a), Other Taxes. “Indemnitee” has the meaning assigned to such term in Section 9.03(b). “Independent Financial Advisor” means an accounting, appraisal or investment banking firm or consultant, in each case of nationally recognized standing, that is, in the good faith determination of the Company, qualified to perform the task for which it has been engaged. “Ineligible Institution” has the meaning assigned to such term in Section 9.04(b). 23 11584747
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“Information” has the meaning assigned to such term in Section 9.12. “Insolvency Laws” means each of the Bankruptcy Code, the BIA, the CCAA, the Winding-Up and Restructuring Act (Canada), in each case as amended, and any other applicable state, provincial, territorial or federal bankruptcy laws, each as now and hereafter in effect, any successors to such statutes and any other applicable insolvency or other similar law of any jurisdiction, including any corporate law of any jurisdiction permitting a debtor to obtain a stay or a compromise of the claims of its creditors against it and including any rules and regulations pursuant thereto. “Intellectual Property” means all present and future: trade secrets, know-how and other proprietary information; trademarks, trademark applications, internet domain names, service marks, trade dress, trade names, business names, designs, logos, slogans (and all translations, adaptations, derivations and combinations of the foregoing) indicia and other source and/or business identifiers, and all registrations or applications for registrations which have heretofore been or may hereafter be issued thereon throughout the world; copyrights and copyright applications (including copyrights for computer programs) and all tangible and intangible property embodying the copyrights, unpatented inventions (whether or not patentable); patents and patent applications; industrial design applications and registered industrial designs; license agreements related to any of the foregoing and income therefrom; books, customer lists, records, writings, computer tapes or disks, flow diagrams, specification sheets, computer software, source codes, object codes, executable code, data, databases and other physical manifestations, embodiments or incorporations of any of the foregoing; all other intellectual property; and all common law and other rights throughout the world in and to all of the foregoing. “Intercompany Subordination Agreement” means the Intercompany Subordination Agreement, dated as of the Closing Date, among the Company, its Subsidiaries, the Administrative Agent and the ABL Agent, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof. “Interest Expense” means, with respect to any Person for any fiscal period, interest expense of such Person determined in accordance with GAAP for the relevant period ended on such date. “Interest Payment Date” means (a) on the first day of each month in arrears, (b) upon a repayment or prepayment of the Loans, on the date of such repayment or prepayment of such Loan (with respect to such Loan), and (c) on the Maturity Date. “Inventory” has the meaning assigned to such term in each Security Agreement, as applicable. “Investments” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions, repayments of intercompany Indebtedness pursuant to clauses (a) and (b) of the definition of “Junior Indebtedness”, purchases or other acquisitions for consideration of indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet of such Person in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property. For purposes of the definition of “Unrestricted Subsidiary” and Section 6.02: (1) “Investments” shall include the portion (proportionate to the Company’s direct or indirect equity interest in such Subsidiary) of the Fair Market Value (as determined in good faith by the Company) of the net assets of such Subsidiary at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted 24 11584747
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Subsidiary, the Company shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary equal to an amount (if positive) equal to: (A) its “Investment” in such Subsidiary at the time of such redesignation less (B) the portion (proportionate to its direct or indirect equity interest in such Subsidiary) of the Fair Market Value (as determined in good faith by the Company) of the net assets of such Subsidiary at the time of such redesignation; and (2) any property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value (as determined in good faith by the Company) at the time of such transfer. “IPCo JV” means ABG-Camuto, LLC, a Delaware limited liability company. “IPCo JV Consent and Pledge” means (i) a consent, duly executed by each member of the IPCo JV, to permit the pledge in favor of the Administrative Agent of the Equity Interests of the IPCo JV owned by the Loan Parties and (ii) a pledge in favor of the Administrative Agent of the Equity Interests of the IPCo JV owned by the Loan Parties. “IRS” means the United States Internal Revenue Service. “ITA” means the Income Tax Act (Canada), as amended. “JEMS” means JEMS, Inc., an Oregon corporation. “Joinder Agreement” means a Joinder Agreement in substantially the form of Exhibit F. “Joint Venture” means a corporation, partnership, limited liability company or other entity (excluding any Subsidiary) in which any Person other than a Loan Party or any Restricted Subsidiary holds, directly or indirectly, an equity interest. “Joint Venture Equity Interests” has the meaning given to such term in Section 3.02. “Junior Indebtedness” means (a) unsecured Indebtedness for borrowed money (other than intercompany Indebtedness owing to the Company or to a Subsidiary if an Investment in such Subsidiary by the obligor of such Indebtedness in such amount would be permitted at such time; provided that any repayment of such Indebtedness will be deemed an Investment in such Subsidiary in such amount), (b) any Indebtedness which is by its terms subordinated in right of payment or lien priority to the Obligations (other than (x) intercompany Indebtedness owing to the Company or to a Subsidiary if an Investment in such Subsidiary by the obligor of such Indebtedness in such amount would be permitted at such time; provided that any repayment of such Indebtedness will be deemed an Investment in such Subsidiary in such amount and (y) ABL Obligations) and (c) Indebtedness arising from agreements of a Loan Party or any Subsidiary providing for the adjustment of acquisition or purchase price or similar obligations (including earn-outs), in each case, Incurred or assumed in connection with any Investments or any acquisition or disposition of any business, assets or a Subsidiary. “Le Tigre” means Le Tigre 360 Global LLC, a Delaware limited liability company. “Lenders” means the Persons listed on the Commitment Schedule and any other Person that shall have become a Lender hereunder pursuant to Section 2.09 or an Assignment and Assumption, other than any such Person that ceases to be a Lender hereunder pursuant to an Assignment and Assumption. 25 11584747
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“Material Intellectual Property” means trademarks, trademark applications, service marks, trade dress, trade names, business names, designs, logos, slogans (and all translations, adaptations, derivations and combinations of the foregoing) indicia and other source and/or business identifiers, and all registrations or applications for registrations which have heretofore been or may hereafter be issued thereon throughout the world; copyrights and copyright applications (including copyrights for computer programs) and all tangible and intangible property embodying the copyrights, unpatented inventions (whether or not patentable); patents and patent applications; industrial design applications and registered industrial designs; customer lists; license agreements related to any of the foregoing and income therefrom; in each case, that: (i) accounts for (or is utilized in connection with the performance of services or sales of goods, which results in) $5,000,000 or more, individually or in the aggregate, of annual revenues for the Company and its Subsidiaries, or (ii) has a Fair Market Value of $5,000,000 or more, individually or in the aggregate (as determined by the Administrative Agent and the applicable Loan Party in good faith), or (iii) is otherwise included in the most recent intellectual property appraisal received by the Administrative Agent pursuant to the terms of this Agreement. “Material Real Property” means the (i) Existing Owned Real Property and (ii) any fee owned real property having a Fair Market Value in excess of $5,000,000 as of the date of the acquisition thereof. “Maturity Date” means the earliest to occur of (i) the date that is five (5) years after the Closing Date (ii) the date on which Loans shall become due and payable in full hereunder, whether by acceleration or otherwise and (iii) the maturity date under the ABL Credit Agreement. “Maximum Credit Amount” means “Maximum Credit Amount” as defined in the ABL Credit Agreement as in effect on the date hereof or as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the ABL Intercreditor Agreement. “Maximum Rate” has the meaning assigned to such term in Section 9.18. “Moody’s” means Xxxxx’x Investors Service, Inc. “Mortgage” means any mortgage, deed of trust or other agreement which conveys or evidences a Lien in favor of the Administrative Agent, in form and substance satisfactory to the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, on real property of a Loan Party, including any amendment, restatement, modification or supplement thereto. “Mortgaged Property” shall mean, collectively, the Real Estate subject to the Mortgages. “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA. “Net Proceeds” means, (a) with respect to any Disposition, an amount equal to: (i) the cash proceeds received in respect of such Disposition, minus (ii) any direct costs incurred in connection with such Disposition to the extent paid or payable to third parties (other than Affiliates), including (A) Taxes (including transfer Taxes, deed or recording Taxes and repatriation Taxes or any withholding or deduction) paid (or reasonably estimated to be payable) in connection with such Disposition during the Tax period the sale occurs, (B) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Loans) that is secured by a Lien on the stock or assets in question and that is required to be repaid under the terms thereof as a result of such Disposition, and (C) a reasonable reserve for any indemnification payments (fixed or contingent) attributable to seller's indemnities and representations and warranties to purchaser in respect of such Disposition undertaken by the Company or any of its Restricted Subsidiaries in connection with such Disposition; provided that upon release of any such reserve, the amount released shall be considered Net Proceeds; 27 11584747
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and (b) with respect to any Casualty, (i) the cash proceeds received in respect of such event including (A) any cash received in respect of any non-cash proceeds (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but excluding any interest payments), but only as and when received and (B) insurance proceeds, minus (ii) the sum of (A) all reasonable fees and out-of-pocket expenses paid to third parties (other than Affiliates) in connection with such event, (B) the amount of all payments required to be made as a result of such event to repay Indebtedness (other than Loans) that is secured by a Lien in such asset that is not Collateral or is senior to the Liens securing the Secured Obligations or, other than with respect to assets that are Collateral in which the Administrative Agent has a first priority Lien, otherwise subject to mandatory prepayment as a result of such event and (C) the amount of all taxes paid (or reasonably estimated to be payable) and the amount of any reserves established to fund contingent liabilities reasonably estimated to be payable, in each case during the year that such event occurred or the next succeeding year and that are directly attributable to such event (as determined reasonably and in good faith by a Financial Officer of the Borrower Representative). “Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(d). “Obligated Party” means a U.S. Obligated Party or a Canadian Obligated Party, as the context requires. “Obligations” means, individually and collectively as the content may require, the U.S. Obligations and the Canadian Obligations. “OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury. “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Taxes (other than a connection arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to, or enforced, any Loan Document, or sold or assigned an interest in any Loan or any Loan Document). “Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19). “Participant” has the meaning assigned to such term in Section 9.04(c). “Participant Register” has the meaning assigned to such term in Section 9.04(c). “Payment Conditions” means, at the time of determination with respect to any specified transaction or payment, that: (a) no Default then exists or would arise as a result of entering into such transaction or the making such payment; (b) immediately after giving effect to such transaction or payment, one of the following tests shall be satisfied: 28 11584747
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(i) (1) Availability for the 30 consecutive day period immediately preceding such specified transaction or payment shall not have been less than the greater of $94,500,000 and 17.5% of the Maximum Credit Amount (calculated without giving effect to the FILO Reserve), and (2) Availability on the date of such specified transaction or payment shall not be less than the greater of such amounts; or (ii) (1) Availability for the 30 consecutive day period immediately preceding such specified transaction or payment shall not have been less than the greater of $63,000,000 and 12.5% of the Maximum Credit Amount (calculated without giving effect to the FILO Reserve), (2) Availability on the date of such specified transaction or payment shall not be less than the greater of such amounts, (3) the Consolidated Fixed Charge Coverage Ratio, based on the most recently completed Test Period and for which financial statements have been, or have been required to be delivered to the Administrative Agent, shall not be less than 1.00 to 1.00; and (4) with respect to Restricted Payments under Section 6.02(a)(i) and (ii) of the definition thereof, on a pro forma basis after giving effect to such payment, Availability shall be greater than the greater of (i) 20% of the Maximum Credit Amount and (ii) $110,000,000; and (c) the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower Representative, including an updated Borrowing Base Certificate (as applicable), certifying as to compliance with the preceding clauses and demonstrating (in reasonable detail) the calculations required thereby; provided that no such certificate shall be required for any transaction made in reliance on the Payment Conditions with a value of less than $7,500,000 (or, in the case of any Investment in a Restricted Subsidiary, $7,500,000). “Payment Office” shall mean initially PLC Agent LLC; 000 Xxxxxxx Xxxxxx, Xxxxx 00, Xxxxxx, XX 00000; thereafter, such other office of the Administrative Agent, if any, which it may designate by notice to the Borrower Representative and to each Lender to be the Payment Office. “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions. “Permitted Acquisition” means any Acquisition by the Company or any Restricted Subsidiary in a transaction that satisfies each of the following requirements: (a) if a Loan Party is acquiring the ownership interests in a Domestic Subsidiary (other than an Excluded Subsidiary) or in a Canadian Subsidiary (other than an Excluded Subsidiary), such Person shall execute a Joinder Agreement and such other documents required by Section 5.14 and join this Agreement as a Borrower or Guarantor pursuant to Section 5.14; (b) the board of directors or other equivalent governing body of such Person shall have approved such Acquisition and the Loan Parties also shall have delivered to the Administrative Agent and the Lenders written evidence of the approval of the board of directors (or equivalent body) of such Person for such Acquisition; (c) each applicable Governmental Authority shall have approved such Acquisition and the Loan Parties shall have delivered to the Administrative Agent and the Lenders written evidence of the approval of such Governmental Authority or such Acquisition; (d) as of the date of the execution of the definitive acquisition agreement, no Default exists will exist, or would exist as a result thereof; 29 11584747
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(e) the business, division, product line or line of business acquired, or the business conducted by the Person whose ownership interests are being acquired, as applicable, shall be engaged in a business otherwise permitted to be engaged in by a Loan Party under this Agreement; (f) for Acquisitions with respect to which the Consideration is equal to or greater than $34,375,000, the Loan Parties shall deliver to the Administrative Agent at least five (5) days before (or such shorter timeframe as may be agreed to by the Administrative Agent in its sole discretion) such Acquisition (i) notice of such Acquisition, and (ii) copies of (x) any agreements entered into or proposed to be entered into by such Loan Parties in connection with such Acquisition, (y) such other information about such Person or its assets as the Administrative Agent or any Lender may reasonably require; (g) Consolidated EBITDA, calculated on a pro forma basis giving effect to such Acquisition, is at least 90% of Consolidated EBITDA immediately prior to the consummation of and without giving effect to such Acquisition; (h) if such Acquisition is an acquisition of Equity Interests, such Acquisition will not result in any violation of Regulation U; and (i) the Loan Parties shall have satisfied the Payment Conditions before and immediately after giving effect to such Acquisition. “Permitted Consigned Inventory Account” means a deposit account specifically and exclusively used for collected proceeds of consigned Inventory subject to a Permitted Consigned Inventory Financing. “Permitted Consigned Inventory Financing” means any secured, asset-based Indebtedness with respect to any Loan Party’s or any Restricted Subsidiary’s Inventory which is consigned to Persons which are not Loan Parties or Subsidiaries, so long as (x) such Indebtedness does not exceed an amount equal to $50,000,000 at any time in the aggregate for all such financing arrangements, (y) such Indebtedness is secured by (and only by) such consigned Inventory, the related receivables and proceeds of such consigned Inventory, the applicable Permitted Consigned Inventory Account, and solely to the extent governing or otherwise directly relating to such consigned Inventory, Documents (as defined in the UCC), licenses from any Governmental Authority to sell any such consigned Inventory, and Chattel Paper (as defined in the UCC), and (z) the proceeds of any such consigned Inventory are remitted to a Permitted Consigned Inventory Account. “Permitted Discretion” means a determination made by the Administrative Agent in the exercise of its reasonable (from the perspective of a secured term loan lender) credit judgment, exercised in good faith in accordance with customary business practices in the retail industry. “Permitted Holders” means Xxx X. Xxxxxxxxxxxxx, his Affiliates and Affiliated Holders. “Permitted Investments” means: (1) any Investment in the Company or any Restricted Subsidiary; provided that the aggregate amount of Investments by Loan Parties in Restricted Subsidiaries that are not Loan Parties in reliance on this Clause (1) shall not exceed (when combined with Investments made by Loan Parties in Subsidiaries that are not (or do not become in connection with such transaction) Loan Parties in reliance on Clauses (3), (21) and (22) of the definition of Permitted Investments) $25,000,000; provided further that the aggregate amount of Investments by U.S. Loan Parties in Canadian Loan Parties in reliance on this Clause (1) shall not exceed $25,000,000; provided, further that, upon written notice from a 30 11584747
