EX-10.1 2 gco-ex101_35.htm EX-10.1 gco-ex101_35.htm

 

Exhibit 10.1

 

EXECUTION VERSION

 

SECOND AMENDMENT TO

FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

 

SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Second Amendment”) dated as of June 5, 2020 between:

GENESCO INC., a Tennessee corporation (the “Lead Borrower”),

GCO CANADA INC., a Canadian corporation, as the Canadian Borrower (the “Canadian Borrower”),

GENESCO (UK) LIMITED, a company incorporated in England and Wales with company number 07667223, as the UK Borrower (the “UK Borrower”)

the Other Domestic Borrowers party hereto (together with the Lead Borrower, the Canadian Borrower and the UK Borrower, the “Borrowers”),

the Lenders party hereto, and

BANK OF AMERICA, N.A., as 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, the Borrowers, the Lenders and the Agent have entered into a certain Fourth Amended and Restated Credit Agreement dated as of January 31, 2018, as amended by that certain First Amendment to Fourth Amended and Restated Credit Agreement dated as of February 1, 2019 (as amended, restated, supplemented or otherwise modified, the “Existing Credit Agreement”), and as further amended by this Second Amendment (the “Credit Agreement”); and

 

WHEREAS, the Borrowers have requested, among other things, that the Agent and the Lenders agree to (a) an increase to the Total Revolving Commitments in an amount equal to $57,500,000 pursuant to Section 2.1(c) of the Existing Credit Agreement (“Commitment Increase”), (b) the FILO Lenders making the FILO Loans to the Borrowers pursuant to this Second Amendment and (c) amend certain other provisions of the Existing Credit Agreement, in each case, subject to the terms and conditions hereof; and

 

 

WHEREAS, the Borrowers, the Lenders and the Agent have agreed to amend the Existing Credit Agreement on the terms and conditions set forth herein.

 

NOW THEREFORE, in consideration of the mutual promises and agreements herein contained, the parties hereto hereby agree as follows:

 

 


 

1.

Incorporation of Terms and Conditions of Credit Agreement.   All of the terms and conditions of the Credit Agreement (including, without limitation, all definitions set forth therein) are specifically incorporated herein by reference (except as amended hereby).  All capitalized terms not otherwise defined herein shall have the same meaning as in the Credit Agreement.

2.

Representations and Warranties.  Each Credit Party hereby represents and warrants that after giving effect to this Second Amendment, (i) no Default or Event of Default exists under the Credit Agreement or under any other Loan Document, and (ii) all representations and warranties contained in Section 3 of the Credit Agreement and in the other Loan Documents are true and correct in all material respects (except in the case of any representation and warranty qualified by materiality, which is true and correct in all respects) as of the date hereof, except (a) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (except in the case of any representation and warranty qualified by materiality, which is true and correct in all respects) as of such earlier date and (b) representations and warranties that have become untrue or incorrect solely because of changes reflected by the terms of this Second Amendment provided that the temporary closure of the Credit Parties’ store locations and other operational disruptions affecting the Credit Parties and actions taken by the Credit Parties, in each case on or before the Second Amendment Effective Date as a result of the COVID-19 pandemic and disclosed to the Agent or in public filings on or before the Second Amendment Effective Date, shall not be deemed to have caused a Material Adverse Effect and shall not be deemed a violation of the any representation, warranty or covenants in the Existing Credit Agreement as of the Second Amendment Effective Date.

3.

Ratification of Loan Documents.  The Credit Agreement, as hereby amended, and all other Loan Documents, are hereby ratified and re-affirmed in all respects and shall continue in full force and effect.

4.

Amendments to Credit Agreement.  The provisions of the Credit Agreement are hereby amended as follows:

 

a.

Credit Agreement.  The Existing Credit Agreement is hereby amended to delete the bold, stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold, double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Credit Agreement attached as Annex A hereto.

 

b.

Exhibits to Credit Agreement.  Exhibit D (Form of Borrowing Base Certificate), Exhibit H-1 (Form of Domestic Notice of Borrowing); Exhibit H-2 (Form of Canadian Notice of Borrowing); and Exhibit H-3 (Form of UK Notice of Borrowing) are hereby deleted in their entirety and a new Exhibit D, Exhibit E, Exhibit H-1, Exhibit H-2, and Exhibit H-3 are substituted in its stead and a new Exhibit B-7 (Form of FILO Note) is attached hereto as Annex B.

 


 

 

c.

Schedules to Credit Agreement.  Each of the schedules to the Existing Credit Agreement are hereby deleted in their entirety and substituted in its stead updated schedules attached hereto as Annex C.  

5.

Joinder of FILO Lenders; Acknowledgments of FILO Lenders.

 

a.

Each FILO Lender, by its signature below, confirms that it has agreed to become a “Lender” and a “FILO Lender” under, and as defined in, the Credit Agreement holding FILO Loans in the amount set forth opposite such FILO Lender’s name on Schedule 1.1 attached hereto under the heading “FILO Commitment”, effective on the Second Amendment Effective Date.  Each FILO Lender (i) acknowledges that in connection with it becoming a Lender and a FILO Lender it has received a copy of the Credit Agreement (including all schedules and exhibits thereto), together with copies of the most recent financial statements delivered by the Domestic Borrowers pursuant to the Existing Credit Agreement, and such other documents and information as it has deemed appropriate to make its own credit and legal analysis and decision to become a Lender and a FILO Lender; and (ii) agrees that, upon it becoming a Lender and a FILO Lender on the Second Amendment Effective Date, it will, independently and without reliance upon the Agent, or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit and legal decisions in taking or not taking action under the Credit Agreement.  In addition, each FILO Lender represents and warrants that (x) it is duly organized and existing and it has full power and authority to take, and has taken, all action necessary to execute and deliver this Second Amendment and to consummate the transactions contemplated hereby and to become a Lender and a FILO Lender on the Second Amendment Effective Date and (y) no notices to, or consents, authorizations or approvals of, any Person are required (other than any already given or obtained) for its due execution and delivery of this Second Amendment or the performance of its obligations hereunder or as a Lender or a FILO Lender under the Credit Agreement as of the date hereof.  Each FILO Lender acknowledges and agrees that, on the Second Amendment Effective Date, such FILO Lender shall become a Lender and a FILO Lender and, from and after such date such FILO Lender will be bound by the terms of the Credit Agreement.

 

b.

Each FILO Lender acknowledges that it has had the opportunity to request and has received such documents and information as it has deemed material or desirable or otherwise appropriate in making its evaluation and credit analysis of the Domestic Borrowers and the other Credit Parties and its decision to become a FILO Lender and make a FILO Loan to the Domestic Borrowers.  Each FILO Lender has carefully reviewed such documents and information and, independently and without reliance upon the Agent, performed its own investigation and credit analysis of the FILO Loans, this Second Amendment and the transactions contemplated hereby and the creditworthiness of the Domestic Borrowers and the other Credit Parties.  Each FILO Lender acknowledges that Agent’s and its Affiliates’ activities in connection with the FILO Loans, this Second Amendment

 


 

 

and the transactions contemplated hereby are undertaken by the Agent or such Affiliates as a principal on an arm’s-length basis and neither the Agent nor any of its Affiliates has any fiduciary, advisory or similar responsibilities in favor of such FILO Lender in connection with the FILO Loans, this Second Amendment or the transactions contemplated hereby or the process related thereto.  Each of the FILO Lenders hereby waives and releases, to the fullest extent permitted by law, any claims that it may have against the Agent or any of its Affiliates with respect to any breach or alleged breach of agency or fiduciary duty.  In connection with all aspects of each transaction contemplated hereby, each FILO Lender acknowledges and agrees that: (i) the Agent and its Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of such FILO Lender and its Affiliates, and neither the Agent nor any of its Affiliates has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship, (ii) neither the Agent has provided and will provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby and such FILO Lender has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, (iii) neither Agent nor any of its Affiliates bears any responsibility (or shall be liable) for the accuracy or completeness (or lack thereof) of any documents or information provided to such FILO Lender in connection with the FILO Loans, this Second Amendment and the transactions contemplated hereby; no representation regarding any such documents or information is made by the Agent or any of its Affiliates; neither the Agent nor any of its Affiliates has made any independent verification as to the accuracy or completeness of any such documents or information; and the Agent and its Affiliates shall have no obligation to update or supplement any such documents or information or otherwise provide additional information.  In connection with the transactions contemplated hereby, including its decision to become a FILO Lender and to make a FILO Loan to the Domestic Borrowers, each FILO Lender acknowledges and agrees that it is not relying upon any representations or warranties made by the Agent or any of its Affiliates or, except as expressly set forth in this Second Amendment and the other Loan Documents, any other Person

 


 

6.

Conditions to Effectiveness.  

 

a.

This Second Amendment shall be effective upon the fulfillment of each of the following conditions precedent to the satisfaction of the Agent:

 

(i)

The Agent shall have received each of the following, each of which shall be originals, telecopies, other electronic image scan transmission (e.g., “pdf” or “tif” via electronic mail), subject to Section 9.8 of the Credit Agreement (followed promptly by originals) unless otherwise specified or permitted by the Credit Agreement, and in form and substance reasonably satisfactory to the Agent:

 

a.

This Second Amendment shall have been duly executed and delivered by the Credit Parties, the FILO Lenders, and the Required Supermajority Lenders party hereto.  

 

b.

A Domestic Note, or an amended and restated Domestic Note, as applicable, executed by the Domestic Borrowers in favor of each Lender requesting a Domestic Note not later than one (1) Business Day prior to the Second Amendment Effective Date and reflecting the Revolving Domestic Commitment of such Lender after giving effect to this Second Amendment.

 

c.

A FILO Note, executed by the Domestic Borrowers in favor of each FILO Lender requesting a FILO Note not later than one (1) Business Day prior to the Second Amendment Effective Date and reflecting the FILO Commitment of such FILO Lender after giving effect to this Second Amendment.

 

d.

A Borrowing Base Certificate dated as of the Second Amendment Effective Date, executed by a Financial Officer of the Lead Borrower, relating to the fiscal month ending May 2, 2020. The Excess Availability under the Credit Agreement on the Second Amendment Effective Date, after giving effect to any funding under the Credit Agreement, shall be equal to or greater than $50,000,000 based on the Borrowing Base Certificate dated as of the Second Amendment Effective Date.

 

e.

The Fifth Amended and Restated Security Agreement, executed by the Credit Parties and the Agent.

 

f.

The Intellectual Property Security Agreement executed by the applicable Credit Parties and the Agent.

 


 

 

g.

Such certificates of resolutions or other action, incumbency certificates and/or other certificates of Financial Officers of each Credit Party as the Agent may require evidencing (A) the authority of each Credit Party to enter into this Second Amendment and the other Loan Documents to which such Credit Party is a party or is to become a party and (B) the identity, authority and capacity of each Financial Officer thereof authorized to act as a Financial Officer in connection with this Second Amendment and the other Loan Documents to which such Credit Party is a party or is to become a party, and attaching copies of each Credit Party’s organization documents and such other documents and certifications as the Agent may reasonably require to evidence that each Credit Party is duly organized or formed, and that each Credit Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of formation.

 

h.

A certificate from a Financial Officer of the Lead Borrower, together with such other evidence reasonably requested by the Agent, in each case reasonably satisfactory in form and substance to the Agent, certifying that as of the Second Amendment Effective Date (i) the Credit Parties, on a Consolidated basis, are Solvent, (ii) there has been no event or circumstance since February 1, 2020 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, provided that the temporary closure of the Credit Parties’ store locations and other operational disruptions affecting the Credit Parties and actions taken by the Credit Parties, in each case on or before the Second Amendment Effective Date as a result of the COVID-19 pandemic and disclosed to the Agent or in public filings on or before the Second Amendment Effective Date, shall not be deemed to have caused a Material Adverse Effect, and (iii) the representations and warranties made by the Borrowers in Section 2 above are true and correct in all material respects and that no event has occurred (or failed to occur) which is or which, solely with the giving of notice or passage of time (or both) would be a Default or an Event of Default.

 

i.

All governmental consents and approvals, and all third party consents required for the Borrowers to consummate the Second Amendment and the transactions and financings contemplated herein shall have been obtained by the Borrowers. The Agent and the Lenders shall have received all documentation and other information reasonably requested by them that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act.

 


 

 

(ii)

The Agent shall have received a favorable opinion of (i) Bass Berry & Sims PLC and (ii) Hodgson Russ LLP, counsel to the Credit Parties, in form reasonably satisfactory to the Agent, covering such matters relating to the Credit Parties, the Second Amendment, the other Loan Documents and the transactions contemplated thereby as the Agent and Required Supermajority Lenders shall reasonably request.

 

(iii)

The Agent shall have received and be reasonably satisfied with (x) detailed financial projections and business assumptions for the Borrowers and their subsidiaries (i) on a month-to-month basis for the fiscal year ending January 30, 2021 and (ii) on an annual basis for the fiscal year ending January 29, 2022, including a consolidated income statement, profit and loss statement, balance sheet and statement of cash flow and (y) a projection of availability for at least the ten (10) months following the Second Amendment Effective Date.

 

(iv)

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

 

(v)

All documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Agent.

 

(vi)

All action on the part of the Credit Parties necessary for the valid execution, delivery and performance by the Credit Parties of this Second Amendment shall have been duly and effectively taken.

 

(vii)

All fees payable pursuant to the Second Amendment Fee Letter that are due and payable on the date hereof shall have been paid in full by the Borrowers in accordance with the terms thereof.

 

(viii)

After giving effect to this Second Amendment, no Default or Event of Default shall have occurred and be continuing.

 


 

7.

Post-Closing Covenants.  Within forty-five (45) days (or such longer period as agreed by the Agent in its reasonable discretion) following the Second Amendment Effective Date, the Borrowers (i) shall deliver to Agent, the Account Control Agreements required to be delivered pursuant to the Credit Agreement, and (ii) shall endeavor to amend and restate the Account Control Agreements in effect prior to the Second Amendment Effective Date.

8.

Binding Effect.  The terms and provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their heirs, representatives, successors and assigns.

9.

Expenses.  The Credit Parties shall reimburse the Agent for all expenses incurred in connection herewith, including, without limitation, reasonable attorneys’ fees to the extent provided in the Credit Agreement.

10.

Multiple Counterparts.   This Second Amendment may be executed in multiple counterparts, each of which shall constitute an original and together which shall constitute but one and the same instrument.

11.

Governing Law.  THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


 

IN WITNESS WHEREOF, this Second Amendment has been duly executed and delivered by each of the parties hereto as a sealed instrument as of the date first above written.

 

DOMESTIC BORROWERS:

 

GENESCO INC.

as Lead Borrower

 

 

 

 

 

 

By

 

/s/ Mimi E. Vaughn

Name: Mimi E. Vaughn

Title: Chief Executive Officer and President

 

GENESCO BRANDS, LLC

as a Domestic Borrower

 

 

 

 

 

 

By

 

/s/ Mimi E. Vaughn

Name: Mimi E. Vaughn

Title: Chief Executive Officer and President

 

HAT WORLD CORPORATION

as a Domestic Borrower

 

 

 

 

 

 

By

 

/s/ Mimi E. Vaughn

Name: Mimi E. Vaughn

Title: Chief Executive Officer and President

 

FLAGG BROS. OF PUERTO RICO, INC.

as a Domestic Borrower

 

 

 

 

 

 

By

 

/s/ Mimi E. Vaughn

Name: Mimi E. Vaughn

Title: Chief Executive Officer and President

 

 


 


 

 

DOMESTIC BORROWERS CONTINUED:

 

GENESCO BRANDS NY, LLC

as a Domestic Borrower

 

 

 

 

 

 

By

 

/s/ Mimi E. Vaughn

Name: Mimi E. Vaughn

Title: President

 

 

GENESCO FOOTWEAR LLC,

as a Domestic Borrower

 

By: Genesco Services LLC, its sole member

 

 

 

 

 

 

By

 

/s/ Matthew N. Johnson

Name: Matthew N. Johnson

Title: Treasurer

 

 

 

 


 

 

CANADIAN BORROWER:

 

GCO CANADA INC.

as Canadian Borrower

 

 

 

 

 

 

By

 

/s/ Mimi E. Vaughn

Name: Mimi E. Vaughn

Title: Chief Executive Officer and President

 

 

UK BORROWER:

 

GENESCO (UK) LIMITED,

as UK Borrower

 

 

 

 

 

 

By

 

/s/ Mimi E. Vaughn

Name: Mimi E. Vaughn

Title: Director

 

 


 


 

 

BANK OF AMERICA, N.A., as Agent, a Revolving Domestic Lender, a FILO Lender, and a UK Lender

 

 

 

By:

 

/s/ Matthew Potter

Name:

 

Matthew Potter

Title:

 

Senior Vice President

 


 


 

 

BANK OF AMERICA, N.A. (ACTING THROUGH ITS CANADA BRANCH), as a Canadian Lender

 

 

 

By:

 

/s/ Sylwia Durkiewicz

Name:

 

Sylwia Durkiewicz

Title:

 

Vice President

 

 

 


 

 

TRUIST BANK, as a Revolving Domestic Lender, a FILO Lender, a Canadian Lender and a UK Lender

 

 

 

By:

 

/s/ Stephen D. Metts

Name:

 

Stephen D. Metts

Title:

 

Director

 

 

 


 

 

U.S. BANK NATIONAL ASSOCIATION, as a Revolving Domestic Lender, and a UK Lender

 

 

 

By:

 

/s/ William Patton

Name:

 

William Patton

Title:

 

Vice President

 

 

 


 

 

U.S. BANK NATIONAL ASSOCIATION CANADA BRANCH, as a Canadian Lender

 

 

 

By:

 

/s/ John P. Rehob

Name:

 

John P. Rehob

Title:

 

Vice President & Principal Officer

 

 

 


 

 

PNC BANK, NATIONAL ASSOCIATION, as a Revolving Domestic Lender and a UK Lender

 

 

 

By:

 

/s/ Heath J. Hayes

Name:

 

Heath J. Hayes

Title:

 

Vice President

 

 

 


 

 

PNC BANK CANADA BRANCH, as a Canadian Lender

 

 

 

By:

 

/s/ David D’Cruz

Name:

 

David D’Cruz

Title:

 

Vice President

 

 

 


 

 

JPMORGAN CHASE BANK, N.A., as a Revolving Domestic Lender

 

 

 

By:

 

/s/ Philip VanFossan

Name:

 

Philip VanFossan

Title:

 

Executive Director

 

 

 


 

 

JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as a Canadian Lender

 

 

 

By:

 

/s/ Auggie Marchetti

Name:

 

Auggie Marchetti

Title:

 

Authorized Officer

 

 

 


 

 

JPMORGAN CHASE BANK, N.A. LONDON BRANCH, as a UK Lender

 

 

 

By:

 

/s/ Kennedy Capin

Name:

 

Kennedy Capin

Title:

 

Executive Director

 

 

 


 

 

CITIBANK, N.A., as a Revolving Domestic Lender, a Canadian Lender and a UK Lender

 

 

 

By:

 

/s/ William H. Moul Jr.

Name:

 

William H. Moul Jr.

Title:

 

Authorized Signatory

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

ANNEX A

 

CONFORMED CREDIT AGREEMENT

 

[See Attached.]

 

 

 


 

ANNEX B

 

UPDATED EXHIBITS

 

[See Attached.]

 

 


 

ANNEX C

 

SCHEDULES TO THE CREDIT AGREEMENT

 

[See Attached.]

 

 


Conformed through Second Amendment

 

FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

dated as of

January 31, 2018,

as amended as of February 1, 2019

as further amended as of June 5, 2020

among

GENESCO INC.

a Domestic Borrower and the Lead Borrower,

GENESCO BRANDS, LLC, HAT WORLD CORPORATION,

FLAGG BROS. OF PUERTO RICO, INC.,

GENESCO FOOTWEAR LLC, and GENESCO BRANDS NY, LLC

as the Other Domestic Borrowers,

GCO CANADA INC.
as the Canadian Borrower

GENESCO (UK) LIMITED

as the UK Borrower

The LENDERS Party Hereto,

BANK OF AMERICA, N.A.

as Agent

 

U.S. BANK NATIONAL ASSOCIATION

and

SUNTRUST BANK

as Co-Syndication Agents

 

PNC BANK, NATIONAL ASSOCIATION

as Documentation Agent

 

and

BANK OF AMERICA, N.A.

U.S. BANK NATIONAL ASSOCIATION

and

SUNTRUST ROBINSON HUMPHREY, INC.

as Joint Lead Arrangers and Joint Bookrunners

___________________________

 

 

DB1/ 114136671.8

 

 

 


 

TABLE OF CONTENTS

 

1.

DEFINITIONS.

2

1.1

Defined Terms

2

1.2

Terms Generally; Interpretation

71

1.3

Accounting Terms

72

1.4

Rounding

72

1.5

Times of Day

72

1.6

Letter of Credit Amounts

72

1.7

United Kingdom Tax Matters.

73

1.8

Exchange Rates; Currency Translation.

78

1.9

Limited Condition Acquisitions.

78

1.10

Divisions.

80

1.11

Interest Rates.

80

2.

AMOUNT AND TERMS OF CREDIT

80

2.1

Commitments of the Lenders.

80

2.2

Reserves; Changes to Reserves.

85

2.3

Making of Loans.

85

2.4

Overadvances

87

2.5

Swingline Loans, Canadian Swingline Loans and UK Swingline Loans.

87

2.6

Letters of Credit.

89

2.7

Settlements Among Revolving Lenders.

95

2.8

Notes; Repayment of Loans.

97

2.9

Interest on Loans.

97

2.10

Default Interest

99

2.11

Certain Fees

99

2.12

Unused Commitment Fee

99

2.13

Letter of Credit Fees

99

2.14

Nature of Fees

100

2.15

Termination or Reduction of Commitments.

100

2.16

Alternate Rate of Interest

101

2.17

Conversion and Continuation of Loans

102

2.18

Mandatory Prepayment; Cash Collateral; Commitment Termination

103

2.19

Optional Prepayment of Loans; Reimbursement of Lenders.

106

2.20

Maintenance of Loan Account; Statements of Account.

108

2.21

Cash Receipts.

108

2.22

Application of Payments.

111

2.23

Increased Costs.

114

2.24

Change in Legality.

115

2.25

Payments; Sharing of Setoff.

116

2.26

Taxes.

118

2.27

Security Interests in Collateral

121

2.28

Mitigation Obligations; Replacement of Lenders.

121

2.29

LIBO Successor Rate.

122

2.30

UK Borrowing Base.

124

 

DB1/ 114136671.8

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3.

REPRESENTATIONS AND WARRANTIES

125

3.1

Organization; Powers

125

3.2

Authorization; Enforceability

125

3.3

Governmental Approvals; No Conflicts

126

3.4

Financial Condition.

126

3.5

Properties.

127

3.6

Litigation and Environmental Matters.

127

3.7

Compliance with Laws and Agreements

128

3.8

Investment Company or Holding Company Status

128

3.9

Taxes

128

3.10

ERISA/Canadian Pension Plan/ UK Pension Plan.

128

3.11

ERISA Compliance.

129

3.12

Disclosure

129

3.13

Subsidiaries

130

3.14

Insurance

130

3.15

Labor Matters

130

3.16

[Reserved]

130

3.17

Restrictions on the Credit Parties

130

3.18

Security Documents.

131

3.19

Federal Reserve Regulations.

131

3.20

Solvency

131

3.21

Franchises, Patents, Copyrights, Etc

132

3.22

Brokers

132

3.23

Casualty

132

3.24

Intellectual Property; Licenses, Etc.

132

3.25

Ranking.

132

3.26

EEA Financial Institution.

132

3.27

Sanctions Concerns and Anti-Corruption Laws.

132

4.

CONDITIONS.

133

4.1

Conditions of Effectiveness

133

4.2

Conditions Precedent to Each Loan and Each Letter of Credit

136

5.

AFFIRMATIVE COVENANTS.

137

5.1

Financial Statements and Other Information

137

5.2

Notices of Material Events

143

5.3

Information Regarding Collateral.

141

5.4

Existence; Conduct of Business

141

5.5

Payment of Obligations

141

5.6

Maintenance of Properties

142

5.7

Insurance.

142

5.8

Casualty and Condemnation

143

5.9

Books and Records; Inspection and Audit Rights.

143

5.10

Fiscal Year

145

5.11

Physical Inventories/ Cycle Counts.

145

5.12

Compliance with Laws

145

 

DB1/ 114136671.8

ii

 

 


 

5.13

Use of Proceeds and Letters of Credit

146

5.14

Additional Subsidiaries.

146

5.15

Further Assurances

147

5.16

Compliance with Terms of Leaseholds.

148

5.17

Environmental Laws.

148

5.18

Centre of Main Interests.

148

5.19

UK “Know your customer” checks.

149

5.20

UK Pension Plans.

149

5.21

Canadian Pension Plans.

150

6.

NEGATIVE COVENANTS.

150

6.1

Indebtedness

150

6.2

Liens

151

6.3

Fundamental Changes

153

6.4

Investments, Loans, Advances, Guarantees and Acquisitions

154

6.5

Asset Sales

155

6.6

Restrictive Agreements

157

6.7

Restricted Payments; Certain Payments of Indebtedness

157

6.8

Transactions with Affiliates

158

6.9

Additional Subsidiaries

158

6.10

Amendment of Material Documents

158

6.11

Fixed Charge Coverage Ratio

158

6.12

Environmental Laws

158

6.13

Fiscal Year

159

6.14

Canadian Pension Plans.

159

6.15

Sanctions.

159

6.16

Anti-Corruption Laws.

159

7.

EVENTS OF DEFAULT.

159

7.1

Events of Default

159

7.2

When Continuing

162

7.3

Remedies on Default

163

7.4

Application of Proceeds

163

7.5

Application of Proceed while FILO Loan is Outstanding

171

8.

THE AGENT.

175

8.1

The Agent

175

8.2

Sharing of Excess Payments

176

8.3

Agreement of Applicable Lenders

177

8.4

Liability of Agent.

177

8.5

Notice of Default

178

8.6

Lenders’ Credit Decisions

179

8.7

Reimbursement and Indemnification

179

8.8

Rights of Agent

179

8.9

Notice of Transfer

180

8.10

Successor Agent

180

8.11

Reports and Financial Statements

180

 

DB1/ 114136671.8

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8.12

Agent May File Proofs of Claim

180

8.13

Defaulting Lenders.

181

8.14

Agency for Perfection.

184

8.15

Risk Participation.

184

8.16

ERISA Representations

185

8.17

Co-Syndication Agents and Documentation Agent

187

8.18

Appointment of Agent as Security Trustee for UK Security Agreements.

187

9.

MISCELLANEOUS.

191

9.1

Notices

191

9.2

The Platform

192

9.3

Waivers; Amendments.

192

9.4

Expenses; Indemnity; Damage Waiver.

195

9.5

Designation of Lead Borrower as Borrowers’ Agent.

196

9.6

Successors and Assigns.

197

9.7

Survival

200

9.8

Counterparts; Integration; Effectiveness

200

9.9

Severability

200

9.10

Right of Setoff

201

9.11

Governing Law; Jurisdiction; Consent to Service of Process.

201

9.12

WAIVER OF JURY TRIAL

201

9.13

Headings

202

9.14

Interest Rate Limitation

202

9.15

Additional Waivers.

202

9.16

Confidentiality

203

9.17

Release of Collateral and Guaranty Obligations.

204

9.18

Amendment and Restatement

205

9.19

Commitments

206

9.20

Judgment Currency

206

9.21

USA Patriot Act Notice

208

9.22

Foreign Asset Control Regulations

207

9.23

Canadian Anti-Money Laundering Legislation.

207

9.24

No Advisory or Fiduciary Responsibility

208

9.25

Limitation of Canadian Borrower and UK Borrower Liability.

208

9.26

Language.

209

9.27

Keepwell.

209

9.28

Acknowledgement and Consent to Bail-In of EEA Financial Institutions.

209

9.29

Acknowledgement Regarding Any Supported QFCs.

210

 


 

DB1/ 114136671.8

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EXHIBITS

 

A

Form of Assignment and Acceptance

B-1

Form of Canadian Note

B-2

Form of Domestic Note

B-3

Form of UK Note

B-4

Form of Swingline Note

B-5

Form of Canadian Swingline Note

B-6

Form of UK Swingline Note

B-7

Form of FILO Note

C-1

Form of Effective Date Guaranty – Domestic Borrowers

C-2

Form of Effective Date Guaranty – Canadian Borrower

C-3

Form of Effective Date Guaranty – UK Borrower

D

Form of Borrowing Base Certificate

E

Form of Compliance Certificate

F

Closing Agenda

G

Form of DDA Notification

H-1

Form of Domestic Notice of Borrowing

H-2

Form of Canadian Notice of Borrowing

H-3

Form of UK Notice of Borrowing

I

Form of Mortgage

 


 

DB1/ 114136671.8

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SCHEDULES

 

1.1

Lenders and Commitments

1.2

Leased Distribution Centers and Warehouses

1.3

Secured Equipment Leases

1.4

Eligible Trade Names

2.6(j)

Existing Letters of Credit

2.21(b)

Credit Card Arrangements

2.21(c)

Concentration Accounts and Investment Accounts

3.5(b)(i)

Owned Properties

3.5(b)(ii)

Leased Properties

3.6

Litigation and Environmental Matters

3.7

Compliance with Laws and Agreements

3.9

Taxes

3.10

ERISA/Canadian Pension Plan/UK Pension Plan

3.13

Subsidiaries

3.14

Insurance

3.21

Franchises, Patents, Copyrights, etc.