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Responsible Officer of the Borrower Representative to the Administrative Agent, the dollar amounts set forth in the foregoing provisos shall be reset at $25,000,000 and $25,000,000 respectively on any such date as the Payment Conditions become satisfied (it being understood that such written notice shall include an updated Borrowing Base Certificate (as applicable) and calculations (in reasonable detail) demonstrating compliance with the Payment Conditions); provided, further that, with respect to any such Investment (in a single transaction or a series of related transactions) consisting of assets of the type eligible to be included in the Borrowing Base that decreases the Borrowing Base by $3,437,500 or more (after giving effect thereto), the Borrower Representative shall have first delivered an updated Borrowing Base Certificate to the Administrative Agent giving pro forma effect to such Investment and demonstrating pro forma compliance with Section 6.12; (2) any Investment in (A) cash, (B) Cash Equivalents, (C) short term tax-exempt securities rated not lower than BBB by S&P, Baa2 by Moody’s or an equivalent rating by Fitch with provisions for liquidity or maturity accommodations of two (2) years or less; (D) investments in other readily marketable securities (excluding any equity or equity-linked securities other than auction rate preferred securities) which are rated P1 or P2 by Moody’s, A1 or A2 by S&P or F1 or F2 by Fitch (in lieu of a short term rating, a long term rating of not less than A2 by Moody’s, A by S&P or an equivalent rating by Fitch would qualify under this sub-clause (vii), provided that no such security position shall exceed five percent (5%) of the invested cash portfolio of the Loan Parties); and (E) in the case of investments by any Foreign Subsidiary, obligations of a credit quality and maturity comparable to that of the items referred to in clauses (B) through (D) above that are available in local markets; (3) any Permitted Acquisition; provided that the aggregate amount of Investments by Loan Parties in Restricted Subsidiaries that are not Loan Parties (or do not merge into a Loan Party in connection with such transaction) in reliance on this Clause (3) shall not exceed (when combined with Investments made by Loan Parties in Subsidiaries that are not (or do not become in connection with such transaction) Loan Parties in reliance on Clauses (1), (21) and (22) of the definition of Permitted Investments) $25,000,000; provided, further that, upon written notice from a Responsible Officer of the Borrower Representative to the Administrative Agent, the dollar amount set forth in the foregoing proviso shall be reset at $25,000,000 on any such date as the Payment Conditions become satisfied (it being understood that such written notice shall include an updated Borrowing Base Certificate (as applicable) and calculations (in reasonable detail) demonstrating compliance with the Payment Conditions); provided, further that, with respect to any such Investment (in a single transaction or a series of related transactions) consisting of assets of the type eligible to be included in the Borrowing Base that decreases the Borrowing Base by $3,437,500 or more (after giving effect thereto), the Borrower Representative shall have first delivered an updated Borrowing Base Certificate to the Administrative Agent giving pro forma effect to such Investment and demonstrating pro forma compliance with Section 6.12; (4) any Investment in securities or other assets not constituting cash or Cash Equivalents and received in connection with any disposition of assets permitted by Section 6.04; (5) any Investment existing on the Closing Date or an Investment consisting of any extension, modification or renewal of any Investment existing on the Closing Date; provided that the amount of any such Investment may be increased (x) as required by the terms of such Investment as in existence on the Closing Date to the extent set forth Schedule 6.02 or (y) as otherwise permitted under this Agreement; (6) loans and advances to officers, directors, employees or consultants of the Company or any of its Subsidiaries (i) in the ordinary course of business in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any write-downs or 31 11584747
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write-offs thereof) not to exceed $6,875,000 at the time of Incurrence, (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such Person’s purchase of Equity Interests of the Company or any direct or indirect parent of the Company solely to the extent that the amount of such loans and advances shall be contributed to the Company in cash as common equity; (7) any Investment acquired by the Company or any Restricted Subsidiary (a) in exchange for any other Investment or accounts receivable held by the Company or such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable, or (b) as a result of a foreclosure by the Company or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default, or as a result of a Bail-In Action with respect to any contractual counterparty of the Company or any Restricted Subsidiary; (8) any Investment acquired by the Company or any Subsidiary in the settlement of overdue Indebtedness and accounts payable owed to a Loan Party or a Subsidiary in the ordinary course of business and for amounts which, individually and in the aggregate, are not material to the Loan Parties or their Subsidiaries; (9) Swap Agreement Obligations permitted under Section 6.01(j); (10) additional Investments by the Company or any Restricted Subsidiary having an aggregate Fair Market Value (as determined in good faith by the Company), taken together with all other Investments made pursuant to this clause (10) that are at that time outstanding, not to exceed $25,000,000; provided, however, that if any Investment pursuant to this clause (10) is made in any Person that is not a Loan Party at the date of the making of such Investment and such Person becomes a Loan Party after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (10) for so long as such Person continues to be a Loan Party; (11) [Reserved]; (12) Investments the payment for which consists of Equity Interests of the Company (other than Disqualified Stock); (13) any transaction to the extent it constitutes an Investment that is permitted by and made in accordance with the provisions of Section 6.05 (except transactions described in clauses (a), (b), (c), (e), (f), (g), (i) or (m) of Section 6.05); (14) guarantees issued in accordance with Section 6.01, including, without limitation, any guarantee or other obligation issued or incurred under this Agreement in connection with any letter of credit issued for the account of the Company or any of its Restricted Subsidiaries (including with respect to the issuance of, or payments in respect of drawings under, such letters of credit); (15) Investments consisting of purchases and acquisitions of inventory, supplies, materials, services or equipment or purchases of contract rights or licenses or leases of in-bound intellectual property (including, without limitation, Investments made in connection with a Similar Business), in each case, in the ordinary course of business; (16) [Reserved]; (17) [Reserved]; 32 11584747
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any Person that is not a Loan Party at the date of the making of such Investment and such Person becomes a Loan Party after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (22) for so long as such Person continues to be a Loan Party; (23) trade credit extended on usual and customary terms in the ordinary course of business; (24) Guarantees of any Loan Party or any Restricted Subsidiary of leases or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business; (25) Subject to Pro Forma Compliance with the Payment Conditions, any other Investments (other than Acquisitions); (26) Investments consisting of the ownership of Equity Interests in Article II JV, IPCo JV and BC/VC existing as of the Closing Date; and (27) to the extent constituting an Investment, the transfer by a Loan Party or a Restricted Subsidiary to a Special Purpose Receivables Subsidiary, and the purchase by such Special Purpose Receivables Subsidiary, of wholesale accounts receivable, proceeds of such accounts receivable and other property customarily transferred in connection with the financing or securitization of accounts receivable for Fair Market Value (as determined in good faith by the Company) or for another price consistent with customary or market practice for the sale of accounts receivable in connection with the financing or securitization of accounts receivable (as determined in good faith by the Company). “Permitted Liens” means, with respect to any Person: (1) pledges, bonds or deposits and other Liens granted by such Person under workmen’s compensation laws, unemployment or employment insurance laws, old age pensions or similar legislation or programs, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness (it being understood that Indebtedness permitted pursuant to Section 6.01(cc) and other obligations in respect of cash management services shall not constitute Indebtedness for purposes of this clause (1))) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. or Canadian government bonds to secure surety or appeal bonds, performance and return of money bonds, or deposits as security for contested Taxes or import duties or payments of rent, in each case Incurred in the ordinary course of business; (2) (a) Liens imposed by law and landlords’, carriers’ warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction, or other like Liens, (b) Liens of customs brokers, freight forwarders and common carriers, (c) inchoate Liens imposed pursuant to applicable Canadian federal or provincial pension standards legislation, and (d) statutory and common law Liens of landlords, in each case securing obligations that are not overdue by more than 45 days or that are being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review; (3) Liens for Taxes not yet overdue by more than 45 days (or, with respect to real estate Taxes, any longer period before delinquency), or that are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto have been provided in accordance with GAAP; 34 11584747
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(4) deposits or escrows to secure performance and surety bonds or bid bonds or with respect to other regulatory requirements or letters of credit, bankers’ acceptances or similar obligations (other than Indebtedness for borrowed money (it being understood that Indebtedness permitted pursuant to Section 6.01(cc) and other obligations in respect of cash management services shall not constitute Indebtedness for purposes of this clause (4))) issued pursuant to the request of and for the account of any Person in the ordinary course of business; (5) (a) any state of facts as shown by any professional survey or physical inspection of any Material Real Property delivered to the Administrative Agent (i) prior to the Closing Date with respect to any Existing Owned Real Property and (ii) prior to the date of acquisition of any such Material Real Property acquired after the Closing Date and (b) minor survey exceptions, minor encumbrances, minor encroachments, trackage rights, special and supplemental assessments, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines, communication towers, other utilities and other similar purposes, servicing agreements, development agreements, site plan agreements, land use and air rights agreements, reservations, restrictions and leases for mineral and water rights, all title exceptions, exclusions and encumbrances in existence with respect to all owned or leased real property as of the date of this Agreement and at the time of acquisition of any interest in real property acquired after the date of this Agreement and in existence at the time of such acquisition, and other similar liens, charges and encumbrances incurred in the ordinary course of business, or title defects or irregularities that are of a minor nature or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which were not Incurred in connection with Indebtedness, and which would not in the aggregate with respect to any particular real property be reasonably expected to materially adversely affect the value of said properties or materially impair their use, in the operation of the business of such Person as of the date of this Agreement or the date of any future acquisition as the case may be; (6) (A) Liens on assets of a Subsidiary that is not a Loan Party securing Indebtedness of a Subsidiary that is not a Loan Party permitted to be Incurred pursuant to Section 6.01; (B) [Reserved]; (C) Liens securing obligations in respect of Indebtedness permitted to be Incurred pursuant to clause (d) or (m) (to the extent such guarantees are issued in respect of any Indebtedness) of Section 6.01; provided that, in the case of clause (m) any Lien on the Collateral in reliance on this clause (6)(C) shall be junior to the Liens on the Collateral securing the Obligations pursuant to the ABL Intercreditor Agreement and/or a junior lien intercreditor agreement or collateral trust agreement reasonably satisfactory to the Administrative Agent and the Required Lenders reflecting the junior-lien status of the Liens securing such Indebtedness as it relates to Collateral; (D) [Reserved]; (E) Liens created pursuant to the Collateral Documents or otherwise securing the Obligations; (7) any Lien existing on the date of this Agreement and described on Schedule 6.07, provided that the principal amount secured thereby is not hereafter increased, and no additional assets become subject to such Lien (except pursuant to the terms of the agreements governing such Lien as in effect on the date of this Agreement); 35 11584747
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(8) Liens on assets, property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided, however, that such Liens are not created or Incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary; provided, further, however, that such Liens may not extend to any other property owned by the Company or any Restricted Subsidiary (other than pursuant to after-acquired property clauses in effect with respect to such Lien at the time of acquisition on property of the type that would have been subject to such Lien notwithstanding the occurrence of such acquisition); (9) Liens on assets or property at the time the Company or a Restricted Subsidiary acquired the assets or property, including any acquisition by means of a merger, amalgamation or consolidation with or into the Company or any Restricted Subsidiary; provided, however, that such Liens are not created or Incurred in connection with, or in contemplation of, such acquisition; provided, further, however, that the Liens may not extend to any other property owned by the Company or any Restricted Subsidiary (other than pursuant to after-acquired property clauses in effect with respect to such Lien at the time of acquisition on property of the type that would have been subject to such Lien notwithstanding the occurrence of such acquisition); (10) [Reserved]; (11) [Reserved]; (12) [Reserved]; (13) (a) leases, subleases, licenses and sublicenses of real property (excluding any leases, subleases, licenses and sublicenses with respect to any Material Real Property entered into after the Closing Date unless with the prior written consent of the Administrative Agent) which do not materially interfere with the ordinary conduct of the business of the Company or any of the Subsidiaries and (b) all Liens created or purported to be created by any lessee, sub lessee, licensee or sub licensee of any Loan Parties in violation of any applicable lease, sublease, licensee or sub licensee, without the knowledge of such Loan Parties (and upon learning of such Liens in this clause (b), so long as the applicable Loan Party promptly takes all reasonable action to remove, satisfy, discharge or bond such Liens); (14) Liens arising from Uniform Commercial Code financing statement filings (or equivalent filings including under the PPSA) regarding operating leases or other obligations not constituting Indebtedness (it being understood that Indebtedness permitted pursuant to Section 6.01(cc) and other obligations in respect of cash management services shall not constitute Indebtedness for purposes of this clause (14)); (15) Liens in favor of any Loan Party; (16) [Reserved]; (17) pledges and deposits made in the ordinary course of business to secure liability to insurance carriers; (18) Liens on the Equity Interests of Unrestricted Subsidiaries; (19) (a) leases or subleases, and licenses or sublicenses (including with respect to Intellectual Property on a non-exclusive basis or on an exclusive basis with the prior written consent of the Administrative Agent) granted to others in the ordinary course of business, but excluding any leases, 36 11584747
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subleases, licenses and sublicenses with respect to any Material Real Property entered into after the Closing Date unless with the prior written consent of the Administrative Agent, in all such cases, not interfering in any material respect with the business of the Company and the Subsidiaries, taken as a whole and (b) and Liens on real property which is not owned but is leased or subleased by the Company or any Restricted Subsidiary; (20) Liens to secure any refinancing, future advance, increase, cross-collateralization, refunding, extension, renewal or replacement (or successive refinancings, refundings, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in clauses 6(C), (7), (8), (9), and (11) of this definition; provided, however, that (x) such new Lien shall be limited to all or part of the same property (including any after acquired property to the extent it would have been subject to the original Lien) that secured the original Lien (plus improvements on and accessions to such property, proceeds and products thereof, customary security deposits and any other assets pursuant to the after-acquired property clauses to the extent such assets secured (or would have secured) the Indebtedness being refinanced, refunded, extended, renewed or replaced), and (y) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount (or accreted value, if applicable) described under clauses 6(C), (7), (8), (9), and (11)) of this definition at the time the original Lien became a Permitted Lien under this Agreement and, in the case of any Lien on Collateral, shall not have a greater priority level with respect to Liens securing the Obligations that the Liens securing the Indebtedness so refinanced, refunded, extended, renewed or replaced, (B) unpaid accrued interest and premiums (including tender premiums), and (C) an amount necessary to pay any underwriting discounts, defeasance costs, commissions, fees and expenses related to such refinancing, refunding, extension, renewal or replacement; provided, further, however, that in the case of Liens to secure any refinancing, refunding, extension or renewal of Indebtedness secured by a Lien referred to in clause (8) or (9), such new Lien shall have priority equal to or more junior than the Lien securing such refinanced, refunded, extended or renewed Indebtedness; (21) [Reserved]; (22) judgment and attachment Liens not giving rise to an Event of Default and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings and for which adequate reserves have been made; (23) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale or purchase of goods entered into in the ordinary course of business (or in connection with a Similar Business; (24) Liens incurred to secure cash management services or to implement cash pooling arrangements in the ordinary course of business; (25) Liens in favor of credit card issuers or credit card processors pursuant to agreements therewith; (26) any encumbrance or restriction (including put and call arrangements) with respect to Equity Interests of any Joint Venture or similar arrangement securing obligations of such Joint Venture or pursuant to any joint venture agreement or similar agreement; (27) any amounts held by a trustee in the funds and accounts under any indenture issued in escrow pursuant to customary escrow arrangements pending the release thereof, or under any indenture pursuant to customary discharge, redemption or defeasance provisions; 37 11584747
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(28) Liens (i) arising by virtue of any statutory or common law provisions relating to banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a depository or financial institution, (ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business or (iii) encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to brokerage accounts incurred in the ordinary course of business and not for speculative purposes; (29) Liens that are contractual rights of set-off relating to pooled deposits, sweep accounts, reserve accounts or similar accounts of the Company or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company or any Restricted Subsidiary, including with respect to credit card charge-backs and similar obligations; (30) Liens disclosed by the title reports, commitments or title insurance policies (and future date downs) delivered pursuant to (a) this Agreement, and, in each case, any replacement, modification, date down, extension or renewal of any such Lien (and all existing surveys); provided that such replacement, modification, date down, extension or renewal Lien shall not cover any property other than the property that was subject to such Lien prior to such replacement, modification, date down, extension or renewal; provided, further, that the Indebtedness and other obligations secured by such replacement, modification, date down, extension or renewal Lien are permitted under this Agreement or (b) the acquisition of any interest of any Loan Party in real property acquired after the date of this Agreement and in existence at the time of such acquisition (and not created or suffered in anticipation of such acquisition), so long as any Liens in this clause (b) would not interfere in any material respect with the business of the applicable Loan Party as intended to be conducted on such after-acquired real property; (31) Liens that are contractual rights of set-off relating to purchase orders and other agreements entered into with customers, suppliers or service providers of the Company or any Restricted Subsidiary in the ordinary course of business; (32) in the case of real property that constitutes a leasehold or subleasehold interest, (x) any Lien to which the fee simple interest (or any superior leasehold interest) is or may become subject and any subordination of such leasehold or subleasehold interest to any such Lien in accordance with the terms and provisions of the applicable leasehold or subleasehold documents, and (y) any right of first refusal, right of first negotiation or right of first offer which is granted to the lessor or sublessor; (33) agreements to subordinate any interest of the Company or any Restricted Subsidiary in any accounts receivable arising from inventory consigned by the Company or any such Restricted Subsidiary pursuant to an agreement entered into in the ordinary course of business; (34) Liens securing insurance premium financing arrangements; provided that such Liens are limited to the applicable unearned insurance premiums; (35) [Reserved]; (36) Liens on securities that are the subject of repurchase agreements constituting Cash Equivalents under clause (e) of the definition thereof; (37) Liens in favor of the ABL Agent to secured indebtedness permitted under Section 6.01(b); 38 11584747