5.1(i)

Financial Reporting Requirements

6.1

Indebtedness

6.2

Liens

6.4

Investments, Loans, Advances, Guarantees and Acquisitions

 

 

 

 

DB1/ 114136671.8

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This FOURTH AMENDED AND RESTATED CREDIT AGREEMENT is dated as of January 31, 2018 (this Agreement) among GENESCO INC., a corporation organized under the laws of the State of Tennessee having a place of business at Genesco Park, 1415 Murfreesboro Road, P.O. Box 731, Nashville, TN 37202-0731, as a Domestic Borrower and the Lead Borrower (as hereinafter defined); the Other Domestic Borrowers (as defined below); GCO CANADA INC., as the Canadian Borrower; GENESCO (UK) LIMITED, a company incorporated in England and Wales with company number 07667223 as the UK Borrower; the LENDERS party hereto; BANK OF AMERICA, N.A., a national banking association having a place of business at 100 Federal Street, Boston, Massachusetts 02110, as Agent for the Lenders and the other Secured Parties (as each such term is hereinafter defined); and U.S. BANK NATIONAL ASSOCIATION and SUNTRUST BANK, as Co-Syndication Agents; and PNC BANK, NATIONAL ASSOCIATION, as Documentation Agent.

W I T N E S S E T H:

WHEREAS, the Borrowers have requested that the (x) the Revolving Lenders make available to the Domestic Borrowers, as co-borrowers, a revolving credit facility (including a letter of credit sub-facility) and (y) the FILO Lenders make available to the Domestic Borrowers, as co-borrowers, a first in, last out term loan facility, in an initial maximum amount not to exceed $350,000,000 in the aggregate, the proceeds of which, in each case, shall be used by the Borrowers for purposes permitted under, and otherwise in accordance with and subject to the terms of, this Agreement;

WHEREAS, the Other Borrowers are direct or indirect wholly-owned Subsidiaries of the Lead Borrower, and together with the Lead Borrower are related entities that collectively constitute an integrated business;

WHEREAS, each Borrower is sufficiently dependent upon the others and the Borrowers are related in such a way that any advance made hereunder to any Borrower will benefit all of the Borrowers as a result of their related operations and identity of interests;

WHEREAS, the Domestic Borrowers have requested that the Agents and Lenders treat them as co-borrowers hereunder, jointly and severally responsible for the obligations of each other;

WHEREAS, each Lender is willing to agree (severally and not jointly) to make such loans and provide such financial accommodations to the Borrowers on a pro rata basis according to its Commitment on the terms and conditions set forth herein, and Bank of America, N.A. is willing to act as Agent for the Lenders on the terms and conditions set forth herein and in the other Loan Documents;

WHEREAS, each Canadian Lender is willing to agree (severally and not jointly) to make such loans and provide such financial accommodations to the Canadian Borrower according to its Canadian Commitment on the terms and conditions set forth herein, and Bank of America, N.A. is willing to act as Agent for the Canadian Secured Parties on the terms and conditions set forth herein and in the other Loan Documents;

1


 

WHEREAS, each UK Lender is willing to agree (severally and not jointly) to make such loans and provide such financial accommodations to the UK Borrower according to its UK Commitment on the terms and conditions set forth herein, and Bank of America, N.A. is willing to act as Agent for the UK Secured Parties on the terms and conditions set forth herein and in the other Loan Documents;

WHEREAS, prior to the date of this Agreement, the Borrowers, on the one hand, and Bank of America, N.A., as Agent thereunder, and the Lenders on the other hand, previously entered into a Third Amended and Restated Credit Agreement dated as of January 31, 2014 (as amended and in effect, the “Existing Credit Agreement”), pursuant to which the Lenders provided the Borrowers (other than the UK Borrower) with certain financial accommodations;

WHEREAS, in accordance with SECTION 9.3 of the Existing Credit Agreement, the Borrowers, the Lenders, and the Agents desire to amend and restate the Existing Credit Agreement as provided herein.

NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth in this Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, the undersigned hereby agree that the Existing Credit Agreement shall be amended and restated in its entirety to read as follows (it being agreed that this Agreement shall not be deemed to evidence or result in a novation or repayment and reborrowing of the Obligations under the Existing Credit Agreement):

1.DEFINITIONS.  

1.1Defined Terms

.  As used in this Agreement, the following terms have the meanings specified below:

Account Control Agreements shall mean agency agreements with or notices to and acknowledgements from banks or other institutions maintaining a checking or other demand deposit account, lockbox account or investment account of a Credit Party (excluding store-level deposit accounts and all Excluded DDAs), including without limitation any DDA into which the proceeds of any other DDA are regularly swept on a daily basis, establishing control (as defined in the UCC) of such account by the Agent and whereby the bank maintaining such account agrees, in respect of the Domestic Credit Parties and Canadian Credit Parties, upon the occurrence and during the continuance of a Cash Dominion Event and in respect of the UK Credit Parties, at all times following the establishment of the UK Borrowing Base, to comply only with instructions originated by the Agent without the further consent of any Credit Party, each of which agreements shall be in form and substance reasonably satisfactory to the Agent.

Account Debtor shall mean any Person who is obligated under an Account.

Account Reserves” means such reserves as may be established from time to time by the Agent in its Permitted Discretion (after consultation with the Lead Borrower (whose consent to any Account Reserve shall not be required)) with respect to the collectability of any Eligible Wholesale Receivable or any Eligible Credit Card and Debit Card Receivable, including, without limitation, Dilution Reserves.  Account Reserves shall be established and calculated in a manner and methodology consistent with the Agent’s practices as of the Effective Date with other similarly situated borrowers.

2


 

Accounts shall mean “accounts” as defined in the UCC and in the PPSA, (or to the extent governed by the Civil Code of Quebec, defined as all “claims” for the purposes of the Civil Code of Quebec), and also all accounts, accounts receivable, and rights to payment (whether or not earned by performance): (i) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of; (ii) for services rendered or to be rendered; (iii) arising out of a policy of insurance issued or to be issued; (iv) arising out of a secondary obligation incurred or to be incurred; or (v) arising out of the use of a debit, credit or charge card or information contained on or used with that card.

ACH” shall mean automated clearing house transfers.

Act” has the meaning provided therefor in Section 9.21.

Additional Commitment Lender” has the meaning provided therefor in Section 2.1(c).

Adjustment Date” means the first day of each Fiscal Quarter, commencing with the first Fiscal Quarter occurring after the expiration of three months following the Second Amendment Effective Date.

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

Affiliate means, with respect to a specified Person, (i) any director or officer of that Person, (ii) any other Person Controlling, Controlled by or under direct or indirect common Control with that Person (and if that Person is an individual, any member of the immediate family (including parents, siblings, spouse, children, stepchildren, nephews, nieces and grandchildren) of such individual and any trust whose principal beneficiary is such individual or one or more members of such immediate family and any Person who is Controlled by any such member or trust), (iii) any other Person directly or indirectly holding 15% or more of any class of the capital stock or other equity interests (including options, warrants, convertible securities and similar rights) of that Person, and (iv) any other Person 15% or more of any class of whose capital stock or other equity interests (including options, warrants, convertible securities and similar rights) is held directly or indirectly by that Person.

Agent means Bank of America in its capacity as administrative agent and collateral agent under any of the Loan Documents, or any successor thereto, and solely with respect to the loan servicing requirements of the Canadian Borrower, Bank of America, N.A.-Canada Branch.

Agent Party” has the meaning provided therefor in Section 9.2.

Agents Office” means the Agents address and, as appropriate, account as set forth on the signature page hereto, or such other address or account as the Agent may from time to time notify the Lead Borrower and the Lenders.

Agreement means this Credit Agreement, as modified, amended, supplemented or restated and in effect from time to time.

3


 

Applicable Fiscal Period means, as of any date of determination, the most recently ended twelve (12) Fiscal Months.

Applicable Law means as to any Person: (i) all statutes, rules, regulations, orders, or other requirements having the force of law and (ii) all court orders and injunctions, and/or similar rulings, in each instance ((i) and (ii)) of or by any Governmental Authority, that are applicable to such Person or any property of such Person.

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

Applicable Margin means the rates for Prime Rate Loans, U.S. Index Rate Loans, BA Equivalent Loans and LIBO Loans set forth below:

Level

Average Daily Availability

 

Applicable Margin for FILO Loans that are LIBO Loans

Applicable Margin for FILO Loans that are Domestic Prime Rate Loans

Applicable Margin for Revolving Loans that are LIBO Loans and BA Equivalent Loans

Applicable Margin for Revolving Loans that are Domestic Prime Rate Loans, U.S. Index Rate Loans, and Canadian Prime Rate Loans

 

Applicable Margin for UK Swingline Loans

I

Greater than or equal to 50% of the Loan Cap

 

3.75%

 

2.75%

 

2.25%

 

1.25%

 

2.25%

II

Less than 50% of the Loan Cap

4.00%

3.00%

2.50%

1.50%

 

2.50%

From and after the Second Amendment Effective Date and until the first Adjustment Date, the Applicable Margin shall be established at the percentages set forth in Level II of the pricing grid set forth above. From and after such first Adjustment Date following the Second Amendment Effective Date and on each Adjustment Date thereafter, the Applicable Margin shall be determined from the pricing grid set forth above based upon the Average Daily Availability for the most recent Fiscal Quarter ended immediately preceding such Adjustment Date; provided, however, that notwithstanding anything to the contrary set forth herein, upon the occurrence of an Event of Default, the Agent may, and at the direction of the Required Revolving Lenders

4


 

shall, immediately increase the Applicable Margin to that set forth in Level II (even if the Average Daily Availability requirements for a different Level have been met) and interest shall accrue at the rate of interest set forth in Section 2.10; provided further if any Borrowing Base Certificate is at any time restated or otherwise revised or if the information set forth in any Borrowing Base Certificate otherwise proves to be false or incorrect such that the Applicable Margin would have been higher than was otherwise in effect during any period, without constituting a waiver of any Default or Event of Default arising as a result thereof, interest due under this Agreement shall be immediately recalculated at such higher rate for any applicable periods and shall be due and payable on demand.

Appraised Value” means with respect to (x) Eligible Inventory, the appraised orderly liquidation value, net of costs and expenses to be incurred in connection with any such liquidation, which value is expressed as a percentage of Cost of Eligible Inventory as set forth in the inventory stock ledger of the Borrower Consolidated Group, which value shall be determined from time to time by the most recent appraisal undertaken by an independent appraiser engaged by the Agent subject to Section 5.9, (y) with respect to Real Estate, the fair market value of Real Estate as set forth in the most recent appraisal of Real Estate as determined from time to time by an independent appraiser engaged by the Agent, in form and substance reasonably satisfactory to the Agent and the Second Amendment Lenders, which appraisal shall be in compliance with all FIRREA requirements, provided that the Appraised Value of Eligible Real Estate shall in no event exceed the maximum amount of the Obligations at any time specified to be secured by a Mortgage thereon, or (z) with respect to Eligible Trade Names, the appraised liquidation value, net of costs and expenses to be incurred in connection with any such liquidation, which value shall be determined from time to time by the most recent appraisal undertaken by an independent appraiser engaged by the Agent subject to Section 5.9.

Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender, (c) an entity or an Affiliate of an entity that administers or manages a Lender, or (d) the same investment advisor or an advisor under common control with such Lender, Affiliate or advisor, as applicable.

Arrangers means each of Bank of America (the “Lead Arranger”), U.S. Bank National Association and SunTrust Robinson Humphrey, Inc., in their capacities as joint lead arrangers and joint bookrunners.

Assignment and Acceptance means an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.6), and accepted by the Agent, in the form of Exhibit A or any other form approved by the Agent.

Audited Financial Statements” means the audited consolidated balance sheet of the Borrower Consolidated Group for the Fiscal Year ended February 1, 2020, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such Fiscal Year of the  Borrower Consolidated Group, including the notes thereto.

5


 

Availability Reserves means such reserves (but without duplication of any other Reserves or any factors included in the determination of the Appraised Value of Eligible Inventory, Eligible Real Estate or Eligible Trade Names) as the Agent from time to time determines in its Permitted Discretion (after consultation with the Lead Borrower (whose consent to any Availability Reserve shall not be required)) as being appropriate (a) to reflect the impediments to the Agents ability to realize upon the Collateral, (b) to reflect claims and liabilities that the Agent determines will need to be satisfied in connection with the realization upon the Collateral, or (c) to reflect that a Default or an Event of Default then exists.  Without limiting the generality of the foregoing, Availability Reserves may include (but are not limited to) reserves based on (i) rent (A) on account of past due rent, (B) for leased distribution center locations as to which the Agent has not received a Collateral Access Agreement from the applicable landlord, and (C) for locations for which the landlord has been granted a Lien on the assets of any Person included in the Borrower Consolidated Group or in those states in which the landlord has a statutory landlord’s Lien; (ii) Customer Credit Liabilities; (iii) outstanding taxes and other governmental charges, including, without limitation, ad valorem, real estate, personal property, sales, claims of the PBGC and other taxes or claims which might have priority over the interests of the Agent in the Collateral; (iv) customs duties, and other costs to release Inventory which is being imported into the United States or Canada; (v) salaries, wages and benefits due to employees of any Credit Party, provided that Availability Reserves under this clause (v) will not be imposed except during the continuance of a Cash Dominion Event; (vi) customer deposits; (vii) reserves for reasonably anticipated changes in the Appraised Value of Eligible Inventory between appraisals resulting from any significant or material decrease in comparable store sales trends, gross margins, any significant changes in Inventory mix, store operating expense structure or markdown activity, or any other factor  that could reasonably be expected to result in a decrease to Appraised Value of Eligible Inventory, provided that if the Agent notifies the Lead Borrower of its intention to impose such an Availability Reserve, the Lead Borrower may, at its expense, engage an appraiser reasonably satisfactory to the Agent, to conduct an updated Inventory appraisal and, upon the Agent’s receipt and satisfactory review of the results of such appraisal, the previously imposed Availability Reserve under this clause (vii) will be terminated (without limiting the Agent’s right to re-establish such an Availability Reserve under this clause (vii) if circumstances so warrant); (viii) warehousemen’s or bailee’s charges and other Liens permitted by Section 6.2 which may have priority over the interests of the Agent in the Collateral; (ix) amounts due to vendors on account of consigned goods; (x) the Agents estimate of Canadian Priority Payable Reserves; (xi) Cash Management Reserves; and (xii) Bank Products Reserves. Availability Reserves shall be established and calculated in a manner and methodology consistent with the Agent’s practices as of the Effective Date with other similarly situated borrowers.

Average Daily Availability” shall mean, in respect of any Adjustment Date, the average daily Excess Availability for the immediately preceding Fiscal Quarter.

BA Equivalent Loan” means any Canadian Loan in CD$ bearing interest at a rate determined by reference to the BA Rate in accordance with the provisions of Section 2.

BA Equivalent Loan Borrowing” means any Borrowing comprised of BA Equivalent Loans.

6


 

BA Ratemeans, for the Interest Period applicable to a BA Equivalent Loan, the rate of interest per annum equal to the annual rates applicable to CD$ bankers’ acceptances having an identical or comparable term as the proposed BA Equivalent Loan displayed and identified as such on the display referred to as the “CDOR Page” (or any display substituted therefor) of Reuters Monitor Money Rates Service as at approximately 10:20 A.M. (Toronto time) on such day (or, if such day is not a Business Day, as of 10:20 A.M. (Toronto time) on the immediately preceding Business Day)(or other commercially available source designated by Agent from time to time); provided that in no event shall the BA Rate be less than 1.00%.

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

Bail-In Legislation” means, 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 for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

Bank of America shall mean Bank of America, N.A., a national banking association, and as a Lender, includes any applicable branch thereof located in Canada (including Bank of America-Canada Branch) or the United Kingdom.

Bank of America-Canada Branch” means Bank of America, N.A. (acting through its Canada branch), a banking corporation carrying on business under the Bank Act (Canada).

Bank of America Concentration Account” has the meaning provided therefor in Section 2.21(d).

Bank of Canada Overnight Rate” means, on any date of determination, the rate of interest charged by the Bank of Canada on one-day Canadian dollar loans to financial institutions, for such date.

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

Bank Products” means any services or facilities provided to any Credit Party by the Agent, any Lender, or any of their respective Affiliates, including, without limitation, on account of (a) Hedging Agreements, (b) purchase cards, (c) foreign exchange facilities, (d) leasing, and (e) supply chain finance services (including, without limitation, trade payable services and supplier accounts receivable purchases), but excluding Cash Management Services.

Banker’s Acceptance” means a time draft or bill of exchange or other deferred payment obligation relating to a Commercial Letter of Credit which has been accepted by the Issuing Bank.

Bankruptcy Code” shall mean the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq.), as amended and in effect from time to time, and the regulations issued from time to time thereunder.

7


 

Base Rate means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Effective Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,” and (c) the LIBO Rate plus 1.00%.  The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 2.29 hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.

Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

BIA” means the Bankruptcy and Insolvency Act (Canada).  

Board means the Board of Governors of the Federal Reserve System of the United States of America.

Borrower Consolidated Group shall mean the Lead Borrower and its Subsidiaries.

Borrower Materials” has the meaning provided therefor in Section 5.1.

Borrowers means, individually and collectively, the Lead Borrower, the Other Borrowers and any other Person who subsequently becomes a Borrower hereunder.

Borrowing shall mean (a) a Canadian Borrowing, a UK Borrowing or a Domestic Borrowing, as applicable, (b) the incurrence of a Swingline Loan, (c) the incurrence of a Canadian Swingline Loan, (d) the incurrence of a UK Swingline Loan, or (e) the borrowing of the FILO Loan on the Second Amendment Effective Date, as the context may require.

Borrowing Base Certificate has the meaning provided therefor in Section 5.1(f).

Borrowing Request” means a request by the Lead Borrower on behalf of the Domestic Borrowers, or by the Canadian Borrower or the UK Borrower, as applicable, for a Borrowing in accordance with Section 2.3.

Breakage Costs has the meaning provided therefor in Section 2.19(b).

8


 

Business Day means (a) any day that is not a Saturday, Sunday or other day on which commercial banks in Charlotte, North Carolina or New York, New York are authorized or required by law to remain closed, or are in fact closed in the state where the Agent’s Office is located, (b) when used in connection with a LIBO Loan, any day on which banks are open for dealings in dollar deposits in the London interbank market, (c) when used in connection with any Loan by a Canadian Lender, any day which is not a day on which banks are authorized or required by law to be closed in Toronto, Ontario, Canada, (d) if such day relates to any interest rate settings as to a LIBO Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such LIBO Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such LIBO Loan, a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other payment system (if any) determined by the Agent to be a suitable replacement) is open for the settlement of payments in Euro, (e) if such day relates to any interest rate settings as to a LIBO Loan denominated in a currency other than Dollars or Euro, any such day on which dealings in deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency, and (f) if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars or Euro in respect of a LIBO Loan denominated in a currency other than Dollars or Euro, or any other dealings in any currency other than Dollars or Euro to be carried out pursuant to this Agreement in respect of any such (other than any interest rate settings), any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.

Canadian Availability” means, as of any date of determination thereof, the result, if a positive number, of:

(a)the Canadian Loan Cap

minus

(b)the Canadian Credit Extensions on such date.

In calculating Canadian Availability at any time and for any purpose under this Agreement, any amount calculated or referenced in Dollars shall also refer to the Equivalent CD$ Amount.

Canadian Borrower” means GCO Canada Inc., a corporation organized under the federal laws of Canada.

Canadian Borrowing” means a borrowing consisting of simultaneous Canadian Loans of the same Type and, in the case of BA Equivalent Loans or LIBO Loans, having the same Interest Period made by each of the Canadian Lenders pursuant to Section 2.3.

9


 

Canadian Borrowing Base means, at any time of calculation, an Equivalent CD$ Amount in Dollars equal to:

(a)the product of (i) the Inventory Advance Rate multiplied by (ii) the Appraised Value of Eligible Inventory of the Canadian Borrower multiplied by (iii)(A) the Cost of Eligible Inventory of the Canadian Borrower, minus (B) Inventory Reserves related to Eligible Inventory of the Canadian Borrower;

plus

(b)the product of (i) eighty-five percent (85%) multiplied by (ii)(A) the then Eligible Wholesale Receivables of the Canadian Borrower, minus (B) Account Reserves related to such Eligible Wholesale Receivables of the Canadian Borrower;

plus

(c)the product of (i) ninety percent (90%) multiplied by (ii)(A) the then Eligible Credit Card and Debit Card Receivables of the Canadian Borrower, minus (B) Account Reserves related to Eligible Credit Card and Debit Card Receivables of the Canadian Borrower;

minus

(d)without duplication, the then amount of all Availability Reserves established with respect to matters affecting the Canadian Borrower.

Canadian Commitment Percentage” means the Commitment Percentages of the Canadian Lenders.

Canadian Commitments” means, as to each Canadian Lender, its obligation to (a) make Canadian Loans to the Canadian Borrower pursuant to Section 2.1 and (b) purchase participations in Canadian Letter of Credit Outstandings, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Canadian Lender’s name on Schedule 1.1 or in the Assignment and Acceptance pursuant to which such Canadian Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

Canadian Credit Extensions” as of any day, shall be equal to the sum of (a) the principal balance of all Canadian Loans (including Canadian Swingline Loans) then outstanding, and (b) the then amount of the Canadian Letter of Credit Outstandings.

Canadian Credit Parties” means, collectively, the Canadian Borrower and each Material Subsidiary organized under the laws of Canada or any province or territory thereof that is or becomes a guarantor of the Canadian Liabilities.  “Canadian Credit Party” means any one of such Persons.

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Canadian Defined Benefit Pension Plan” shall mean a pension plan for the purposes of any applicable pension benefits standards statute or regulation in Canada, which contains a “defined benefit provision,” as defined in subsection 147.1(1) of the Income Tax Act (Canada) but shall not include a “multi-employer pension plan” within the meaning of the Pension Benefits Standards Act, 1985 (Canada) (or similar term under equivalent provincial pension standards legislation) for which a Canadian Borrower’s or Canadian Subsidiary’s sole financial obligations are limited to making fixed contributions.

Canadian Dollars” and “CD$” refer to lawful money of Canada.

Canadian Lenders” means Bank of America-Canada Branch and any other Person having Canadian Commitments from time to time or at any time.  A Person may be a Canadian Lender only if it is a financial institution that is listed on Schedule I, II or III of the Bank Act (Canada), has received an approval to have a financial establishment in Canada pursuant to Section 522.21 of the Bank Act (Canada) or is not a foreign bank for purposes of the Bank Act (Canada), and if such financial institution is not resident in Canada and is not deemed to be resident in Canada for purposes of the Income Tax Act (Canada), then such financial institution deals at arm’s length with each Canadian Credit Party for purposes of the Income Tax Act (Canada).

Canadian Letter of Credit” means each Letter of Credit issued hereunder for the account of the Canadian Borrower.

Canadian Letter of Credit Outstandings” shall mean, at any time, the sum of (a) with respect to Canadian Letters of Credit outstanding at such time, the aggregate maximum amount that then is or at any time thereafter may become available for drawing or payment thereunder plus (b) all amounts theretofore drawn or paid under Canadian Letters of Credit for which the Issuing Bank has not then been reimbursed.

Canadian Letter of Credit Sublimit” means an amount equal to $5,000,000.  The Canadian Letter of Credit Sublimit is part of, and not in addition to, the Canadian Total Commitments.  A permanent reduction of the Canadian Total Commitments shall not require a corresponding pro rata reduction in the Canadian Letter of Credit Sublimit; provided, however, that if the Canadian Total Commitments are reduced to an amount less than the Canadian Letter of Credit Sublimit, then the Canadian Letter of Credit Sublimit shall be reduced to an amount equal to (or, at Canadian Borrower’s option, less than) the Canadian Total Commitments.

Canadian Liabilities” means (a) all advances to, and debts (including principal, interest, fees, costs, and expenses), liabilities, obligations, covenants, indemnities, and duties of, any Canadian Credit Party arising under any Loan Document or otherwise with respect to any Canadian Loan or Canadian Letter of Credit (including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral therefor), whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, fees, costs, expenses and indemnities that accrue after the commencement by or against any Canadian Credit Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, (b) any Other Canadian Liabilities, and (c)  all Loans made to the Canadian Borrower under Section 2.1(a)(x).

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Canadian Loan” means an extension of credit by a Canadian Lender to the Canadian Borrower (to the extent based on Canadian Availability) under Section 2.

Canadian Loan Cap” means, at any time of determination, the lesser of (a) the Canadian Total Commitments and (b) the Canadian Borrowing Base.

Canadian Note” means a promissory note made by the Canadian Borrower in favor of a Canadian Lender evidencing Canadian Loans made by such Canadian Lender, substantially in the form of Exhibit B-1.

Canadian Notice of Borrowing” means a notice from the Canadian Borrower to the Agent in connection with a Canadian Borrowing of Canadian Loans or Canadian Swingline Loans, which shall be substantially in the form of Exhibit H-2.

Canadian Pension Plan” means any pension plan that is subject to the Pension Benefits Act (Ontario) or similar legislation of another Canadian province or territory and the Income Tax Act (Canada) and that is either (a) maintained or sponsored by any Canadian Credit Party or any Canadian Subsidiary for employees, or (b) maintained pursuant to a collective bargaining agreement, or other arrangement under which more than one employer makes contributions and to which any Canadian Credit Party or any Canadian Subsidiary is making or accruing an obligation to make contributions or has within the preceding five years made or accrued such contributions.

Canadian Prime Rate” means, for any day, the greater of (i) the fluctuating rate of interest per annum equal to the rate of interest in effect for such day as publicly announced from time to time by Bank of America-Canada Branch as its reference rate of interest for loans made in CD$ and designated as its “prime” rate being a rate set by Bank of America-Canada Branch based upon various factors, including Bank of America-Canada Branch’s costs and desired return, general economic conditions and other factors and is used as a reference point for pricing some loans, and (ii) the BA Rate for a one month Interest Period as determined on such day, plus 1.0%, provided, that in no event shall the Canadian Prime Rate be less than 1.00%. Any change in the prime rate announced by the Bank of America-Canada Branch shall take effect at the opening of business on the day specified in the public announcement of such change.  Each interest rate based on the Canadian Prime Rate hereunder, shall be adjusted simultaneously with any change in the Canadian Prime Rate.

Canadian Prime Rate Loan” means a Canadian Loan in CD$ that bears interest based on the Canadian Prime Rate.

Canadian Priority Payable Reserves” means, at any time, without duplication, the obligations, liabilities and indebtedness at such time which have, or could in any proceeding have, a trust, deemed trust, right of garnishment, right of distress, charge or statutory Lien imposed to provide for payment or Liens ranking or capable of ranking senior to or pari passu with Liens securing the Canadian Liabilities on any of the Collateral under federal, provincial, state, county, territorial, municipal, or local law including, to the extent that there is such a trust, statutory Liens or Liens in respect of the specified item that has or is capable of having such rank, claims for unremitted and accelerated rents, utilities, taxes (including sales taxes, value added taxes, amounts deducted or withheld or not paid and remitted when due under the Income Tax Act (Canada), excise

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taxes, goods and services taxes (“GST”) and harmonized sales taxes (“HST”) payable pursuant to Part IX of the Excise Tax Act (Canada) or similar taxes under provincial or territorial law), the claims of a clerk, servant, travelling salesperson, labourer or worker (whether full-time or part-time) who is owed wages (including any amounts protected by the Wage Earner Protection Program Act (Canada)), salaries, commissions, disbursements, compensation or other amounts (such as union dues payable on behalf of employees) by the Credit Parties (but only to the extent that the claims of such parties may rank or be capable of ranking senior to or pari passu with Liens securing the Obligations on any of the Collateral), vacation pay, severance pay, employee source deductions, workers’ compensation obligations, government royalties or pension fund obligations  (including claims in respect of, and all amounts currently or past due and not contributed, remitted or paid to, or pursuant to, any Canadian Pension Plan, the Pension Benefits Act (Ontario) or any similar law and any amounts representing any unfunded liability, solvency, deficiency or wind-up deficiency with respect to any Canadian Defined Benefit Pension Plan)  (but only to the extent ranking or capable of ranking senior to or pari passu with Liens securing the Obligations on any of the Collateral), together with the aggregate value, determined in accordance with GAAP, of all Eligible Inventory which may be or may become subject to a right of a supplier to recover possession thereof or to exercise rights of revendication with respect thereto under any federal, provincial, state, county, municipal, territorial or local law, where such supplier’s right may have priority over Liens securing the Obligations including Eligible Inventory subject to a right of a supplier to repossess goods pursuant to Section 81.1 of the BIA or the Civil Code of Quebec.

Canadian Sanction 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, including the Special Economic Measures Act (Canada), the United Nations Act (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada), Part II.1 of the Criminal Code (Canada) and the Export and Import Permits Act (Canada), and any related regulations.

Canadian Secured Party” or “Canadian Secured Parties” has the meaning assigned to such term in the Canadian Security Agreement.

Canadian Security Agreement means the Second Amended and Restated General Security Agreement dated as of the Effective Date among the respective Canadian Credit Parties and the Agent for the benefit of the Canadian Secured Parties and the UK Secured Parties.

Canadian Security Documents” means (a) the Canadian Security Agreement, (b) each deed of hypothec granted by a Canadian Credit Party in favor of the Agent, and (c) and each other security agreement or other instrument or document executed and delivered by any Canadian Credit Party to the Agent pursuant to this Agreement or any other Loan Document granting a Lien on assets of any Canadian Credit Party for the benefit of the Canadian Secured Parties and the UK Secured Parties, as security for the Canadian Liabilities and the UK Liabilities.

Canadian Subsidiary” means any Subsidiary that is organized under the laws of Canada or any province or territory thereof.

Canadian Swingline Lender” means Bank of America-Canada Branch, in its capacity as lender of Canadian Swingline Loans hereunder.

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Canadian Swingline Loan shall mean a Loan made by the Canadian Swingline Lender to the Canadian Borrower pursuant to Section 2.5 hereof.

Canadian Swingline Note” means a promissory note of the Canadian Borrower substantially in the form of Exhibit B-5, payable to the Canadian Swingline Lender if requested by the Canadian Swingline Lender, evidencing the Canadian Swingline Loans.

Canadian Swingline Sublimit” means an amount equal to the lesser of (a) $5,000,000 and (b) the Canadian Total Commitments.  The Canadian Swingline Sublimit is part of, and not in addition to, the Canadian Total Commitments.

Canadian Total Commitments” means the aggregate of the Canadian Commitments of all Canadian Lenders.  On the Second Amendment Effective Date, the Canadian Total Commitments are $70,000,000.

Capital Expenditures of any Person means, for any period, to the extent treated as a capital expenditure in accordance with GAAP, any expenditure for fixed assets (both tangible and intangible), including assets being constructed (whether or not completed), leasehold improvements, installment purchases of machinery and equipment, acquisitions of real estate and other similar expenditures including without duplication, expenditures in or from any construction-in-progress account of any of the Credit Parties, provided that “Capital Expenditures” shall not include any portion of the purchase price of a Permitted Acquisition which is allocated to property, plant or equipment acquired as part of such Permitted Acquisition.

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

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

Cash Collateral Account shall mean (i) an interest-bearing account established by the Domestic Borrowers with the Agent under the sole and exclusive dominion and control of the Agent designated as the “Genesco Inc. Cash Collateral Account”, (ii) in the case of the Canadian Borrower, an interest-bearing account established by the Canadian Borrower with the Agent at Bank of America-Canada Branch under the sole and exclusive dominion and control of the Agent designated as the “GCO Canada Cash Collateral Account”, and (iii) in the case of the UK Borrower, an interest-bearing account established by the UK Borrower with the Agent under the sole and exclusive dominion and control of the Agent designated as the “Genesco (UK) Limited Cash Collateral Account”.

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Cash Collateralize” means, as of any date, the deposit by the Borrowers in the Cash Collateral Account of an amount in cash equal to 102% of the Letter of Credit Outstandings plus any accrued and unpaid interest thereon.

Cash Dominion Event means either (i) the occurrence and continuance of any Specified Event of Default, or (ii) the failure of the Borrowers to maintain Excess Availability in an amount equal to the greater of (A) twelve and one-half percent (12.5%) of the Loan Cap (calculated without giving effect to the FILO Reserve), or (B) $30,000,000, in each case, for three (3) consecutive Business Days.  For purposes of this Agreement, the occurrence of a Cash Dominion Event shall be deemed continuing (i) so long as such Specified Event of Default has not been waived, and/or (ii) if the Cash Dominion Event arises as a result of the Borrowers’ failure to achieve Excess Availability as required hereunder, until Excess Availability has exceeded the greater of $30,000,000 or 12.5% of the Loan Cap (calculated without giving effect to the FILO Reserve) for thirty (30) consecutive days, in which case a Cash Dominion Event shall no longer be deemed to be continuing for purposes of this Agreement; provided that a Cash Dominion Event shall be deemed continuing for a twelve month period (even if a Specified Event of Default is no longer continuing and/or Excess Availability exceeds the greater of $30,000,000 or 12.5% of the Loan Cap (calculated without giving effect to the FILO Reserve) for thirty (30) consecutive days) after a Cash Dominion Event has occurred and been discontinued on two (2) occasions in any twelve month period. The termination of a Cash Dominion Event as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Cash Dominion Event in the event that the conditions set forth in this definition again arise.

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

Cash Management Services” means any one or more of the following types of services or facilities provided to any Credit Party by the Agent or any Lender or any of their respective Affiliates: (a) ACH transactions, (b) cash management services, including, without limitation, controlled disbursement services, treasury, depository, overdraft, and electronic funds transfer services, (c) credit card processing services, and (d) credit or debit cards.

Cash Receipts has the meaning provided therefor in Section 2.21(d).

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

Change in Control means, at any time, (a) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Lead Borrower by Persons who were neither (i) nominated by the board of directors of the Lead Borrower nor (ii) appointed by directors so nominated; or (b) any person or group (as such terms are used in the Securities and Exchange Act of 1934, as amended), is or becomes the beneficial owner (within the meaning of Rule 13d-3 and 13d-5 of the Securities and Exchange Act of 1934, as amended) directly or indirectly of fifty percent (50%) or more of the total voting power of the Voting Stock of the Lead Borrower on a fully diluted basis, whether as a result of the issuance, sale or distribution of securities of the Lead

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Borrower, any merger or consolidation to which the Lead Borrower is a party, or otherwise, (c) except as otherwise permitted pursuant to this Agreement, the failure of the Lead Borrower to own, directly or indirectly, at least eighty percent (80%) of the Voting Stock or ownership interest, as applicable, of all of the Borrower Consolidated Group (other than with respect to Permitted Joint Venture Investments, for which such percentage shall be at least fifty percent (50%)), or (d) there occurs a “Change in Control” under and as determined in any document governing Material Indebtedness of any Credit Party.

Change in Law means (a) the adoption of any law, rule or regulation after the date of this Agreement (or, in the case of any Person which becomes a Lender or Participant thereafter, the date on which such Person becomes a Lender or Participant), (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement (or, in the case of any Person which becomes a Lender or Participant thereafter, the date on which such Person becomes a Lender or Participant) or (c) compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.23, by any lending office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement (or, in the case of any Person which becomes a Lender or Participant thereafter, the date on which such Person becomes a Lender or Participant); provided however, for purposes of this Agreement, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, guidelines or directives in connection therewith, and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, in each case are deemed to have gone into effect and been adopted after the Effective Date.

Charges has the meaning provided therefor in Section 9.14.

Chattel Paperhas the meaning ascribed to such term in the UCC or in the PPSA, as applicable.  

Co-Syndication Agents” means U.S. Bank National Association and SunTrust Bank.

Code means the Internal Revenue Code of 1986 and the rules and regulations promulgated thereunder, as amended from time to time.

Collateral means any and all “Collateral” or Mortgaged Property as defined in any applicable Security Document.

Collateral Access Agreement” means an agreement reasonably satisfactory in form and substance to the Agent executed by (a) a bailee or other Person in possession of Collateral, and (b) any landlord of Real Estate leased by any Credit Party, pursuant to which such Person (i) acknowledges the Agent’s Lien on the Collateral, (ii) releases or subordinates such Person’s Liens in the Collateral held by such Person or located on such Real Estate, (iii) provides the Agent with access to the Collateral held by such bailee or other Person or located in or on such Real Estate, (iv) as to any landlord, provides the Agent with a reasonable time to sell and dispose of the Collateral from such Real Estate, and (v) makes such other agreements with the Agent as it may

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reasonably require.  Any Collateral Access Agreement executed and delivered to, and accepted by, the Agent will be deemed to satisfy the requirements set forth in this definition. The Collateral Access Agreements obtained in connection with the Existing Credit Agreement will be deemed to be effective Collateral Access Agreements for the purposes contained herein.

Collateral Control Agreementmeans a tri-party agreement in form and substance satisfactory to the Agent, in its Permitted Discretion, among the Agent, a Borrower and a customs broker, freight forwarder or other carrier, in which the customs broker, freight forwarder or other carrier acknowledges that it has control over and holds the documents evidencing ownership of the subject Inventory for the benefit of the Agent and agrees, upon notice from the Agent following the occurrence and during the continuance of an Event of Default, to hold and dispose of the subject Inventory solely as directed by the Agent.

Combined Borrowing Base” means the sum of (i) the Combined Revolving Borrowing Base and (ii) the FILO Borrowing Base.

Combined Revolving Borrowing Base” means the sum of (i) the Domestic Borrowing Base, (ii) as long as Canadian Commitments remain outstanding, the Canadian Borrowing Base, and (iii) if established pursuant to Section 2.30(a), the UK Borrowing Base.

Commercial Letter of Credit means any Letter of Credit issued for the purpose of providing the primary payment mechanism in connection with the purchase of any materials, goods or services by a member of the Borrower Consolidated Group in the ordinary course of business of such Borrower.

Commitment shall mean, with respect to each Lender, the Canadian Commitment, the UK Commitment, the Revolving Domestic Commitment and the FILO Commitment, of such Lender hereunder.

Commitment Fee has the meaning provided therefor in Section 2.12(a).

Commitment Fee Rate” means 0.25% per annum.

Commitment Increase has the meaning provided therefor in Section 2.1(c).

Commitment Increase Date has the meaning provided therefor in Section 2.1(d).

Commitment Percentage shall mean, with respect to (a) any Revolving Domestic Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Domestic Total Commitments represented by such Revolving Domestic Lender’s Revolving Domestic Commitment at such time, (b) any Canadian Lender at any time, the percentage (carried out to the ninth decimal place) of the Canadian Total Commitments represented by such Canadian Lender’s Canadian Commitment at such time, (c) any UK Lender at any time, the percentage (carried out to the ninth decimal place) of the UK Total Commitments represented by such UK Lender’s UK Commitment at such time, and (d) with respect to any FILO Lender at any time, the percentage (carried out to the ninth decimal place) of the outstanding principal balance of the FILO Loan represented by such FILO Lender’s outstanding FILO Loan at such time, and (e) any Lender at any time, the percentage (carried out to the ninth decimal place) of the Total Commitments

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represented by such Lender’s Commitment at such time.  If the commitment of each Lender to make Revolving Loans and the obligation of the Issuing Bank to issue Letters of Credit have been terminated pursuant to Section 2.15 or Section 7.1 or if the Revolving Commitments have expired, then the Commitment Percentage of each Revolving Lender shall be determined based on the Commitment Percentage of such Lender most recently in effect, giving effect to any subsequent assignments.  The initial Commitment Percentage of each Lender is set forth opposite the name of such Lender on Schedule 1.1 or in the Assignment and Acceptance pursuant to which such Lender becomes a party hereto, as applicable, or as may subsequently be set forth in the Register from time to time, and as such Commitments may be reduced from time to time pursuant to Section 2.15 or hereof or increased from time to time pursuant to Section 2.1(c) hereof.

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

Concentration Accountsmeans collectively, the Bank of America Concentration Account and any concentration account established by the Canadian Borrower at Bank of America-Canada Branch, together with any and all other concentration accounts opened by any of the Credit Parties and consented to, in writing, by the Agent.

Confirmation Agreementmeans the Confirmation and Ratification of Ancillary Documents, dated as of the Effective Date and made between the Credit Parties and the Agent.

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

Consolidated EBITDA of any Person means, for any Applicable Fiscal Period, the following for such Person for such period:  (i) Consolidated Net Income, plus (ii) depreciation, amortization and all other non-cash charges that were deducted in the calculation of Consolidated Net Income for such period, plus (iii) provisions for income taxes that were deducted in the calculation of Consolidated Net Income for such period, plus (iv) Consolidated Interest Expense for such period, plus (v) extraordinary non-cash losses for such period to the extent such losses have not been and are not expected to become cash losses in a later fiscal period, minus (vi) federal, state, local and, to the extent not included in the calculation of taxes under clause (iii) above, foreign, income tax credits, minus (ix) all non-cash items (including, without limitation, all extraordinary non-cash gains) increasing Consolidated Net Income.  

Consolidated Interest Expense means, for any Person for any period, total interest and all amortization of debt discount and expense (including that attributable to Capital Lease Obligations in accordance with GAAP) of such Person on a Consolidated basis with respect to all outstanding Indebtedness of such Person calculated in accordance with GAAP.

Consolidated Net Income means, for any Person for any period, the net income (or loss) of such Person on a Consolidated basis for such period taken as a single accounting period determined in conformity with GAAP, provided that there shall be excluded (i) the income (or loss) of any Person that is not a Subsidiary in which any other Person (other than the Lead Borrower or any of its Subsidiaries) has a joint interest, except to the extent of the amount of

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dividends or other distributions actually paid to the Lead Borrower or any of its Subsidiaries by such Person during such period, and (ii) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of the Lead Borrower or any of its Subsidiaries or is merged into or consolidated with the Lead Borrower or any of its Subsidiaries or that Person’s assets are acquired by the Lead Borrower or any of its Subsidiaries.

Consolidated Net Worth” means, with respect to any Person, the difference between its Consolidated total assets and its Consolidated total liabilities, all as determined in accordance with GAAP.

Consolidated Total Indebtedness” means as of any date of determination, the aggregate principal amount of Indebtedness of the Lead Borrower and its Subsidiaries outstanding on such date, determined on a Consolidated basis in accordance with GAAP.

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. The terms “Controlling” and “Controlled” have meanings correlative thereto.

Controlled Account Banks shall mean the banks or other depository institutions with whom the Borrowers have entered into Account Control Agreements.

Controlled Accounts shall mean each deposit account, lockbox account or investment account of the Borrowers that is the subject of an Account Control Agreement.

Cost” means the cost of Inventory, based upon the Borrowers’ method of accounting as in effect on the Effective Date, as such calculated cost is reflected in the Borrowers’ stock ledger or perpetual inventory records (and without giving effect to any inventory reserves maintained in the Borrowers’ general ledger).

Covenant Compliance Event” means that Excess Availability at any time is less than the greater of $22,500,000 or 10% of the Loan Cap (calculated without giving effect to the FILO Reserve). For purposes hereof, the occurrence of a Covenant Compliance Event shall be deemed continuing until Excess Availability has equaled or exceeded the greater of $22,500,000 or 10% of the Loan Cap (calculated without giving effect to the FILO Reserve) for thirty (30) consecutive days, in which case a Covenant Compliance Event shall no longer be deemed to be continuing for purposes of this Agreement.  The termination of a Covenant Compliance Event as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Covenant Compliance Event in the event that the conditions set forth in this definition again arise.

Covered Entity” means any of the following:  (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

Credit Card Notifications has the meaning provided therefor in Section 2.21(a).

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Credit Extensions shall mean, collectively, the Canadian Credit Extensions, the UK Credit Extensions and the Domestic Credit Extensions.

Credit Parties shall mean, collectively, the Canadian Credit Parties, the UK Credit Parties, if applicable, and the Domestic Credit Parties (each, individually, a “Credit Party”).

CTA” means the Corporation Tax Act 2009 (UK).

Currency Due” has the meaning provided therefor in Section 9.20.

Customer Credit Liabilities means, at any time, the aggregate face value at such time of (a) outstanding gift certificates and gift cards of the Borrowers entitling the holder thereof to use all or a portion of the certificate to pay all or a portion of the purchase price for any Inventory, including, without limitation, discount cards, and (b) outstanding merchandise credits of the Borrowers.

DDA means any checking or other demand deposit account maintained by any Borrower. All funds in each DDA shall be conclusively presumed to be Collateral and proceeds of Collateral and the Agents and the Lenders shall have no duty to inquire as to the source of the amounts on deposit in any DDA.

DDA List has the meaning provided therefor in Section 2.21(a).

DDA Notification has the meaning provided therefor in Section 2.21(a).

Debtor Relief Law” shall mean, collectively, (i) the Bankruptcy Code, (ii) the BIA, the Companies’ Creditors Arrangement Act (Canada) and the Winding-up and Restructuring Act (Canada), and (iii) all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the United States, Canada, the United Kingdom or other applicable jurisdictions from time to time in effect affecting the rights of creditors generally, in each case as amended from time to time.

Default means any event or condition that constitutes an Event of Default or that upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

Defaulting Lender” means, subject to Section 8.13(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder, or (ii) pay to the Agent, the Issuing Bank, the Swingline Lender, the Canadian Swingline Lender, the UK Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit, Swingline Loans, the Canadian Swingline Loans, or UK Swingline Loans, as applicable) within two Business Days of the date when due, (b) has notified the Borrowers, the Agent, the Issuing Bank, the Swingline Lender, the Canadian Swingline Lender, or the UK Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect, (c) has failed, within three Business Days after written request by

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the Agent or the Lead Borrower, to confirm in writing to the Agent and the Lead Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Agent and the Lead Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States, Canada or the United Kingdom or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 8.13(b)) as of the date established therefor by the Agent in a written notice of such determination, which shall be delivered by the Agent to the Lead Borrower, the Issuing Bank, the Swingline Lender, the Canadian Swingline Lender, the UK Swingline Lender and each other Lender promptly following such determination.

Designated Jurisdiction” means any country or territory to the extent that such country or territory is the subject of any Sanction.

Determination Date” shall mean the date upon which each of the following has occurred:

(a)The Canadian Commitments, the UK Commitments and/or the Revolving Domestic Commitments have been terminated by the Required Revolving Lenders (or are deemed terminated) upon the occurrence of an Event of Default; and

(b)The Obligations, the UK Liabilities and/or the Canadian Liabilities have been declared to be due and payable (or have become automatically due and payable) and have not been paid in accordance with the terms of this Agreement.

Dilution Reserve” means, for any period, the excess of (a) that percentage reasonably determined by the Agent by dividing (i) the amount of charge-offs and other account adjustments of Eligible Wholesale Receivables and returns of goods purchased from the Borrowers during such period which had, at the time of sale, resulted in the creation of an Eligible Wholesale Receivable, by (ii) the amount of sales (exclusive of sales and other similar taxes) of the Borrowers during such period over (b) five percent (5%) (but in no event shall the Dilution Reserve be less than zero).

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Disqualified Stock” means any capital stock or other equity interest that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the date on which the Loans mature. Notwithstanding the preceding sentence, any equity interest that would constitute Disqualified Stock solely because the holders thereof have the right to require a Credit Party to repurchase such equity interest upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Stock.  The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Agreement will be the maximum amount that the Borrowers and their Subsidiaries may become obligated to pay upon maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock or portion thereof, plus accrued dividends.

Documentation Agent” means PNC Bank, National Association.

Dollars or $refers to lawful money of the United States of America.

Domestic Availability” means, as of any date of determination thereof, the result, if a positive number, of:

(a)the Revolving Domestic Loan Cap

minus

(b)the Domestic Credit Extensions (other than a FILO Loan) on such date.

Domestic Borrowersmeans the Lead Borrower and the Other Domestic Borrowers.

Domestic Borrowing” means a borrowing consisting of simultaneous Revolving Domestic Loans of the same Type and, in the case of LIBO Loans, having the same Interest Period made by each of the Domestic Lenders pursuant to Section 2.3, or the borrowing of the FILO Loan on the Second Amendment Effective Date, as the context may require.

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

(a)the product of (i) the Inventory Advance Rate multiplied by (ii) the Appraised Value of Eligible Inventory of the Domestic Borrowers multiplied by (iii)(A) the Cost of Eligible Inventory of the Domestic Borrowers, minus (B) Inventory Reserves related to Eligible Inventory of the Domestic Borrowers;

plus

(b)the product of (i) eighty-five percent (85%) multiplied by (ii)(A) the then Eligible Wholesale Receivables of the Domestic Borrowers, minus (B) Account Reserves related to such Eligible Wholesale Receivables of the Domestic Borrowers;

plus

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(c)the product of (i) ninety percent (90%) multiplied by (ii)(A) the then Eligible Credit Card and Debit Card Receivables of the Domestic Borrowers, minus (B) Account Reserves related to Eligible Credit Card and Debit Card Receivables of the Domestic Borrowers;

plus

(d)the product of (i) the Real Estate Advance Rate multiplied by (ii)(A) the Appraised Value of Eligible Real Estate, minus (B) Realty Reserves related to such Eligible Real Estate of the Domestic Borrowers, provided that such clause (d) shall only be applicable if and when the Real Estate Approval has occurred; provided further that in no event shall the aggregate amounts available to be borrowed under this clause (d) exceed fifteen (15%) of the Domestic Borrowing Base;

minus

(e)the then amount of the FILO Reserve;

minus

(f)without duplication, the then amount of all Availability Reserves and Realty Reserves established with respect to matters affecting the Domestic Borrowers.

Domestic Credit Extensions” as of any day, shall be equal to the sum of (a) the principal balance of all Domestic Loans (including Swingline Loans) then outstanding, and (b) the then amount of the Domestic Letter of Credit Outstandings.

Domestic Credit Parties” means, collectively, the Domestic Borrowers and each Material Domestic Subsidiary that is or becomes a guarantor of the Obligations.  “Domestic Credit Party” means any one of such Persons.

Domestic Lenders” means the Lenders having Revolving Domestic Commitments and FILO Commitments from time to time or at any time.

Domestic Letter of Credit” means each Letter of Credit issued hereunder for the account of a Domestic Borrower.

Domestic Letter of Credit Outstandings” shall mean, at any time, the sum of (a) with respect to Domestic Letters of Credit outstanding at such time, the aggregate maximum amount that then is or at any time thereafter may become available for drawing or payment thereunder plus (b) all amounts theretofore drawn or paid under Domestic Letters of Credit for which the Issuing Bank has not then been reimbursed.

Domestic Letter of Credit Sublimit” means an amount equal to $70,000,000.  The Domestic Letter of Credit Sublimit is part of, and not in addition to, the Revolving Domestic Total Commitments.  A permanent reduction of the Revolving Domestic Total Commitments shall not require a corresponding pro rata reduction in the Domestic Letter of Credit Sublimit; provided, however, that if the Revolving Domestic Total Commitments are reduced to an amount less than the Domestic Letter of Credit Sublimit, then the Domestic Letter of Credit Sublimit shall be reduced to an amount equal to (or, at the Lead Borrower’s option, less than) the Revolving Domestic Total Commitments.

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Domestic Loan” means an extension of credit by a Domestic Lender to the Domestic Borrowers (to the extent based on Domestic Availability) under Section 2.

Domestic Loan Cap” means, at any time of determination, the lesser of (a) the Revolving Domestic Total Commitments, minus the then outstanding principal balance of the Canadian Credit Extensions and the UK Credit Extensions, and (b) the Domestic Borrowing Base minus the then outstanding principal balance of the Canadian Credit Extensions, but only to the extent in excess of the Canadian Borrowing Base, and the UK Credit Extensions.

Domestic Note” means a promissory note made by the Domestic Borrowers in favor of a Revolving Domestic Lender evidencing Revolving Domestic Loans made by such Revolving Domestic Lender, substantially in the form of Exhibit B-2.

Domestic Notice of Borrowing” means a notice from the Lead Borrower to the Agent in connection with a Domestic Borrowing of Revolving Domestic Loans or Swingline Loans, which shall be substantially in the form of Exhibit H-1.

Domestic Prime Rate Loan shall mean any Loan bearing interest at a rate based on the Base Rate.

Domestic Secured Party” or “Domestic Secured Parties” has the meaning assigned to such term in the Security Agreement.

Domestic Subsidiary means any Subsidiary other than a Foreign Subsidiary.

EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Effective Date means the date on which the conditions specified in Section 4.1 were satisfied (or waived by the Agent).

Effective Date Guaranties” means, collectively, (i) the Guaranty executed on January 31, 2014 by the Domestic Borrowers in favor of the Canadian Secured Parties and the UK Secured Parties substantially in the form of Exhibit C-1 hereto, (ii) the Guaranty governed by Ontario law and executed on January 31, 2014 by the Canadian Borrower to guaranty the UK Liabilities and the Canadian Liabilities substantially in the form of Exhibit C-2 hereto, and (iii) the Guaranty governed by English law and executed on January 31, 2014 by the UK Borrower to guaranty the UK Liabilities and the Canadian Liabilities substantially in the form of Exhibit C-3 hereto.

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Eligible Assignee” means (a) a Lender (other than a Defaulting Lender) or any of its  Affiliates; (b) a bank, insurance company, or company engaged in the business of making commercial loans, which Person, together with its Affiliates, has a combined capital and surplus in excess of $250,000,000; (c) an Approved Fund; (d) any Person to whom a Lender assigns its rights and obligations under this Agreement as part of an assignment and transfer of such Lender’s rights in and to a material portion of such Lender’s portfolio of asset based credit facilities, and (e) any other Person (other than a natural person) approved by the Agent, such approval not to be unreasonably withheld or delayed; provided that notwithstanding the foregoing, (i) “Eligible Assignee” shall not include a Credit Party or any of the Credit Parties’ Affiliates or Subsidiaries, and (ii) an Eligible Assignee who is assigned a Canadian Commitment shall meet the criteria set forth in the definition of “Canadian Lender”.

Eligible Credit Card and Debit Card Receivables means Card Receivables due to a Borrower (other than the UK Borrower) on a non-recourse basis from Visa, MasterCard, American Express Company, Discover, and other major credit card or debit card processors, in each case acceptable to the Agent in its Permitted Discretion, as arise in the ordinary course of business, that have been earned by performance and are deemed by the Agent in its Permitted Discretion to be eligible for inclusion in the calculation of the Domestic Borrowing Base, FILO Borrowing Base, or the Canadian Borrowing Base, as applicable. Without limiting the foregoing, unless the Agent otherwise agrees, none of the following shall be deemed to be Eligible Credit Card and Debit Card Receivables:

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

(b)Card Receivables with respect to which a Borrower does not have good and valid title, free and clear of any Lien (other than Liens granted to the Agent for its own benefit and the ratable benefit of the other applicable Secured Parties and Permitted Encumbrances for which the Agent may, in its Permitted Discretion, establish adequate Reserves pursuant to Section 2.2);

(c)Card Receivables that are not subject to a first priority security interest in favor of the Agent for its own benefit and the ratable benefit of the other applicable Secured Parties (it being the intent that chargebacks in the ordinary course by the credit card and debit card processors, and Permitted Encumbrances for which the Agent may, in its Permitted Discretion, establish adequate Reserves pursuant to Section 2.2, shall not be deemed violative of this clause);

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

(e)Card Receivables which the Agent determines in its Permitted Discretion to be uncertain of collection.

Eligible Inventory” shall mean, as of the date of determination thereof (without duplication), (a) Eligible Johnston & Murphy Inventory, (b) Eligible Journeys Inventory, (c) Eligible Wholesale Inventory, and (d) other items of Inventory of the Borrowers (other than the UK Borrower) that are finished goods, merchantable and readily saleable to the public in the

25


 

ordinary course deemed by the Agent in its Permitted Discretion to be eligible for inclusion in the calculation of the Domestic Borrowing Base, FILO Borrowing Base, or the Canadian Borrowing Base, as applicable. Without limiting the foregoing, unless otherwise approved in writing by the Agent, none of the following shall be deemed to be Eligible Inventory:

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

(b)Inventory that is not located at a warehouse facility or store that is owned or leased by a Borrower (it being understood that any Inventory that is in transit between a warehouse facility and a store or between stores that are owned or leased by one or more Borrowers (other than the UK Borrower) will not be rendered “ineligible” by the application of this clause (b));

(c)Inventory that represents (i) goods damaged, defective or otherwise unmerchantable, or (ii) goods returned to the vendor;

(d)Inventory that is not located in the United States of America (including Puerto Rico, but excluding other territories and possessions of the United States of America) or Canada;

(e)Inventory that is not subject to a perfected first priority security interest in favor of the Agent for the benefit of the applicable Secured Parties (it being the intent that Permitted Encumbrances for which the Agent, in its Permitted Discretion, has established adequate Reserves pursuant to Section 2.2 shall not be deemed violative of this clause);

(f)Inventory which consists of samples, labels, bags, packaging and other similar non-merchandise categories;

(g)Inventory as to which insurance in compliance with the provisions of Section 5.7 hereof is not in effect;

(h)Inventory which has been sold but not yet delivered or as to which a Borrower has accepted a deposit;

(i)Inventory that is located (i) in a distribution center or warehouse leased by a Borrower described on Schedule 1.2 hereto unless in each case, the applicable lessor has delivered to the Agent a Collateral Access Agreement; or (ii) in any other leased distribution center or warehouse in which Inventory having a Cost of at least $5,000,000 is maintained, unless in each case, the applicable lessor has delivered to the Agent a Collateral Access Agreement (unless the Agent establishes an Availability Reserve for rent in such amounts as it deems appropriate from time to time in its Permitted Discretion);

(j)Inventory that is owned by any joint venture of the Borrowers; or

(k)Inventory that is subject to any licensing, patent, royalty, trademark, trade name or copyright agreement with any third party from which any Borrower or any of its Subsidiaries has received written notice to limit, restrict or terminate (in whole or in part) the right of the Borrowers or any of their Subsidiaries to dispose of any Inventory which is the subject of such agreement; provided that if any such licensing, patent, royalty, trademark, trade name or copyright agreement

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permits the Borrowers (or the Borrowers are otherwise permitted) to dispose of the Inventory which is the subject thereof after receipt of such written notice (the “Sell-off Period”), then, so long as the Agent would not be precluded from disposing of such Inventory in a Liquidation, such Inventory shall continue to constitute Eligible Inventory during the Sell-off Period (as long it would not otherwise be excluded under this definition), but the Inventory Advance Rate for such Inventory shall reduce by 2.5% each week until such Inventory is disposed of.

Eligible Johnston & Murphy Inventoryshall mean, as of the date of determination thereof, without duplication of other Eligible Inventory, Inventory which is sold through the Johnston & Murphy operations of the Borrowers (other than the UK Borrower) and which would otherwise constitute Eligible Inventory.

Eligible Journeys Inventory shall mean, as of the date of determination thereof, without duplication of other Eligible Inventory, Inventory which is sold through the Journeys operations of the Borrowers (other than the UK Borrower) and which would otherwise constitute Eligible Inventory.