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(38) with respect to a Permitted Wholesale A/R Financing, Liens on wholesale accounts receivable, proceeds of such accounts receivable and other property upon which Liens are customarily granted in connection with the financing or securitization of accounts receivable (but not, for the avoidance of doubt, on any property included in the calculation of the Borrowing Base); (39) Liens in favor of landlords on leasehold improvements financed by allowances or advances provided by such landlords pursuant to lease arrangements; (40) Liens on proceeds in an aggregate amount not to exceed $6,875,000 at any one time outstanding granted in connection with securities lending transactions or reverse repurchase agreements involving United States Treasury bonds; (41) Liens securing other obligations of the Loan Parties and their Restricted Subsidiaries in an aggregate amount not to exceed $25,000,000 at any one time outstanding; (42) with respect to a Permitted Consigned Inventory Financing, Liens on consigned Inventory and the related receivables and proceeds of such consigned Inventory, the applicable Permitted Consigned Inventory Account, and solely to the extent governing or otherwise directly relating to such consigned Inventory, Documents (as defined in the UCC), licenses from any Governmental Authority to sell any such consigned Inventory, and Chattel Paper (as defined in the UCC); and (43) Liens created in connection with any Sale/Leaseback Transaction permitted by Section 6.04; provided, however, notwithstanding the foregoing and Section 6.07, the Loan Parties and their Restricted Subsidiaries shall not, directly or indirectly, create, Incur or suffer to exist any Lien on any of the (a) Material Real Property other than (i) with respect to Material Real Property acquired after the Closing Date, pursuant to the foregoing clauses (2), (3), (4), (5), 6(E), (7), (13), (22), and (30) in this definition of “Permitted Liens” and (ii) with respect to the Existing Owned Real Property, pursuant to the foregoing clauses (2), (3), (5), 6(E), (7), (22), (30) and (37) in this definition of “Permitted Liens”, or (b) any Material Intellectual Property other than pursuant to the foregoing clauses (6)(E) and (37). “Permitted Specified Liens” means Permitted Liens described in clauses (2), (3), (5), and 6(E) of the definition of Permitted Liens. “Permitted Wholesale A/R Financing” means, collectively, any facility evidenced by the Factoring Agreements or any other factoring arrangement or any securitization transaction or series of securitization transactions that may be entered into by any Loan Party so long as (x) the only assets so factored or securitized pursuant to such facility, arrangement or transaction are the wholesale Accounts of a Loan Party or a Restricted Subsidiary to the extent the same are not included in the Borrowing Base hereunder, proceeds of such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with the financing or securitization of accounts receivable and (y) other than pursuant to an unsecured guaranty by the Company or any of its Subsidiaries, no Loan Party or any Restricted Subsidiary whose assets are not being financed or securitized pursuant to such facility, arrangement or transaction shall become party to any such facility, arrangement or transaction. “Person” means any natural person, corporation, limited liability company, unlimited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity. 39 11584747
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“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which any Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA. “Plan Asset Regulations” shall mean 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time. “PPSA” means the Personal Property Security Act (Ontario) or such other applicable legislation in effect from time to time in such other jurisdiction in Canada (including the Civil Code (Quebec)) for purposes of the provisions hereof relating to perfection, effect of perfection or non-perfection or priority. “Preferred Stock” means any Equity Interest with preferential right of payment of dividends or upon liquidation, dissolution, or winding up. “Prepayment Premium” has the meaning specified in the Fee Letter. “Prime Rate” means, as of any date of determination, the rate of interest published by the Wall Street Journal as the “WSJ Prime Rate” for such day. Any change in the Prime Rate shall take effect at the opening of business on the day of such change. “Prior Claims” means all liabilities and obligations of any Canadian Loan Party secured by any Liens, xxxxxx or inchoate, which rank or are capable of ranking pari passu or in priority to the Liens granted to the Administrative Agent to secure the Canadian Secured Obligations, including, (a) any such amounts due and not paid for wages or vacation pay (including amounts protected by the Wage Earner Protection Program Act (Canada)), amounts due and not paid under any legislation relating to workers’ compensation or to employment insurance, all amounts deducted or withheld and not paid and remitted when due with respect to Taxes including amounts currently or past due and not paid for realty, municipal or similar taxes (to the extent impacting personal or moveable property); and (b) (i) all amounts currently or past due and not yet contributed, remitted or paid to or under any Canadian Pension Plan or under the Canada Pension Plan, the Quebec Pension Plan, the Pension Benefits Act (Ontario) or any similar legislation, and (ii) any solvency deficiency or wind-up deficiency with respect to Canadian Defined Benefit Plans that are registered in Ontario. “Pro Forma Compliance” means, with respect to any determination for any period and any transaction, that such determination shall be made by giving pro forma effect to each such transaction, as if each such transaction had been consummated on the first day of such period, based on, in the case of determinations made in reliance on pro-forma financial statement calculations only, historical results accounted for in accordance with GAAP and, to the extent applicable, reasonable assumptions that are specified in detail in the relevant compliance certificate, financial statement or other document provided to the Administrative Agent or any Lender in connection herewith (which shall be prepared by the Company in good faith (subject to the approval of the Administrative Agent, not to be unreasonably withheld)) and for such purposes historical financial statements shall be recalculated as if such transaction had been consummated at the beginning of the applicable period, and any Indebtedness or other liabilities to be incurred, assumed or repaid had been incurred, assumed or repaid at the beginning of such period (and assuming that such Indebtedness to be incurred bears interest during any portion of the applicable measurement period prior to the relevant acquisition at the weighted average of the interest rates applicable to such Indebtedness incurred during such period) and, to the extent pro forma financial statements are required to be prepared by the Company under Regulation S-X of the Securities Act of 1933 (“Reg. S-X”) reflecting such transaction for any period, all pro forma calculations made hereunder with respect to such transaction and for such period shall be in conformity with Reg. S-X at all times 40 11584747
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after such pro-forma financial statements reflecting such transactions are required to be filed by the Company under Reg. S-X. “Proceeds of Crime Act” means the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), as amended. “Projections” has the meaning assigned to such term in Section 3.06(b). “Protective Advance” has the meaning assigned to such term in Section 2.04. “Qualified Cash” means, as of any date of determination, the aggregate amount of unrestricted cash and Specified Cash Equivalents of the Loan Parties that is (i) in one or more deposit accounts or in securities accounts, or any combination thereof, each which such deposit account or securities account is, subject to Section 5.17, subject to a control agreement in form and substance reasonably satisfactory to Administrative Agent, and is maintained by a branch office of the bank or securities intermediary located within the United States or Canada or (ii) in an Excluded Account under clause (b) or (e) of the definition of “Excluded Accounts” in the U.S. Security Agreement or the Canadian Security Agreement, as applicable; provided, that Qualified Cash may include Credit Card Accounts, which, consistent with methodologies used as of the Closing Date, are reflected on the Loan Parties’ books and records as cash, solely for purposes of calculating the Consolidated Net Leverage Ratio but not, for the avoidance of doubt, for purposes of calculating Liquidity or for any other purpose under the Loan Documents. “Real Estate” means all leases and all land, together with the buildings, structures, parking areas, and other improvements thereon, now or hereafter owned by any Loan Party or any Restricted Subsidiary, as the context may require, including all easements, rights-of-way, and similar rights relating thereto and all leases, tenancies, and occupancies thereof. “Real Property Deliverables” means each of the following agreements, instruments and other documents in respect of each Material Real Property, each in form and substance reasonably satisfactory to the Administrative Agent: (a) a Mortgage duly executed by the applicable Loan Party; (b) evidence of the recording of each Mortgage in such office or offices as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect the Lien purported to be created thereby or to otherwise protect the rights of the Administrative Agent and the Lenders thereunder; (c) a Title Insurance Policy or bring-down of the existing Title Insurance Policy with respect to each Mortgage, dated as of the Closing Date; (d) an existing ALTA survey together with a survey affidavit of no change to induce removal of the survey exception to the Title Insurance Policy and issue a survey endorsement to the Title Insurance Policy (if such endorsement is available at commercially reasonable rates and customarily issued in similar circumstances in the applicable jurisdiction, unless such endorsement is waived by Administrative Agent in its reasonable discretion); (e) a zoning report issued by a provider reasonably satisfactory to the Administrative Agent or a copy of each letter issued by the applicable Governmental Authority, evidencing each Material Real Property's compliance with all applicable Requirements of Law, together with a copy of all certificates of occupancy issued with respect to each Material Real Property; 41 11584747
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(f) an opinion of counsel, satisfactory to the Administrative Agent, in the state where such Material Real Property is located with respect to the enforceability of the Mortgage to be recorded and such other matters as the Administrative Agent may reasonably request; (g) an ASTM 1527-13 Phase I Environmental Site Assessment (“Phase I ESA”) (and if reasonably requested by the Administrative Agent based upon the results of such Phase I, a Phase II Environmental Site Assessment with respect to all Material Real Property acquired after the date of this Agreement ), by an independent firm reasonably satisfactory to the Administrative Agent; and (h) such other agreements, instruments, appraisals and other documents (including opinions of counsel, flood zone certificates and proof of flood insurance, if required) as the Administrative Agent may reasonably require. “Recipient” means, as applicable, (a) the Administrative Agent and (b) any Lender, or any combination thereof (as the context requires). “Register” has the meaning assigned to such term in Section 9.04. “Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, partners, members, trustees, employees, agents, administrators, managers, representatives and advisors of such Person and such Person’s Affiliates. “Release” means any releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migrating, disposing or dumping of any Hazardous Material into the environment. “Relevant Entity” means (a) each Loan Party and each Subsidiary of any Loan Party, and (b) each Person that, directly or indirectly, is in control of a Person described in clause (a) above. For purposes of this definition, control of a Person means the direct or indirect (x) ownership of, or power to vote, twenty-five percent (25%) or more of the issued and outstanding equity interests having ordinary voting power for the election of directors of such Person or other Persons performing similar functions for such Person, or (y) power to direct or cause the direction of the management and policies of such Person whether by ownership of equity interests, contract or otherwise. “Relevant Plan” has the meaning set forth in Section 9.04(e). “Report” means reports prepared by the Administrative Agent or another Person (including ABL Secured Parties) showing the results of appraisals, field examinations or audits pertaining to the assets of the Loan Parties from information furnished by or on behalf of the Borrowers, after the Administrative Agent has exercised its rights of inspection pursuant to this Agreement, which Reports may be distributed to the Lenders by the Administrative Agent. “Reportable Compliance Event” means that any Relevant Entity becomes a Sanctioned Person, or is charged by indictment, criminal complaint or similar charging instrument, arraigned, or custodially detained in connection with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or has knowledge of facts or circumstances to the effect that it is reasonably likely that any aspect of its operations is in actual or probable violation of any Anti-Terrorism Law. “Required Lenders” means, at any time, Lenders (other than Defaulting Lenders) having Term Exposures and unused Commitments representing more than 50% of the sum of the Aggregate Term Exposure and unused Commitments at such time; provided if there are more than two (2) unaffiliated 42 11584747
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Lenders at any time, at least there two (2) unaffiliated Lenders (other than Defaulting Lenders) having Term Exposures and unused Commitments representing more than 50% of the sum of the Aggregate Term Exposure and unused Commitments at such time. “Requirement of Law” means, with respect to any Person, (a) the charter, articles or certificate of organization or incorporation and bylaws or other organizational or governing documents of such Person and (b) any statute, law (including common law), treaty, rule, regulation, code, ordinance, order, decree, writ, judgment, injunction or determination of any arbitrator or court or other Governmental Authority (including Environmental Laws), in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject. “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority. “Responsible Officer” means, with respect to any Loan Party, the Chief Executive Officer, President, Chief Financial Officer, Treasurer or Assistant Treasurer of such Loan Party, any other executive officer, including any Executive Vice President or Senior Vice President of such Loan Party, any Vice President of any Restricted Subsidiary of such Loan Party, any manager or the members (as applicable) in the case of any Loan Party which is a limited liability company, and such other individuals, designated by written notice to the Administrative Agent from the Borrower Representative, authorized to execute notices, reports and other documents on behalf of such Loan Party required hereunder. The Borrower Representative may amend such list of individuals from time to time by giving written notice of such amendment to the Administrative Agent. 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 in their capacity as an officer of such Loan Party and not in any individual capacity. “Refinancing Indebtedness” has the meaning specified in Section 6.01(n). “Restricted Investment” means any Investment that is not a Permitted Investment. “Restricted Payments” has the meaning specified in Section 6.02(a). “Restricted Subsidiary” means, with respect to any Person, any Subsidiary of such Person other than an Unrestricted Subsidiary of such Person. Unless the context otherwise requires, the term “Restricted Subsidiary” shall mean a Restricted Subsidiary of the Company. Each Loan Party (other than the Company) shall constitute a Restricted Subsidiary. “S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business. “Sale/Leaseback Transaction” means an arrangement relating to property now owned or hereafter acquired by a Loan Party or a Restricted Subsidiary whereby such Loan Party or Restricted Subsidiary transfers such property to a Person and such Loan Party or Restricted Subsidiary leases it from such Person, other than leases between any Loan Party and a Restricted Subsidiary or between Restricted Subsidiaries. “Sanctioned Country” means, at any time, a country or territory which is itself the subject or target of any Sanctions (as of the Closing Date, Cuba, Iran, North Korea, Crimea Region, the Donetsk and Luhansk territories of Ukraine, and Syria). 43 11584747
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“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, Her Majesty’s Treasury of the United Kingdom, the European Union or any EU member state, (b) a Blocked Person, (c) a Canadian Blocked Person, (d) any Person operating, organized or resident in a Sanctioned Country, or (e) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) through (d). “Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time (a) by the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, (b) by the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom, or (c) by a government of Canada pursuant to Canadian Economic Sanctions and Export Control Laws. “SEC” means the Securities and Exchange Commission of the U.S. “Secured Obligations” means all U.S. Secured Obligations and Canadian Secured Obligations. “Secured Parties” means (a) the Administrative Agent, (b) the Lenders and (c) the successors and assigns of each of the foregoing. “Security Agreement” means and refers to each of the U.S. Security Agreement and the Canadian Security Agreements. “Senior Representative” means, with respect to any Indebtedness, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities. “Similar Business” has the meaning specified in Section 6.06. “SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator. “SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate). “Solvent” means, with respect to any Person on any date of determination, taking into account any right of reimbursement, contribution or similar right available to such Person from other Persons, that on such date (i) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (ii) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (iii) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (iv) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature, (v) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged, and (vi) such Person is not an “insolvent person” as such term is defined in the BIA. In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed at the amount which, 44 11584747
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in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. “Special Purpose Receivables Subsidiary” means (i) a direct or indirect Subsidiary of the Company established in connection with a Permitted Wholesale A/R Financing for the acquisition of wholesale Accounts of a Loan Party or a Restricted Subsidiary to the extent the same are not included in the Borrowing Base hereunder, proceeds of such accounts receivable and other assets which are customarily transferred in connection with the financing or securitization of accounts receivable, which engages in no material activities other than in connection with the financing of accounts receivable of a Loan Party and/or Restricted Subsidiaries, and which is organized in a manner intended to reduce the likelihood that it would be substantively consolidated with the Company or any of the Subsidiaries (other than Special Purpose Receivables Subsidiaries) in the event the Company or any such Subsidiary becomes subject to a proceeding under the Bankruptcy Code (or other Insolvency Laws) and (ii) any subsidiary of a Special Purpose Receivables Subsidiary. “Specified Cash Equivalents” means, as of any date of determination, the aggregate amount of Cash Equivalents under clause (a) or (d) of the definition thereof. “Spot Rate” means, on any date, as determined by the Administrative Agent, the spot selling rate posted by Reuters on its website for the sale of the applicable currency for U.S. Dollars at approximately 11:00 a.m., New York City time, on such date (the “Applicable Quotation Date”); provided, that if, for any reason, no such spot rate is being quoted, the spot selling rate shall be determined by reference to such publicly available service for displaying exchange rates as may be reasonably selected by the Administrative Agent, or, in the event no such service is selected, such spot selling rate shall instead be the rate reasonably determined by the Administrative Agent as the spot rate of exchange in the market where its foreign currency exchange operations in respect of the applicable currency are then being conducted, at or about 11:00 a.m., New York City time, on the Applicable Quotation Date for the purchase of the relevant currency for delivery two Business Days later. “Statements” has the meaning given to such term in Section 3.06(a). “Subordinated Indebtedness” of a Person means any Indebtedness of such Person the payment of which is subordinated to payment of the Secured Obligations to the written satisfaction of the Administrative Agent. “subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other business entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. “Subsidiary” means any direct or indirect subsidiary of the Company or a Loan Party, as applicable. Notwithstanding the foregoing or anything herein to the contrary none of IPCo JV, BRX, JEMS or Le Tigre or any of their respective Subsidiaries shall constitute a Subsidiary of the Company or any Subsidiary of the Company for purposes of this Agreement, but shall each be considered a Joint Venture for purposes hereof. “Successor Rate” shall mean an alternative rate of interest established pursuant to the last sentence of the definition of Term SOFR; provided, that, the Successor Rate shall at no time be less than the Floor. 45 11584747
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“Subsidiary Equity Interests” has the meaning specified in Section 3.02. “Swap Agreement” means any agreement with respect to any swap, forward, spot, future, credit default or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrowers or the Restricted Subsidiaries shall be a Swap Agreement. “Swap Agreement Obligations” means “Swap Agreement Obligations” as defined in the ABL Credit Agreement as in effect on the date hereof or as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the ABL Intercreditor Agreement. “Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, withholdings, (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. “Term Exposure” means, with respect to any Lender at any time, the sum of (a) the outstanding principal amount of such Lender’s Term Loans at such time plus (b) an amount equal to its Applicable Percentage of the aggregate principal amount of Protective Advances outstanding at such time. “Term Loan” means a Loan made pursuant to Section 2.01, which, for the avoidance of doubt, includes the Closing Date Term Loans and any Delay Draw Term Loans. “Term Priority Collateral” has the meaning specified in the ABL Intercreditor Agreement. “Term SOFR” means at any time of determination for any month, greater of (x) the Floor and (y) the rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to the first day of such month for a term equivalent to three months; provided that if the rate is not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate for such tenor on the first U.S. Government Securities Business Day immediately prior thereto for which such Term SOFR Screen Rate for such tenor was published, in each case. Term SOFR shall be determined on a monthly basis as of the first day of each month. Notwithstanding the foregoing, if the Administrative Agent has made the reasonable determination that adequate and reasonable means do not exist for determining Term SOFR and the Administrative Agent has made the same determination in relation to other similarly situated borrowers, the Administrative Agent, in consultation with the Borrower, may establish a reasonably equivalent alternative interest rate for the Loans (using a methodology substantially consistent with the methodology Administrative Agent has used (or is using) with respect to similarly situated borrowers), in which case, such alternative rate of interest shall apply with respect to the Loans (which rate of interest shall be deemed to be the “Term SOFR” for all purposes of this Agreement). “Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator to the Administrative Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time). “Test Period” means, as of any date of determination, the most recently completed twelve (12) fiscal months of the Loan Parties ended on or prior to such time (taken as one accounting period) for which financial statements have been delivered (or are required to have been delivered). 46 11584747
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“Title Insurance Policy” means a mortgagee's loan policy, in form and substance satisfactory to the Administrative Agent, together with all endorsements made from time to time thereto, issued to the Administrative Agent by or on behalf of a title insurance company selected by or otherwise reasonably satisfactory to the Administrative Agent, insuring the Lien created by a Mortgage in an amount (not to exceed 105% of the Fair Market Value of the Mortgaged Property) and on terms and with such endorsements satisfactory to the Administrative Agent, delivered to the Administrative Agent. “Total Assets” means, at any date of determination, the consolidated total assets of the Company and its Subsidiaries as of the last day of the most recent fiscal quarter of the Company for which financial statements have been delivered pursuant to Section 5.01(a) or (b) as adjusted to give effect to any acquisition or Disposition of a Person or assets that may have occurred on or after the last day of such fiscal quarter. “Trade Date” has the meaning set forth in Section 9.04(e). “Transactions” means the execution, delivery and performance by the Loan Parties of this Agreement and the other Loan Documents, the borrowing of Loans and other credit extensions and the use of the proceeds thereof. “Type”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, “Closing Date Term Loans” or Delay Draw Term Loans”. “UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York or in any other state the laws of which are required to be applied in connection with the issue of perfection of security interests. “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms. “UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution. “Unfunded Pension Liability” means, in respect of a Canadian Defined Benefit Plan, any solvency deficiency or wind-up deficiency (as determined for the purposes of the Pension Benefits Act (Ontario) or other equivalent provincial legislation), as identified in the most recent actuarial valuation report that has been filed with the applicable pension regulator in respect of such Canadian Defined Benefit Plan. “Unliquidated Obligations” means, at any time, any Secured Obligations (or portion thereof) that are contingent in nature or unliquidated at such time, including any Secured Obligation that is: (i) an obligation to reimburse a bank for drawings not yet made under a letter of credit issued by it; (ii) any other obligation (including any guarantee) that is contingent in nature at such time; or (iii) an obligation to provide collateral to secure any of the foregoing types of obligations. “Unrestricted Subsidiary” means: 47 11584747
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(1) any Subsidiary of the Company that at the time of determination shall be designated an Unrestricted Subsidiary by the Board of Directors of the Company in the manner provided below; and (2) any Subsidiary of an Unrestricted Subsidiary. The Company may designate any Subsidiary of the Company (including any newly acquired or newly formed Subsidiary of the Company) to be an Unrestricted Subsidiary by written notice to the Administrative Agent unless at the time of such designation such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on any property of, the Company or any other Restricted Subsidiary that is not a Subsidiary of the Subsidiary to be so designated, in each case at the time of such designation; provided, however, that the Subsidiary to be so designated and its Subsidiaries do not at the time of designation have and do not thereafter Incur any Indebtedness pursuant to which the lender has recourse to any of the assets of the Company or any of the Restricted Subsidiaries unless otherwise permitted under Section 6.02; provided, further, however, that either: (a) the Subsidiary to be so designated has total consolidated assets of $1,000 or less; or (b) if such Subsidiary has consolidated assets greater than $1,000, then such designation would be permitted under Section 6.02. Notwithstanding the foregoing, no Unrestricted Subsidiary may own any Material Intellectual Property without the prior written consent of the Administrative Agent. The Company may designate any Unrestricted Subsidiary to be a Restricted Subsidiary by written notice to the Administrative Agent; provided, however, that immediately after giving effect to such designation, the Company shall be in Pro Forma Compliance with the Payment Conditions. In no event may any Subsidiary that is a “Restricted Subsidiary” under (and as defined in) the ABL Credit Agreement be designated an Unrestricted Subsidiary (unless such Subsidiary is designated an “Unrestricted Subsidiary” under the ABL Credit Agreement prior or substantially concurrently with such designation). As of the date hereof, no entity is an Unrestricted Subsidiary. “U.S.” means the United States of America. “U.S. Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”. “U.S. Borrower” means the Company. “U.S. Borrowing Base” shall have the meaning set forth in the ABL Credit Agreement as in effect on the date hereof or as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the ABL Intercreditor Agreement. “U.S. Closing Date Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make the Closing Date Term Loans in U.S. Dollars to the U.S. Borrower on the Closing Date in accordance with Section 2.01(a). 48 11584747
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“U.S. Collateral” means any and all property owned, leased or operated by a U.S. Loan Party covered by the Collateral Documents and any and all other property of any U.S. Loan Party, now existing or hereafter acquired, that may at any time be or become subject to a security interest or Lien in favor of the Administrative Agent to secure the Secured Obligations. “U.S. Commitment” means, with respect to each Lender, the sum of its U.S. Closing Date Commitment and U.S. Delay Draw Commitment. “U.S. Delay Draw Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make Delay Draw Term Loans in U.S. Dollars to the U.S. Borrower in accordance with Section 2.01(b). “U.S. Dollar” or “$”means the lawful money of the United States of America. “U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities. “U.S. Guaranteed Obligations” has the meaning set forth in Section 10.01. “U.S. Guarantor” means each Domestic Subsidiary of a Borrower that is listed on the signature pages hereto as a Guarantor or that becomes a party hereto as a Guarantor pursuant to Section 5.14, in each case, until such Subsidiary’s U.S. Guaranty is released in accordance herewith. “U.S. Guaranty” means Article X of this Agreement. “U.S. Loan Parties” means the Company and U.S. Guarantor. “U.S. Obligated Party” has the meaning set forth in Section 10.02. “U.S. Obligations” means, with respect to the U.S. Loan Parties, all unpaid principal of and accrued and unpaid interest on the Loans to the U.S. Borrower, all accrued and unpaid fees (including any Prepayment Premium) and all expenses, reimbursements, indemnities and other obligations of the U.S. Loan Parties to the Lenders or to any Lender, the Administrative Agent or any indemnified party arising under the Loan Documents (including guarantee obligations and interest, costs, fees and other amounts accruing during the pendency of any proceeding under any Insolvency Laws, regardless of whether allowed or allowable in such proceeding) but, in each case, excluding any obligations of the U.S. Loan Parties in respect of the Canadian Obligations. “U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code. “U.S. Secured Obligations” means the U.S. Obligations. “U.S. Security Agreement” means that certain Security Agreement, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, dated as of the Closing Date, among the U.S. Loan Parties and the Administrative Agent, and, as the context requires, any other pledge or security agreement entered into, after the Closing Date by any other U.S. Loan Party (as required by this Agreement or any other Loan Document), or any other Person, as the same may be amended, restated, supplemented or otherwise modified from time to time. 49 11584747
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(ii) Any Borrowing of Delay Draw Term Loans shall be made to the U.S. Borrower and the Canadian Borrower on a ratable basis, as applicable, based on the then outstanding U.S. Delay Draw Commitments and Canadian Delay Draw Commitments. (c) Any principal amount of any Term Loan which is repaid or prepaid may not be reborrowed. SECTION 2.02 Loans and Borrowings. (a) Each Loan shall be made by the Lenders ratably in accordance with their respective applicable Commitments. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the applicable Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required. Any Protective Advance shall be made in accordance with the procedures set forth in Section 2.04. (b) All Borrowings shall be denominated in U.S. Dollars. Subject to Section 2.13, each Loan shall bear interest by reference to the Applicable Reference Rate. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan (and in the case of an Affiliate, the provisions of Sections 2.14, 2.15, 2.16 and 2.17 shall apply to such Affiliate to the same extent as to such Lender); provided, however, (i) the exercise of such option shall be recorded in the Register in accordance with Section 9.04(b)(iv) and such Affiliate shall have provided the tax forms required by 2.17(f) to the Administrative Agent, and (ii) any that any exercise of such option shall not affect the obligation of the Borrowers to repay such Loan in accordance with the terms of this Agreement. SECTION 2.03 Requests for Delay Draw Term Loans. To request a Delay Draw Term Loan, the Borrower Representative shall notify the Administrative Agent of such request in writing (through a form of electronic submission reasonably acceptable to the Administrative Agent) in a form approved by the Administrative Agent (which shall include reasonably acceptable funding indemnity language) and signed by the Borrower Representative not later than 1:00 p.m., New York time, ten (10) Business Days before the date of the proposed Delay Draw Term Loan (or such shorter period as agreed to by the Administrative Agent in its sole discretion). Except as provided in Section 2.08, the Borrowers may request the Lenders make Delay Draw Term Loans on no more than two (2) occasions. Each such Borrowing Request shall be irrevocable and signed by the Borrower Representative. Each such written Borrowing Request shall specify the following information in compliance with Section 2.02: (i) the aggregate amount of the requested Borrowing, which, shall be in an amount not less than $10,000,000; (ii) the portion of the Borrowing to be made as (x) a U.S. Term Loan to the U.S. Borrower and (y) a Canadian Term Loan to the Canadian Borrower (which allocation must be in accordance with Section 2.01(b)(ii)); and (iii) the date of such Borrowing, which shall be a Business Day; Any Borrowing Request that shall fail to specify any of the information required by the preceding provisions of this paragraph may be rejected by the Administrative Agent if such failure is not corrected promptly after the Administrative Agent shall give written or telephonic notice thereof to the Borrower Representative and, if so rejected, will be of no force or effect. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender 54 11584747
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of the details thereof and of the amount of such Xxxxxx’s Loan to be made as part of the requested Borrowing. Each Borrowing Request shall be deemed to constitute a representation and warranty by the Borrowers on the date thereof as to the matters specified in this Section and in Section 2.02(b) and on each day the Delay Draw Conditions are satisfied. SECTION 2.04 Protective Advances. (a) Subject to the limitations set forth below, after the Closing Date, the Administrative Agent is authorized by the Borrowers and the Lenders, from time to time in the Administrative Agent’s sole discretion (but shall have absolutely no obligation to), to make Loans to the U.S. Borrower and/or the Canadian Borrower, as applicable, on behalf of all Lenders, which the Administrative Agent, in its Permitted Discretion, deems necessary or desirable (i) to preserve or protect the applicable Collateral, or any portion thereof, (ii) to enhance the likelihood of, or maximize the amount of, repayment of the applicable Loans and other applicable Obligations, or (iii) to pay any other amount chargeable to or required to be paid by the applicable Borrower pursuant to the terms of this Agreement, including payments of reimbursable expenses (including costs, fees, and expenses as described in Section 9.03) and other sums payable under the Loan Documents (any of such Loans are herein referred to as “Protective Advances”); provided that, without the consent of the Required Lenders, the aggregate principal amount of outstanding Protective Advances shall not, at any time, exceed $25,000,000. Subject to Section 9.20, the Protective Advances shall be secured by the Liens in favor of the Administrative Agent in and to the applicable Collateral and shall constitute U.S. Obligations or Canadian Obligations, as applicable, hereunder. All Protective Advances shall be in U.S. Dollars and bear interest as provided in Section 2.13. The Administrative Agent’s authorization to make Protective Advances may be revoked at any time by the Required Lenders. Any such revocation must be in writing and shall become effective prospectively upon the Administrative Agent’s receipt thereof. At any time Administrative Agent may require the Lenders to fund their risk participations described in Section 2.04(b). (b) Upon the making of a Protective Advance by the Administrative Agent (whether before or after the occurrence of a Default), each Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from the Administrative Agent, without recourse or warranty, an undivided interest and participation in such Protective Advance in proportion to its Applicable Percentage. From and after the date, if any, on which any Lender is required to fund its participation in any Protective Advance purchased hereunder, the Administrative Agent shall promptly distribute to such Lender, such Lender’s Applicable Percentage of all payments of principal and interest and all proceeds of Collateral (subject to Section 9.20) received by the Administrative Agent in respect of such Protective Advance. SECTION 2.05 [Reserved]. SECTION 2.06 [Reserved]. SECTION 2.07 Funding of Borrowings. (a) Each Lender shall make each Loan to be made by such Lender hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00 p.m., New York time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders in an amount equal to such Xxxxxx’s Applicable Percentage. Subject to Section 4.01, and upon receipt of all requested funds, the Administrative Agent shall make such Term Loans available to the applicable Borrower on the Closing Date and on each applicable funding date of any Delay Draw Term Loans by causing an amount of same day funds in U.S. Dollars equal to the proceeds of all such Term Loans received by Administrative Agent from Lenders to be wire transferred to such account as may be designated in the Borrowing Request. 55 11584747
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(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or W-8BEN-E, as applicable (or successor form), establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E, as applicable (or successor form), establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; (2) in the case of a Foreign Lender claiming that its extension of credit will generate U.S. effectively connected income, executed copies of IRS Form W-8ECI (or successor form); (3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of a Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W- 8BEN or W-8BEN-E, as applicable (or successor form); or (4) to the extent a Foreign Lender is not the Beneficial Owner, executed copies of IRS Form W-8IMY (or successor form), accompanied by IRS Form W-8ECI (or successor form), IRS Form W- 8BEN or W-8BEN-E, as applicable (or successor form), a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9 (or successor form), and/or other certification documents from each Beneficial Owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of each such direct and indirect partner; (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower Representative or the Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. Federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and (D) if a payment made to a Lender under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those 66 11584747
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contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower Representative and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower Representative or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower Representative or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Xxxxxx has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower Representative and the Administrative Agent in writing of its legal inability to do so. (g) Treatment of Certain Refunds. If any party determines in its sole discretion exercised in good faith that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section 2.17), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.17 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid. This paragraph (g) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person. (h) Survival. Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document. (i) Defined Terms. For purposes of this Section 2.17, the term “applicable law” includes FATCA. SECTION 2.18 Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, or fees, or of amounts payable under Sections 2.15, 2.16 or 2.17, or otherwise) prior to 12:00 noon, New York time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest 67 11584747