Eligible Real Estate” means Real Estate which is (i) wholly-owned in fee or (ii) for a portion of the Wilson County Property, leased under a ground lease acceptable to the Agent in its reasonable discretion, which in each case, except as otherwise agreed by the Agent, in its discretion, satisfies all of the following conditions:

(a)A Domestic Borrower (i) owns such Real Estate in fee simple absolute or (ii) with respect to a portion of the Wilson County Property, is the lessee under a Lease for such Real Estate;

(b)The Agent shall have received evidence that all actions have been taken that the Agent may reasonably deem necessary or appropriate in order to create valid first and subsisting Liens (subject only to Permitted Encumbrances (other than Liens securing Indebtedness) which have priority over the Lien of the Agent by operation of law or otherwise reasonably acceptable to the Agent) on the property described in the Mortgages;

(c)The Agent shall have received an appraisal (based upon Appraised Value) of such Real Estate complying with the requirements of FIRREA and as provided in the definition of Appraised Value by a third party appraiser reasonably acceptable to the Agent and otherwise in form and substance reasonably satisfactory to the Agent and the Second Amendment Lenders;

(d)The Real Estate Eligibility Requirements have been satisfied or waived in accordance with the Real Estate Approval;

(e)The Lease for the applicable portion of the Wilson County Property shall contain customary estoppels, cure rights, and other provisions protecting a leasehold mortgagee’s interests in the Lease as the Agent may reasonably determine in or if not contained therein, such provisions have been included in an agreement between the lessor and the Agent in form and substance reasonably satisfactory to the Agent, unless waived by the Agent; and

(f)The Domestic Borrowers shall not be in default of the material terms of the Lease for the applicable portion of the Wilson County Property.

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Eligible Trade Names” means each Trademark of the Domestic Borrowers deemed by Agent in its reasonable discretion to be eligible for inclusion (provided that the Trademarks included in the latest appraisal of intellectual property provided to Agent prior to the Second Amendment Effective Date and described on Schedule 1.4 hereto shall be eligible so long as the criteria described below are met with respect to such Trademarks) in the calculation of the FILO Borrowing Base that, except as otherwise agreed by the Agent, complies with the following criteria:

(a)such Trademark is validly registered with the United States Patent and Trademark Office;  

(b)a Domestic Borrower owns such Trademark, free and clear of any Liens other than Liens granted to the Agent and other Permitted Encumbrances;

(c)such Domestic Borrower is in compliance in all material respects (subject to any materiality requirements set forth therein) with the representations, warranties and covenants set forth in the Loan Documents relating to such Trademark;

(d)the Agent shall have received an appraisal (based upon Appraised Value) of such Trademark by a third party appraiser reasonably acceptable to the Agent and otherwise in form and substance reasonably satisfactory to the Agent; and

(e)the Agent shall have received evidence reasonably satisfactory to the Agent that (i) all actions have been taken that the Agent may reasonably deem necessary or appropriate in order to create valid first and subsisting Liens in favor of the Agent (subject to Permitted Encumbrances), and (ii) all filings reasonably requested by the Agent have been filed with the United States Patent and Trademark Office to further evidence the Agent’s Lien on such Trademark.

Eligible Wholesale Inventory shall mean, without duplication of other Eligible Inventory, Inventory which is sold at wholesale through the licensed brands operations, and/or the Johnston & Murphy wholesale operations of the Borrowers (other than the UK Borrower) and which would otherwise constitute Eligible Inventory.

Eligible Wholesale Receivablesshall mean each Account acceptable to the Agent in its Permitted Discretion, as arises in the ordinary course of business from the sale of finished goods inventory or rendering of services by the Borrowers (other than the UK Borrower) to wholesale customers, that have been earned by performance and are deemed by the Agent in its Permitted Discretion to be eligible for inclusion in the calculation of the Domestic Borrowing Base, FILO Borrowing Base, or the Canadian Borrowing Base, as applicable. Without limiting the foregoing, unless the Agent otherwise agrees, no Account shall be deemed to be an Eligible Wholesale Receivable if:

(a)it is not subject to a valid perfected first priority security interest in favor of the Agent for the benefit of the applicable Secured Parties, subject to no other Lien other than Permitted Encumbrances for which the Agent, in its Permitted Discretion, has established adequate Reserves pursuant to Section 2.2;

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(b)it is not evidenced by an invoice, statement or other documentary evidence reasonably satisfactory to the Agent;

(c)it arises out of services rendered or sales to, or out of any other transaction between, among or with, one or more Affiliates or employees of Borrowers;

(d)it remains unpaid for longer than the earlier of (i) sixty-one (61) calendar days after the original due date, or (ii) ninety-one (91) calendar days after the date of sale;

(e)it is owed by an Account Debtor and/or its Affiliates with respect to which more than 50% of the aggregate balance of all Accounts owing from such Account Debtor and/or its Affiliates remain unpaid for longer than the earlier of (i) sixty-one (61) calendar days after the original due date, or (ii) ninety-one (91) calendar days after the date of sale;

(f)with respect to all Accounts owed by any particular Account Debtor and/or its Affiliates, 50% or more of all such Accounts are deemed not to be Eligible Wholesale Receivables by the Agent in its Permitted Discretion (which percentage may, in the Agent’s Permitted Discretion, be increased or decreased);

(g)all Accounts owed by the corresponding Account Debtor and/or its Affiliates together exceed twenty percent (20%) (or any higher percentages now or hereafter established by the Agent in its Permitted Discretion for any particular Account Debtor) of the net collectible dollar value of all Accounts at any one time (but the portion of the Accounts not in excess of the applicable percentages may be deemed Eligible Wholesale Receivables, in the Agent’s Permitted Discretion);

(h)any covenant, agreement, representation or warranty contained in any Loan Document with respect to such Account has been breached and remains uncured;

(i)the Account Debtor for such Account has commenced a voluntary case under any Debtor Relief Law or has made an assignment for the benefit of creditors, or a decree or order for relief has been entered by a court having jurisdiction in respect of such Account Debtor in an involuntary case under any Debtor Relief Law, or any other petition or application for relief under any Debtor Relief Law has been filed against such Account Debtor, or such Account Debtor has failed, suspended business or ceased to be solvent, called a meeting of its creditors, or has consented to or suffered a receiver, trustee, liquidator or custodian to be appointed for it or for all or a significant portion of its assets or affairs;

(j)it arises from the sale of property or services rendered to one or more Account Debtors outside the continental United States or Canada or that have their principal place of business or chief executive offices outside the continental United States or Canada;

(k)it represents the sale of goods to an Account Debtor on a bill‑and‑hold, guaranteed sale, sale-and-return, sale on approval, consignment or other repurchase or return basis or is evidenced by Chattel Paper or an Instrument of any kind not delivered to the Agent or has been reduced to judgment;

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(l)the applicable Account Debtor for such Account is any Governmental Authority, unless (i) if an Account due from the United States of America, rights to payment of such Account have been assigned to Agent, for the benefit of itself and Lenders, pursuant to the Assignment of Claims Act of 1940, as amended (31 U.S.C. Section 3727, et seq. and 41 U.S.C. Section 15, et seq.), or otherwise, or (ii) if an Account due from the federal government of Canada or a political subdivision thereof, or any province or territory, or any municipality or department or agency or instrumentality thereof, then the provisions of the Financial Administration Act (Canada) or any applicable provincial, territorial or municipal law of similar purpose and effect restricting the assignment thereof have been complied with, and, in each case, all applicable statutes or regulations respecting the assignment of government Accounts have been complied with;

(m)it is subject to an offset, credit (including any resource or other income credit or offset), deduction, defense, discount, chargeback, freight claim, allowance, adjustment, dispute or counterclaim, or is contingent in any respect or for any reason (but only to the extent of such offset, credit, deduction, defense, discount, chargeback, freight claim, allowance, adjustment, dispute or counterclaim or contingency);

(n)there is an agreement with an Account Debtor for any deduction from such Account, except for discounts or allowances made in the ordinary course of business for prompt payment, all of which discounts or allowances are reflected in the calculation of the face value of each invoice related thereto, such that only the discounted amount of such Account after giving effect to such discounts and allowances shall be considered an Eligible Wholesale Receivable;

(o)any return, rejection or repossession of goods or services related to it has occurred;

(p)it is not payable to a Borrower;

(q)the applicable Borrower has agreed to accept or has accepted any non-cash payment for such Account;

(r)it constitutes a re-billing of an amount previously billed or double billing (i.e., counted twice);

(s)it constitutes a billing for a sample for which there is no written invoice or similar agreement evidencing the Account Debtor’s agreement to pay such Account;

(t)with respect to any Account arising from the sale of goods, the goods have not been shipped to the Account Debtor or its designee;

(u)with respect to any Account arising from the performance of services, the services have not been actually performed or the services were undertaken in violation of any law;

(v)the applicable Account Debtor for such Account is located in the States of New Jersey, Minnesota, or West Virginia (or any other state that requires a creditor to file a business activity report or similar document in order to bring suit or otherwise enforce its remedies against such Account Debtor in the courts or through any judicial process of such state), unless the requisite Borrower has qualified to do business in New Jersey, Minnesota, West Virginia, or such other states, or has filed a business activities report with the applicable division of taxation, the department of revenue, or with such other state offices, as appropriate, for the then-current year, or is exempt from such filing requirement;

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(w)it is an Account subject to a debit memo issued by any Borrower;

(x)such Account does not arise from the actual and bona fide sale and delivery of goods by a Borrower or rendition of services by a Borrower in the ordinary course of its business which transactions are completed in accordance with the terms and provisions contained in any documents related thereto;

(y)it is an Account subject to a surety bond, guaranty, indemnity or other similar arrangement;

(z)it is an Account owed by an Account Debtor that is subject to legal process by a Borrower or against which a Borrower has asserted a mechanics’ or other similar lien or that is subject to collection by a Borrower;

(aa)it is an Account (i) owing from any Person that is also a supplier to or creditor of a Borrower or (ii) representing any manufacturer’s or supplier’s credits, discounts, incentive plans or similar arrangements entitling a Borrower to discounts on future purchase therefrom;

(bb)it is an Account evidenced by a promissory note or other instrument; or

(cc)it fails to meet such other specifications and requirements which may from time to time be established by the Agent on a prospective basis or is not otherwise satisfactory to the Agent, as determined in the Agent’s Permitted Discretion.

Environmental Compliance Reserve” means, with respect to Eligible Real Estate, such reserves which the Agent, from time to time in its Permitted Discretion establishes for estimable amounts that are reasonably likely to be expended by any of the Credit Parties in order for such Credit Party and its operations and property (a) to comply with any notice from a Governmental Authority asserting non-compliance with Environmental Laws, or (b) to correct any such non-compliance with Environmental Laws or to provide for any Environmental Liability.

Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by or with any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, or handling, treatment, storage, disposal, Release or threatened Release of any Hazardous Material.

Environmental Liability means any liability, contingent or otherwise (including any liability for damages, natural resource damage, costs of environmental remediation, administrative oversight costs, fines, penalties or indemnities), of any Person directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

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Equivalent Amount” means, (a) the Equivalent CD$ Amount, and (b) with respect to any Optional Currency, the equivalent amount thereof in Dollars determined by the Agent at such time on the basis of the Spot Rate.

Equivalent CD$ Amount” means, on any date, the rate at which Canadian Dollars may be exchanged into Dollars, determined by reference to the Bank of Canada rate at the close of business on the immediately preceding Business Day as provided on the Reuters screen page.  In the event that such rate does not appear on such Reuters screen page, “Equivalent CD$ Amount” shall mean, on any date, the amount of Dollars into which an amount of Canadian Dollars may be converted or the amount of Canadian Dollars into which an amount of Dollars may be converted, in either case, at, in the case of the Canadian Borrower, the Agent’s spot buying rate in Toronto as at approximately 12:00 noon (Toronto time) on such date and, in the case of a Domestic Borrower, the Agent’s spot buying rate in New York as at approximately 12:00 noon, Local Time on the immediately preceding Business Day.

ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

ERISA Affiliate means any trade or business (whether or not incorporated) that, together with any Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, 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 existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by a Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by a Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by a Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan (which is subject to Section 4063 of ERISA) or Multiemployer Plan; or (g) the receipt by a Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from a Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

Euros and the designation “€” mean the lawful currency of the Participating Member States.

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Event of Default has the meaning provided therefor in Section 7.1.  An “Event of Default” shall be deemed to have occurred and to be continuing in accordance with the provisions of Section 7.2 hereof.

Excess Availability means, as of any date of determination, the excess, if any, of (a) the Loan Cap, over (b) the Total Outstandings.

Excluded DDA” means (a) all DDAs maintained by any Credit Party in the ordinary course of business and actually used solely (i) for payroll and payroll taxes and other trust funds, (ii) for sales taxes or other taxes, (iii) to fund a reserve account pursuant to a processing agreement entered into in the ordinary course of business with a credit card or debit card processor or check processor, or (iv) after the occurrence and during the continuation of a Cash Dominion Event, to fund chargebacks, fees, fines, penalties and other charges due and owing to credit card or debit card processors or check processors arising in the ordinary course of business with respect to the processing of credit card or debit card charges or checks, and (b) any DDA of the UK Borrower and the other UK Credit Parties until such time as the UK Borrower and the other UK Credit Parties have granted a Lien on, and security interest in, their assets to secure the UK Liabilities and the Canadian Liabilities as set forth in Section 2.30 hereof.

Excluded Swap Obligation” means, with respect to any Credit Party, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Credit Party of, or the grant under a Loan Document by such Credit Party of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act (or the application or official interpretation thereof) by virtue of such Credit Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 9.27 hereof and any and all guarantees of such Credit Party’s Swap Obligations by other Credit Parties) at the time the guaranty of such Credit Party, or grant by such Credit Party of a security interest, becomes effective with respect to such Swap Obligation.  If a Swap Obligation arises under a master agreement governing more than one Hedging Agreement, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Hedging Agreement for which such guaranty or security interest becomes illegal.

Excluded Taxes means any of the following Taxes imposed on or with respect to a Recipient or required to be deducted or withheld from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which any Borrower or Lender is located, (c) in the case of a Foreign Lender (other than a Canadian Lender or a UK Lender) any U.S. withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a New Lending Office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a New Lending Office (or assignment), to receive additional amounts from the Borrowers with respect to such withholding tax pursuant to Section 2.26, (d) in the case of a Canadian Lender (other than the Canadian Lenders on the Effective Date), any withholding tax that is imposed on amounts payable

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to such Canadian Lender at the time such Canadian Lender becomes a party to this Agreement (or designates a New Lending Office) or is attributable to such Canadian Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 2.26, except to the extent that such Canadian Lender (or its assignor, if any) was entitled, at the time of designation of a New Lending Office (or assignment), to receive additional amounts from the Canadian Borrower with respect to such withholding tax pursuant to Section 2.26, (e) any U.S. federal withholding or Canadian Taxes imposed pursuant to FATCA, (f) any Canadian Tax (i) imposed on a payment by or on account of any obligation of a Credit Party hereunder: (A) to a person with which the Credit Party does not deal at arm’s length (for purposes of the Income Tax Act (Canada)) at the time of making such payment or (B) in respect of a debt or other obligation to pay an amount to a person with whom the payer is not dealing at arm’s length (for the purposes of the Income Tax Act (Canada)) at the time of such payment, or (ii) that would not have been imposed but for a Recipient being a "specified shareholder" (as defined in subsection 18(5) of the Income Tax Act (Canada)) of a Credit Party or not dealing at arm’s length (for purposes of the Income Tax Act (Canada)) with such a specified shareholder, and (g) any Taxes attributable to a Recipient's failure to comply with Section 2.26(k).

Excluded UK Subsidiaries means the Subsidiaries of the UK Borrower in existence as of the Effective Date and any future Subsidiaries of such Excluded UK Subsidiaries.

Existing Credit Agreement has the meaning set forth in the Recitals hereto.

Existing Financing Agreements shall mean the “Loan Documents”, as defined in the Existing Credit Agreement.

Existing Letters of Credit means each of the letters of credit listed on Schedule 2.6(j) hereto.

Facility Guaranty means any Guaranty made by the Guarantors in favor of the applicable Secured Parties, in form reasonably satisfactory to the Agent.

FASB” means the Financial Accounting Standards Board, which promulgates accounting standards.

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 entered into in connection with the implementation of such Sections of the Code.

Federal Funds Effective Rate means for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

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Fee Letter means the letter between the Lead Borrower and the Agent dated as of January 3, 2018, as such letter may from time to time be amended.

FILO Advance Rate” means the percentages set forth below:

Period

FILO Advance Rate

From the Second Amendment Effective Date until the first anniversary of the Second Amendment Effective Date

5%

From the first anniversary of the Second Amendment Effective Date until the second anniversary of the Second Amendment Effective Date

4%

From the second anniversary of the Second Amendment Effective Date until the Maturity Date

3%

 

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

(a)the product of (i) the FILO Advance Rate multiplied by (ii) the Appraised Value of Eligible Inventory of the Domestic Borrowers multiplied by (iii)(A) the Cost of Eligible Inventory of the Domestic Borrowers, minus (B) Inventory Reserves related to Eligible Inventory of the Domestic Borrowers;

plus

(b)the product of (i) the FILO Advance Rate multiplied by (ii)(A) the then Eligible Wholesale Receivables of the Domestic Borrowers, minus (B) Account Reserves related to such Eligible Wholesale Receivables of the Domestic Borrowers;

plus

(c)the product of (i) the FILO Advance Rate multiplied by (ii)(A) the then Eligible Credit Card and Debit Card Receivables of the Domestic Borrowers, minus (B) Account Reserves related to Eligible Credit Card and Debit Card Receivables of the Domestic Borrowers;

plus

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(d)the product of the FILO IP Advance Rate multiplied by the Appraised Value of Eligible Trade Names of the Domestic Borrowers;

minus

(e)without duplication, the then amount of all Availability Reserves established with respect to matters affecting the Domestic Borrowers (without duplication of any Availability Reserves deducted from the Domestic Borrowing Base).

FILO Commitment” means as to each FILO Lender, its obligation to make the FILO Loan to the Domestic Borrowers on the Second Amendment Effective Date pursuant to Article II in the amount set forth opposite such FILO Lender’s name on Schedule 1.1.

FILO Collateral Release Conditions” means the date on which the FILO Loan is paid in full.

FILO IP Advance Rate” means the percentages set forth below:

Period

IP Advance Rate

From the Second Amendment Effective Date until the first anniversary of the Second Amendment Effective Date

50%

From the first anniversary of the Second Amendment Effective Date until the second anniversary of the Second Amendment Effective Date

45%

From the second anniversary of the Second Amendment Effective Date until the Maturity Date

40%

 

FILO Lenders” means Lenders having FILO Commitments from time to time or at any time.

FILO Loan” means the extension of credit by the FILO Lenders to the Domestic Borrowers under Article II on the Second Amendment Effective Date in the original principal amount of $17,500,000.

FILO Note” means a promissory note by the Domestic Borrowers in favor of a FILO Lender evidencing the portion of the FILO Loan made by such FILO Lender, substantially in the form of Exhibit B-7.

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FILO Reserve” means the amount, if any, by which the outstanding amount of the FILO Loan exceeds the FILO Borrowing Base.

Financial Officer means, with respect to any Borrower, the chief financial officer, controller, assistant controller, treasurer, or assistant treasurer of such Borrower.  Any document delivered hereunder that is signed by a Financial Officer of a Borrower shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Borrower and such Financial Officer shall be conclusively presumed to have acted on behalf of such Borrower.

FIRREA” means the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended from time to time.

First Amendment Effective Date means, February 1, 2019.

Fiscal Month” means any four or five week fiscal period of any Fiscal Year in accordance with the fiscal accounting calendar of the Credit Parties.

Fiscal Quarter” means any thirteen week fiscal period of any Fiscal Year in accordance with the fiscal accounting calendar of the Credit Parties.

Fiscal Year” means any period of four consecutive Fiscal Quarters ending on the Saturday closest to January 31 of any calendar year.

Fixed Charge Coverage Ratio means, as of the last day of any Fiscal Month, for the Lead Borrower on a Consolidated basis for the Applicable Fiscal Period then ended, the ratio of (a) an amount equal to Consolidated EBITDA less Capital Expenditures and Taxes paid in cash, in each case for such period, to (b) Fixed Charges for such period.  Consolidated EBITDA, Capital Expenditures, Taxes and Fixed Charges shall be calculated without regard to (i) those items attributable to any Person prior to the date it becomes a Domestic Subsidiary of the Lead Borrower or any of its other Domestic Subsidiaries or is merged into or consolidated with the Lead Borrower or any of its Domestic Subsidiaries or that Person’s assets are acquired by the Lead Borrower or any of its Domestic Subsidiaries and (ii) any Subsidiaries other than Domestic Subsidiaries.

Fixed Charges means, with respect to any Person, the sum of (a) Consolidated Interest Expense paid in cash, and (b) scheduled principal payments on any Indebtedness for such period (excluding the Obligations but including Capital Lease Obligations).

Flood Insurance 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, and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.

Foreign Lender means any Lender that is organized under the laws of a jurisdiction other than the United States of America or any State thereof or the District of Columbia.

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Foreign Subsidiary means any Subsidiary that is organized under the laws of a jurisdiction other than the United States of America or any State thereof or the District of Columbia.

Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the Issuing Bank, such Defaulting Lender’s Commitment Percentage of the outstanding Letters of Credit other than Letters of Credit as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, the Canadian Swingline Lender, and the UK Swingline Lender, such Defaulting Lender’s Commitment Percentage of Swingline Loans, Canadian Swingline Loans, or UK Swingline Loans, as applicable, other than Swingline Loans, Canadian Swingline Loans, or UK Swingline Loans, as applicable, as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.

Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

GAAP means accounting principles which are (a) consistent with those promulgated or adopted by the FASB and its predecessors (or successors) in effect and applicable to that accounting period in respect of which reference to GAAP is being made, and (b) consistently applied with past financial statements of the Credit Parties adopting the same principles provided that, with respect to Foreign Subsidiaries organized under the laws of Canada, or any province or territory thereof, unless GAAP is being applied, “GAAP” shall mean principles which are consistent with those promulgated or adopted by the Chartered Professional Accountants Canada and its predecessors (or successors) in effect and applicable to the accounting period in respect of which reference to GAAP is being made.

Governmental Authority means the government of the United States of America, Canada, the United Kingdom, any other nation or any political subdivision thereof, whether state or local, provincial, territorial or municipal and any agency, authority, instrumentality, regulatory body, court, tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

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, (b) to purchase or lease property, securities or services for the primary purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation, provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.

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Guarantor” means (i) each Material Domestic Subsidiary of the Lead Borrower that shall be required to execute and deliver a Facility Guaranty of the Obligations pursuant to Section 5.14, (ii) each Material Subsidiary of the Canadian Borrower that shall be required to execute and deliver a Facility Guaranty of the Canadian Liabilities and the UK Liabilities pursuant to Section 5.14, and (iii) each Material Subsidiary of the UK Borrower that shall be required to execute and deliver a Facility Guaranty of the UK Liabilities and the Canadian Liabilities pursuant to Section 2.30 or Section 5.14, as applicable.

Hazardous Materials means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes, and all other substances or wastes of any nature regulated pursuant to any Environmental Law, including any material listed as a hazardous substance under Section 101(14) of CERCLA.

Hedging Agreement means any interest rate protection agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, foreign currency exchange agreement, commodity price protection agreement, or other interest or currency exchange rate or commodity price hedging arrangement designed to hedge against fluctuations in interest rates or foreign exchange rates.

Indebtedness of any Person means, without duplication, (a) all obligations of such Person for borrowed money (including any obligations of such Person that are without recourse to the credit of such Person), (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (j) to the extent not otherwise included, all net obligations of such Person under Hedging Agreements, (k) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of Disqualified Stock, and (l) the principal and interest portions of all rental obligations of such Person under any Synthetic Lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an operating lease in accordance with GAAP.  The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.  

Indemnified Taxes means Taxes other than Excluded Taxes.

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Indemnitee has the meaning provided therefor in Section 9.4(b).

Insolvency Regulation” means Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast).

Instrument has the meaning ascribed to such term in the UCC.

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, records, writings, computer tapes or disks, flow diagrams, specification sheets, computer software, source codes, object codes, executable code, data, databases and other physical manifestations, embodiments or incorporations of any of the foregoing; all other intellectual property; and all common law and other rights throughout the world in and to all of the foregoing.

Intellectual Property Security Agreements” means the Intellectual Property Security Agreements dated as of the Second Amendment Effective Date among the applicable Domestic Borrowers and the Agent, granting a Lien in the Intellectual Property and certain other assets of the applicable Domestic Borrowers, as amended and in effect from time to time.

Interest Payment Date means (a) with respect to any Domestic Prime Rate Loan (including a Swingline Loan), Canadian Prime Rate Loan (including a Canadian Swingline Loan), U.S. Index Rate Loan (including a Canadian Swingline Loan) or UK Swingline Loan, the first day of each calendar month, and (b) with respect to any LIBO Loan, or BA Equivalent Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part, and, in addition, if such LIBO Loan or BA Equivalent Loan has an Interest Period of greater than 90 days, on the last day of the third month of such Interest Period.

Interest Period means, with respect to any LIBO Borrowing or BA Equivalent Loan Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as the Lead Borrower, UK Borrower or Canadian Borrower may elect by notice to the Agent in accordance with the provisions of this Agreement, provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month during which such Interest Period ends) shall end on the last Business Day of the calendar month during which such Interest Period ends, (c) any Interest Period which would otherwise end after the Termination Date

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shall end on the Termination Date, and (d) notwithstanding the provisions of clause (c), no Interest Period shall have a duration of less than one month, and if any Interest Period applicable to a LIBO Borrowing or BA Equivalent Loan Borrowing would be for a shorter period, such Interest Period shall not be available hereunder. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

Inventory has the meaning assigned to such term in the Security Agreement.

Inventory Advance Rate means 90% or, in the case of Inventory acquired in a Permitted Acquisition, such rate as the Agent shall establish, in its Permitted Discretion, after completion of an appraisal on such Inventory, provided that such rate shall not exceed 90%.

Inventory Reserves means such reserves as may be established from time to time by the Agent in its Permitted Discretion (after consultation with the Lead Borrower (whose consent to any Inventory Reserve shall not be required)) with respect to the determination of the saleability, at retail, of the Eligible Inventory or which reflect such other factors as affect the Appraised Value of the Eligible Inventory.  Without limiting the generality of the foregoing, Inventory Reserves may include (but are not limited to) reserves based on (i) obsolescence; (ii) seasonality; (iii) Shrink; (iv) imbalance; (v) change in Inventory character; (vi) change in Inventory composition; (vii) change in Inventory mix; (viii) markdowns (both permanent and point of sale); and (ix) retail mark-ons and markups inconsistent with prior period practice and performance; industry standards; current business plans; or advertising calendar and planned advertising events.  Inventory Reserves shall be established and calculated in a manner and methodology consistent with the Agent’s practices as of the Effective Date with other similarly situated borrowers.

Investment has the meaning provided therefor in Section 6.4.

Investment Accounts means all accounts maintained by any of the Credit Parties for Investments as of the Effective Date and thereafter opened by any of the Credit Parties and consented to by the Agent.

ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).

Issuing Bank means, with respect to Domestic Letters of Credit and UK Letters of Credit, Bank of America and, with respect to Canadian Letters of Credit, Bank of America-Canada Branch; provided that if such Issuing Bank is unable to issue any Letter of Credit as a result of the provisions of Section 2.6(b)(ii) hereof, the Lead Borrower may appoint one other Lender who agrees to accept such appointment to act as Issuing Bank hereunder.  The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.

ITA” means the Income Tax Act 2007 (UK).

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Joinder Agreement shall mean an agreement in form and substance acceptable to the Agent in its Permitted Discretion, pursuant to which, among other things, a Person becomes a party to, and bound by, the terms of this Agreement and/or other Loan Documents in the same capacity and to the same extent as either a Borrower or a Guarantor, as the Agent may determine.

Judgment Currency” has the meaning provided therefor in Section 9.20.

L/C Disbursement means a payment made by the Issuing Bank pursuant to a Letter of Credit.

LCA Election” has the meaning provided therefor in Section 1.9.

LCA Test Date” has the meaning provided therefor in Section 1.9.

Lead Borrower means Genesco Inc. and any replacement that the Borrowers appoint to act as Lead Borrower upon the consent of the Agent, which consent shall not be unreasonably withheld.

Leasemeans any agreement, whether written or oral, no matter how styled or structured, pursuant to which a Credit Party is entitled to the use or occupancy of any real property for any period of time.

Lenders shall mean the Persons identified on Schedule 1.1 and each assignee that becomes a party to this Agreement as set forth in Section 9.6(b).

Letter of Credit shall mean a Standby Letter of Credit, Commercial Letter of Credit or Banker’s Acceptance that is (i) issued pursuant to this Agreement for the account of any Borrower or any Guarantor, (ii) issued in connection with the purchase of Inventory by any Borrower or any Guarantor or for any other purpose that is reasonably acceptable to the Agent, and (iii) in form and substance reasonably satisfactory to the Issuing Bank.  The term “Letter of Credit” shall include, without limitation, all Existing Letters of Credit and all Banker’s Acceptances.

Letter of Credit Fees” shall mean the fees payable in respect of Letters of Credit pursuant to Section 2.13.

Letter of Credit Outstandings shall mean, collectively, Canadian Letter of Credit Outstandings, the UK Letter of Credit Outstandings and Domestic Letter of Credit Outstandings.  For purposes of computing the amounts available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.6.  For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

LIBO Borrowing shall mean a Borrowing comprised of LIBO Loans.

LIBO Floor” means 1.00% per annum.

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LIBO Loan shall mean any Loan bearing interest at a rate determined by reference to the LIBO Rate and the FILO Loan, in accordance with the provisions of Section 2.3.

LIBO Rate” means the higher of:

(i) the LIBO Floor, and

(ii) (a) for any Interest Period with respect to a LIBO Loan, the rate per annum equal to the London Interbank Offered Rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for U.S. Dollars) for a period equal in length to such Interest Period as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and

(b) for any interest calculation with respect to a Domestic Prime Rate Loan on any date, the rate per annum equal to LIBO Rate, at or about 11:00 a.m., London time determined two London Banking Days prior to such date for U.S. Dollar deposits with a term of one month commencing that day.

LIBO Screen Rate” means the LIBO Rate quote on the applicable screen page the Agent designates to determine LIBO Rate (or such other commercially available source providing such quotations as may be designated by the Agent from time to time).

LIBO Successor Rate” has the meaning provided therefor in Section 2.29.

LIBO Successor Rate Conforming Changes” means, with respect to any proposed LIBO Successor Rate, any conforming changes to the definition of Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters as may be appropriate, in the discretion of the Agent in consultation with the Lead Borrower, to reflect the adoption and implementation of such LIBO Successor Rate and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the 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 LIBO Successor Rate exists, in such other manner of administration as the Agent determines reasonably necessary in consultation with the Lead Borrower in connection with the administration of this Agreement).  

Lids Disposition means, the sale of the Company Shares and the Acquired Assets each as defined in, and pursuant to the terms of, the Lids Disposition Agreement.

Lids Disposition Agreementmeans, that certain Purchase Agreement dated as of December 14, 2018, by, among others, FanzzLids Holdings, LLC, as Buyer, Hat World, Inc., and each of the Canadian Borrower, Flagg Bros. of Puerto Rico, Inc. and Hat World Corporation, as Sellers, as such agreement is in effect as of the First Amendment Effective Date or as may be modified, amended, supplemented or restated with the consent of the Agent, such consent not to be unreasonably withheld.

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Lien means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

Limited Condition Acquisition” means any purchase or other acquisition, by merger, amalgamation, consolidation or otherwise, by the Borrowers or any Subsidiary of equity interests in, or all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of), any Person, the consummation of which is not conditioned on the availability of, or on obtaining, third party financing.

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

Liquidation Percentage” means, for any Lender, a fraction, the numerator of which is the sum of such Lender’s Revolving Domestic Total Commitment, Canadian Commitment and UK Commitment on the Determination Date and the denominator of which is the Total Commitments of all Lenders on the Determination Date.

Loan” means a Revolving Loan, a Swingline Loan, a Canadian Swingline Loan, a UK Swingline Loan, or a FILO Loan, as applicable.

Loan Account  has the meaning provided therefor in Section 2.20(a).

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

Loan Documents means this Agreement, the Notes, the Letters of Credit, the Fee Letter, the Second Amendment Fee Letter, all Borrowing Base Certificates, the Account Control Agreements, the DDA Notifications, the Credit Card Notifications, the Security Documents, the Perfection Certificate, the Effective Date Guaranties, the Facility Guaranty, the Confirmation Agreement, the UK Deed of Confirmation, and any other instrument or agreement now or hereafter executed and delivered in connection herewith or therewith, each as amended and in effect from time to time.

Local Time means, (a) with respect to Domestic Loans, Swingline Loans, Canadian Loans and Canadian Swingline Loans, Eastern time (daylight or standard, as applicable), and (b) with respect to UK Loans and UK Swingline Loans, prevailing time in London, England.

London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

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Margin Stock has the meaning assigned to such term in Regulation U.

Material Adverse Effect means a material adverse effect on (a) the business, operations, property, assets, condition, financial or otherwise, of the Credit Parties, taken as a whole; provided that, as of the Second Amendment Effective Date, the temporary closure of the Credit Parties’ store locations and other operational disruptions affecting the Credit Parties, in each case as a direct result of the COVID-19 pandemic and disclosed to the Agent or in public filings on or before the Second Amendment Effective Date, shall not be deemed to have resulted in a Material Adverse Effect as of and through the Second Amendment Effective Date, (b) the ability of the Credit Parties, taken as a whole, to perform any material obligation or to pay any Obligations under this Agreement or any of the other Loan Documents, or (c) the validity or enforceability of this Agreement or any of the other Loan Documents or any of the material rights or remedies of the Agent or the Lenders hereunder or thereunder.

Material Domestic Subsidiarymeans, as of any date of determination, any Domestic Subsidiary (a) the total tangible assets (after intercompany eliminations) of which, as determined in accordance with GAAP, exceeds five percent (5%) of the Consolidated total tangible assets of the Lead Borrower (after intercompany eliminations) measured as of the end of the most recently ended Fiscal Quarter with respect to which the Agent has received financial statements required to be delivered pursuant to Sections 5.1(a) and 5.1(b), as applicable, or (b) which represents more than ten percent (10%) of Consolidated Net Income of the Lead Borrower for the previous twelve Fiscal Months ending as of the last day of such Fiscal Quarter.  “Material Domestic Subsidiary” shall include, without limitation, any Subsidiary whose principal assets are one or more Material Domestic Subsidiaries. A Material Domestic Subsidiary may include, at the sole option of Lead Borrower, any Domestic Subsidiary designated by Borrower to be a “Material Domestic Subsidiary” by written notice to Agent and compliance with the requirements of Section 5.14.  

Material Foreign Subsidiary means each Foreign Subsidiary which is a direct or indirect Subsidiary of a Borrower which, as of the last day of any Fiscal Quarter, satisfied any one or more of the following tests:

(a)such Foreign Subsidiary’s total tangible assets (after intercompany eliminations), as determined in accordance with GAAP, exceeds 10% of Consolidated total tangible assets of the Lead Borrower; or

(b)such Foreign Subsidiary’s Consolidated Net Income for the previous twelve months ending as of the last day of such Fiscal Quarter exceeds 10% of Consolidated Net Income of the Lead Borrower for the previous twelve months ending as of the last day of such Fiscal Quarter; or

(c)such Foreign Subsidiary’s Consolidated Net Worth exceeds 10% of the Consolidated Net Worth of the Lead Borrower.

Material Indebtedness means Indebtedness (other than the Loans and Letters of Credit) of any one or more of the Borrowers in an aggregate principal amount exceeding $20,000,000.

Material Real Estate” means any piece of Real Estate located in the United States that is owned in fee by a Credit Party having a fair market value in excess of $5,000,000 as reasonably determined, in good faith, by the Lead Borrower and reasonably acceptable to the Agent.

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Material Subsidiarymeans a Material Domestic Subsidiary or a Material Foreign Subsidiary. A Material Subsidiary may include, at the sole option of Lead Borrower, any Subsidiary designated by Borrower to be a “Material Subsidiary” by written notice to Agent and compliance with the requirements of Section 5.14.  Additionally, Lead Borrower may designate any Material Subsidiary which does not constitute a Material Domestic Subsidiary or a Material Foreign Subsidiary under the respective definitions thereof as no longer constituting a Material Subsidiary and a Material Domestic Subsidiary or Material Foreign Subsidiary, as the case may be.

Maturity Date means January 31, 2023.

Maximum Rate has the meaning provided therefor in Section 9.14.

Minority Lenders has the meaning provided therefor in Section 9.3(c).

Moody’s means Moody’s Investors Service, Inc.

Mortgage” means each and every fee and leasehold mortgage or deed of trust, security agreement and assignment by the Domestic Borrower owning or holding the leasehold interest in the Real Estate encumbered thereby in favor of the Agent.

Mortgage Policy” has the meaning specified in the definition of Real Estate Eligibility Requirements.

Multiemployer Plan means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

New Lending Officehas the meaning provided therefor in Section 2.26(e).

Noncompliance Notice has the meaning provided therefor in Section 2.5(a)(ii).

Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

Notes shall mean, collectively, the Canadian Notes, the Domestic Notes, the FILO Notes, the UK Notes, the Swingline Note, the Canadian Swingline Notes and the UK Swingline Notes.

Notice of Borrowingmeans a Domestic Notice of Borrowing, a Canadian Notice of Borrowing, or a UK Notice of Borrowing, as applicable.

Obligations means (a) the principal of, and interest (including all interest that accrues after the commencement of any case or proceeding by or against any Borrower under any federal, state or provincial bankruptcy, insolvency, receivership or similar law, whether or not allowed in such case or proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (b) the obligations of the Borrowers under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral, (c)

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all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise, of the Borrowers to the Secured Parties under this Agreement and the other Loan Documents (including all such amounts that accrue or are incurred after the commencement of any case or proceeding by or against any Borrower under any federal, state or provincial bankruptcy, insolvency, receivership or similar law, whether or not allowed in such case or proceeding), (d) all covenants, agreements, obligations and liabilities of the Borrowers under or pursuant to this Agreement and the other Loan Documents, and (e) the payment and performance under any transaction of a Credit Party with any Lender or any of its Affiliates that arises out of (i) any Cash Management Services, or (ii) any Bank Products provided by any such Person; provided that Obligations of a Credit Party shall exclude any Excluded Swap Obligations with respect to such Credit Party.  Without limiting the foregoing, the term “Obligations” includes all Canadian Liabilities and all UK Liabilities.

OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

Optional Currency means Euros and Pounds Sterling, or any other freely transferable currencies approved by the Agent and each UK Lender.

Other Borrowersmeans the Other Domestic Borrowers, the Canadian Borrower and the UK Borrower.

Other Canadian Liabilities means any obligation of the Canadian Borrower arising on account of clause (e) of the definition of “Obligations”.

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 Tax (other than connections 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 Loan Document).

Other Domestic Borrowersmeans Genesco Brands, LLC, a Delaware limited liability company; Hat World Corporation, a Delaware corporation; Flagg Bros. of Puerto Rico, Inc., a Delaware corporation, Genesco Footwear LLC, a Tennessee limited liability company, Genesco Brands NY, LLC, a Delaware limited liability company, and any other Material Domestic Subsidiary that is not a Guarantor.

Other Domestic Liabilities means any obligation of the Domestic Credit Parties arising on account of clause (e) of the definition of “Obligations”.

Other Taxes means any and all current or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.28) arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document.

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Other UK Liabilities means any obligation of the UK Borrower arising on account of clause (e) of the definition of “Obligations”.

Overadvance means, at any time of calculation, a circumstance in which the Credit Extensions (excluding the FILO Loans) exceed the Domestic Loan Cap.

Participant has the meaning provided therefor in Section 9.6(e).

Participant Register” has the meaning provided therefor in Section 9.6(f).

Participating Member State” means any member state of the European Union that has the Euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

Payment Conditions means, as of the date of the making of any Restricted Payment or consummation of any Acquisition, that (a) no Default or Event of Default exists or would arise after giving effect to such Restricted Payment or Acquisition, and (b) either (i) the Borrowers have pro forma Excess Availability for the prior 60 day period equal to or greater than 20% of the Loan Cap (calculated without giving effect to the FILO Reserve), after giving pro forma effect to such Restricted Payment or Acquisition, or (ii) (A) the Borrowers have pro forma Excess Availability for the prior 60 day period of less than 20% of the Loan Cap (calculated without giving effect to the FILO Reserve) but equal to or greater than 15% of the Loan Cap (calculated without giving effect to the FILO Reserve), after giving pro forma effect to the Restricted Payment or Acquisition, and (B) the Fixed Charge Coverage Ratio, on a pro-forma basis for the twelve months preceding such Restricted Payment or Acquisition, will be equal to or greater than 1.0:1.0 and (c) after giving effect to such Restricted Payment or Acquisition, the Borrowers are Solvent. In the event that (x) the aggregate amount of any payment paid by the Borrowers in an Acquisition or a series of related Acquisitions equals or exceeds $10,000,000 during any consecutive thirty (30) day period, then the Borrowers shall provide a certificate signed by a Financial Officer, no earlier than ten (10) Business Days and no later than two (2) Business Days prior to the anticipated date of such Acquisition (or the first such Acquisition, if in connection with a series of Acquisitions), or (y)  the aggregate amount of any payments projected by the Borrowers in good faith to be paid by the Borrowers for any Restricted Payment or a series of related Restricted Payments in any Fiscal Quarter (the “Subject Quarter”) will equal or exceed $30,000,000 during such Fiscal Quarter, then the Borrowers shall provide a certificate signed by a Financial Officer, no earlier than ten (10) Business Days and no later than two (2) Business Days  prior to the commencement of the Subject Quarter, in each case certifying as to the satisfaction of the applicable Payment Conditions (on a basis (including, without limitation, giving due consideration to results for prior periods) reasonably satisfactory to the Agent) including the relevant calculations therefor and accompanied by such information required to be delivered to the Agent pursuant to Section 5.1(j), if applicable, (to the extent not previously delivered) provided that if pro forma Excess Availability for the prior 60 day period is less than or equal to 20% of the Loan Cap (calculated without giving effect to the FILO Reserve), such a certificate shall be provided if the aggregate amount for any Acquisition paid by the Borrowers in a transaction or a series of related transactions equals or exceeds $5,000,000.

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PBGC means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

Perfection Certificate means, collectively, (i) a certificate of the Domestic Borrowers in the form approved by the Agent as to certain matters regarding the Collateral and (ii) a certificate of the Canadian Borrower in the form approved by the Agent as to certain matters regarding the Collateral, as each may be amended, restated, amended and restated, supplemented, and modified from time to time.

Permitted Acquisition means (a) the acquisition (in a transaction or series of related transactions) of not less than eighty percent (80%) of the capital stock or other equity interests of, or (b) the acquisition (in a transaction or series of related transactions) of all or substantially all of the assets or properties of, or any division or business unit of, any Person, whether or not pursuant to a transaction of merger or consolidation, or (c) any acquisition of any store locations or Leases of any Person (each of the foregoing an Acquisition) in each case which satisfies each of the following conditions:

 

(i)

The Acquisition is of a business permitted to be conducted by the Borrowers pursuant to Section 6.3(b) hereof; and

 

(ii)

Prior to and after giving effect to the Acquisition or at the LCA Test Date, as the case may be, no Default or Event of Default will exist or will arise therefrom; and

 

(iii)

The Person making the Acquisition must be a Borrower or a Subsidiary which will become a Borrower or Guarantor (if required) in accordance with Section 5.14 hereof and the Borrowers (including such Person) shall take such steps as are necessary to grant to the Agent, for the benefit of the applicable Secured Parties, a legal, valid and enforceable first priority (except as provided in Section 6.2 hereof) security interest in the assets and capital stock or other equity interests acquired in connection with such acquisition to the extent the grant of such security interest is required in accordance with Section 5.14 hereof; and

 

(iv)

If a Borrower shall merge with such other Person, such Borrower shall be the surviving party of such merger; and

 

(v)

Either (A) the aggregate consideration for such Acquisition, together with the consideration for all other Acquisitions undertaken by the Borrowers in such Fiscal Year, shall not exceed $30,000,000 in any Fiscal Year, or (B) the Payment Conditions shall have been satisfied; provided that with respect to any Limited Condition Acquisition, such satisfaction shall be determined in accordance with Section 1.9; and

 

(vi)

In the case of the Acquisition of capital stock or other equity interests of another Person, the board of directors (or other comparable governing body) of such other Person shall have duly approved such Acquisition.

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In connection with any Permitted Acquisition, the Lead Borrower may submit a Borrowing Base Certificate reflecting a calculation of the Domestic Borrowing Base, FILO Borrowing Base, and the Canadian Borrowing Base that includes Eligible Inventory, Eligible Wholesale Receivables and Eligible Credit Card and Debit Card Receivable acquired in connection with such Acquisition (the “Acquired Eligible Inventory, the Acquired Eligible Wholesale Receivables and the “Acquired Eligible CC Receivables”, respectively, and collectively, the “Acquired Borrowing Base Collateral”) and, from and after the Acquisition Date (as defined below), the Domestic Borrowing Base, FILO Borrowing Base, and the Canadian Borrowing Base (and if applicable, the UK Borrowing Base) shall be calculated giving effect thereto; provided that prior to the completion of a field examination and inventory appraisal with respect to such Acquired Borrowing Base Collateral, such adjustment to the Domestic Borrowing Base, FILO Borrowing Base, and the Canadian Borrowing Base (and if applicable, the UK Borrowing Base) shall be limited to (i) from the date such Acquisition is consummated (the “Acquisition Date”) until the date that is 90 days after the Acquisition Date, the sum of (x) 50% of the Acquired Eligible Inventory, (y) 70% of the Acquired Eligible Wholesale Receivables, and (z) 80%, in the case of Acquired Eligible CC Receivables; provided that, the Domestic Borrowing Base, FILO Borrowing Base, and the Canadian Borrowing Base (and if applicable, the UK Borrowing Base) attributable to such Acquired Borrowing Base Collateral shall not exceed 5% of the Combined Borrowing Base, and (ii) from the 91st day following the Acquisition Date (or such later day as the Agent may agree in its sole discretion), the Domestic Borrowing Base, FILO Borrowing Base and the Canadian Borrowing Base (and if applicable, the UK Borrowing Base) shall be calculated without reference to the Acquired Borrowing Base Collateral until a field examination and inventory appraisal have been completed with respect to such assets; it being understood and agreed that there shall be no Default or Event of Default solely as a result of a failure to complete and deliver such inventory appraisal and field examination on or prior to the dates indicated above.

Permitted Discretion means the Agent’s good faith credit judgment based upon any factor or circumstance which it reasonably believes in good faith: (i) will or could reasonably be expected to adversely affect the value of the Collateral, the enforceability or priority of the Agent’s Liens thereon in favor of the applicable Secured Parties or the amount which the Agent and the applicable Secured Parties would likely receive (after giving consideration to delays in payment and costs of enforcement) in the liquidation of such Collateral; (ii) suggests that any collateral report or financial information delivered to the Agent by or on behalf of a Borrower is incomplete, inaccurate or misleading in any material respect; (iii) could reasonably be expected to increase materially the likelihood of a bankruptcy, reorganization or other insolvency proceeding involving any of the Credit Parties; or (iv) creates or reasonably could be expected to create a Default or Event of Default.  In exercising such judgment, the Agent may consider factors or circumstances already included in or tested by the definition of Eligible Inventory, Eligible Wholesale Receivables or Eligible Credit Card and Debit Card Receivables, as well as any of the following: (A) changes in demand for and pricing of Inventory; (B) changes in any concentration of risk with respect to Inventory or Accounts; (C) any other factors or circumstances that will or could reasonably be expected to have a Material Adverse Effect; (D) audits of books and records by third parties, history of chargebacks or other credit adjustments, or other relevant information regarding the creditworthiness of Account Debtors; and (E) any other factors that change or could reasonably be expected to change the credit risk of lending to the Borrowers on the security of the Inventory or Accounts.  Notwithstanding the foregoing, it shall not be within Permitted Discretion for the Agent to establish Reserves which are duplicative of each other whether or not such reserves fall under more than one reserve category.

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Permitted Encumbrances means:

(i)Liens imposed by law for taxes that are not yet due or are being contested in compliance with Section 5.5;

(ii)carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 60 days or are being contested in compliance with Section 5.5;

(iii)pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance, old-age pension and other social security laws or regulations (other than (a) any Lien imposed under ERISA) or (b) Liens (save for contribution amounts not yet due) arising pursuant to the Pension Benefits Act (Ontario) or similar legislation of another Canadian province or territory;

(iv)deposits to secure the performance of bids, trade contracts, leases, contracts (other than for the repayment of borrowed money), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business or letter of credit guarantees issued in respect thereof;

(v)judgment liens in respect of judgments that do not constitute an Event of Default under Section 7.1(m);

(vi)easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or materially interfere with the ordinary conduct of business of the Borrowers or any of the other Credit Parties, taken as a whole, and such other minor title defects or survey matters that, in each case, do not materially interfere with the ordinary conduct of the business of the Borrowers or any of the other Credit Parties, taken as a whole;

(vii)Possessory liens in favor of brokers and dealers arising in connection with the acquisition or disposition of Investments owned as of the Second Amendment Effective Date and Permitted Investments and other Investments permitted under Section 6.4, provided that such liens (a) attach only to such Investments and (b) secure only obligations incurred in the ordinary course and arising in connection with the acquisition or disposition of such Investments and not any obligation in connection with margin financing;

(viii)Liens in favor of a financial institution encumbering deposits (including the right of setoff) held by such financial institution in the ordinary course of its business and which are within the general parameters customary in the banking industry;

(ix)Landlords’ and lessors’ liens in respect of rent that is not overdue by more than thirty (30) days or which is being contested in compliance with Section 5.5;

(x)leases or subleases granted by any Credit Party to any Person other than a Credit Party, provided that such lease or sublease does not interfere in any material respect with the business of such Credit Party or materially impair the Agent’s interest in the Collateral;

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(xi)Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods and securing obligations that are not overdue by more than sixty (60) days, or are being contested in compliance with Section 5.5;

(xii)Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 6.4;

(xiii)Liens of a collecting bank arising under Section 4-210 of the UCC on items in the course of collection and Liens arising solely by virtue of any statutory or common law provisions relating to bankers’ liens, liens in favor of securities intermediaries, rights of setoff or similar rights and remedies as to deposit accounts or securities or securities accounts or other funds maintained with depository institutions or securities intermediaries;

(xiv)reservations, limitations, provisos and conditions expressed in any original grant from the Crown or other grants of real or immovable property, or interests therein, that do not materially affect the use of the affected land for the purpose for which it is used by that Person;

(xv)the right reserved to or vested in any Governmental Authority by the terms of any lease, license, franchise, grant or permit acquired by that Person or by any statutory provision to terminate any such lease, license, franchise, grant or permit, or to require annual or other payments as a condition to the continuance thereof;

(xvi)security given to a public utility or any Governmental Authority when required by such utility or authority in connection with the operations of that Person in the ordinary course of its business;

(xvii)any Lien arising by operation of law and in the ordinary course of trading and not as a result of any default or omission by any Credit Party;

(xviii)Liens in favor of a credit card processor or check processor, as applicable, on proceeds of credit card charges or checks, as applicable, held by such processor to secure (A) chargebacks, fees, fines, penalties and other charges arising in the ordinary course of business with respect to the processing of credit card charges or checks, as applicable; or (B) equipment leases described on Schedule 1.3 (but no other such leases);

(xix)Liens on cash earnest money deposits made by the Borrowers or any other Credit Parties in connection with any letter of intent or purchase agreement permitted hereunder;

(xx)Liens in respect of the licensing and sublicensing of patents, copyrights, trademarks, trade names, other indications of origin, domain names and other forms of Intellectual Property in the ordinary course of business; and

(xxi)Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods (including Article 2 of the UCC) and Liens that are contractual rights of set-off relating to purchase orders and other similar agreement entered into by the Borrowers or other Credit Parties;

provided that, except as provided in any one or more of clauses (i) through (xii) above, the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.

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Permitted Investments means each of the following:

(i)direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America or Canada (or by any agency or instrumentality thereof to the extent such obligations are backed by the full faith and credit of the United States of America or Canada, as applicable), in each case maturing within one year from the date of acquisition thereof;

(ii)Investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, a credit rating of at least A-1 from S&P or P-1 from Moody’s;

(iii)Investments in certificates of deposit, banker’s acceptances and time deposits maturing within 270 days from the date of acquisition thereof issued or guaranteed by or placed with, and demand deposit and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any state thereof or under the Bank Act (Canada) that has a combined capital and surplus and undivided profits of not less than $100,000,000;

(iv)fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (i) above (without regard to the limitation on maturity contained in such clause) and entered into with a financial institution satisfying the criteria described in clause (iii) above or with any primary dealer and having a market value at the time that such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such counterparty entity with whom such repurchase agreement has been entered into;

(v)money market mutual funds, 90% of the investments of which are in cash or investments contemplated by clauses (i) through (iv) of this definition; and

(vi)Investments by the Lead Borrower consistent with the Lead Borrower’s investment policy, which investment policy is approved by the Agent from time to time, such approval not to be unreasonably withheld;

provided that, notwithstanding the foregoing, after the occurrence and during the continuance of an Event of Default, (i) no such new Investments shall be permitted by a Borrower unless either (A) no Revolving Loans are then outstanding, or (B) the Investment is a temporary Investment pending expiration of an Interest Period for a Revolving Loan that is a LIBO Loan or BA Equivalent Loan, the proceeds of which Investment will be applied to the Obligations after the expiration of such Interest Period, and (ii) all such Investments are pledged by the applicable Borrower to the Agent as additional collateral for the Obligations pursuant to such agreements as may be reasonably required by the Agent.

Permitted Joint Venture Investments means (a) Investments existing on the Second Amendment Effective Date and listed on the Perfection Certificate, and (b) in the absence of the existence of a Cash Dominion Event, additional Investments by the Credit Parties in Subsidiaries that are not Credit Parties not to exceed in the aggregate $10,000,000 in any Fiscal Year of the Lead Borrower.

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Permitted Overadvance means an Overadvance, as determined by the Agent in its Permitted Discretion, (a) which is made to maintain, protect or preserve the Collateral and/or the Lenders’ rights under the Loan Documents, or (b) which is otherwise in the Lenders’ interests; provided that Permitted Overadvances shall not (i) exceed ten percent (10%) of the then Combined Revolving Borrowing Base in the aggregate outstanding at any time or (ii) unless a Liquidation is occurring, remain outstanding for more than ninety (90) consecutive Business Days, unless in case of clause (ii) the Required Revolving Lenders otherwise agree; and provided further that the foregoing shall not (1) modify or abrogate any of the provisions of Section 2.6(f) regarding the Lenders’ obligations with respect to L/C Disbursements, Section 2.5 regarding the Domestic Lenders’ obligations with respect to Swingline Loans, Section 2.5 regarding the Canadian Lenders’ obligations with respect to Canadian Swingline Loans or Section 2.5 regarding the UK Lenders’ obligations with respect to UK Swingline Loans, or (2) result in any claim or liability against the Agent (regardless of the amount of any Overadvance) for Unintentional Overadvances and such Unintentional Overadvances shall not reduce the amount of Permitted Overadvances allowed hereunder, and further provided that in no event shall the Agent make an Overadvance, if after giving effect thereto, the principal amount of the Credit Extensions (including any Overadvance or proposed Overadvance but excluding FILO Loans) would exceed the Revolving Commitments.

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

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Permitted Senior Debt” means Indebtedness of the Borrowers in the aggregate principal amount of up to the greater of (i) $500,000,000 and (ii) an amount that would not cause the Total Leverage Ratio to exceed 5.00:1.00 after incurrence thereof, provided that:

(a)if any portion of the principal of such Indebtedness in excess of an amount reasonably acceptable to the Agent, as determined by the Agent in connection with the incurrence by the Borrowers of such Indebtedness, shall be required to be paid, whether by stated maturity, mandatory or scheduled prepayment or redemption or otherwise, prior to the Maturity Date, other than in the event of (i) a default under such Indebtedness, (ii) a change of control of the Lead Borrower or (iii) certain asset sales in each case, if such Indebtedness is secured, subject to the standstill and the lien subordination provisions described in clause (c) below, then the Maturity Date hereunder shall be automatically changed without further action by the parties hereto to the date that is ninety (90) days prior to such date;

(b)such Indebtedness may be secured by (A) a first priority Lien on any assets of the Credit Parties not constituting Collateral and (B) upon request of a creditor for such facility, a second priority Lien on assets constituting Collateral; provided that if a creditor for such facility has requested a second priority Lien on assets constituting Collateral, the Agent for the benefit of the Secured Parties, shall be granted a second priority Lien on any assets for which a first priority Lien has been granted to a creditor for such facility to secure such Indebtedness (excluding, for the avoidance of doubt, any Real Estate); and

(c)if such Indebtedness is secured with a junior Lien on the assets constituting Collateral, it shall be subject to an intercreditor agreement reasonably acceptable to the Agent that may include, among other things, (A) the priority of the Liens securing the Collateral and the payment of proceeds therefrom, (B) a reasonable standstill by the holders of such Indebtedness as to remedies against the Collateral, (C) waivers by the holders of such Indebtedness of rights to contest validity or priority of Liens of the Agent or the Lenders (which waiver may be reciprocal) or object to dispositions of Collateral (including an affirmative agreement by such holders to release Liens of such holders in the event of a disposition of Collateral approved by the Agent) (with reciprocal agreements as to assets not constituting Collateral), (D) waiver of rights to object to the use of cash collateral or sale of Collateral, and reasonable restrictions on certain claims and actions, in any proceeding under any Debtor Relief Laws by the holders of such Indebtedness (with reciprocal agreements as to assets not constituting Collateral), and (E) restrictions on amendments to, or consents, waivers or other modifications with respect to, the documents evidencing such Indebtedness to the extent the same would be materially adverse to the Lenders (with reciprocal agreements as to the Loan Documents).

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

Phase I” means an investigation performed in accordance with American Society for Testing and Materials Standard E1527-13, as amended, or any similar environmental assessment.

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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 a 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.

Platform” has the meaning provided therefor in Section 5.1.

Pounds Sterling or £refers to lawful money of the United Kingdom.

PPSA” means the Personal Property Security Act (Ontario) and the Regulations thereunder, as from time to time in effect; provided, however, if attachment, perfection or priority of the Agent’s security interests in any Collateral are governed by the personal property security laws of any jurisdiction other than Ontario (including Quebec), PPSA shall mean those personal property security laws in such other jurisdiction,  including the Civil Code of Quebec, for the purposes of the provisions hereof relating to such attachment, perfection or priority and for the definitions related to such provisions.