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or (B) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement. The Administrative Agent (or its counsel) shall have received from each person party to the Fee Letter either (A) a counterpart of the Fee Letter signed on behalf of such party or (B) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of the Fee Letter. (b) Other Loan Documents. The Administrative Agent (or its counsel) shall have received either (A) a counterpart of each Collateral Document, the Intercompany Subordination Agreement, the Disbursement Letter, any promissory notes request pursuant to Section 2.10(f), and any other Loan Documents, in each case, signed on behalf of each party thereto or (B) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page thereof) that each such party has signed a counterpart of each such each Collateral Document, the Intercompany Subordination Agreement, the Disbursement Letter, promissory note or other Loan Document. (c) Lien Searches. The Administrative Agent shall have received the results of a recent lien search (1) in each jurisdiction where the Loan Parties and the IPCo JV are organized and (2) in each jurisdiction where each Loan Party maintains its principal place of business, if different, and such searches shall reveal no Liens on any of the assets of the Loan Parties except for Permitted Liens or subject to satisfactory estoppel letters discharged on or prior to the Closing Date pursuant to a pay-off letter or other documentation satisfactory to the Administrative Agent. (d) Corporate Structure. The corporate structure, capital structure and other material debt instruments, material accounts and governing documents of the Borrowers and their Subsidiaries shall be reasonably acceptable to the Administrative Agent in its Permitted Discretion. (e) Tax Withholding. The Administrative Agent shall have received a properly completed and signed IRS Form W-8 or W-9, as applicable, for each Loan Party. (f) Due Diligence. The Administrative Agent and its counsel shall have completed all legal, financial and collateral due diligence, the results of which shall be satisfactory to Administrative Agent in its Permitted Discretion, including, without limitation, receipt of the following, which shall be in form and substance reasonably acceptable to the Administrative Agent: (i) a copy of the most recently completed field examination report delivered to the ABL Agent under the ABL Credit Agreement, (ii) recently completed appraisal reports with respect to the Loan Parties intellectual property and each Material Real Property, in each case, from an appraiser engaged by and reasonably acceptable to the Administrative Agent, and prepared on a basis reasonably satisfactory to the Administrative Agent, such appraisals and to include fair market value analyses. (g) USA PATRIOT Act, Etc. The Administrative Agent and the Lenders shall have received (i) all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and Proceeds of Crime Act, for each Loan Party, (ii) a duly executed W-9 (or other applicable tax form) of the Borrower Representative, and (iii) to the extent requested by any Lender or the Administrative Agent from the Borrower Representative directly at least ten (10) Business Days prior to the date hereof, each Borrower, to the extent qualifying as a “legal entity customer” under the Beneficial Ownership Regulation, shall deliver to each such Lender or Administrative Agent a Beneficial Ownership Certification at least three (3) Business Days prior to the date hereof. 79 11584747
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Subsidiaries on a consolidated basis in accordance with GAAP, consistently applied, and setting forth in comparative form the respective financial statements for the corresponding date and period in the previous fiscal year. (c) During any Increased Financial Reporting Period, within thirty (30) days after the end of each fiscal month of the Company, monthly financial statements of the Company and its Subsidiaries, consisting of a consolidated balance sheet and related statements of operations and cash flows as of the end of and for such fiscal month and the then elapsed portion of the fiscal year, all in reasonable detail and certified (subject to normal year-end audit adjustments and the absence of footnotes) by a Financial Officer of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company and its Subsidiaries on a consolidated basis in accordance with GAAP, consistently applied, and setting forth in comparative form the respective financial statements for the corresponding date and period (or periods) in (or, in the case of the balance sheet, as of the end of) the previous fiscal year. (d) Concurrently with any delivery of financial statements under clause (a), (b) or (c) above, a Compliance Certificate, which shall (i) when delivered concurrently with the delivery of the financial statements delivered under clause (b) or (c), certify that such financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, (ii) certify as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iii) state whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.06 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate, (iv) provide reasonably detailed calculations demonstrating compliance with Section 6.12 (including, irrespective of whether a Covenant Testing Event is then in effect, reasonably detailed calculations with respect to Consolidated Net Leverage Ratio for such applicable period), (v) describe whether, since the later of the Closing Date and the date of the last Compliance Certificate, any Loan Party shall have (A) changed its name as it appears in official filings in the state or province of incorporation or organization, (B) changed its chief executive office, (C) changed the type of entity that it is, (D) changed its organization identification number, if any, issued by its state or province of incorporation or other organization, (E) changed its state or province of incorporation or organization, (F) acquired, registered or issued any new patents, trademarks or copyrights and whether any material intent-to-use trademarks are no longer “intent-to-use” trademarks, or (G) or closed any store location, and (vi) certify a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary”. (e) On or before each Borrowing Base Reporting Date, a Borrowing Base Certificate setting forth a computation of the Borrowing Base as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, together with supporting information and any additional reports with respect to the Borrowing Base that the Administrative Agent may reasonably request. (f) On or before each Borrowing Base Reporting Date, the following information as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, all delivered electronically in a text formatted file in form reasonably acceptable to the Administrative Agent: (i) a reasonably detailed aging of the Loan Parties’ Credit Card Accounts and other Accounts; 83 11584747
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Person against any Loan Party or any Restricted Subsidiary which involve a claim or series of claims that, individually or in the aggregate would reasonably be expected to have a Material Adverse Effect. (c) Promptly in the event that any Loan Party or its accountants conclude or advise that any previously issued financial statement, audit report or interim review should no longer be relied upon or that disclosure should be made or action should be taken to prevent future reliance. (d) Promptly upon the occurrence of any ERISA Event or Foreign Benefit Event. (e) (1) Promptly upon filing thereof, a copy of the most recent actuarial valuation report prepared in respect of any Canadian Defined Benefit Plan that has been filed with the applicable pension regulator in Canada, and (2) promptly after any request therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that any Loan Party or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that any Loan Party or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if a Loan Party or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan and is eligible to request such documents or notices, the applicable Loan Party or the applicable ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof. (f) Within five (5) Business Days after knowledge by a Responsible Officer of the Borrower Representative of the occurrence of (i) any Casualty with respect to Collateral having a value in the amount of $13,750,000 or more, whether or not covered by insurance, and (ii) any Material Event with respect to Mortgaged Property (if any), whether or not covered by insurance. (g) Within ten (10) Business Days after knowledge by a Responsible Officer of the Borrower Representative of the receipt by any Loan Party or any Restricted Subsidiary thereof, any default notice received under or with respect to any leased location or public warehouse where Collateral in the amount of $13,750,000 or more is located. (h) After knowledge by a Responsible Officer of the Borrower Representative of (i) any action or inaction of a plan sponsor or administrator that would reasonably be expected to result in a Canadian Pension Event; the existence of any Unfunded Pension Liability in an amount in excess of $6,875,000; and (iii) receipt of any notice from, or any action of, any Governmental Authority that that would reasonably be expected to result in a Canadian Pension Event; which, for each of clause (i)-(iii), results, or would reasonably be expected to result in, a Material Adverse Effect. (i) (A) Within five (5) Business Days after knowledge by a Responsible Officer of the Borrower Representative (1) of the occurrence of any default or event of default under the ABL Credit Agreement or receipt of any notice asserting a default or event of default thereunder (together with a copy of such notice), as well as copies of any amendments to the documents related to the ABL Credit Agreement, or (2) of the occurrence of any default or event of default by any Person under any agreement relating to Eligible Trade Accounts contained in the U.S. Borrowing Base, or (3) that any Account Debtor with respect to Eligible Trade Accounts ceases to meet the requirements of clause (i) of the definition of “Eligible Trade Accounts” (as such term is defined in the ABL Credit Agreement), and (B) on and at the time of submission to the ABL Agent of the Borrowing Base Certificate after a Responsible Officer of the Borrower Representative has knowledge that any Loan Party has entered into a material amendment, waiver or other modification of any agreement applicable to any Eligible Trade Account included in the U.S. Borrowing Base. 85 11584747
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(j) (A) Within five (5) Business Days after knowledge by a Responsible Officer of the Borrower Representative (1) of the occurrence of any default or event of default by any Person under any Credit Card Agreement relating to Credit Cards Accounts contained in the Borrowing Base, (2) the establishment of, or receipt by any Loan Party of a notice of any proposed establishment of, a reserve or reserve account (or similar concept), whether in the form of an actual deposit account, book entry or otherwise, in connection with any Credit Card Agreement for the purposes of securing all or any portion of any Loan Party’s existing or potential obligations to the applicable credit card issuer or processor under such Credit Card Agreement, or (3) that any credit card issuer, credit card processor or debit card issuer or provider with respect to Credit Card Accounts ceases to meet the requirements of clause (f) of the definition of “Eligible Credit Card Accounts” and (B) on and at the time of submission to the Administrative Agent of the Borrowing Base Certificate after a Responsible Officer of the Borrower Representative has knowledge that any Loan Party has entered into a material amendment, waiver or other modification of a Credit Card Agreement applicable to any Credit Card Account included in the Borrowing Base. (k) Within five (5) Business Days after knowledge by a Responsible Officer of the Borrower Representative of the filing of any Lien with respect to any delinquent Taxes in excess of $2,750,000. (l) Within five (5) Business Days after knowledge by a Responsible Officer of the Borrower Representative of any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of the beneficial owners identified in parts (c) or (d) of such certification. (m) Promptly after knowledge by a Responsible Officer of the Borrower Representative of any other development that results, or would reasonably be expected to result in, a Material Adverse Effect. (n) Promptly upon learning thereof, report to Administrative Agent all matters materially affecting the value, enforceability or collectability of any portion of the Collateral, including any Loan Parties’ reclamation or repossession of, or the return to any Loan Party of, a material amount of goods or claims or disputes asserted by any customer or other obligor. (o) (a) Promptly copies of all environmental audits and reviews in respect of Mortgaged Real Property (if any), (b) at least thirty (30) days prior thereto, notice of any Loan Party’s opening of any new office or place of business or any Loan Party’s closing of any existing office or place of business (but excluding, (A) the closing of any store location, and (B) other than with respect to stores in Canada located in a province in respect of which the Administrative Agent has not made a PPSA registration, the opening of any new store location), and (c) promptly upon any Loan Party’s learning thereof, notice of any labor dispute to which any Loan Party may become a party, any strikes or walkouts relating to any of its plants or other facilities, and the expiration of any labor contract to which any Loan Party is a party or by which any Loan Party is bound. (p) Promptly upon their becoming available to the Loan Parties: (i) The annual budget and a copy of the plan and forecast (including monthly projected consolidated balance sheets, income statements and cash flow statements) of the Company and its Subsidiaries for each quarter of such fiscal year, to be supplied no later than 60 days following the end of the prior fiscal year; (ii) Within five (5) Business Days after a Responsible Officer of the Borrower Representative has knowledge of the production or the receipt by a Loan Party thereof, copies of 86 11584747
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claims, health, disability or other benefits to employees or former employees or their families or property, casualty or liability insurance or self-insurance and letters of credit in connection with the maintenance of, or pursuant to the requirements of, Environmental Law, and other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims; (f) unsecured Indebtedness arising from agreements of a Loan Party or any Restricted Subsidiary providing for indemnification, adjustment of acquisition or purchase price or similar obligations (including earn-outs), in each case, Incurred or assumed in connection with the any Investments or any acquisition or disposition of any business, assets or a Subsidiary not prohibited by this Agreement, other than guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition; (g) shares of Preferred Stock of a Restricted Subsidiary issued to the Company or another Restricted Subsidiary; provided that any subsequent issuance or transfer of any Equity Interests or any other event which results in any Restricted Subsidiary that holds such shares of Preferred Stock of another Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock (except to the Company or another Restricted Subsidiary) shall be deemed, in each case, to be an issuance of shares of Preferred Stock not permitted by this clause (g); (h) without in any way limiting the applicability of Section 6.02, Indebtedness of the Company or a Restricted Subsidiary to the Company or a Restricted Subsidiary; provided that if a Loan Party incurs such Indebtedness to a Restricted Subsidiary that is not a Loan Party (except in respect of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Company and its Subsidiaries), such Indebtedness is subordinated in right of payment to the Obligations pursuant to the Intercompany Subordination Agreement; provided that if a U.S. Loan Party incurs such Indebtedness to a Canadian Loan Party (except in respect of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Company and its Subsidiaries),such Indebtedness is subordinated in right of payment to the Obligations pursuant to the Intercompany Subordination Agreement; provided, further, that any subsequent issuance or transfer of any Equity Interests or any other event which results in any Restricted Subsidiary holding such Indebtedness ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness (except to the Company or another Restricted Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien but not the transfer thereof upon foreclosure) shall be deemed, in each case, to be an Incurrence of such Indebtedness not permitted by this clause (h); (i) Indebtedness incurred pursuant to a Permitted Consigned Inventory Financing; (j) Swap Agreement Obligations that are not incurred for speculative purposes but (A) for the purpose of fixing or hedging interest rate risk with respect to any Indebtedness that is permitted by the terms of this Agreement to be outstanding; (B) for the purpose of fixing or hedging currency exchange rate risk with respect to any currency exchanges; or (C) for the purpose of fixing or hedging commodity price risk with respect to any commodity purchases or sales and, in each case, extensions or replacements thereof; (k) obligations (including reimbursement obligations with respect to letters of credit, bank guarantees, warehouse receipts and similar instruments) in respect of indemnities, warranties, statutory obligations, performance, bid, appeal and surety bonds, completion guarantees and similar obligations provided by a Loan Party or any Restricted Subsidiary, in each case incurred in the ordinary course of business or consistent with past practice or industry practice; 94 11584747
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(l) Indebtedness or Disqualified Stock of the Company or Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary in an aggregate principal amount or liquidation preference, which when aggregated with the principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding and Incurred pursuant to this clause (l), together with any Refinancing Indebtedness in respect thereof incurred pursuant to clause (n) below, does not exceed at any one time outstanding the greater of $137,500,000 and 50% of Consolidated EBITDA, calculated on a pro forma basis giving effect to such Indebtedness, Disqualified Stock or Preferred Stock, as applicable, and based on the most recently completed Test Period (plus, in the case of any Refinancing Indebtedness, the Additional Refinancing Amount); (m) any guarantee by a Loan Party or any Restricted Subsidiary of Indebtedness or other obligations of a Loan Party or any Restricted Subsidiary so long as the Incurrence of such Indebtedness Incurred by such Loan Party or such Restricted Subsidiary is not prohibited under the terms of this Agreement; provided that (A) if such Indebtedness is by its express terms subordinated in right of payment to the Obligations by such Restricted Subsidiary, as applicable, any such guarantee with respect to such Indebtedness shall be subordinated in right of payment to the Obligations, substantially to the same extent as such Indebtedness is subordinated to the Obligations, (B) the aggregate principal amount of Indebtedness or other obligations of a Canadian Loan Party guaranteed by a U.S. Loan Party in reliance on this clause (m) shall not exceed at any one time outstanding the greater of $34,375,000 and 12.5% of Consolidated EBITDA, calculated on a pro forma basis giving effect to such Indebtedness and based on the most recently completed Test Period; and (C) the aggregate principal amount of Indebtedness or other obligations of a Restricted Subsidiary that is not a Loan Party guaranteed by a Loan Party in reliance on this clause (m) shall not exceed at any one time outstanding the greater of $34,375,000 and 12.5% of Consolidated EBITDA, calculated on a pro forma basis giving effect to such Indebtedness and based on the most recently completed Test Period; (n) the Incurrence by a Loan Party or any Restricted Subsidiary of Indebtedness or Disqualified Stock, or by any Restricted Subsidiary of Preferred Stock, that serves to refund, refinance or defease any Indebtedness Incurred or Disqualified Stock or Preferred Stock issued as permitted under clauses (b), (c), (d), (l) and (n) of this Section 6.01 up to the outstanding principal amount (or, if applicable, the liquidation preference, face amount, or the like) or, if greater, committed amount (only to the extent the committed amount could have been Incurred on the date of initial Incurrence and was deemed Incurred at such time for the purposes of this Section 6.01) of such Indebtedness, Disqualified Stock or Preferred Stock, in each case at the time such Indebtedness was Incurred or Disqualified Stock or Preferred Stock was issued pursuant to clauses (b), (c), (d), (l) and (n) of this Section 6.01, or any Indebtedness, Disqualified Stock or Preferred Stock Incurred or issued to so refund or refinance such Indebtedness, Disqualified Stock or Preferred Stock plus any additional Indebtedness, Disqualified Stock or Preferred Stock Incurred or issued to pay premiums (including tender premiums), accrued and unpaid interest, expenses, defeasance costs and fees in connection therewith (subject to the following proviso, “Refinancing Indebtedness”) prior to its respective maturity; provided, however, that: (i) such Refinancing Indebtedness has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is Incurred which is not less than the shorter of (x) the remaining Weighted Average Life to Maturity of the Indebtedness, Disqualified Stock or Preferred Stock being refunded, refinanced or defeased and (y) the Weighted Average Life to Maturity that would result if all payments of principal on the Indebtedness, Disqualified Stock or Preferred Stock being refunded or refinanced that were due on or after the date that is one year following the Maturity Date were instead due on such date; (ii) to the extent such Refinancing Indebtedness refinances (a) Indebtedness junior in right of payment to the Obligations, such Refinancing Indebtedness is junior in right of payment 95 11584747
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to the Obligations, (b) Disqualified Stock or Preferred Stock, such Refinancing Indebtedness is Disqualified Stock or Preferred Stock, (c) Indebtedness secured by a Lien on the Collateral that is pari passu with or junior to the Lien on the Collateral securing the Obligations, such Refinancing Indebtedness (if secured) is secured by a Lien on the Collateral that is, as applicable, pari passu with or junior to the Lien on the Collateral securing the Obligations to the same extent as such Indebtedness being refinanced (or that is junior thereto), and a Senior Representative of such Refinancing Indebtedness acting on behalf of the holders of such Indebtedness shall have become party to or otherwise subject to the provisions of the ABL Intercreditor Agreement and/or a junior lien intercreditor agreement or collateral trust agreement, as applicable, reasonably satisfactory to the Administrative Agent reflecting the pari passu or junior-lien status, as applicable, of the Liens securing such Indebtedness as it relates to Collateral and (d) obligations under the ABL Credit Agreement, the Lien on the Collateral securing such Indebtedness shall have the priorities contemplated by the ABL Intercreditor Agreement (or priorities junior thereto), and a Senior Representative of such Refinancing Indebtedness acting on behalf of the holders of such Indebtedness shall have become party to or otherwise subject to the provisions of the ABL Intercreditor Agreement; and (iii) such Refinancing Indebtedness shall not include (x) Indebtedness of a Restricted Subsidiary that is not a Loan Party that refinances Indebtedness of the Company or another Loan Party or (y) Indebtedness of the Company or a Restricted Subsidiary that refinances Indebtedness of an Unrestricted Subsidiary; (o) unsecured Indebtedness of the Company that is equity-linked (including, without limitation, Indebtedness that is convertible into Equity Interests of the Company) and not guaranteed by any Subsidiary of the Company in an amount not to exceed $137,500,000 at any time outstanding; (p) [Reserved]; (q) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within five Business Days of its Incurrence; (r) [Reserved]; (s) [Reserved]; (t) Indebtedness of any Loan Party or any Restricted Subsidiary consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business; (u) Indebtedness consisting of Indebtedness of the Company or a Restricted Subsidiary to current or former officers, directors and employees thereof or any direct or indirect parent thereof, their respective estates, spouses or former spouses, in each case to finance the purchase or redemption of Equity Interests of the Company or any direct or indirect parent of the Company to the extent described in Section 6.02(b)(iv); (v) Indebtedness in respect of Obligations of the Company or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Swap Agreement Obligations; 96 11584747
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(w) [Reserved]; (x) [Reserved]; (y) Indebtedness of any Person that becomes a Restricted Subsidiary after the date hereof; provided that such Indebtedness (i) exists at the time such Person becomes a Restricted Subsidiary and is not created in contemplation of or in connection with such Person becoming a Restricted Subsidiary (ii) does not exceed $20,000,000 in the aggregate at any time outstanding; (z) Indebtedness in respect of the financing of insurance premiums in the ordinary course of business or consistent with past practice or industry practice; (aa) Indebtedness to customs brokers, freight forwarders, common carriers, landlords and similar Persons, in each case incurred in the ordinary course of business or consistent with past practice; provided, however, for purposes of this clause (aa), it is understood and agreed that any deferred rent arrangements entered into, or to be entered into, with landlords, such deferred rent arrangements shall only be considered to be in the ordinary course of business or consistent with past practice to the extent such deferred rent arrangements are entered into as a result of the impacts on the Loan Parties business from COVID-19; (bb) Indebtedness in an aggregate amount not to exceed $137,500,000 at any time outstanding incurred pursuant to a Permitted Wholesale A/R Financing; and (cc) Indebtedness owed on a short-term basis to banks and other financial institutions incurred in the ordinary course of business of the Company and its Restricted Subsidiaries with such banks or financial institutions that arises in connection with ordinary banking arrangements, including cash management, cash pooling arrangements and related activities to manage cash balances of the Company and its Subsidiaries, including treasury, depository, overdraft, credit, purchasing or debit card, electronic funds transfer and other cash management arrangements and Indebtedness in respect of netting services, overdraft protection, credit card programs, automatic clearinghouse arrangements and similar arrangements. For purposes of determining compliance with this Section 6.01, at the time of incurrence, the Company will be entitled to divide and classify an item of Indebtedness in more than one of the categories of Indebtedness described above (or any portion thereof) (other than clause (b) with respect to the ABL Obligations) without giving pro forma effect to the Indebtedness Incurred pursuant to any other clause or paragraph of this Section (or any portion thereof) when calculating the amount of Indebtedness that may be Incurred pursuant to any such clause or paragraph (or any portion thereof). Accrual of interest, the accretion of accreted value, the payment of interest or dividends in the form of additional Indebtedness, Disqualified Stock or Preferred Stock, as applicable, amortization of original issue discount, the accretion of liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies will not be deemed to be an Incurrence of Indebtedness, Disqualified Stock or Preferred Stock for purposes of this Section 6.01. In addition, Guaranties of, or obligations in respect of letters of credit relating to, Indebtedness which is otherwise included in the determination of a particular amount of Indebtedness shall not be included in the determination of such amount of Indebtedness; provided that the Incurrence of the Indebtedness represented by such guarantee or letter of credit, as the case may be, was in compliance with this Section 6.01. 97 11584747
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(all such payments and other actions set forth in subclauses (i) through (iv) above being collectively referred to as “Restricted Payments”). (b) The provisions of Section 6.02(a) shall not prohibit: (i) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof, if at the date of declaration or the giving of notice of such irrevocable redemption, as applicable, such payment would have complied with the provisions of this Agreement; provided that if such dividend, distribution or redemption is being made pursuant to Section 6.02(b)(xx), a Reserve (as defined in the ABL Credit Agreement) shall be established by the ABL Agent in an amount equal to the Restricted Payment so declared; (ii) (A) the redemption, repurchase, retirement or other acquisition of any Equity Interests (“Retired Capital Stock”) or Junior Indebtedness of the Company or any Loan Party solely in exchange for, or solely out of the proceeds of, the substantially concurrent sale of, Equity Interests of the Company or contributions to the equity capital of the Company (other than any Disqualified Stock or any Equity Interests sold to a Subsidiary of the Company) (collectively, including any such contributions, “Refunding Capital Stock”); and (B) the declaration and payment of dividends on the Retired Capital Stock out of the proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of Refunding Capital Stock; (iii) the redemption, repurchase, defeasance, or other acquisition or retirement of any Junior Indebtedness of any Loan Party made by exchange for, or out of the proceeds of the substantially concurrent sale of, new Indebtedness of a Loan Party, which is Incurred in accordance with Section 6.01 so long as: (A) the principal amount (or accreted value, if applicable) of such new Indebtedness does not exceed the principal amount (or accreted value, if applicable), plus any accrued and unpaid interest, of the Junior Indebtedness being so redeemed, repurchased, defeased, acquired or retired for value (plus the amount of any premium required to be paid under the terms of the instrument governing the Junior Indebtedness being so redeemed, repurchased, acquired or retired, plus any tender premiums, plus any defeasance or other costs, fees and expenses incurred in connection therewith); (B) such Indebtedness is subordinated as to right of payment and lien priority to the Obligations or the related Guarantee of such Loan Party, as the case may be, at least to the same extent as the applicable Junior Indebtedness so purchased, exchanged, redeemed, repurchased, defeased, acquired or retired for value (it being understood that if the Junior Indebtedness so purchased, exchanged, redeemed, repurchased, defeased, acquired or retired for value is unsecured, such Indebtedness shall be unsecured); (C) such Indebtedness has a final scheduled maturity date equal to or later than the earlier of (x) the final scheduled maturity date of the applicable Junior Indebtedness being so redeemed, repurchased, acquired or retired and (y) 91 days following the Maturity Date; and 99 11584747
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(D) such Indebtedness has a Weighted Average Life to Maturity at the time Incurred which is not less than the shorter of (x) the remaining Weighted Average Life to Maturity of the applicable Junior Indebtedness being so redeemed, repurchased, defeased, acquired or retired and (y) the Weighted Average Life to Maturity that would result if all payments of principal on the applicable Junior Indebtedness being redeemed, repurchased, defeased, acquired or retired that were due on or after the date that is one year following the Maturity Date; (iv) so long as no Dominion Period is continuing immediately before or after the making of such Restricted Payment and so long as no Event of Default is continuing immediately before or after the making of such Restricted Payment, a Restricted Payment to pay for the repurchase, retirement or other acquisition for value of Equity Interests of the Company or any direct or indirect parent of the Company held by any future, present or former employee, director, officer or consultant of the Company or any Restricted Subsidiary of the Company or any direct or indirect parent of the Company pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or other agreement or arrangement; provided, however, that the aggregate Restricted Payments made under this clause (iv) do not exceed in any calendar year an amount equal to (x) $6,875,000 plus (y) the value of any shares surrendered by any such employee, director, officer or consultant, or otherwise withheld by the Company, in connection with any tax obligation of such employee, director, officer or consultant (or the payment thereof by the Company or any Restricted Subsidiary) in an amount not to exceed $2,750,000, with unused amounts in any calendar year being permitted to be carried over to the next succeeding calendar year; provided further, however, that such amount in any calendar year may be increased by an amount not to exceed: (A) the cash proceeds received by the Company or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Stock) of the Company or any direct or indirect parent of the Company (to the extent contributed to the Company) to employees, directors, officers or consultants of the Company and the Restricted Subsidiaries or any direct or indirect parent of the Company that occurs after the date hereof and during such calendar year); plus (B) the cash proceeds of key man life insurance policies received by the Company or any direct or indirect parent of the Company (to the extent contributed to the Company) or the Restricted Subsidiaries after the date hereof and during such calendar year; (v) the redemption, repurchase, retirement or other acquisition of any Equity Interests Indebtedness of the Company with the proceeds of the Closing Date Term Loans or with the proceeds of such Delay Draw Term Loans so long as, at all times after such Closing Date Term Loans or Delay Draw Term Loans, as applicable, are made but prior to such redemption, repurchase, retirement or other acquisition, such Closing Date Term Loans or Delay Draw Term Loans, as applicable, are either: (A) subject to Section 5.17, held in a deposit account subject to a control agreement in form and substance reasonably satisfactory to Administrative Agent or (B) used to pay down the Revolving Loans (as defined in the ABL Credit Agreement); (vi) [Reserved]; (vii) other Restricted Payments that, when taken together with all other Restricted Payments made pursuant to this clause (viii), would not exceed $40,000,000 after the date hereof; provided, that no Dominion Period exists, in each case, after giving pro forma effect to such Restricted Payment; 100 11584747
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(viii) the distribution, as a dividend or otherwise, of shares of Equity Interests of Unrestricted Subsidiaries; (ix) [Reserved]; (x) [Reserved]; (xi) payment of Indebtedness created under the Loan Documents; (xii) payment of regularly scheduled interest and principal payments or reimbursement obligations under letters of credit, in each case, as and when due in respect of any Indebtedness permitted by this Agreement, other than payments in respect of the Subordinated Indebtedness prohibited by the subordination provisions thereof; (xiii) payments constituting the refinancings of Indebtedness to the extent such refinanced Indebtedness is permitted by Section 6.01; (xiv) payment of secured Indebtedness that becomes due as a result of (A) any voluntary sale or transfer of any assets (other than assets included in any Borrowing Base) securing such Indebtedness or (B) any casualty or condemnation proceeding (including a disposition in lieu thereof) of any assets (other than assets included in any Borrowing Base) securing such Indebtedness; (xv) subject to the terms of the Intercompany Subordination Agreement, payments of intercompany Indebtedness permitted under Section 6.01 and owed to any Loan Party; (xvi) repurchases of Equity Interests that occur or are deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants; (xvii) Restricted Payments by the Company or any Restricted Subsidiary to allow the payment of cash in lieu of the issuance of fractional shares upon the exercise of options or warrants or upon the conversion or exchange of Equity Interests of any such Person; (xviii) payments or distributions to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, amalgamation, merger or transfer of all or substantially all of the assets of the Company and the Restricted Subsidiaries, taken as a whole, that complies with Section 6.08; provided that if such consolidation, amalgamation, merger or transfer of assets constitutes a Change in Control, all Obligations shall have been repaid in full (or the Event of Default specified in Section 7.01(g) shall have been waived); and (xix) any Loan Party or their Restricted Subsidiaries may make Restricted Payments so long as the Borrowers are in Pro Forma Compliance with the Payment Conditions. Notwithstanding anything else set forth in this Section 6.02 or the definition of “Permitted Investments” to the contrary, no Restricted Payment or Investment (other than an Investment in the Company or another Loan Party) of any Material Intellectual Property, Material Real Property, or Equity Interests of the IPCo JV (other than Restricted Payments of the Equity Interests of the IPCo JV to the Company or another Loan Party to the extent that such Restricted Payment (i) does not adversely affect the Administrative Agent’s Lien on the Equity Interests of the IPCo JV and (ii) is otherwise permitted by this Agreement and the IpCo JV Consent and Pledge) owned by the Company or another Loan Party shall be permitted under this Agreement without the prior written consent of the Administrative Agent. 101 11584747
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securing such Indebtedness and (B) contractual encumbrances or restrictions under any agreement governing any Indebtedness existing as of the Closing Date; (vii) customary net worth provisions contained in real property leases entered into by any Loan Party or Restricted Subsidiary, so long as the Company has determined in good faith that such net worth provisions would not reasonably be expected to impair the ability of the Company and its Restricted Subsidiaries to meet their ongoing obligations; (viii) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business and relating solely to the applicable Joint Venture; (ix) purchase money obligations to the extent not prohibited hereunder for property acquired and Finance Lease Obligations in the ordinary course of business; (x) customary provisions contained in leases, licenses and other similar agreements entered into in the ordinary course of business; (xi) any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license (including without limitation, licenses of intellectual property) or other contracts; (xii) other Indebtedness, Disqualified Stock or Preferred Stock of the Company or any Restricted Subsidiary, in each case, so long as such encumbrances and restrictions contained in any agreement or instrument will not materially affect any Loan Party’s ability to make anticipated principal or interest payments on the Loans (as determined in good faith by the Company), provided that such Indebtedness, Disqualified Stock or Preferred Stock is permitted pursuant to Section 6.01; (xiii) any Investment not prohibited by Section 6.02; (xiv) customary restrictions and conditions contained in the document relating to any Lien, so long as (1) such Lien is a Permitted Lien and such restrictions or conditions relate only to the specific asset subject to such Lien, and (2) such restrictions and conditions are not created for the purpose of avoiding the restrictions imposed by this Section 6.03; (xv) [Reserved]; (xvi) any encumbrances or restrictions of the type referred to in Section 6.03(a), (b), or (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiv) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, no more restrictive with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. For purposes of determining compliance with this Section 6.03, (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the 103 11584747
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or any of its Restricted Subsidiaries (other than Junior Indebtedness) and the valid release of the Company or such Restricted Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or other liability in connection with such Disposition, (B) Indebtedness (other than Junior Indebtedness) of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with such Disposition, and (C) any Designated Non-cash Consideration received by the Company or any Restricted Subsidiary in such asset sale having an aggregate Fair Market Value (as determined in good faith by the Company), taken together with all other Designated Non-cash Consideration received pursuant to this clause (e) that is at that time outstanding, not to exceed the greater of $34,375,000 and 12.5% of Consolidated EBITDA, calculated on a pro forma basis giving effect to such asset disposition and Designated Non-cash Consideration and based on the most recently completed Test Period (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); provided, however, with respect a Disposition (in a single transaction or a series of related transactions) consisting of assets constituting Collateral of the type eligible to be included in the Borrowing Base that decreases the Borrowing Base by $3,437,500 or more (after giving effect thereto), the Borrower Representative shall have first delivered an updated Borrowing Base Certificate to the Administrative Agent giving pro forma effect to such Disposition and demonstrating pro forma compliance with Section 6.12; (f) subject to compliance with the Payment Conditions, the sale of assets that constitute Eligible Inventory, Eligible In Transit Inventory, Eligible LC Inventory, Eligible Consigned Inventory, Eligible Trade Accounts or Eligible Credit Card Accounts subsequent to the date hereof, so long as (1) each such sale or other disposition is in an arm’s length transaction and the respective Borrower or Restricted Subsidiary receives at least fair market value and (2) the consideration received by the Company and its Restricted Subsidiaries in connection with such sale consists of at least 75% cash and is paid at the time of the closing of such sale, provided that, with respect to any such sale (in a single transaction or a series of related transactions) consisting of assets constituting Collateral of the type eligible to be included in the Borrowing Base that decreases the Borrowing Base by $3,437,500 or more (after giving effect thereto), the Borrower Representative shall have first delivered an updated Borrowing Base Certificate to the Administrative Agent giving pro forma effect to such sale and demonstrating pro forma compliance with Section 6.12; (g) the Disposition of cash and Cash Equivalents in connection with the Company’s and its Restricted Subsidiaries’ business needs, as determined in the reasonable business judgment of the Company or the applicable Restricted Subsidiary; (h) Dispositions of Accounts in connection with compromise, write down or collection thereof in the ordinary course of business and consistent with past practice; (i) leases, subleases, licenses or sublicenses of property (excluding Material Real Property and Material Intellectual Property) which do not materially interfere with the business of Borrowers and their Restricted Subsidiaries and the termination of such leases, subleases, licenses or sublicenses in the ordinary course of business; (j) Dispositions of Equity Interests to directors where required by applicable Requirements of Law or to satisfy other requirements of applicable Requirements of Law with respect to the ownership of Equity Interests of Foreign Subsidiaries; (k) Dispositions of Equity Interests of any Joint Venture to the extent required by the terms of customary buy/sell type arrangements entered into in connection with the formation of such Joint Venture; 105 11584747