Prime Rate Loans” shall mean Domestic Prime Rate Loans or Canadian Prime Rate Loans, as applicable.

Proceeds” shall have the meaning ascribed to it in the UCC or the PPSA, as applicable, and shall include proceeds of all Collateral.

Proceeds of Crime Act” means the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), as amended from time to time, and including all regulations thereunder.

PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

Public Lender” has the meaning provided therefor in Section 5.1.

QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with 12 U.S.C. 5390(c)(8)(D).

QFC Credit Support” has the meaning set forth in Section 9.29.

Qualified ECP Guarantor” means, at any time, each Credit Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

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Qualifying Lender” means

(a)a Lender (other than a Lender within clause (b) below) which is beneficially entitled to interest payable to that Lender in respect of an advance and is:

(i)a Lender:

(A)that is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Loan Document; or

(B)in respect of an advance by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that such advance was made,

and, in each case, which is within the charge to United Kingdom corporation tax with respect to any payments of interest made in respect of that advance; or

 

(ii)a Lender which is:

(A)a company resident in the United Kingdom for United Kingdom tax purposes;

(B)a partnership, each member of which is:

(1)a company so resident in the United Kingdom; or

(2)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

(C)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or

(iii)a Treaty Lender; or

(b)a building society (as defined for the purposes of section 880 of the ITA) making an advance.

Real Estate means all land, together with the buildings, structures, parking areas, and other improvements thereon, now or hereafter owned by any of the Credit Parties, including all fixtures and equipment used in connection with the operation of such structures and all easements, rights-of-way and similar rights relating thereto and all leases, tenancies, and occupancies thereof.

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Real Estate Advance Rate” means the percentages set forth below:

Period

Real Estate

Advance Rate

From the Second Amendment Effective Date until the first anniversary of the Second Amendment Effective Date

50%

From the first anniversary of the Second Amendment Effective Date until the second anniversary of the Second Amendment Effective Date

45%

From the second anniversary of the Second Amendment Effective Date until the Maturity Date

40%

 

Real Estate Approval” means the Real Estate Eligibility Requirements have been met to the satisfaction of the Agent and the Second Amendment Lenders.

Real Estate Eligibility Requirements” means collectively, each of the following:

(a)The applicable Domestic Borrower has executed and delivered to the Agent a Mortgage, substantially in the form of Exhibit I, with respect to any Real Estate intended, by such Domestic Borrower, to be included in Eligible Real Estate;

(b)Such Real Estate is used by a Domestic Borrower for offices or as a Store, distribution center or warehouse;

(c)As to any particular property, the Domestic Borrower is in compliance in all material respects with the representations, warranties and covenants set forth in the Mortgage relating to such Real Estate;

(d) The Agent and the Second Amendment Lenders shall have received fully paid American Land Title Association Lender’s Extended Coverage title insurance policies or marked-up title insurance commitments having the effect of a policy of title insurance (the “Mortgage Policies”) in form and substance, with the endorsements reasonably required by the Agent (to the extent available at commercially reasonable rates) and in amounts reasonably acceptable to the Agent, issued, coinsured and reinsured (to the extent reasonably required by the Agent) by title insurers reasonably acceptable to the Agent, insuring the Mortgages to be valid first and subsisting Liens on the property or leasehold interests described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances having priority over the Lien of the Agent under law or otherwise reasonably acceptable to the Agent;

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(e)With respect to any Real Estate owned by a Domestic Borrower (excluding interests as lessee under a Lease) which is intended by such Domestic Borrower to be included in Eligible Real Estate, the Agent shall have received American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, certified to the Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Agent by a land surveyor duly registered and licensed in the states in which the property described in such surveys is located and reasonably acceptable to the Agent, showing all buildings and other improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects reasonably acceptable to the Agent;

(f)With respect to any Real Estate intended by any Domestic Borrower to be included in Eligible Real Estate, (i) the Agent and the Second Amendment Lenders shall have received a Phase I, in form and substance reasonably satisfactory to the Agent and the Second Amendment Lenders, from an environmental consulting firm reasonably acceptable to the Agent, which report shall identify recognized environmental conditions and shall to the extent possible quantify any related costs and liabilities, associated with such conditions and the Agent and the Second Amendment Lenders shall be reasonably satisfied with the nature and amount of any such matters, and (ii) if requested by the Agent or the Second Amendment Lenders after receipt of a Phase I, such further environmental assessments or reports to the extent such further assessments or reports are reasonably recommended in the Phase I;

(g)With respect to the Lease on the applicable portion of the Wilson County Property intended by the Domestic Borrowers included in Eligible Real Estate, the Agent shall have received a consent agreement to the extent required under the terms of the applicable Lease relating to such leased Real Estate, in form and substance reasonably satisfactory to the Agent, executed by the lessor of the Lease, along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, (2) evidence that the applicable Lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary, in the Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, and (3) if such leasehold interest was acquired or sub-leased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form reasonably satisfactory to the Agent;

(h)The applicable Domestic Borrower shall have delivered to the Agent and each Lender a life of loan flood zone determination from a third party vendor, and, if such Real Estate is located in a “special flood hazard area”, (A) the Agent shall have delivered to the Lenders a notification to the applicable Credit Parties of that fact and (if applicable) notification to the applicable Credit Parties that flood insurance coverage is not available and evidence of the receipt by the applicable Credit Parties of such notice and (B) the Agent and the Second Amendment Lenders shall have received evidence of flood insurance naming the Agent as mortgagee as required by the National Flood Insurance Program as set forth in the Flood Insurance Laws, each of which shall be in amounts as required by the applicable Flood Insurance Laws and reasonably satisfactory in form and substance to the Agent and the Second Amendment Lenders; and

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(i)The applicable Domestic Borrower shall have delivered such other information and documents as may be reasonably requested by the Agent and Second Amendment Lenders, including, without limitation, such as may be necessary to comply with FIRREA and as provided in the definition of Appraised Value.  

Notwithstanding any provision in this definition or in this Agreement to the contrary, in no event shall any Mortgage be signed unless and until the condition set forth in the preceding clause (h) has been satisfied with respect to the Real Estate to be encumbered by such Mortgage.

Realty Reserves” means such reserves as the Agent from time to time determines in the Agent’s Permitted Discretion as being appropriate to reflect the impediments to the Agent’s ability to realize upon any Eligible Real Estate, to reflect such factors as affect the market value of the Eligible Real Estate or to reflect claims and liabilities that the Agent reasonably determines will need to be satisfied in connection with the realization upon any Eligible Real Estate. Without limiting the generality of the foregoing, Realty Reserves may include (but are not limited to) (i) Environmental Compliance Reserves, (ii) reserves for (A) municipal taxes and assessments, (B) repairs and (C) remediation of title defects, and (iii) reserves for Indebtedness secured by Liens having priority over the Lien of the Agent.

Recipientmeans the Agent, any Lender, the Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of any Credit Party hereunder.

Register has the meaning provided therefor in Section 9.6(c).

Regulation U means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

Regulation X means Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

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

Release has the meaning set forth in Section 101(22) of CERCLA.

Relevant Governmental Body means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York for the purpose of recommending a benchmark rate to replace LIBO Rate in loan agreements similar to this Agreement.

Required Lenders shall mean, at any time, Lenders having holding more than 50% of the sum of the Total Revolving Commitments and the outstanding amount of the FILO Loan, or if the commitments have been terminated, Lenders whose percentage of the outstanding Loans and Letter of Credit Outstandings aggregate greater than 50% of all such Loans and Letter of Credit Outstandings, provided that such calculation shall exclude any Defaulting Lenders and any such Defaulting Lender’s Commitment in the event that such Defaulting Lender’s rights to participate shall have been suspended or terminated pursuant to Section 8.13 of this Agreement.

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Required Revolving Lenders” means at any time, Lenders holding more than 50% of the Total Revolving Commitments, or if such Commitments have been terminated, Revolving Lenders whose percentage of the outstanding Revolving Loans and Letter of Credit Outstandings aggregate greater than 50% of all such Revolving Loans and Letter of Credit Outstandings; provided that such calculation shall exclude any Defaulting Lenders and any such Defaulting Lender’s Commitment in the event that such Defaulting Lender’s rights to participate shall have been suspended or terminated pursuant to Section 8.13 of this Agreement.

Required Supermajority Lenders shall mean, at any time, Lenders having Commitments greater than 66 2/3% of the Total Commitments, or if the Commitments have been terminated, Lenders whose percentage of the outstanding Loans and Letter of Credit Outstandings aggregate greater than 66 2/3% of all such Loans and Letter of Credit Outstandings, provided that such calculation shall exclude any Defaulting Lenders and any such Defaulting Lender’s Commitment in the event that such Defaulting Lender’s rights to participate shall have been suspended or terminated pursuant to Section 8.13 of this Agreement.

Reserves means the Account Reserves, the Inventory Reserves, the Realty Reserves, the FILO Reserve and the Availability Reserves.

Restricted Payment means (i) any dividend or other distribution, directly or indirectly (whether in cash, securities or other property) with respect to any shares of any class of capital stock or other equity interests of any of the Credit Parties, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such shares of capital stock or other equity interests of any of the Credit Parties or any option, warrant or other right to acquire any such shares of capital stock or other equity interests of any of the Credit Parties; or (ii) any payment or other distribution, directly or indirectly (whether in cash, securities, or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities, or other property), including any sinking fund or similar deposit on, an account of the purchase, redemption, retirement, acquisition, cancellation, or termination of any Indebtedness (other than the Obligations).

Revolving Commitment” means with respect to each Lender, the Canadian Commitment, the UK Commitment and the Revolving Domestic Commitment, of such Lender hereunder.

Revolving Domestic Commitment” means, as to each Revolving Domestic Lender, its obligation to (a) make Revolving Domestic Loans to the Domestic Borrowers pursuant to Section 2.1 and (b) purchase participations in Domestic Letter of Credit Outstandings, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Revolving Domestic Lender’s name on Schedule 1.1 or in the Assignment and Acceptance pursuant to which such Domestic Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

Revolving Domestic Commitment Percentage” means the Commitment Percentages of the Revolving Domestic Lenders.

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Revolving Domestic Lender” means the Lenders having Revolving Domestic Commitments from time to time or at any time.

Revolving Domestic Loan” means an extension of credit made by a Revolving Domestic Lender.

Revolving Domestic Loan Cap” means at any time of termination, the lesser of (a) the Revolving Domestic Total Commitments or (b) the Domestic Borrowing Base.

Revolving Domestic Total Commitment” means the aggregate of the Revolving Domestic Commitments of all Revolving Domestic Lenders. On the Second Amendment Effective Date, the Revolving Domestic Total Commitments are $332,500,000.

Revolving Lenders” means the Revolving Domestic Lenders, the Canadian Lenders, and the UK Lenders.

Revolving Loan means all Canadian Loans, Revolving Domestic Loans and UK Loans at any time made by a Lender pursuant to Section 2.3.

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

Sanction(s)” means any sanction administered or enforced by the United States Government (including, without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”), the federal government of Canada (including, without limitation, Canadian Sanction Laws) or other relevant sanctions authority.

S&P means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc.

Scheduled Unavailability Date” has the meaning provided therefor in Section 2.29(b).

SECmeans the United States Securities and Exchange Commission.

Second Amendment” means that certain Second Amendment to Fourth Amended and Restated Credit Agreement dated as of the Second Amendment Effective Date by and among the Credit Parties, Agent, and Second Amendment Lenders.

Second Amendment Effective Date” means June 5, 2020.  

Second Amendment Fee Letter” means the letter entitled “Second Amendment Fee Letter” among the Borrowers and the Agent, dated as of May 20, 2020.

Second Amendment Lenders” means the Lenders party to the Second Amendment.

Secured Party or “Secured Parties” means, collectively, the Canadian Secured Parties, the UK Secured Parties and the Domestic Secured Parties.

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Security Agreement means the Fifth Amended and Restated Security Agreement dated as of the Second Amendment Effective Date and executed and delivered by each of the Domestic Credit Parties to the Agent for the benefit of the Secured Parties, as amended and in effect from time to time.

Security Documents means the Security Agreement, the Facility Guaranty, the Effective Date Guaranties, the Account Control Agreements, the Collateral Control Agreements, the Canadian Security Documents, the Intellectual Property Security Agreements, the Mortgages, and each other security agreement, mortgage (if any), guaranty or other instrument or document executed and delivered pursuant to Section 5.15 or any other provision hereof or any other Loan Document, to secure any of the Obligations, the Canadian Liabilities and the UK Liabilities.

Settlement Date has the meaning provided therefor in Section 2.7(d).

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

SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source) and, in each case, that has been selected or recommended by the Relevant Governmental Body.

SOFR-Based Rate” means SOFR or Term SOFR.

Solvent means, with respect to any Person on a particular date, that on such date (a) at fair valuations, all of the properties and assets of such Person are greater than the sum of the debts, including contingent liabilities, of such Person, (b) the present fair saleable value of the properties and assets of such Person is not less than the amount that would be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person is able to realize upon its properties and assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (d) such Person does not intend to, and does not believe that it will, incur debts beyond such Person’s ability to pay as such debts mature, (e) such Person is not engaged in a business or a transaction, and is not about to engage in a business or transaction, for which such Person’s properties and assets would constitute unreasonably small capital after giving due consideration to the prevailing practices in the industry in which such Person is engaged, and (f) as regards a Canadian Credit Party, such Person is not an “insolvent person” within the meaning of the BIA.

Specified Credit Party” means any Credit Party that is not then an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 9.27).

Specified Event of Default means the occurrence of any Event of Default arising under any of Sections 7.1 (a), 7.1(b), 7.1(d), 7.1(j), 7.1(k), 7.1(n), 7.1(q) or 7.1(v).

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Spot Rate” for a currency means the exchange rate, as reasonably determined by Agent, that is applicable to conversion of one currency into another currency, which is (a) the exchange rate reported by Bloomberg (or other commercially available source designated by Agent) as of the end of the preceding business day in the financial market for the first currency; or (b) if such report is unavailable for any reason, the spot rate for the purchase of the first currency with the second currency as in effect during the preceding business day in Agents principal foreign exchange trading office for the first currency.

Standby Letter of Credit means any Letter of Credit other than a Commercial Letter of Credit and that (a) is used in lieu or in support of performance guaranties or performance, surety or similar bonds (excluding appeal bonds) arising in the ordinary course of business, (b) is used in lieu or in support of stay or appeal bonds, or (c) supports the payment of insurance premiums for reasonably necessary insurance carried by any of the Borrowers.

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

Store” means any retail store (which may include any Real Estate, fixtures, equipment, Inventory and other property related thereto) operated, or to be operated, by any Credit Party.

Subsidiary means, with respect to any Person (the parent) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power for the election of directors or other members of its governing body (other than securities or ownership interests having such power only upon satisfaction of a contingency) 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 and/or one or more Subsidiaries of the parent.  Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Lead Borrower.

Substantial Liquidation” shall mean either (a) the Liquidation of substantially all of the Collateral, or (b) the sale or other disposition of substantially all of the Collateral by the Credit Parties.

Supported QFC” has the meaning set forth in Section 9.29.

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

Swingline Lender means Bank of America, in its capacity as lender of Swingline Loans hereunder.

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Swingline Loan shall mean a Loan made by the Swingline Lender to the Domestic Borrowers pursuant to Section 2.5 hereof.

Swingline Note” means a promissory note of the Domestic Borrowers substantially in the form of Exhibit B-4, payable to the Swingline Lender if requested by the Swingline Lender, evidencing the Swingline Loans.

Swingline Sublimit” means an amount equal to the lesser of (a) $45,000,000 and (b) the Total Commitments.  The Swingline Sublimit is part of, and not in addition to, the Total Commitments.

Synthetic Lease means any lease or other agreement for the use or possession of property creating obligations which do not appear as Indebtedness on the balance sheet of the lessee thereunder but which, upon the insolvency or bankruptcy of such Person, would be characterized as Indebtedness of such lessee without regard to the accounting treatment.

Tax Confirmation” means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance is either:

(a)a company resident in the United Kingdom for United Kingdom tax purposes; or

(b)a partnership each member of which is:

(i)a company so resident in the United Kingdom; or

(ii)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

(c)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.

Tax Credit” means a credit against, relief or remission for, or repayment of, any Taxes.

Tax Deduction” means a deduction or withholding from a payment under any Loan Document for and on account of any taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments and all interest, penalties or similar liabilities with respect thereto.

Tax Payment” means, in relation to the UK Borrower, either the increase in a payment made by the UK Borrower to a Lender under Section 1.7(b) or a payment under Section 1.7(c).

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Taxes means any and all current or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority, including any interest or penalties thereon and any additions thereto.

Term SOFR” means the forward-looking term rate for any period that is approximately (as determined by the Agent) as long as any of the Interest Period options set forth in the definition of “Interest Period” and that is based on SOFR and that has been selected or recommended by the Relevant Governmental Body, in each case as published on an information service as selected by the Agent from time to time in its reasonable discretion.

Termination Date shall mean the earliest to occur of (i) the Maturity Date, (ii) the date on which the maturity of the Loans are accelerated and the Revolving Commitments are terminated in accordance with Section 7.1, or (iii) the date of the occurrence of any Event of Default pursuant to Section 7.1(j) or 7.1(k) or (iv) the termination of the Commitments in accordance with the provisions of Section 2.15 hereof.

Termination Event” shall mean (a) the whole or partial withdrawal of the Canadian Borrower or any Canadian Subsidiary from a Canadian Pension Plan during a plan year; or (b) the filing by a Canadian Borrower or any Canadian Subsidiary of a notice of intention to terminate in whole or in part a Canadian Pension Plan or the treatment of a Canadian Pension Plan amendment by a Canadian Borrower or any Canadian Subsidiary as a termination or partial termination; or (c) the institution of proceedings by any Governmental Authority to terminate in whole or in part or have a trustee or like body appointed to administer a Canadian Pension Plan, or (d) any other event or condition which might constitute grounds for the termination of, or winding up of, or the appointment of a trustee or like body to administer, any Canadian Pension Plan.

Total Commitments shall mean, at any time, the sum of the Commitments at such time.  As of the Second Amendment Effective Date, the aggregate Total Commitments are $350,000,000.

Total Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Total Indebtedness to (b) Consolidated EBITDA, in each case of or by Lead Borrower and its Subsidiaries for the most recently completed Applicable Fiscal Period, all as determined on a Consolidated basis in accordance with GAAP.

Total Outstandingsshall mean the sum of the Total Revolving Outstandings and the outstanding amount of the FILO Loan.

Total Revolving Commitments” means at any, the sum of the Revolving Domestic Total Commitments, the Canadian Commitments, and the UK Commitments. As of the Second Amendment Effective Date, the Total Revolving Commitments are $332,500,000.  

Total Revolving Outstandings” shall mean the sum of the Canadian Credit Extensions, the Domestic Credit Extensions (excluding the FILO Loans) and the UK Credit Extensions.

Trademark” has the meaning specified in the Security Agreement.

Trading with the Enemy Act” has the meaning provided therefor in Section 9.22.

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Treaty Lender” means a Lender which:

(b)is treated as a resident of a Treaty State for the purposes of the relevant Treaty; and

(c)does not carry on a business in the United Kingdom through a permanent establishment with which that Lender’s participation in any advance is effectively connected.

Treaty State” means a jurisdiction having a double taxation agreement (a “Treaty”) with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest.

Type, when used in reference to any Loan (including the outstanding portion of the FILO Loan) or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the LIBO Rate, the BA Rate, the Base Rate, the Canadian Prime Rate, the U.S. Index Rate or the UK Base Rate.

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

UK Base Rate” means, with respect to UK Swingline Loan made in Dollars or any Optional Currency, a fluctuating rate of interest per annum equal to the rate of interest in effect for such day as announced by and used from time to time by the local branch of Bank of America in the jurisdiction in which such currency is funded as its “base rate” with respect to such currency.  Any change in such rate shall take effect at the opening of business on the day of such change.

UK Base Rate Loan” means a UK Swingline Loan made to the UK Borrower denominated in Dollars or any Optional Currency and bearing interest at a rate based on the UK Base Rate.

UK Borrower” means Genesco (UK) Limited, a corporation incorporated in England and Wales with a company number 07667223.

UK Borrowing” means a borrowing consisting of simultaneous UK Loans of the same Type and, in the case of LIBO Loans, having the same Interest Period made by each of the UK Lenders pursuant to Section 2.3.

UK Borrowing Base” has the meaning provided therefor in Section 2.30(a).

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UK Commitment Percentage” means the Commitment Percentages of the UK Lenders.

UK Commitments” means, as to each UK Lender, its obligation to (a) make UK Loans to the UK Borrower pursuant to Section 2.1 and (b) purchase participations in UK Letter of Credit Outstandings, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such UK Lender’s name on Schedule 1.1 or in the Assignment and Acceptance pursuant to which such UK Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

UK Credit Extensions” as of any day, shall be equal to the sum of (a) the principal balance of all UK Loans (including UK Swingline Loans) then outstanding, and (b) the then amount of the UK Letter of Credit Outstandings.

UK Credit Parties” means, collectively, the UK Borrower and each Material Subsidiary of the UK Borrower incorporated in England and Wales that is or becomes a guarantor of the UK Liabilities (the “UK Guarantors”); provided that the Excluded UK Subsidiaries shall not become UK Credit Parties hereunder except in accordance with Section 2.30 hereof.  “UK Credit Party” means any one of such Persons.

UK Deed of Confirmation” means the deed of confirmation, dated as of the Effective Date and made between the UK Borrower, the Lead Borrower and the Agent.

UK Lenders” means Bank of America and any other Person having UK Commitments from time to time or at any time.  A Person may be a UK Lender only if it is a Domestic Lender or an Affiliate of a Domestic Lender.

UK Letter of Credit” means each Letter of Credit issued hereunder for the account of the UK Borrower.

UK Letter of Credit Outstandings” shall mean, at any time, the sum of (a) with respect to UK Letters of Credit outstanding at such time, the aggregate maximum amount that then is or at any time thereafter may become available for drawing or payment thereunder plus (b) all amounts theretofore drawn or paid under UK Letters of Credit for which the Issuing Bank has not then been reimbursed.

UK Letter of Credit Sublimit” means an amount equal to $10,000,000.  The UK Letter of Credit Sublimit is part of, and not in addition to, the UK Total Commitments.  A permanent reduction of the UK Total Commitments shall not require a corresponding pro rata reduction in the UK Letter of Credit Sublimit; provided, however, that if the UK Total Commitments are reduced to an amount less than the UK Letter of Credit Sublimit, then the UK Letter of Credit Sublimit shall be reduced to an amount equal to (or, at UK Borrower’s option, less than) the UK Total Commitments.

UK Liabilities” means (a) all advances to, and debts (including principal, interest, fees, costs, and expenses), liabilities, obligations, covenants, indemnities, and duties of, any UK Credit Party arising under any Loan Document or otherwise with respect to any UK Loan or UK Letter of Credit (including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral therefor), whether direct or indirect (including those acquired

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by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, fees, costs, expenses and indemnities that accrue after the commencement by or against any UK Credit Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, and (b) any Other UK Liabilities.

UK Loan” means an extension of credit by a UK Lender to the UK Borrower under Section 2.

UK Loan Cap” means the least of (a) the Domestic Borrowing Base less the sum of the Domestic Credit Extensions (excluding the FILO Loans) and the Canadian Credit Extensions in excess of the Canadian Borrowing Base, (b) the Total Commitments less the sum of the Domestic Credit Extensions (excluding the FILO Loans) and the Canadian Credit Extensions, and (c) the UK Total Commitments.

UK Minority Lenders has the meaning provided therefor in Section 9.3(d).

UK Non-Bank Lender” means:

(i)a Lender (which falls within clause (a)(ii) of the definition of Qualifying Lender) which is a party to this Agreement and which has provided a Tax Confirmation to the Agent; and

(ii)where a Lender becomes a party after the Effective Date, an assignee which gives a Tax Confirmation in the Assignment and Acceptance which it executes on becoming a party.

UK Note” means a promissory note made by the UK Borrower in favor of a UK Lender evidencing UK Loans made by such UK Lender, substantially in the form of Exhibit B-3.

UK Notice of Borrowing” means a notice from the UK Borrower to the Agent in connection with a UK Borrowing of UK Loans or UK Swingline Loans, which shall be substantially in the form of Exhibit H-3.

UK Secured Party” or “UK Secured Parties” has the meaning assigned to such term in the Security Agreement.

UK Subsidiary means any Subsidiary of the UK Borrower incorporated under the laws of England and Wales.

UK Swingline Lender means Bank of America, in its capacity as lender of UK Swingline Loans hereunder.

UK Swingline Loan shall mean a Loan made by the UK Swingline Lender to the UK Borrower pursuant to Section 2.5 hereof.

UK Swingline Note” means a promissory note of the UK Borrower substantially in the form of Exhibit B-6, payable to the UK Swingline Lender if requested by the UK Swingline Lender, evidencing the UK Swingline Loans.

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UK Swingline Sublimit” means an amount equal to the lesser of (a) $10,000,000 and (b) the UK Total Commitments.  The UK Swingline Sublimit is part of, and not in addition to, the UK Total Commitments.

UK Total Commitments” means the aggregate of the UK Commitments of all UK Lenders.  On the Second Amendment Effective Date, the UK Total Commitments are $100,000,000.

Unintentional Overadvance” means an Overadvance which, to the Agent’s knowledge, did not constitute an Overadvance when made but which has become an Overadvance resulting from changed circumstances beyond the control of the Agent and the Lenders, including, without limitation, a reduction in the Appraised Value of property or assets included in the Domestic Borrowing Base, the FILO Borrowing Base or the Canadian Borrowing Base or a misrepresentation by the Credit Parties.

Unused Commitment shall mean, on any day, (a) the then Total Commitments minus (b) the sum of (i) the principal amount of Loans then outstanding (including, but only with respect to the calculation of the Commitment Fee due to the Lender that is the Swingline Lender or the Canadian Swingline Lender, the principal amount of Swingline Loans or the Canadian Swingline Loans then outstanding), and (ii) the then Letter of Credit Outstandings.

U.S. Index Rate” means, for any day, the greatest of (a) the rate of interest in effect for such day as publicly announced from time to time by Bank of America-Canada Branch in Toronto, Ontario as its “base rate” (the “base rate” being a rate set by Bank of America-Canada Branch based on various factors including costs and desired return of Bank of America-Canada Branch, general economic conditions and other factors, and used as a reference point for pricing loans in Dollars made at its “base rate”, which may be priced at, above or below such announced rate), (b) the Federal Funds Effective Rate for such day, plus 0.50%; or (c) the LIBO Rate for a 30 day interest period as determined on such day, plus 1.00%; provided, that in no event shall the U.S. Index Rate be less than 1.00%.  Any change in the “base rate” announced by Bank of America-Canada Branch shall take effect at the opening of business on the day specified in the public announcement of such change.  Each interest rate based upon the U.S. Index Rate shall be adjusted simultaneously with any change in the “base rate”.  In the event that Bank of America-Canada Branch (including any successor or assignee) does not at any time publicly announce a “base rate”, then “U.S. Index Rate” shall mean the “base rate” publicly announced by a Schedule 1 chartered bank in Canada selected by Agent.

U.S. Index Rate Loan” means a Canadian Loan made in Dollars that bears interest based on the U.S. Index Rate.

U.S. Special Resolution Regimes” has the meaning set forth in Section 9.29.

Voting Stock means, with respect to any corporation, the outstanding stock of all classes (or equivalent interests) which ordinarily, in the absence of contingencies, entitles holders thereof to vote for the election of directors (or Persons performing similar functions) of such corporation, even though the right so to vote has been suspended by the happening of such contingency.

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Wilson County Property” means the property located at 635 Genesco Parkway, Lebanon, Wilson County, Tennessee, which shall be subject to a fee deed of trust and a leasehold deed of trust as of the Second Amendment Effective Date.

Withdrawal Liability means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

1.2Terms Generally; Interpretation

(a).  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns or, for natural persons, such Person’s successors, heirs, executors, administrators and other legal representatives, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Sections, Exhibits and Schedules shall be construed to refer to Sections of, and Exhibits and Schedules to, this Agreement, (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights, (f) all financial statements and other financial information provided by the Borrowers and each of the other Credit Parties to the Agent or any Lender shall be provided with reference to Dollars, and (g) this Agreement and the other Loan Documents are the result of negotiation among, and have been reviewed by counsel to, among others, the Credit Parties and the Agent and are the product of discussions and negotiations among all parties.  Accordingly, this Agreement and the other Loan Documents are not intended to be construed against the Agent or any of the Lenders merely on account of the Agent’s or any Lender’s involvement in the preparation of such documents.

(b)For purposes of any Collateral located in the Province of Quebec or charged by any deed of hypothec (or any other Loan Document) and for all other purposes pursuant to which the interpretation or construction of a Loan Document may be subject to the laws of the Province of Quebec or a court or tribunal exercising jurisdiction in the Province of Quebec, (q) “personal property” shall be deemed to include “movable property”, (r) “real property” shall be deemed to include “immovable property”, (s) “tangible property” shall be deemed to include “corporeal property”, (t) “intangible property” shall be deemed to include “incorporeal property”, (u) “security interest” and “mortgage” shall be deemed to include a

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“hypothec”, (v) all references to filing, registering or recording under the UCC or the PPSA shall be deemed to include publication under the Civil Code of Quebec, (w) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to the “opposability” of such Liens to third parties, (x) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (y) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, and (z) an “agent” shall be deemed to include a “mandatary”.