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(l) transfer or disposition of property subject to or as a result of a casualty or condemnation (or agreement in lieu of condemnation) (1) upon receipt of net cash proceeds of such casualty or (2) to a Governmental Authority as a result of condemnation (or agreement in lieu of condemnation); (m) bulk sales or other Dispositions of inventory of a Restricted Subsidiary not in the ordinary course of business in connection with store closings, at arm’s length; provided, that (1) the Loan Parties and their Restricted Subsidiaries shall not close in the aggregate more than 100 stores during the term of this Agreement, (2) all sales of inventory in connection with store closings pursuant to this clause (m) shall be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to the Administrative Agent and (3) in connection with any Disposition pursuant to this clause (m) involving greater than $3,437,500 of inventory included in the Borrowing Base, the Company shall have delivered an updated Borrowing Base Certificate after giving effect to such bulk sales and demonstrating pro forma compliance with Section 6.12; (n) (1) any U.S. Loan Party may Dispose of its property to another U.S. Loan Party, (2) any Canadian Loan Party may Dispose of its property to another Canadian Loan Party, (3) any Canadian Loan Party may Dispose of its property to a U.S. Loan Party, (4) any U.S. Loan Party may Dispose of its property to a Canadian Loan Party; provided that any Disposition in reliance on this clause (4) for less than Fair Market Value (as determined in good faith by the Company) shall be deemed an Investment and must be made in compliance with clause (1) of the definition of Permitted Investments, (5) any U.S. Loan Party may Dispose of its property to a Canadian Loan Party in the ordinary course of business, (6) any Restricted Subsidiary that is not a Loan Party may Dispose of its property to the Company or any other Restricted Subsidiary, (7) any Loan Party may Dispose of its property to a Restricted Subsidiary that is not a Loan Party; provided that any Disposition in reliance on this clause (7) for less than Fair Market Value (as determined in good faith by the Company) shall be deemed an Investment and must be made in compliance with clause (1) of the definition of Permitted Investments; provided, however, with respect a Disposition (in a single transaction or a series of related transactions) consisting of assets constituting Collateral of the type eligible to be included in the Borrowing Base that decreases the Borrowing Base by $3,437,500 or more (after giving effect thereto), the Borrower Representative shall have first delivered an updated Borrowing Base Certificate to the Administrative Agent giving pro forma effect to such Disposition and demonstrating pro forma compliance with Section 6.12; (o) Dispositions of any property (excluding Material Intellectual Property, Material Real Property, and Equity Interests of the IPCo JV) to the extent that (1) (x) such property is exchanged for credit against the purchase price of similar replacement property or (y) such Disposition represents an exchange of assets (including a combination of Cash Equivalents and assets) for assets related to a Similar Business of comparable or greater market value or usefulness to the business of the Company and the Restricted Subsidiaries as a whole, as determined in good faith by the Company or (z) such Disposition represents a swap of assets or lease, assignment or sublease of any real or personal property in exchange for services (including in connection with any outsourcing arrangements) or comparable or greater value or usefulness to the business of the Company and its Restricted Subsidiaries as a whole, as determined in good faith by the Company, or (2) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property; (p) Dispositions of assets which constitute Investments or Restricted Payments, in each case, not prohibited by Section 6.02; (q) Dispositions of property (other than Collateral of the type eligible to be included in the Borrowing Base, Material Intellectual Property, Equity Interests of the IPCo JV and Material Real Property) in connection with (i) Sale/Leaseback Transactions for fair value (as determined at the time of the consummation thereof in good faith by the applicable Loan Party or Restricted Subsidiary) so long as 106 11584747
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(x) 75% of the consideration received by such Loan Party or Restricted Subsidiary from such Sale/Leaseback Transaction is in the form of cash and (ii) any Sale/Leaseback Transactions between Excluded Subsidiaries; (r) Dispositions pursuant to any Permitted Wholesale A/R Financing of wholesale Accounts, proceeds of such accounts receivable and other assets which are customarily transferred in connection with the financing or securitization of accounts receivable, in each case, either for Fair Market Value (as determined in good faith by the Company) or for another price consistent with customary or market practice for the sale of accounts receivable in connection with the financing or securitization of accounts receivable (as determined in good faith by the Company); (s) Dispositions of assets or issuances of the Company or any Restricted Subsidiary or sale of Equity Interests of the Company or any Restricted Subsidiary which assets or Equity Interests so Disposed or issued, in any single transaction or related series of transactions, have a fair market value (as determined in good faith by the Company) of less than $6,875,000 per fiscal year; (t) Dispositions arising from foreclosure or any similar action with respect to any property or other asset of the Company or any of its Restricted Subsidiaries; (u) any Disposition of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary; (v) any Disposition of Equity Interests of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the Company or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), in each case following the date hereof, made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition; (w) Dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements; (x) to the extent constituting a Disposition, any surrender, expiration or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind; (y) Dispositions of real property, other than Material Real Property, (x) for the purpose of resolving minor title disputes or defects, including encroachments and lot line adjustments, (y) for the purpose of granting easements, rights of way or access and egress agreements; or (z) to any Governmental Authority in consideration of the grant, issuance, consent or approval of or to any development agreement, change of zoning or zoning variance, permit or authorization in connection with the conduct of any Loan Party’s business, in each case which does not materially interfere with the business conducted on such real property; and (z) any Disposition of assets (other than Eligible Inventory, Eligible In-Transit Inventory, Eligible LC Inventory, Eligible Consigned Inventory, Eligible Trade Accounts, Eligible Credit Card Accounts, Material Intellectual Property, Material Real Property, and Equity Interests of the IPCo JV) in the ordinary course of business to the extent replaced by substitute assets. Notwithstanding anything else set forth in this Section 6.04 to the contrary, no Disposition (other than a Disposition to another Loan Party) of any Material Intellectual Property, Material Real Property, 107 11584747
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made or deemed made (other than a representation, warranty, certification or statement qualified by materiality or reference to the absence of a Material Adverse Effect, in which event such representation, warranty, certification or statement shall prove to have been false or misleading in any respect); or (c) (i) any Loan Party shall fail to perform or observe any covenant contained in Section 5.01, 5.02(a), 5.03 (solely as to the existence of each Borrower), 5.07, 5.10, 5.11, 5.17, Article VI, Section 6(j) of the U.S. Security Agreement or Section 6(j) of the Canadian Security Agreement, (ii) any Loan Party shall fail to perform or observe any covenant contained in Section 5.02 (other than 5.02(a)), 5.05 or 5.15 if the failure to perform or observe such covenant shall continue unremedied for five (5) Business Days; and (iii) any Loan Party shall fail to perform or observe such other term, covenant or agreement contained in any other Section of this Agreement or any Loan Document on its part to be performed or observed if the failure to perform or observe such other term, covenant or agreement shall remain unremedied for 30 days after the earlier to occur of (x) the Administrative Agent’s (given at the request of any Lender) notifying a Responsible Officer of the Borrower Representative of such default, or (y) the obtaining of knowledge of such default by any Responsible Officer of any Loan Party; or (d) a default or breach shall occur under (i) any ABL Document or (ii) any other agreement, document or instrument to which any Loan Party is a party that is not cured within any applicable grace period therefor, and such default or breach (A) involves the failure to make any payment when due in respect of any Indebtedness (other than the Obligations) of any Loan Party in an aggregate amount of not less than $41,250,000, or (B) causes or permits any holder of such other Indebtedness or a trustee thereof, with the giving of notice, if required, to cause such Indebtedness or a portion thereof in excess of $41,250,000 in the aggregate outstanding principal amount to become due prior to its stated maturity, or cash collateral in respect thereof (in excess of $41,250,000) is demanded as a result of any such breach or default, in each case, regardless of whether such right is exercised, by such holder or trustee; provided that this clause (d)(ii)(B) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness; or (e) any Loan Party shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against any Loan Party seeking to adjudicate it bankrupt or insolvent, or seeking receivership, interim receivership, liquidation, winding up, reorganization, arrangement, adjustment, rescheduling, protection, relief, or composition, of it or its debts under any Insolvency Laws, or seeking the entry of an order for relief or the appointment of a receiver, interim receiver, monitor, trustee, custodian, sequestrator, conservator or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of sixty (60) days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, interim receiver, monitor, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or any Loan Party shall take any corporate action to authorize any of the actions set forth above in this subsection (e); or (f) one or more judgments or orders for the payment of money in excess of $37,500,000 in the aggregate shall be rendered against any Loan Party and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of forty-five (45) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; provided, however, that any such judgment or order shall not give rise to an Event of Default under this subsection (f) if and so long as (A) the amount of such judgment or order which remains unsatisfied is covered by a valid and binding policy of insurance between the respective Loan Party and a third-party insurer covering full payment of such 113 11584747
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unsatisfied amount and (B) such insurer has been notified, and has not disputed the claim made for payment, of the amount of such judgment or order; or (g) a Change in Control shall have occurred; or (h) any of the following events or conditions shall have occurred and such event or condition, when aggregated with any and all other such events or conditions set forth in this subsection (h), has resulted or is reasonably expected to result in liabilities of the Loan Parties and/or the ERISA Affiliates in an aggregate amount that would have a Material Adverse Effect: (i) any ERISA Event shall have occurred with respect to a Plan; or (ii) any of the Loan Parties or any of the ERISA Affiliates shall have been notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan; or (iii) any of the Loan Parties or any of the ERISA Affiliates shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent or is being terminated, within the meaning of Title IV of ERISA, or has been determined to be in “endangered” or “critical” status within the meaning of Section 432 of the Code or Section 305 of ERISA and, as a result of such insolvency, termination or determination, the aggregate annual contributions of the Loan Parties and the ERISA Affiliates to all of the Multiemployer Plans that are insolvent, being terminated or in endangered or critical status at such time have been or will be increased over the amounts contributed to such Multiemployer Plans for the plan years of such Multiemployer Plans immediately preceding the plan year in which such reorganization, insolvency or termination occurs; or (iv) any failure to satisfy the applicable minimum funding standards under Section 412(a) of the Code or Section 302(a) of ERISA, whether or not waived, shall exist with respect to one or more of the Plans; or (v) any Lien shall exist on the property and assets of any of the Loan Parties or any of the ERISA Affiliates in favor of the PBGC; (vi) a Canadian Pension Event shall have occurred; or (vii) any Lien arises (save for contribution amounts not yet due) in connection with any Canadian Pension Plans; or (i) (i) any provision of any Loan Document, at any time after its execution and delivery and for any reason, ceases to be in full force and effect (other than as a result of the gross negligence or willful misconduct of the Administrative Agent); or any Loan Party or any Affiliate thereof contests in writing the validity or enforceability of any provision of any Loan Document; or any Loan Party denies in writing that it has any or further liability or obligation under any provision of any Loan Document, or purports to revoke, terminate or rescind in writing any provision of any Loan Document or seeks to avoid or limit any Lien purported to be created under any Collateral Document; or (ii) any Lien purported to be created under any Collateral Document shall cease to be, or shall be asserted by any Loan Party or any Affiliate thereof not to be, a valid and perfected Lien on a material portion of the Collateral, with the priority required by the applicable Collateral Document (other than as a result of the gross negligence or willful misconduct of the Administrative Agent); or 114 11584747
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Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. SECTION 8.05 Actions through Sub-Agents. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Documents by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. SECTION 8.06 Resignation. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the Borrower Representative. Upon receipt of any such resignation, the Required Lenders shall have the right, in consultation with the Borrower Representative and with the consent of the Borrower Representative (unless an Event of Default shall have occurred and be continuing), to appoint a successor; provided, however, in no event shall any successor Administrative Agent be a Disqualified Institution without the prior written consent of the Borrower Representative. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by its successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor, unless otherwise agreed by the Borrowers and such successor. Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders and the Borrowers, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Collateral Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Collateral Document, including any action required to maintain the perfection of any such security interest) and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that until the time the Required Lenders appoint a successor Administrative Agent as provided herein, (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent 118 11584747
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(a) Except in the case of notices and other communications expressly permitted to be given by telephone or otherwise, all notices and other communications provided for herein shall be in writing and shall be delivered by Electronic Systems (and subject in each case to paragraph (b) below) or by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile, as follows: (i) if to any Loan Party, to the Borrower Representative at: Designer Brands Inc. 000 XXX Xxxxx Xxxxxxxx, Xxxx 00000 Attention: Xxxxx Xxxx, CFO Email: xxxxxxxxx@xxxxxxxxxxxxxx.xxx and Designer Brands Inc. 000 XXX Xxxxx Xxxxxxxx, Xxxx 00000 Attention: Xxxxxxxx Xxxxx, Esq., General Counsel Email: xxxxxxxxxxxxx@xxxxxx.xxx with a copy to (which shall not constitute notice): Xxxxx, Xxxxx, Xxxxxxx and Xxxxx LLP 00 X. Xxx Xxxxxx Xxxxxxxx, Xxxx 00000 Attention: Xxxx Xxxxxxx, Esq. Email: xxxxxxxxx@xxxxx.xxx (ii) if to the Administrative Agent at: PLC Agent LLC 000 Xxxxxxx Xxxxxx Xxxxx 00 Xxxxxx, XX 00000 Attention: Xxxxx Xxxxxx Email: xxxxxxx@xxxxxxxxxxxxxxxx.xxx with a copy to (which shall not constitute notice): Xxxxxx, Xxxx & Xxxxxxx LLP Two International Place Boston, MA 02110 Attention: Xxxx Xxxxx Email: xxxxxx@xxxxxx.xxx (iii) if to any other Lender, to it at its address or facsimile number set forth in its Administrative Questionnaire. 122 11584747
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All such notices and other communications (i) sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received, (ii) sent by facsimile shall be deemed to have been given when sent, provided that if not given during normal business hours of the recipient, such notice or communication shall be deemed to have been given at the opening of business on the next Business Day of the recipient, or (iii) delivered through Electronic Systems to the extent provided in paragraph (b) below shall be effective as provided in such paragraph. (b) Notices and other communications to the Lenders hereunder may be delivered or furnished by Electronic Systems pursuant to procedures approved by the Administrative Agent. Each of the Administrative Agent and the Borrower Representative (on behalf of the Loan Parties) may, in its discretion, agree to accept notices and other communications to it hereunder by Electronic Systems pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. In the case of notices from the Borrower Representative to the Administrative Agent, such acceptable and approved Electronic Systems include email to the Administrative Agent at the email addresses identified above or as otherwise designated in writing pursuant to Section 9.01(c) below. All such notices and other communications (i) sent to an email address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return email or other written acknowledgement), and (ii) posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its email address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day of the recipient. (c) Any party hereto may change its address, facsimile number or email address for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt. (d) Electronic Systems. (i) Each Loan Party agrees that the Administrative Agent may, but shall not be obligated to, make Communications (as defined below) available to the other Lenders by posting the Communications on Debt Domain, Intralinks, Syndtrak, ClearPar or a substantially similar Electronic System. (ii) Any Electronic System used by the Administrative Agent is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of such Electronic Systems and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third- party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or any Electronic System. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrowers or the other Loan Parties, any Lender or any other Person or entity for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Borrower’s, any Loan Party’s or the Administrative Agent’s transmission of communications through an Electronic System (other than for direct or actual damages resulting from the gross negligence, bad faith or willful misconduct of, or the material breach of the Loan Documents by, such Person, in each case, as determined by a final 123 11584747
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(vii) change Section 2.20, without the consent of each Lender (other than any Defaulting Lender), (viii) release any Borrower from the Obligations or Loan Party from its obligation under its Loan Guaranty (except as otherwise permitted herein or in the other Loan Documents), without the written consent of each Lender (other than any Defaulting Lender), (ix) except as provided in clause (c) of this Section or in any Collateral Document, release all or substantially all of the Collateral, without the written consent of each Lender (other than any Defaulting Lender), or (x) except as expressly permitted herein or in any other Loan Document, subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be without the written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder without the prior written consent of the Administrative Agent (it being understood that any amendment to Section 2.20 shall require the consent of the Administrative Agent). The Administrative Agent may also amend the Commitment Schedule to reflect assignments entered into pursuant to Section 9.04, and this Agreement may be amended without any additional consents in connection with a Successor Rate in the manner contemplated by Section 2.14. Additionally, without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law or this Agreement or in each case to otherwise enhance the rights or benefits of any Lender under any Loan Document. Notwithstanding the foregoing, the Fee Letter and any other fee letters entered into after the date hereof may be amended in accordance with the terms thereof. (c) The Secured Parties hereby irrevocably authorize the Administrative Agent, without further consent by the Secured Parties, (i) to release any Liens granted to the Administrative Agent by the Loan Parties on any Collateral (A) upon the termination of all the Commitments, payment and satisfaction in full in cash of all Obligations (other than Unliquidated Obligations), (B) constituting property being sold or disposed of to a Person that is not (and is not required to become) a Loan Party in a transaction permitted by this Agreement (and the Administrative Agent may rely conclusively on any certificate to that effect, without further inquiry), and, to the extent that the property being sold or disposed of constitutes 100% of the Equity Interest of a Subsidiary, the Administrative Agent is authorized to release any Loan Guaranty provided by such Subsidiary, (C) constituting property leased to a Loan Party under a lease which has expired or been terminated in a transaction not prohibited under this Agreement, (D) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII, (E) constituting property of a Loan Party that is being released as a Loan Party as provided below, and (F) constituting property which is or becomes an Excluded Asset, and (ii) to release any Loan Guaranty provided by any Loan Party (A) that is dissolved as permitted under Section 6.08 in connection with a voluntary liquidation or dissolution thereof permitted by such Section, (B) upon the disposition of all of the outstanding Equity Interests of a Subsidiary of the Company (other than the Canadian Borrower) to a Person other than a Borrower or a Subsidiary in a transaction permitted by Section 6.05 (and the Administrative Agent may rely conclusively on any such certificate to that effect provided by any Loan Party without further inquiry), or (C) that becomes an Excluded Subsidiary (and the Administrative Agent may rely conclusively on any such certificate to that effect provided by any Loan Party without further inquiry). Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. In connection with the foregoing, the Lenders the other Secured Parties hereby authorize the Administrative Agent to execute and deliver any instruments, 125 11584747
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any Lender, in connection with the enforcement, collection or protection of its rights in connection with the Loan Documents, including its rights under this Section, or in connection with the Loans made hereunder, including all such reasonable and documented out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans (in each case limited to one primary law firm in the U.S., one primary law firm in Canada, and one law firm in any other relevant jurisdiction, except in the case of actual or perceived conflicts of interest, in which case, such additional counsel for the affected persons). Subject to Section 5.07, such reasonable and documented out-of-pocket expenses being reimbursed by the Loan Parties under this Section may include, without limiting the generality of the foregoing, fees, costs and expenses incurred in connection with: (i) appraisals and insurance reviews; (ii) field examinations and the preparation of Reports based on the fees charged by a third party retained by the Administrative Agent or the reasonable and documented internally allocated fees for each Person employed by the Administrative Agent with respect to each field examination; (iii) fees and other charges for (A) lien and title searches and title insurance and (B) recording Mortgages (if applicable), filing financing statements and continuations, and other actions to perfect, protect, and continue the Administrative Agent’s Liens; (iv) sums paid or incurred to take any action required of any Loan Party under the Loan Documents that such Loan Party fails to pay or take; and (v) forwarding loan proceeds, collecting checks and other items of payment, and establishing and maintaining the accounts and lock boxes, and costs and expenses of preserving and protecting the Collateral. All of the foregoing fees, costs and expenses may be charged to the Borrowers as Loans or to another deposit account, all as described in Section 2.18(c). (b) The Loan Parties, subject to Section 9.20, shall, jointly and severally, indemnify the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable and documented fees, charges and disbursements of any outside counsel for any Indemnitee (in each case limited to one primary law firm in the U.S., one primary law firm in Canada, and one law firm in any other relevant jurisdiction, except in the case of actual or perceived conflicts of interest, in which case, such additional counsel for the affected persons), incurred by any Indemnitee or asserted against any Indemnitee by any Person arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement and the other Loan Documents or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby, (ii) any Loan or the use of the proceeds therefrom, (iii) any actual or alleged presence or Release of Hazardous Materials on or from any property owned or operated by a Loan Party or a Subsidiary, or any Environmental Liability related in any way to a Loan Party or a Subsidiary, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not such claim, litigation, investigation or proceeding is brought by the Loan Parties or their respective equity holders, Affiliates, creditors or any other third Person and whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or 127 11584747
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successors and assigns permitted hereby, Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Persons (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (in each case, such consent not to be unreasonably withheld, conditioned or delayed) of: (A) the Borrower Representative, provided that the Borrower Representative shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within 10 Business Days after having received notice thereof, and provided further that no consent of the Borrower Representative shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default has occurred and is continuing, any other assignee; and (B) the Administrative Agent shall be required for assignments in respect of the Loan if such assignment is to a Person that is not a Lender with a Commitment in respect of such Loan, an Affiliate of such Lender or an Approved Fund with respect to such Lender. (ii) Assignments shall be subject to the following additional conditions: (A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Xxxxxx’s Commitment or Loans, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower Representative and the Administrative Agent otherwise consent, provided that no such consent of the Borrower Representative shall be required if an Event of Default has occurred and is continuing; (B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement (including on a pro rata basis with respect to U.S. Term Loans, Canadian Term Loans, U.S. Delay Draw Commitments and Canadian Delay Draw Commitments); (C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 and the tax forms required by Section 2.17(f); and (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent all “know your customer” documents requested by the Administrative Agent pursuant to anti-money laundering rules and regulations, and an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Company, the other Loan Parties and their Related 129 11584747
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Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws. For the purposes of this Section 9.04(b), the terms “Approved Fund” and “Ineligible Institution” have the following meanings: “Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. “Ineligible Institution” means a (a) natural person, (b) Defaulting Lender, (c) holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof; provided that, such holding company, investment vehicle or trust shall not constitute an Ineligible Institution if it (x) has not been established for the primary purpose of acquiring any Loans or Commitments, (y) is managed by a professional advisor, who is not such natural person or a relative thereof, having significant experience in the business of making or purchasing commercial loans, and (z) has assets greater than $25,000,000 and a significant part of its activities consist of making or purchasing commercial loans and similar extensions of credit in the ordinary course of its business, (d) a Loan Party or a Subsidiary or other Affiliate of a Loan Party, or (e) subject to Section 9.04(e) below, a Disqualified Institution. (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any part hereunder arising from that Xxxxxx’s having been a Defaulting Lender). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section. (iv) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrowers, shall maintain at one of its U.S. offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of and stated interest on the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior written notice. 130 11584747
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(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to Section 2.07(b), 2.18(d) or 9.03(c), the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph. (c) Any Lender may, without the consent of the Borrowers, the Administrative Agent, sell participations to one or more banks or other entities (a “Participant”) other than an Ineligible Institution in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged; (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and (C) the Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Xxxxxx’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 9.02(b) that affects such Participant. The Borrowers agree that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 (subject to the requirements and limitations therein, including the requirements under Section 2.17(f) and (g) (it being understood that the documentation required under Section 2.17(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 2.18 and 2.19 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 2.15 or 2.17, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.19(b) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.18(c) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts of (and stated interest on) each Participant’s interest in the Loans or other obligations under this Agreement or any other Loan Document (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such 131 11584747
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participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (d) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. (e) Without limiting the foregoing, with respect to Disqualified Institutions: (i) No assignment or participation shall be made to any Person that was a Disqualified Institution as of the date (the “Trade Date”) on which the assigning Lender entered into a binding agreement to sell and assign all or a portion of its rights and obligations under this Agreement to such Person (unless the Company has consented to such assignment in writing in its sole and absolute discretion, in which case such Person will not be considered a Disqualified Institution for the purpose of such assignment or participation). For the avoidance of doubt, with respect to any assignee that becomes a Disqualified Institution after the applicable Trade Date (including as a result of the delivery of a notice pursuant to, and/or the expiration of the notice period referred to in, the definition of “Disqualified Institution”), (x) such assignee shall not retroactively be disqualified from becoming a Lender and (y) the execution by the Borrowers of an Assignment and Assumption with respect to such assignee will not by itself result in such assignee no longer being considered a Disqualified Institution. Any assignment in violation of this Section 9.04(e) shall not be void, but the other provisions of this Section 9.04(e) shall apply. (ii) If any assignment or participation is made to any Disqualified Institution without the Company’s prior written consent in violation of clause (i) above, or if any Person becomes a Disqualified Institution after the applicable Trade Date, the Borrowers may, at their sole expense and effort, upon notice to the applicable Disqualified Institution and the Administrative Agent, (A) terminate any Commitment of such Disqualified Institution and repay all obligations of the Borrowers owing to such Disqualified Institution in connection with such Commitment, and/or (B) require such Disqualified Institution to assign, without recourse (in accordance with and subject to the restrictions contained in this Section 9.04), all of its interest, rights and obligations under this Agreement to one or more assignees permitted under this Section 9.04 at the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Institution paid to acquire such interests, rights and obligations, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder. (iii) Notwithstanding anything to the contrary contained in this Agreement, Disqualified Institutions (A) will not (x) have the right to receive information, reports or other materials provided to the Lenders by the Borrowers, the Administrative Agent or any other Lender, (y) attend or participate in meetings attended by the Lenders and the Administrative Agent, or (z) access any electronic site established for the Lenders or confidential communications from counsel to or financial advisors of the Administrative Agent or the Lenders and (B) (x) for purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) under this Agreement or any other Loan Document, each Disqualified Institution will be deemed to have consented in the same proportion as the Lenders that are not Disqualified Institutions consented to such matter, and (y) 132 11584747
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obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Loan Parties and their obligations, (g) to any rating agency when required by it, provided that, prior to any disclosure, such rating agency shall undertake in writing to preserve the confidentiality of any Information relating to the Loan Parties received by it from any of the Administrative Agent or any Lender, (h) to any Lender's financing sources, provided that prior to any disclosure, such financing source is informed of the confidential nature of the information and instructed to keep such Information confidential, (i) to any current or prospective investors, members and partners of the Administrative Agent, any Lender or their Affiliates, provided that prior to any disclosure, such investor or partner is informed of the confidential nature of the information and instructed to keep such Information confidential, (j) with the consent of the Borrower Representative or (k) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent or any Lender on a non-confidential basis from a source other than any Loan Party and, as far as such recipient is aware, has not been made available as a result of a breach of any obligation of confidentiality of such source with respect to such information; provided that, in the case of clause (c), the party disclosing such information shall provide to the Borrower Representative prior written notice (except where prohibited by applicable law or where not reasonably commercially practicable, in which case, prompt written notice shall be provided) of such disclosure to the extent permitted by applicable law and, in the case of a subpoena, the applicable Governmental Authority has not otherwise requested that the disclosing party refrain from disclosing to the Borrower Representative the existence of such subpoena and, in each case, such disclosing party shall cooperate with the Borrower Representative to the extent commercially reasonable with respect to a protective order for, or other confidential treatment of, such disclosure. For the purposes of this Section, “Information” means all information received from the Loan Parties relating to the Loan Parties or their business, other than any such information that is available to the Administrative Agent or any Lender on a non-confidential basis prior to disclosure by the Loan Parties under circumstances in which, as far as such recipient is aware, such information has not been made available as a result of a breach of any obligation of confidentiality of such source with respect to such information. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12 FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE COMPANY, AND ITS AFFILIATES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS. ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE LOAN PARTIES OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE COMPANY, THE LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE LOAN PARTIES AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS. 136 11584747
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(Signature Pages Follow) 150 11584747
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. U.S. BORROWER: DESIGNER BRANDS INC. By: Name: Xxxxx X. Xxxx Title: Executive Vice President, Chief Financial Officer and Chief Administrative Officer CANADIAN BORROWER: DESIGNER BRANDS CANADA INC. By: Name: Xxxxx X. Xxxx Title: Executive Vice President [Signature Page to Term Credit Agreement]
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OTHER LOAN PARTIES: DSW SHOE WAREHOUSE, INC. By: Name: Xxxxx X. Xxxx Title: Executive Vice President BRAND CARD SERVICES LLC By: Name: Xxxxx X. Xxxx Title: Executive Vice President DSW INFORMATION TECHNOLOGY LLC By: Name: Xxxxx X. Xxxx Title: Executive Vice President ETAILDIRECT LLC By: Name: Xxxxx X. Xxxx Title: Executive Vice President [Signature Page to Term Credit Agreement]
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EBUYS, INC. By: Name: Xxxxx X. Xxxx Title: Executive Vice President DSW MS LLC By: Name: Xxxxx X. Xxxx Title: Executive Vice President DSW LEASED BUSINESS DIVISION LLC AKA AFFILIATED BUSINESS GROUP By: Name: Xxxxx X. Xxxx Title: Executive Vice President 810 AC LLC By: Name: Xxxxx X. Xxxx Title: Executive Vice President RETAIL VENTURES SERVICES, INC. By: Name: Xxxxx X. Xxxx Title: Executive Vice President [Signature Page to Term Credit Agreement]
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CAMUTO LLC By: Name: Xxxxx X. Xxxx Title: Executive Vice President DESIGNER BRAND LICENSING LLC By: Name: Xxxxx X. Xxxx Title: Executive Vice President VCJS LLC By: Name: Xxxxx X. Xxxx Title: Executive Vice President VCS GROUP, LLC By: Name: Xxxxx X. Xxxx Title: Executive Vice President XXXXXXX XXXXXX LLC By: Name: Xxxxx X. Xxxx Title: Executive Vice President [Signature Page to Term Credit Agreement]
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CCI OPERATIONS LLC By: Name: Xxxxx X. Xxxx Title: Executive Vice President VC FOOTWEAR LLC By: Name: Xxxxx X. Xxxx Title: Executive Vice President VC LINE BUILDING SERVICES LLC By: Name: Xxxxx X. Xxxx Title: Executive Vice President HOT ON TIME LLC By: Name: Xxxxx X. Xxxx Title: Executive Vice President SOLE SOCIETY GROUP INC. By: Name: Xxxxx X. Xxxx Title: Executive Vice President [Signature Page to Term Credit Agreement]
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TOPO ATHLETIC LLC By: Name: Xxxxx X. Xxxx Title: Executive Vice President, Interim CFO DESIGNER BRANDS PARTNERS LLC By: Name: Xxxxx X. Xxxx Title: Executive Vice President DBI BRANDS MANAGEMENT LLC By: Name: Xxxxx X. Xxxx Title: Executive Vice President DBI TRADE CO., LLC By: Name: Xxxxx Xxxxxx Title: Senior Director – Global Compliance [Signature Page to Term Credit Agreement]
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[Signature Page to Term Credit Agreement]
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PLC AGENT LLC, as Administrative Agent By: Pathlight Capital LP, Its Sole Member By: Pathlight GP LLC, Its General Partner By: Name: Xxxxx Xxxxxx Title: Managing Director PATHLIGHT CAPITAL FUND II LP, as a Lender By: Pathlight Partners II GP, LLC, Its General Partner By: Name: Xxxxx Xxxxxx Title: Managing Director PATHLIGHT CAPITAL FUND III LP, as a Lender By: Pathlight Partners III GP LLC, Its General Partner By: Name: Xxxxx Xxxxxx Title: Managing Director [Signature Page to Term Credit Agreement]
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PATHLIGHT CAPITAL EVERGREEN FUND LP, as a Lender By: Pathlight Partners Evergreen GP LLC, Its General Partner By: Name: Xxxxx Xxxxxx Title: Managing Director [Signature Page to Term Credit Agreement]
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Standard Deleted cell #11584747v1<Exchange> - DBI // Pathlight - Conformed Credit Agreement Moved cell Legend: Split/Merged cell Insertion Document comparison by Workshare Compare on Thursday, September 21, 2023 3:29:29 PM Padding cell Document 2 ID Deletion Statistics: Document 1 ID iManage://IMANAGE/Exchange/11584747/4 Count Moved from Insertions 12 Moved to Deletions iManage://IMANAGE/Exchange/11584747/1 6 Description Moved from Style change 0 Moved to #11584747v4<Exchange> - DBI // Pathlight - Term Credit Agreement (Conformed through First Amendment) 0 Format change Style changes 0 Moved deletion Format changes Input: 0 Rendering set Total changes Inserted cell 18 Description
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