1.3Accounting Terms

.  Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect on the Effective Date, on a basis consistent with the financial statements referred to in Section 4.1(g) of this Agreement, provided that, if the Borrowers request an amendment to any provision hereof to reflect the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Agent notifies the Borrowers that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such provision shall have been amended in accordance herewith.  Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any change in accounting for leases pursuant to GAAP resulting from the implementation of FASB ASU No. 2016-02, Leases (Topic 842), to the extent such adoption would require treating any lease (or similar arrangement conveying the right to use) as a Capital Lease Obligation where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, 2015.

1.4Rounding

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

1.5Times of Day

.  Unless otherwise specified, all references herein to times of day shall be references to applicable Local Time.

1.6Letter of Credit Amounts

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

1.7United Kingdom Tax Matters.

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(a)The provisions of this Section 1.7 shall only apply in respect of the UK Borrower (a “Relevant Borrower”).

(b)Tax Gross-Up.

 

(i)

Each Relevant Borrower shall make all payments to be made by it under any Loan Document without any Tax Deduction unless a Tax Deduction is required by law.

 

(ii)

A Relevant Borrower shall, promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify Agent accordingly.  Similarly, a Lender shall promptly notify Agent on becoming so aware in respect of a payment payable to that Lender.  If Agent receives such notification from a Lender, it shall notify the Relevant Borrower.

 

(iii)

If a Tax Deduction is required by law to be made by a Relevant Borrower, the amount of the payment due from that Relevant Borrower shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

 

(iv)

A payment shall not be increased under clause (iii) above by reason of a Tax Deduction on account of Taxes imposed by the United Kingdom if, on the date on which the payment falls due:

(A)the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or

 

(B)the relevant Lender is a Qualifying Lender solely by virtue of clause (a)(ii) of the definition of Qualifying Lender, and:

 

(1)an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a “Direction”) under section 931 of the ITA which relates to the payment and that Lender has received from the Relevant Borrower making the payment a certified copy of that Direction; and

 

(2)the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or

 

(C)the relevant Lender is a Qualifying Lender solely by virtue of clause (a)(ii) of the definition of Qualifying Lender and:

 

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(1)the relevant Lender has not given a Tax Confirmation to the Relevant Borrower; and

 

(2)the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Relevant Borrower, on the basis that the Tax Confirmation would have enabled the Relevant Borrower to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA; or

 

(D)the relevant Lender is a Treaty Lender and the Relevant Borrower making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under clause (vii) below.

 

 

(v)

If a Relevant Borrower is required to make a Tax Deduction, that Relevant Borrower shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

 

(vi)

Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Relevant Borrower making that Tax Deduction shall deliver to Agent for the benefit of the Lender entitled to the payment a statement under section 975 of the ITA or other evidence reasonably satisfactory to that Lender that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

 

(vii)

A Treaty Lender and each Relevant Borrower which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Relevant Borrower to obtain authorization to make that payment without a Tax Deduction.

 

(viii)

Nothing in clause (b)(vii) above shall require a Treaty Lender to:

(A)register under the HMRC DT Treaty Passport scheme;

 

(B)apply the HMRC DT Treaty Passport scheme to any advance if it has so registered; or

 

(C)file Treaty forms if it has included an indication to the effect that it wishes the HMRC DT Treaty Passport Scheme to apply to this Agreement in accordance with clause (b)(xi) or clause (f)(i) (HMRC DT Treaty Passport scheme confirmation) and the Relevant Borrower making that payment has not complied with its obligations under clause (b)(xii) or clause (f)(ii) (HMRC DT Treaty Passport scheme confirmation).

 

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(ix)

A UK Non-Bank Lender which becomes a party on the day on which this Agreement is entered into gives a Tax Confirmation to the Relevant Borrower by entering into this Agreement.

 

(x)

A UK Non-Bank Lender shall promptly notify the Relevant Borrower and Agent if there is any change in the position from that set out in the Tax Confirmation.

 

(xi)

A Treaty Lender which becomes a party on the day on which this Agreement is entered into that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall include an indication to that effect (for the benefit of the Agent and without liability to any Relevant Borrower) by notifying the Lead Borrower of its scheme reference number and its jurisdiction of tax residence.

 

(xii)

Where a Lender notifies the Lead Borrower as described in clause (b)(xi) above each Relevant Borrower shall file a duly completed form DTTP2 in respect of such Lender with HM Revenue & Customs within 30 days of the date of this Agreement and shall promptly provide the Lender with a copy of that filing.

 

(xiii)

If a Lender has not included an indication to the effect that it wishes the HMRC DT Treaty Passport scheme to apply to this Agreement in accordance with clause (b)(xi) above or clause (f)(i) (HMRC DT Treaty Passport scheme confirmation), no Relevant Borrower shall file any form relating to the HMRC DT Treaty Passport scheme in respect of that Lender’s advance or its participation in any advance.

(c)Tax Indemnity.

 

(i)

The Lead Borrower shall (within three Business Days of demand by the Agent) pay to a Lender an amount equal to the loss, liability or cost which that Lender determines will be or has been (directly or indirectly) suffered for or on account of Taxes by that Lender in respect of a Loan Document.

 

(ii)

Clause (c)(i) above shall not apply:

(A)with respect to any Taxes assessed on a Lender

 

(1)under the law of the jurisdiction in which such Lender is incorporated or, if different, the jurisdiction (or jurisdictions) in which such Lender is treated as resident for tax purposes; or

 

(2)under the law of the jurisdiction in which such Lender’s office is located in respect of amounts received or receivable in such jurisdiction, if such Taxes are imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by such Lender; or

(B)to the extent a loss, liability or cost:

 

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(1)is compensated for by an increased payment under Section 1.7(b)(iii) (Tax gross-up); or

 

(2)would have been compensated for by an increased payment under Section 1.7(b)(iii) (Tax gross-up) but was not so compensated solely because one of the exclusions in Section 1.7(b)(iv) (Tax gross-up) applied.

 

 

(iii)

A Lender making, or intending to make a claim under Section 1.7(c)(i) above shall promptly notify Agent of the event which will give, or has given, rise to the claim, following which Agent shall notify the Lead Borrower.

 

(iv)

A Lender shall, on receiving a payment from the Lead Borrower under this clause (c), notify Agent.

(d)Tax Credit. If a Relevant Borrower makes a Tax Payment and the relevant Lender determines that:

 

(i)

a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment; and

such Lender has obtained, utilized and retained that Tax Credit,

 

(ii)

such Lender shall pay an amount to the Relevant Borrower which such Lender determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Relevant Borrower.

(e)Lender Status Confirmation. Each Lender which becomes a party to this Agreement after the date of this Agreement (“New Lender”) shall indicate, in the Assignment and Acceptance which it executes on becoming a party, and for the benefit of Agent and without liability to any Relevant Borrower, which of the following categories it falls within:

 

(i)

not a Qualifying Lender;

 

(ii)

a Qualifying Lender (other than a Treaty Lender); or

 

(iii)

a Treaty Lender.

If a New Lender fails to indicate its status in accordance with this Section 1.7(e), then such New Lender or Lenders (as appropriate) shall be treated for the purposes of this Agreement (including by each Relevant Borrower) as if it is not a Qualifying Lender until such time as it notifies Agent which category of Qualifying Lender applies (and Agent, upon receipt of such notification, shall inform the Relevant Borrower).  For the avoidance of doubt, an Assignment and Acceptance shall not be invalidated by any failure of a New Lender to comply with this Section 1.7.

 

(f)HMRC DT Treaty Passport Scheme Confirmation.

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(i)

A New Lender that is a Treaty Lender that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall include an indication to that effect (for the benefit of the Agent and without liability to any Relevant Borrower) in the Assignment and Acceptance which it executes by including its scheme reference number and its jurisdiction of tax residence in that Assignment and Acceptance.

 

(ii)

Where an Assignment and Acceptance includes the indication described in clause (f)(i) above in the relevant Assignment and Acceptance each Relevant Borrower which is a party as a Borrower as at the date that the relevant Assignment and Acceptance Agreement is executed (the “Transfer Date”) shall file a duly completed form DTTP2 in respect of such Lender with HM Revenue & Customs within 30 days of that Transfer Date and shall promptly provide the Lender with a copy of that filing.

(g)Stamp Taxes. The Relevant Borrower shall pay and, within three Business Days of demand, indemnify each Lender against any cost, loss or liability that Lender incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Loan Document as it relates to the Relevant Borrower only and not an obligation of the other Borrowers.

(h)Value Added Tax (“VAT”).

 

(i)

All amounts set out or expressed in a Loan Document to be payable by any party to any Lender which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to clause (ii) below, if VAT is or becomes chargeable on any supply made by any Lender to any party under a Loan Document, that party shall pay to the Lender (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and such Lender shall promptly provide an appropriate VAT invoice to such party).

 

(ii)

If VAT is or becomes chargeable on any supply made by any Lender (the “Supplier”) to any other Lender (the “Lender Recipient”) under a Loan Document, and any party other than the Lender Recipient (the “Subject Party”) is required by the terms of any Loan Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Lender Recipient in respect of that consideration), such party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT.  The Lender Recipient will promptly pay to the Subject Party an amount equal to any credit or repayment obtained by the Lender Recipient from the relevant tax authority which the Lender Recipient reasonably determines is in respect of such VAT.

 

(iii)

Where a Loan Document requires any party to reimburse or indemnify a Lender for any cost or expense, that party shall reimburse or indemnify (as the case may be) such Lender for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Lender reasonably determines that

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it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

 

(iv)

Any reference in this Section 1.7(h) to any party shall, at any time when such party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term “representative member” to have the same meaning as in the United Kingdom Value Added Tax Act 1994).

 

(v)

Except as otherwise expressly provided in this Section 1.7(h), a reference to “determines” or “determined” in connection with tax provisions contained in this Section 1.7(h) means a determination made in the absolute discretion of the person making the determination.

1.8Exchange Rates; Currency Translation.

(a)The Agent or the Issuing Bank, as applicable, shall reasonably determine the Spot Rates to be used for calculating Equivalent Amounts of Loans and amounts denominated in CD$ or Optional Currencies. Such Spot Rates shall become effective as of any such date of determination and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next date to so occur. Except for purposes of financial statements delivered by the Credit Parties hereunder or calculating financial covenants hereunder (including baskets related thereto, as applicable) or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Equivalent Amount as so determined by the Agent or the Issuing Bank, as applicable.

(b)Any amount specified in this Agreement or any of the other Loan Documents to be in Dollars shall also include the Equivalent Amount.  Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of a LIBO Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but if such Borrowing, LIBO Loan or Letter of Credit is denominated in CD$ or in an Optional Currency, then such amount shall be the relevant Equivalent Amount of such Dollar amount (rounded to the nearest unit of such CD$ or Optional Currency, with 0.5 of a unit being rounded upward), as determined by the Agent or the Issuing Bank, as the case may be.

(c)Notwithstanding the foregoing, for purposes of any determination under any provision of this Agreement expressly requiring the use of a currency exchange rate, all amounts incurred, outstanding or proposed to be incurred or outstanding in currencies other than Dollars shall be translated into Dollars at the Spot Rate.

1.9Limited Condition Acquisitions.

In connection with any action being taken solely in connection with a Limited Condition Acquisition, for purposes of:

 

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(a)determining compliance with any provision of this Agreement which requires the calculation of the Total Leverage Ratio or satisfaction of the Payment Conditions; and

(b)determining compliance with representations, warranties, defaults, Events of Default or basket (in each case, other than for purposes of Section 4.2);

in each case, at the option of the Lead Borrower (the Lead Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”) (provided that the Lead Borrower shall be required to make an LCA Election on or prior to the date on which the definitive agreements for such Limited Condition Acquisition have been entered into and provided further that with respect to any required calculation of the Payment Conditions on the LCA Test Date, such calculation shall be effective only in the event that such Limited Condition Acquisition is consummated within 180 days following the LCA Test Date), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent Applicable Fiscal Period ending prior to the LCA Test Date (after giving effect to any increases or decrease in Indebtedness of the Lead Borrower and Subsidiaries since such date), the Lead Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio, representation, warranty, default, Events of Default or basket, such ratio, representation, warranty, default, Event of Default or basket shall be deemed to have been complied with for purposes of such Limited Condition Acquisition. For the avoidance of doubt, if the Lead Borrower has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA of the Lead Borrower or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Lead Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratios, representations, warranties, defaults, Events of Default or basket availability (including with respect to satisfaction of the Payment Conditions in connection therewith) with respect to the incurrence of Indebtedness or Liens, or the making of Restricted Payments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Lead Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, the consummation of any other Permitted Acquisition or the designation of a Subsidiary as a Material Subsidiary or Material Domestic Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the date that the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratios representations, warranties, defaults, Events of Default or baskets shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) has been consummated (it being further understood and agreed, however, that neither any Consolidated Net Income, Consolidated EBITDA or Consolidated Total Indebtedness therefrom,

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nor any assets of the target to be acquired pursuant to such Limited Condition Acquisition, shall be included in the Borrowers’ Consolidated Net Income, Consolidated EBITDA or Consolidated Total Indebtedness, or in the calculation of the Combined Borrowing Base, Domestic Borrowing Base, Canadian Borrowing Base, or the UK Borrowing Base, as applicable, in any such subsequent calculation until such Limited Condition Acquisition has actually closed).

 

1.10Divisions.

For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its capital stock at such time.

 

1.11Interest Rates.

The Agent does not warrant, nor accept responsibility, nor shall the Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “LIBO Rate” or with respect to any rate that is an alternative or replacement for or successor to any of such rate (including, without limitation, any LIBO Successor Rate) or the effect of any of the foregoing, or of any LIBO Successor Rate Conforming Changes.

 

2.AMOUNT AND TERMS OF CREDIT

2.1Commitments of the Lenders.

(a)Each Revolving Lender severally and not jointly with any other Revolving Lender, agrees, upon the terms and subject to the conditions herein set forth, to extend credit to the Borrowers on a revolving basis, in the form of Revolving Loans and participations in Letters of Credit, Swingline Loans, Canadian Swingline Loans and UK Swingline Loans and in an amount not to exceed the lesser of such Revolving Lender’s Commitment or such Revolving Lender’s Commitment Percentage of the lesser of (x) the Combined Revolving Borrowing Base or (y) the Revolving Domestic Total Commitments, subject to the following limitations:

(i)The aggregate outstanding amount of the Credit Extensions (excluding FILO Loans) shall not at any time exceed the Revolving Loan Cap.

(ii)The aggregate outstanding amount of the Domestic Credit Extensions (excluding FILO Loans) shall not at any time cause the Domestic Availability to be less than zero.

(iii)The aggregate outstanding amount of the Canadian Credit Extensions shall not at any time exceed the Canadian Loan Cap.

(iv)The aggregate outstanding amount of the UK Credit Extensions shall not at any time exceed the UK Loan Cap.

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(v)The aggregate outstanding amount of the Canadian Credit Extensions plus the aggregate outstanding amount of the UK Credit Extensions shall not at any time exceed fifty percent (50%) of the Revolving Loan Cap.

(vi)The Revolving Loans made to and the Letters of Credit issued on behalf of, the Canadian Borrower by the Canadian Lenders may be either in $ or CD$, at the option of the Canadian Borrower, as herein set forth.

(vii)The Revolving Loans made to and the Letters of Credit issued on behalf of, the UK Borrower by the UK Lenders may be either in $, Euros or Pounds Sterling, at the option of the UK Borrower, as herein set forth.

(viii)No Revolving Lender shall be obligated to issue any Letter of Credit, and Letters of Credit shall be available from the Issuing Bank, subject to the ratable participation of all Revolving Lenders, as set forth in Section 2.6.  The aggregate Domestic Letter of Credit Outstandings shall not at any time exceed the Domestic Letter of Credit Sublimit, the aggregate Canadian Letter of Credit Outstandings shall not at any time exceed the Canadian Letter of Credit Sublimit, and the aggregate UK Letter of Credit Outstandings shall not at any time exceed the UK Letter of Credit Sublimit.

(ix)Subject to all of the other provisions of this Agreement, Revolving Loans that are repaid may be reborrowed prior to the Termination Date. No new Credit Extension, however, shall be made to the Borrowers after the Termination Date.

(x)(A) Notwithstanding anything to the contrary contained in this Section 2.1(a), subject to the terms and conditions set forth herein, the Canadian Borrower may, from time to time, directly obtain Loans (but in no event shall the outstanding amount of such Loans, when aggregate with other outstanding Canadian Loans, exceed the Canadian Total Commitments) to the extent of then unused portion of the Domestic Loan Cap only if and to the extent that the following conditions are satisfied:

(1)  the Canadian Borrower must have utilized all then remaining Canadian Availability; and

(2)  no Overadvance shall result therefrom; and

(3)  no Default or Event of Default shall exist, or arise from the making of such Loan and all other conditions precedent to the obtaining of Credit Extensions by the Borrowers shall have been satisfied.

(B) For purposes of Section 2.18(a) and Section 2.18(c), Loans made to the Canadian Borrower under this Section 2.1(a)(x) shall not be included as Canadian Credit Extensions.

(C) If at any time the amount of the Canadian Credit Extensions to the Canadian Borrower plus the amount of the Loans made to the Canadian Borrower pursuant to this Section 2.1(a)(x) exceeds Canadian Total

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Commitments (including, without limitation, as a result of one or more fluctuations in the exchange rate of the Canadian Dollar against the Dollar), the Canadian Borrower will immediately prepay the Loans made to the Canadian Borrower pursuant to this Section 2.1(a)(x) in an amount necessary to eliminate such excess.

(b)Each Borrowing by the Domestic Borrowers of Revolving Loans (other than Swingline Loans) shall be made by the Revolving Domestic Lenders pro rata in accordance with their Revolving Domestic Commitments, each Borrowing by the Canadian Borrower of Revolving Loans (other than Canadian Swingline Loans)  shall be made by the Canadian Lenders pro rata in accordance with their Canadian Commitments, and each Borrowing by the UK Borrower of Revolving Loans (other than UK Swingline Loans) shall be made by the UK Lenders pro rata in accordance with their UK Commitments.  The failure of any Revolving Domestic Lender, Canadian Lender or UK Lender, as applicable, to make any Revolving Loan to the Domestic Borrowers, the Canadian Borrower or the UK Borrower, as applicable, shall neither relieve any other Revolving Domestic Lender, Canadian Lender or UK Lender, as applicable, of its obligation to fund its Revolving Loan to the Domestic Borrowers, the Canadian Borrower or the UK Borrower, as applicable, in accordance with the provisions of this Agreement nor increase the obligation of any such other Revolving Domestic Lender, Canadian Lender or UK Lender, as applicable.

(c)Following the Second Amendment Effective Date, so long as no Default or Event of Default exists or would arise therefrom, the Lead Borrower shall have the right at any time, and from time to time, to request an increase of the Revolving Domestic Commitments, the Canadian Commitments or the UK Commitments by an amount of no more than $200,000,000 in the aggregate, (but in no event shall the Canadian Commitments ever exceed $85,000,000,  the UK Commitments ever exceed $200,000,000, or the Total Commitments as may be increased pursuant to this clause (c) ever exceed $600,000,000), which Commitments shall, except as set forth below, be on the same terms and conditions as set forth herein with respect to the existing Revolving Domestic Commitments, Canadian Commitments or UK Commitments, as applicable.  Any such Commitment Increase may be funded initially by the Agent or one or more existing Revolving Lenders as agreed with the Lead Borrower; provided that all existing Revolving Lenders will be provided with a right to participate in such Commitment Increase within thirty (30) days following the closing of such Commitment Increase.   Any such request shall be first made to all existing Revolving Lenders on a pro rata basis, provided that only the Canadian Lenders shall be permitted to participate in any increase of the Canadian Commitments and only the UK Lenders shall be permitted to participate in any increase of the UK Commitments. To the extent that any existing Revolving Domestic Lenders, Canadian Lenders or UK Lenders, as applicable, decline to increase their Commitments, or decline to increase their Commitments to the amount requested by the Lead Borrower, the Agent will promptly notify the Lead Arranger of such facts.  Thereafter, the Lead Borrower may arrange, and the Lead Arranger, in consultation with the Lead Borrower, will use its reasonable efforts to arrange, for other Persons to become a Revolving Domestic Lender, a Canadian Lender and/or a UK Lender hereunder, as applicable, and to issue Commitments in an amount equal to the amount of the increase in the Revolving Domestic Commitments, the Canadian Commitments and/or the UK Commitments requested by the Lead Borrower and not accepted by the existing Revolving Domestic Lenders, Canadian Lenders or UK Lenders, as applicable (each

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such increase by either means, a “Commitment Increase,” and each Person issuing, or Revolving Lender increasing, its Commitment, an “Additional Commitment Lender”), provided, however, that (i) no existing Revolving Lender shall be obligated to provide a Commitment Increase as a result of any such request by the Lead Borrower, (ii) any Revolving Lender that does not affirmatively agree to increase its Revolving Commitment shall be deemed to have declined to increase its Revolving Commitment and (iii) any Additional Commitment Lender which is not an existing Revolving Lender shall be subject to the approval of the Agent, the Issuing Bank and the Lead Borrower (which approval shall not be unreasonably withheld).  Each Commitment Increase with respect to the Revolving Domestic Commitments shall be in a minimum amount of $25,000,000 and integral multiples of $5,000,000 above such amount, with respect to the Canadian Commitments shall be in a minimum amount of $5,000,000 and integral multiples of $1,000,000 above such amount, and with respect to the UK Commitments shall be in a minimum amount of $5,000,000 and integral multiples of $1,000,000 above such amount and the Lead Borrower may make no more than four (4) requests for a Commitment Increase.  No Commitment Increase shall become effective unless and until each of the following conditions have been satisfied:

 

(i)

The Lead Borrower shall deliver to the Agent a certificate as of the Commitment Increase Date signed by a Financial Officer of the Lead Borrower and/or the Canadian Borrower and/or the UK Borrower, as applicable (A) certifying and attaching the resolutions adopted by the applicable Borrowers approving or consenting to such increase, and (B) certifying that, before and after giving effect to such increase on and as of the Commitment Increase Date (or as of the LCA Test Date so long as the proceeds of the Commitment Increase are not used to finance a Limited Condition Acquisition), (1) no Default or Event of Default exists, (and with respect to a Limited Condition Acquisition no Event of Default exists with respect to Sections 7.1(a), (b), (j) or (k) as of the Commitment Increase Date) and the representations and warranties contained in Section 3 and the other Loan Documents are true and correct in all material respects, except (A) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date and (B) in the case of any representation and warranty qualified by materiality, they shall be true and correct in all respects, and if in connection with a Limited Condition Acquisition, to the extent agreed to by the Additional Commitment Lenders, the applicable representations and warranties with respect to any target may be limited in the customary “SunGard” manner for limited conditionality acquisitions.

 

(ii)

The Borrowers, the Agent, and any Additional Commitment Lender that is not an existing Revolving Lender shall have executed and delivered a joinder to the Loan Documents in such form as the Agent shall reasonably require;

 

(iii)

The Borrowers shall have paid such fees and other compensation to the Additional Commitment Lenders as the Lead Borrower and such Additional Commitment Lenders shall agree;

 

(iv)

The Borrowers shall have paid such arrangement fees in such amounts, if any, to the Lead Arranger as the Borrowers and the Lead Arranger may agree;

 

(v)

If required by the Additional Commitment Lenders, the Borrowers shall deliver to the Agent and the Revolving Lenders an opinion or opinions, in form and substance reasonably satisfactory to the Agent, from counsel to the Borrowers reasonably satisfactory to the Agent and dated such date;

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(vi)

A Note (to the extent requested by a Revolving Lender) will be issued at the Borrowers’ expense, to each such Additional Commitment Lender, to be in conformity with requirements of Section 2.8 hereof (with appropriate modification) to the extent necessary to reflect the new Commitment of each Additional Commitment Lender; and

 

(vii)

The Borrowers and the Additional Commitment Lenders shall have delivered such other instruments, documents and agreements as the Agent may reasonably have requested.

(d)If the Total Commitments are increased in accordance with clause (c) of this Section, the Agent, in consultation with the Lead Borrower, shall determine the effective date (the “Commitment Increase Date”) and the final allocation of such increase. The Agent shall promptly notify each Revolving Lender as to the effectiveness of each Commitment Increase, and at such time (i) the applicable Commitments under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Commitment Increases, (ii) Schedule 1.1 shall be deemed modified, without further action, to reflect the revised Commitments and Commitment Percentages of the Revolving Lenders, and (iii) this Agreement shall be deemed amended, without further action, to the extent necessary to reflect such Commitment Increase.

(e)In connection with Commitment Increases hereunder, the Revolving Lenders and the Borrowers agree that, notwithstanding anything to the contrary in this Agreement, (i) the Borrowers shall, in coordination with the Agent, (x) repay outstanding Revolving Loans of certain Revolving Lenders, and obtain Revolving Loans from certain other Revolving Lenders (including the Additional Commitment Lenders), or (y) take such other actions as reasonably may be required by the Agent, in each case to the extent necessary so that all of the Revolving Lenders effectively participate in each of the outstanding Revolving Loans pro rata on the basis of their Commitment Percentages (determined after giving effect to any increase in the Commitments pursuant to this Section 2.1), and (ii) the Borrowers shall pay to the Revolving Lenders any costs of the type referred to in Section 2.19(b) in connection with any repayment and/or Revolving Loans required pursuant to preceding clause (i).  Without limiting the obligations of the Borrowers provided for in this Section 2.1, the Agent and the Revolving Lenders agree that they will use their best efforts to attempt to minimize the costs of the type referred to in Section 2.19(b) which the Borrowers would otherwise occur in connection with the implementation of an increase in the Commitments.

(f)Each FILO Lender severally agrees, on the terms and conditions hereinafter set forth, to make its portion of the FILO Loan to the Domestic Borrowers on the Second Amendment Effective Date in a principal amount equal to its FILO Commitment. Amounts repaid in respect of the FILO Loan may not be reborrowed. Upon each applicable FILO Lender’s making of its portion of the FILO Loan on the Second Amendment Effective Date, the FILO Commitment of such FILO Lender shall be terminated.

2.2Reserves; Changes to Reserves.

(a)The Inventory Reserves, Account Reserves, FILO Reserve and Availability Reserves, if any, as of the Second Effective Date are set forth on the Borrowing Base Certificate delivered on the Second Effective Date.

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(b)The Agent shall have the right, at any time and from time to time after the Effective Date in its Permitted Discretion to establish, modify or eliminate Reserves (other than the FILO Reserve) upon two Business Days prior notice to the Borrowers, (during which period the Agent shall be available to discuss any such proposed Reserve with the Borrowers); provided that no such prior notice shall be required for  (1) changes to any Reserves resulting solely by virtue of mathematical calculations of the amount of the Reserve in accordance with the methodology of calculation previously utilized (such as, but not limited to, rent and Customer Credit Liabilities), or (2) changes to Reserves or establishment of additional Reserves if a Material Adverse Effect has occurred or it would be reasonably likely that a Material Adverse Effect to the Lenders would occur were such Reserve not changed or established prior to the expiration of such two (2) Business Day period, or (3) any changes to Reserves during the continuance of any Event of Default.

2.3Making of Loans.

(a)Except as set forth in Sections 2.16 and 2.24, (i) Loans (other than Swingline Loans but including the FILO Loans) by the Domestic Lenders to the Domestic Borrowers shall be either Domestic Prime Rate Loans, or LIBO Loans as the Lead Borrower on behalf of the Domestic Borrowers may request subject to and in accordance with this Section 2.3, (ii) all Swingline Loans shall be only Domestic Prime Rate Loans, (iii) Canadian Loans (other than Canadian Swingline Loans)  by the Canadian Lenders to the Canadian Borrower shall be either Canadian Prime Rate Loans or BA Equivalent Loans (if made in Canadian Dollars), or LIBO Loans or U.S. Index Rate Loans (if made in Dollars), (iv) all Canadian Swingline Loans shall be Canadian Prime Rate Loans or U.S. Index Rate Loans, (v) UK Loans (other than, for the avoidance of doubt, UK Swingline Loans) by the UK Lenders to the UK Borrower shall only be LIBO Loans and may be made in Optional Currency or in Dollars, and (vi) all UK Swingline Loans by the UK Swingline Lender to the UK Borrower shall only be UK Base Rate Loans. All Loans made pursuant to the same Borrowing shall, unless otherwise specifically provided herein, be Loans of the same Type.  Each Lender may fulfill its Commitment with respect to any Loan by causing any lending office of such Lender to make such Loan; but any such use of a lending office shall not affect the obligation of the Borrowers to repay such Loan in accordance with the terms of the applicable Note.  Each Lender shall, subject to its overall policy considerations, use reasonable efforts (but shall not be obligated) to select a lending office which will not result in the payment of increased costs by the Borrowers pursuant to Section 2.23.  Subject to the other provisions of this Section 2.3 and the provisions of Section 2.24, Borrowings of Loans of more than one Type may be incurred at the same time, but no more than ten (10) Borrowings of LIBO Loans and BA Equivalent Loans may be outstanding at any time.

(b)The Lead Borrower, the Canadian Borrower or the UK Borrower, as applicable, shall give the Agent three (3) Business Days’ (or, with respect to any Loans made in Optional Currency, four (4) Business Days’) prior electronic notice (pursuant to a Notice of Borrowing) of each LIBO Borrowing and BA Equivalent Loan Borrowing, and prior electronic notice (pursuant to a Notice of Borrowing) on the same Business Day of each Borrowing of Domestic Prime Rate Loans, Canadian Prime Rate Loans, U.S. Index Rate Loans or UK Swingline Loans, as applicable. Any such notice, to be effective, must be received by the Agent not later than 11:00 a.m., Local Time, on the third Business Day in the case of LIBO Loans and BA Equivalent Loans prior to, and, in the case of Domestic Prime Rate Loans, Canadian Prime

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Rate Loans, U.S. Index Rate Loans and UK Swingline Loans, by 11:00 a.m. Local Time on the same Business Day of, the date on which such Borrowing is to be made. Such notice shall be irrevocable and shall specify the amount of the proposed Borrowing (which shall be in an integral multiple of (i) $100,000, but not less than $1,000,000 in the case of LIBO Loans; (ii) CD$100,000, but not less than CD$1,000,000 in the case of BA Equivalent Loans; (iii) $100,000, but not less than $250,000 for each of Prime Rate Loans and U.S. Index Rate Loans; and (iv) not less than CD$100,000 for Canadian Swing Line Loans) and the date thereof (which shall be a Business Day) and shall contain disbursement instructions.  Such notice shall specify whether the Borrowing then being requested is to be a Borrowing of Domestic Prime Rate Loans, Canadian Prime Rate Loans, U.S. Index Rate Loans, UK Swingline Loans, LIBO Loans or BA Equivalent Loans, and, if LIBO Loans or BA Equivalent Loans, the Interest Period with respect thereto. If no election of Interest Period is specified in any such Notice of Borrowing of LIBO Loans or BA Equivalent Loans, such notice shall be deemed a request for an Interest Period of one month. If no election is made as to the Type of Loan, such notice shall be deemed a request for a Borrowing of Domestic Prime Rate Loans, Canadian Prime Rate Loans or UK Swingline Loans, as applicable.  The Agent shall promptly notify each Lender of its proportionate share of such Borrowing, the date of such Borrowing, the Type of Borrowing being requested and the Interest Period or Interest Periods applicable thereto, as appropriate.  On the borrowing date specified in such Notice of Borrowing, each Lender shall make its share of the Borrowing available at the Agent’s Office no later than 2:00 p.m., Local Time, in immediately available funds.  Unless the Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Agent, such Lender’s share of such Borrowing, the Agent may assume that such Lender has made such share available on such date in accordance with this Section and may, in reliance upon such assumption, make available to the applicable Borrowers a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Agent, then the applicable Lender and the Borrowers severally agree to pay to the Agent, forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrowers to but excluding the date of payment to the Agent, at (i) in the case of such Lender, at the rate applicable to such Loan or (ii) in the case of the Borrowers, the interest rate applicable to Domestic Prime Rate Loans, Canadian Prime Rate Loans or UK Swingline Loans, as applicable.  If such Lender pays such amount to the Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.  Upon receipt of the funds made available by the Lenders to fund any Borrowing hereunder, the Agent shall disburse such funds in the manner specified in the Notice of Borrowing delivered by the Lead Borrower, the Canadian Borrower or the UK Borrower, as applicable, and shall use commercially reasonable efforts to make the funds so received from the Lenders available to the Domestic Borrowers, the Canadian Borrower or the UK Borrower, as applicable, no later than 3:00 p.m., Local Time.

(c)The Agent, without the request of the Lead Borrower, the Canadian Borrower or the UK Borrower, may advance any interest, fee, service charge, or other payment to which the Agent or its Affiliates or any Lender is entitled from any Borrower pursuant hereto or any other Loan Document and may charge the same to the Loan Account notwithstanding that an Overadvance may result thereby; provided that in no event shall the Agent make an Overadvance, if after giving effect thereto, the principal amount of the Credit Extensions (including any Overadvance or proposed Overadvance) would exceed the Total Commitments,

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the principal amount of the Domestic Credit Extensions would exceed the Revolving Domestic Total Commitments, the principal amount of the Canadian Credit Extensions would exceed the Canadian Total Commitments, the principal amount of the UK Credit Extensions would exceed the UK Loan Cap, or the principal amount of the Canadian Credit Extensions plus the principal amount of the UK Credit Extensions would exceed fifty percent (50%) of the Loan Cap.  The Agent shall notify the Lead Borrower of any such advance or charge no later than one Business Day prior to the making thereof.  Such action on the part of the Agent shall not constitute a waiver of the Agent’s rights and each Borrower’s obligations under Section 2.3(a).  Any amount which is added to the principal balance of the Loan Account as provided in this Section 2.3(c) shall bear interest at the interest rate then and thereafter applicable to Domestic Prime Rate Loans, Canadian Prime Rate Loans or UK Swingline Loans, as applicable.

2.4Overadvances

.  The Agent and the Revolving Lenders have no obligation to make any Revolving Loan or to provide any Letter of Credit if an Overadvance would result. The Agent (including through any of its branches) may, in its discretion, make Permitted Overadvances without the consent of the Revolving Lenders and each Revolving Lender shall be bound thereby.  Any Permitted Overadvances may constitute Swingline Loans.  The making of any Permitted Overadvance is for the benefit of the Borrowers; such Permitted Overadvances constitute Revolving Loans and Obligations. The making of any such Permitted Overadvances on any one occasion shall not obligate the Agent or any Revolving Lender to make or permit any Permitted Overadvances on any other occasion or to permit such Permitted Overadvances to remain outstanding. The Agent shall have no liability for, and no Credit Party shall have the right to, or shall, bring any claim of any kind whatsoever against the Agent with respect to Unintentional Overadvances regardless of the amount of any such Overadvance(s).

2.5Swingline Loans, Canadian Swingline Loans and UK Swingline Loans.

(a)Swingline Loans (Domestic).

 

(i)

The Swingline Lender is authorized by the Domestic Lenders and shall, subject to the provisions of this Section, make Swingline Loans up to the Swingline Sublimit in the aggregate outstanding at any time consisting of only Domestic Prime Rate Loans, upon a Notice of Borrowing (which may be sent electronically) received by the Agent and the Swingline Lender (which Notice of Borrowing, at the Swingline Lender’s discretion, may be submitted prior to 1:00 p.m., Local Time, on the Business Day on which such Swingline Loan is requested) provided further that the Swingline Lender shall not be obligated to make any Swingline Loan at any time when any Domestic Lender is at such time a Defaulting Lender hereunder, unless the Swingline Lender has entered into satisfactory arrangements with the Borrowers or such Domestic Lender to eliminate the Swingline Lender’s Fronting Exposure.  Swingline Loans shall be subject to periodic settlement with the Domestic Lenders under Section 2.7 below; provided, however, that during the months of November and December of each calendar year the Agent shall settle Swingline Loans at such times as it shall determine, in its discretion.

 

(ii)

The Swingline Lender shall, at the Lead Borrower’s request, make Swingline Loans (A) in reliance upon the Borrowers’ actual or deemed representations under Section 4.2 that the applicable conditions for borrowing are satisfied and (B) for Permitted Overadvances.  If the conditions for borrowing under Section 4.2 cannot be fulfilled, the Lead Borrower shall give immediate notice thereof to the Agent and the Swingline Lender (a Noncompliance

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Notice) prior to requesting further Swingline Loans, and the Agent shall promptly provide each Revolving Domestic Lender with a copy of the Noncompliance Notice. If the conditions for borrowing under Section 4.2 cannot be fulfilled, the Required Revolving Lenders may direct the Swingline Lender to, and the Swingline Lender thereupon shall, cease making Swingline Loans (other than Permitted Overadvances) until such conditions can be satisfied or are waived in accordance with Section 9.3. Unless the Required Revolving Lenders otherwise direct the Swingline Lender, the Swingline Lender may, but is not obligated to, continue to make Swingline Loans beginning one Business Day after the Noncompliance Notice is furnished to the Revolving Lenders. Notwithstanding the foregoing, no Swingline Loans shall be made pursuant to this subsection (a) (other than Permitted Overadvances) if the aggregate Credit Extensions (excluding FILO Loans) would exceed the limitations set forth in Section 2.1(a)(i) or (ii).

(b)Canadian Swingline Loans.

 

(i)

The Canadian Swingline Lender is authorized by the Canadian Lenders and shall, subject to the provisions of this Section, make Canadian Swingline Loans up to the Canadian Swingline Sublimit in the aggregate outstanding at any time consisting of Canadian Prime Rate Loans or U.S. Index Rate Loans, upon a Notice of Borrowing (which may be sent electronically) received by the Agent and the Canadian Swingline Lender (which Notice of Borrowing, at the Canadian Swingline Lender’s discretion, may be submitted prior to 1:00 p.m., Local Time, on the Business Day on which such Canadian Swingline Loan is requested) provided further that the Canadian Swingline Lender shall not be obligated to make any Canadian Swingline Loan at any time when any Canadian Lender is at such time a Defaulting Lender hereunder, unless the Canadian Swingline Lender has entered into satisfactory arrangements with the Borrowers or such Canadian Lender to eliminate the Swingline Lender’s Fronting Exposure.  Canadian Swingline Loans shall be subject to periodic settlement with the Canadian Lenders under Section 2.7 below; provided, however, that during the months of November and December of each calendar year the Agent shall settle Canadian Swingline Loans at such times as it shall determine, in its discretion.

 

(ii)

The Canadian Swingline Lender shall, at the Lead Borrower’s request, make Canadian Swingline Loans (A) in reliance upon the Borrowers’ actual or deemed representations under Section 4.2 that the applicable conditions for borrowing are satisfied and (B) for Permitted Overadvances.  If the conditions for borrowing under Section 4.2 cannot be fulfilled, the Lead Borrower shall give a Noncompliance Notice to the Agent and the Canadian Swingline Lender prior to requesting further Canadian Swingline Loans, and the Agent shall promptly provide each Canadian Lender with a copy of the Noncompliance Notice. If the conditions for borrowing under Section 4.2 cannot be fulfilled, the Required Revolving Lenders may direct the Canadian Swingline Lender to, and the Canadian Swingline Lender thereupon shall, cease making Canadian Swingline Loans (other than Permitted Overadvances) until such conditions can be satisfied or are waived in accordance with Section 9.3. Unless the Required Revolving Lenders otherwise direct the Canadian Swingline Lender, the Canadian Swingline Lender may, but is not obligated to, continue to make Canadian Swingline Loans beginning one Business Day after the Noncompliance Notice is furnished to the Revolving Lenders. Notwithstanding the foregoing, no Canadian Swingline Loans shall be made pursuant to this subsection (a) (other than Permitted Overadvances) if the aggregate Credit Extensions (excluding FILO Loans) would exceed the limitations set forth in Section 2.1(a)(i), (iii) or (v).

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(c)UK Swingline Loans.

 

(i)

The UK Swingline Lender is authorized by the UK Lenders and shall, subject to the provisions of this Section, make UK Swingline Loans up to the UK Swingline Sublimit in the aggregate outstanding at any time consisting of only UK Base Rate Loans, upon a Notice of Borrowing (which may be sent electronically) received by the Agent and the UK Swingline Lender (which Notice of Borrowing, at the UK Swingline Lender’s discretion, may be submitted prior to 11:00 a.m., Local Time, on the Business Day on which such UK Swingline Loan is requested) provided further that the UK Swingline Lender shall not be obligated to make any UK Swingline Loan at any time when any UK Lender is at such time a Defaulting Lender hereunder, unless the UK Swingline Lender has entered into satisfactory arrangements with the Borrowers or such UK Lender to eliminate the UK Swingline Lender’s Fronting Exposure.  UK Swingline Loans shall be subject to periodic settlement with the UK Lenders under Section 2.7 below in the sole discretion of the UK Swingline Lender.

 

(ii)

The UK Swingline Lender shall, at the Lead Borrower’s request, make UK Swingline Loans (A) in reliance upon the Borrowers’ actual or deemed representations under Section 4.2 that the applicable conditions for borrowing are satisfied and (B) for Permitted Overadvances.  If the conditions for borrowing under Section 4.2 cannot be fulfilled, the UK Borrower shall give a Noncompliance Notice to the Agent and the UK Swingline Lender prior to requesting further UK Swingline Loans. If the conditions for borrowing under Section 4.2 cannot be fulfilled, the Required Revolving Lenders may direct the UK Swingline Lender to, and the UK Swingline Lender thereupon shall, cease making UK Swingline Loans (other than Permitted Overadvances) until such conditions can be satisfied or are waived in accordance with Section 9.3. Unless the Required Revolving Lenders otherwise direct the UK Swingline Lender, the UK Swingline Lender may, but is not obligated to, continue to make UK Swingline Loans beginning one Business Day after the Noncompliance Notice is furnished to the Agent. Notwithstanding the foregoing, no UK Swingline Loans shall be made pursuant to this subsection (b) (other than Permitted Overadvances) if the aggregate Credit Extensions (excluding FILO Loans) would exceed the limitations set forth in Section 2.1(a)(i), (iv) or (v).

2.6Letters of Credit.

(a)Upon the terms and subject to the conditions herein set forth, the Lead Borrower on behalf of the Domestic Borrowers, or the Canadian Borrower, or the UK Borrower, may request the Issuing Bank, at any time and from time to time after the date hereof and prior to the Termination Date, to issue, and subject to the terms and conditions contained herein, the Issuing Bank shall issue, for the account of the relevant Borrower, one or more Letters of Credit; provided that no Letter of Credit shall be issued if after giving effect to such issuance (i) the aggregate Domestic Letter of Credit Outstandings would exceed the Domestic Letter of Credit Sublimit, (ii) the aggregate Canadian Letter of Credit Outstandings would exceed the Canadian Letter of Credit Sublimit, (iii) the aggregate UK Letter of Credit Outstandings would exceed the UK Letter of Credit Sublimit or (iv) the aggregate Credit Extensions would exceed the limitations set forth in Section 2.1; and provided, further, that no Letter of Credit shall be issued if the Issuing Bank shall have received notice from the Agent or the Required Revolving Lenders that the conditions to such issuance have not been met.

(b)The Issuing Bank shall not issue any Letter of Credit, if:

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(i)

any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing such Letter of Credit, or any Applicable Law or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Bank in good faith deems material to it;

 

(ii)

the issuance of such Letter of Credit would violate one or more policies of the Issuing Bank applicable to letters of credit generally (and the Issuing Bank shall furnish prompt notice to the Lead Borrower of any such change in policy);

 

(iii)

such Letter of Credit is to be denominated in a currency other than Dollars, Canadian Dollars or Optional Currency; provided that the Issuing Bank may, in its discretion, issue a Letter of Credit denominated in any other currency, and all reimbursements by the Borrowers of the honoring of any drawing under any Letter of Credit shall be paid in the currency in which such Letter of Credit was denominated;

 

(iv)

such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or

 

(v)

a default of any Revolving Lender’s obligations to fund under Section 2.3 exists or any Revolving Lender is at such time a Defaulting Lender hereunder, unless the Issuing Bank has entered into satisfactory arrangements with the Borrowers or such Revolving Lender to eliminate the Issuing Bank’s Fronting Exposure.

(c)Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) the date that is five (5) Business Days prior to the Maturity Date, provided that each Letter of Credit may, upon the request of the Lead Borrower, include a provision whereby such Letter of Credit shall be renewed automatically for additional consecutive periods of twelve (12) months or less unless the Issuing Bank which issued such Letter of Credit notifies the beneficiary thereof at least thirty (30) days prior to the then-applicable expiration date that such Letter of Credit will not be renewed (but no Letter of Credit shall expire subsequent to the date that is five (5) Business Days prior to the Maturity Date unless the Borrowers shall have deposited cash into the Cash Collateral Account in an amount equal to 102% of such Letter of Credit).

(d)Drafts drawn under any Letter of Credit shall be reimbursed by the Borrowers in Dollars, Canadian Dollars or the applicable Optional Currency, as applicable, on the same Business Day of any such payment thereof by the Issuing Bank by paying to the Agent an amount equal to such drawing (together with interest as provided in Section 2.6(e)) not later than 12:00 noon, Local Time, on (i) the date that the Lead Borrower shall have received notice of such drawing, if such notice is received prior to 10:00 a.m., Local Time, on such date, or (ii) the Business Day immediately following the day that the Lead Borrower receives such notice, if

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such notice is received after 10:00 a.m., Local Time on the day of drawing, provided that the Lead Borrower, the Canadian Borrower or the UK Borrower, as applicable, may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.3 that such payment be financed with a Revolving Loan consisting of a Domestic Prime Rate Loan or a Swingline Loan, or a Canadian Prime Rate Loan or U.S. Index Rate Loan or a Canadian Swingline Loan, or a UK Swingline Loan, as applicable, in an equivalent amount and, to the extent so financed, the applicable Borrowers’ obligation to make such payment shall be discharged and replaced by the resulting Domestic Prime Rate Loan or a Swingline Loan, a Canadian Prime Rate Loan or U.S. Index Rate Loan or a Canadian Swingline Loan, or a UK Swingline Loan, as applicable. The Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit issued by the Issuing Bank. The Issuing Bank shall promptly give electronic notice the Agent and the Lead Borrower, the Canadian Borrower or the UK Borrower, as applicable, of such demand for payment and whether the Issuing Bank has made or will make payment thereunder (which payment shall not be made until two (2) Business Days after such notice from the Issuing Bank to the Lead Borrower, the Canadian Borrower or the UK Borrower, as applicable), provided that any failure to give or delay in giving such notice shall not relieve the Borrowers of their obligation to reimburse the Issuing Bank and the Revolving Lenders with respect to any such payment.

(e)If the Issuing Bank shall make any L/C Disbursement, then, unless the Borrowers shall reimburse the Issuing Bank in full on the date such payment is made, the unpaid amount thereof shall bear interest, for each day from and including the date such payment is made to but excluding the date that the Borrowers reimburse the Issuing Bank therefor, at the rate per annum then applicable to Domestic Prime Rate Loans, Canadian Prime Rate Loans, U.S. Index Rate Loans or UK Swingline Loans, as applicable, provided that if the Borrowers fail to reimburse the Issuing Bank when such reimbursement is due pursuant to paragraph (c) of this Section, then Section 2.10 shall apply. Interest accrued pursuant to this paragraph shall be for the account of the Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to paragraph (g) of this Section to reimburse the Issuing Bank shall be for the account of such Revolving Lender to the extent of such payment.

(f)Immediately upon the issuance of any Letter of Credit by the Issuing Bank (or the amendment of a Letter of Credit increasing the amount thereof), and without any further action on the part of the Issuing Bank, the Issuing Bank shall be deemed to have sold to each Revolving Domestic Lender, Canadian Lender or UK Lender, as applicable, and each such Revolving Lender shall be deemed unconditionally and irrevocably to have purchased from the Issuing Bank, without recourse or warranty, an undivided interest and participation, to the extent of such Revolving Lender’s Revolving Domestic Commitment Percentage, Canadian Commitment Percentage or UK Commitment Percentage, as applicable, in such Letter of Credit, each drawing thereunder and the obligations of the Borrowers under this Agreement and the other Loan Documents with respect thereto. Upon any change in the Commitments pursuant to Section 2.1(c), Section 2.15, and/or 9.6, it is hereby agreed that with respect to all Letter of Credit Outstandings, there shall be an automatic adjustment to the participations hereby created to reflect the new Commitment Percentages of the assigning and assignee Revolving Lenders and any new Revolving Lenders.  Any action taken or omitted by the Issuing Bank under or in connection with a Letter of Credit issued by the Issuing Bank, if taken or omitted in the absence

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of gross negligence, bad faith or willful misconduct, shall not create for the Issuing Bank any resulting liability to any Revolving Lender.

(g)In the event that the Issuing Bank makes any L/C Disbursement and the Borrowers shall not have reimbursed such amount in full to the Issuing Bank pursuant to Section 2.6(d), the Issuing Bank shall promptly notify the Agent, which shall promptly notify each applicable Revolving Lender of such failure, and each such Revolving Lender shall promptly and unconditionally pay to the Agent for the account of the Issuing Bank at the Agent’s Office the amount of such Revolving Lender’s Revolving Domestic Commitment Percentage, Canadian Commitment Percentage or UK Commitment Percentage, as applicable, of such unreimbursed payment in the applicable currency in which such Letter of Credit was issued and in same day funds. If the Issuing Bank so notifies the Agent, and the Agent so notifies the applicable Revolving Lenders prior to 11:00 a.m., Local Time, on any Business Day, each such Lender shall make available to the Issuing Bank such Revolving Lender’s Revolving Domestic Commitment Percentage, Canadian Commitment Percentage or UK Commitment Percentage, as applicable, of the amount of such payment on such Business Day in same day funds (or if such notice is received by the applicable Revolving Lenders after 11:00 a.m., Local Time on the day of receipt, payment shall be made on the immediately following Business Day).  If and to the extent any Revolving Lender shall not have so made its Revolving Domestic Commitment Percentage, Canadian Commitment Percentage or UK Commitment Percentage, as applicable, of the amount of such payment available to the Issuing Bank, such Revolving Lender agrees to pay to the Issuing Bank, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Agent for the account of the Issuing Bank at the Federal Funds Effective Rate or the Bank of Canada Overnight Rate, as applicable. Each Revolving Lender agrees to fund its Revolving Domestic Commitment Percentage, Canadian Commitment Percentage or UK Commitment Percentage, as applicable, of such unreimbursed payment notwithstanding a failure to satisfy any applicable lending conditions or the provisions of Sections 2.1 or 2.6, or the occurrence of the Termination Date. The failure of any Revolving Lender to make available to the Issuing Bank its Revolving Domestic Commitment Percentage, Canadian Commitment Percentage or UK Commitment Percentage, as applicable, of any payment under any Letter of Credit shall neither relieve any Revolving Lender of its obligation hereunder to make available to the Issuing Bank its Revolving Domestic Commitment Percentage, Canadian Commitment Percentage or UK Commitment Percentage, as applicable, of any payment under any Letter of Credit on the date required, as specified above, nor increase the obligation of such other Revolving Lender. Whenever any Revolving Lender has made payments to the Issuing Bank in respect of any reimbursement obligation in respect of any Letter of Credit, such Revolving Lender shall be entitled to share ratably, based on its Revolving Domestic Commitment Percentage, Canadian Commitment Percentage or UK Commitment Percentage, as applicable, in all payments and collections thereafter received on account of such reimbursement obligation.

(h)Whenever any Borrower desires that the Issuing Bank issue a Letter of Credit (or amend, renew or extend an outstanding Letter of Credit), the Lead Borrower, the Canadian Borrower or the UK Borrower, as applicable, shall give to the Issuing Bank and the Agent at least two (2) Business Days’ prior written (including telegraphic, telex, facsimile, cable or other electronic communication) notice (or such shorter period as may be agreed upon by the Issuing Bank and such Borrower) specifying the date on which the proposed Letter of Credit is to

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be issued, amended, renewed or extended (which shall be a Business Day), the Stated Amount of the Letter of Credit so requested, the expiration date of such Letter of Credit, the name and address of the beneficiary thereof, and the provisions thereof. If requested by the Issuing Bank, the applicable Borrower shall also submit a letter of credit application on the Issuing Bank’s standard form in connection with any request for the issuance, amendment, renewal or extension of a Letter of Credit.

(i)The obligations of the Borrowers to reimburse the Issuing Bank for any L/C Disbursement shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including, without limitation: (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, setoff, defense or other right which the Borrowers may have at any time against a beneficiary of any Letter of Credit or against the Issuing Bank or any of the Revolving Lenders, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction; (iii) any draft, demand, certificate or other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by the Issuing Bank of any Letter of Credit issued by the Issuing Bank against presentation of a demand, draft or certificate or other document which appears on its face to be in order but in fact does not comply with the terms of such Letter of Credit; (v) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrowers’ obligations hereunder; or (vi) the fact that any Event of Default shall have occurred and be continuing. None of the Agent, the Revolving Lenders, the Issuing Bank or any of their Affiliates shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Bank, provided that the foregoing shall not be construed to excuse the Issuing Bank from liability to the Borrowers to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrowers to the extent permitted by Applicable Law) suffered by the Borrowers that are caused by the Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence, bad faith or willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented that appear on their face to be in compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.

(j)If any Event of Default shall occur and be continuing, on the Business Day that the Lead Borrower, the Canadian Borrower or the UK Borrower, as applicable, receives

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notice from the Agent or the Required Revolving Lenders demanding the deposit of cash collateral pursuant to this paragraph, the applicable Borrowers shall deposit in the Cash Collateral Account an amount in cash equal to 102% of the Letter of Credit Outstandings as of such date plus any accrued and unpaid interest thereon. Each such deposit shall be held by the Agent as collateral for the payment and performance of the Obligations, or for the Canadian Liabilities and the UK Liabilities, as applicable. The Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such Cash Collateral Account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Agent at the request of the Lead Borrower, the Canadian Borrower or the UK Borrower, as applicable, and at the Borrowers’ risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such Cash Collateral Account shall be applied by the Agent to reimburse the Issuing Bank for payments on account of drawings under Letters of Credit for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrowers for the applicable Letter of Credit Outstandings at such time or, if the Loans have matured or the maturity of the Loans has been accelerated, be applied to satisfy other Obligations or the Canadian Liabilities and the UK Liabilities, as applicable.

(k)The Borrowers, the Agent and the Revolving Lenders agree that the Existing Letters of Credit shall be deemed Letters of Credit hereunder as if issued by the Issuing Bank.

(l)The Issuing Bank, on a daily basis (unless otherwise agreed by the Agent), shall provide to the Agent an accurate report that details the activity with respect to each Letter of Credit issued by the Issuing Bank (including an indication of the maximum amount then in effect with respect to such Letter of Credit).  The Agent, on a quarterly basis, shall provide the Revolving Lenders with a summary of the outstanding Letters of Credit in form and substance customarily provided by the Agent in transactions of this nature.

(m)Unless otherwise expressly agreed by the Issuing Bank and the Lead Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each Domestic Letter of Credit, Canadian Letter of Credit or UK Letter of Credit that is a Standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance shall apply to each Domestic Letter of Credit, Canadian Letter of Credit or UK Letter of Credit that is a Commercial Letter of Credit.

2.7Settlements Among Revolving Lenders.

(a)The Swingline Lender may (but shall not be obligated to), at any time, but not less than weekly, on behalf of the Domestic Borrowers (which hereby authorize the Swingline Lender to act in their behalf in that regard) request the Agent to cause the Revolving Domestic Lenders to make a Revolving Loan (which shall be a Domestic Prime Rate Loan) in an amount equal to such Revolving Domestic Lender’s Revolving Domestic Commitment Percentage of the outstanding amount of Swingline Loans made in accordance with Section 2.5(a), which request may be made regardless of whether the conditions set forth in Section 4

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have been satisfied.  Upon such request, each Revolving Domestic Lender shall make available to the Agent at the Agent’s Office the proceeds of such Revolving Loan for the account of the Swingline Lender.  If the Swingline Lender requires a Revolving Loan to be made by the Revolving Domestic Lenders and the request therefor is received prior to 12:00 Noon, Local Time, on a Business Day, such transfers shall be made in immediately available funds no later than 3:00 p.m., Local Time, that day; and, if the request therefor is received after 12:00 Noon, Local Time, then such transfers shall be made no later than 3:00 p.m., Local Time, on the next Business Day. The obligation of each Revolving Domestic Lender to transfer such funds is irrevocable, unconditional and without recourse to or warranty by the Agent or the Swingline Lender. If and to the extent any Revolving Domestic Lender shall not have so made its transfer to the Agent, such Revolving Domestic Lender agrees to pay to the Agent, forthwith on demand, such amount together with interest thereon for each day from such date until the date such amount is paid to the Agent at the rate of interest applicable to such Revolving Domestic Loan.

(b)The Canadian Swingline Lender may (but shall not be obligated to), at any time, but not less than weekly, on behalf of the Canadian Borrower (which hereby authorizes the Canadian Swingline Lender to act in its behalf in that regard) request the Agent to cause the Canadian Lenders to make a Revolving Loan (which shall be a Canadian Prime Rate Loan or a U.S. Index Rate Loan) in an amount equal to such Canadian Lender’s Canadian Commitment Percentage of the outstanding amount of Canadian Swingline Loans made in accordance with Section 2.5(b), which request may be made regardless of whether the conditions set forth in Section 4 have been satisfied.  Upon such request, each Canadian Lender shall make available to the Agent at the Agent’s Office the proceeds of such Revolving Loan for the account of the Canadian Swingline Lender.  If the Canadian Swingline Lender requires a Revolving Loan to be made by the Canadian Lenders and the request therefor is received prior to 12:00 Noon, Local Time, on a Business Day, such transfers shall be made in immediately available funds no later than 3:00 p.m., Local Time, that day; and, if the request therefor is received after 12:00 Noon, Local Time, then such transfers shall be made no later than 3:00 p.m., Local Time, on the next Business Day. The obligation of each Canadian Lender to transfer such funds is irrevocable, unconditional and without recourse to or warranty by the Agent or the Canadian Swingline Lender. If and to the extent any Canadian Lender shall not have so made its transfer to the Agent, such Canadian Lender agrees to pay to the Agent, forthwith on demand, such amount together with interest thereon for each day from such date until the date such amount is paid to the Agent at the rate of interest applicable to such Canadian Loan.

(c)The UK Swingline Lender may (but shall not be obligated to), at any time, in its sole discretion, on behalf of the UK Borrower (which hereby authorizes the UK Swingline Lender to act in its behalf in that regard) request the Agent to cause the UK Lenders to make a UK Loan (which, for clarity, shall be a LIBO Loan) in an amount equal to such UK Lender’s UK Commitment Percentage of the outstanding amount of UK Swingline Loans made in accordance with Section 2.5(c), which request may be m