8-K
false000183458500018345852023-03-102023-03-10

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 8-K

 

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): March 10, 2023

 

 

JOANN Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware

 

001-40204

 

46-1095540

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

5555 Darrow Road

Hudson, Ohio 44236

(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code: (330) 656-2600

N/A

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

 

 

 

 

 

 

Title of Each Class

 

Trading

Symbol

 

Name of Each Exchange

on which Registered

Common stock, par value $0.01 per share

 

JOAN

 

The Nasdaq Global Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 


 

Item 1.01.

Entry Into a Material Definitive Agreement

 

On March 10, 2023 (the “Closing Date”), Jo-Ann Stores, LLC (“Jo-Ann”), a wholly-owned subsidiary of JOANN Inc. (the “Company”), entered into the Third Amendment (the “Third Amendment”) to the Amended and Restated Credit Agreement (dated as of October 21, 2016 and as previously amended, supplemented or otherwise modified prior to the Third Amendment (the “Existing Credit Agreement” and, as further amended by the Third Amendment, the “Amended Credit Agreement”)), by and among Jo-Ann, as borrower, Needle Holdings LLC, the guarantors party thereto, Bank of America, N.A. (“BofA”) as administrative agent and collateral agent (the “Agent”), 1903P Loan Agent, LLC, as FILO Documentation Agent, and the various lenders from time to time party thereto.

 

The Third Amendment, among other things, adds a series of first-in last-out loans (the “FILO Loans”) in an aggregate amount of $100.0 million, the full amount of which was drawn on the Closing Date and a portion of which proceeds were used, among other things, to refinance a portion of the revolving loans drawn and outstanding under the Existing Credit Agreement immediately prior to the Closing Date. The FILO Loans mature at the same time as the commitments under the Existing Credit Agreement (the “Revolving Commitments”) on December 22, 2026. The FILO Loans will not amortize. The FILO Loans are SOFR loans (as defined in the Third Amendment), that bear monthly interest at an annual rate of 9.75% with one 100 basis point stepdown based on minimum Consolidated EBITDA (as defined in the Third Amendment) and are subject to a SOFR floor of 1.50%.

The Third Amendment also amends the Existing Credit Agreement to (i) include certain trade receivables in the borrowing base, (ii) provide that loans drawn pursuant to the Revolving Commitments may be made at Jo-Ann’s election as base rate loans or SOFR loans and (iii) increases the applicable margin for SOFR loans to 2.00% with two twenty-five basis point step-downs based on excess availability. Revolving Loans made in SOFR are subject to a credit spread adjustment of 0.10% and a floor of 0.00%.

Other than the changes described above, all other material provisions of the Existing Credit Agreement remain unchanged and as previously disclosed.

 

Certain of the lenders party to the Amended Credit Agreement, and their respective affiliates, have performed, and may in the future perform for the Company and its subsidiaries, various commercial banking, investment banking, underwriting and other financial advisory services, for which they have received, or may receive, customary fees and expense reimbursements.

 

The foregoing description of the Third Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Third Amendment, which is filed as Exhibit 10.1 hereto and incorporated by reference herein.

 

Item 9.01.

Financial Statements and Exhibits.

 

 

(d) Exhibits.

 

 

 

 

Exhibit No.

 

Description

 

 

10.1

 

Third Amendment, dated as of March 10, 2023, by and among Jo-Ann Stores, LLC, Needle Holdings LLC, each of the Guarantors, each of the lenders party thereto, Bank of America, N.A., as administrative agent and collateral agent for the lenders and 1903P Loan Agent, LLC, as FILO Documentation Agent

 

 

 

104

 

Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

 

 


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: March 13, 2023

 

 

 

JOANN INC.

 

 

By:

 

/s/ Scott N. Sekella

Name:

 

Scott N. Sekella

Title:

 

Senior Vice President, Chief Financial Officer

 


EX-10

Exhibit 10.1

 

EXECUTION VERSION

 

 

THIRD AMENDMENT TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) dated as of March 10, 2023 by and among

JO-ANN STORES, LLC, an Ohio limited liability company (the “Borrower”),

NEEDLE HOLDINGS LLC, a Delaware limited liability company (“Holdings”),

the other Loan Parties party hereto,

the FILO Lenders party hereto,

the other Lenders party hereto,

BANK OF AMERICA, N.A., as Administrative Agent and Collateral Agent, and

1903P LOAN AGENT, LLC, as FILO Documentation 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 Borrower, Holdings, the Lenders, the Administrative Agent and the Collateral Agent, among others, have entered into a certain Amended and Restated Credit Agreement dated as of October 21, 2016 (as amended by that certain First Amendment to Amended and Restated Credit Agreement, dated as of November 25, 2020, as further amended by that certain Second Amendment to Amended and Restated Credit Agreement, dated as of December 22, 2021, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the effectiveness of this Amendment, the “Existing Credit Agreement”);

 

WHEREAS, the Borrower has requested to amend certain provisions of the Existing Credit Agreement, in each case, subject to the terms and conditions hereof;

 

WHEREAS, the Borrower has requested that the FILO Lenders provide a first-in, last-out term loan facility, and the FILO Lenders have agreed to provide such facility on the terms and conditions set forth herein; and

 

WHEREAS, the Lenders under (and as defined in) the Existing Credit Agreement, the Administrative Agent, the FILO Lenders and the FILO Documentation 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 Existing Credit Agreement. All capitalized terms not otherwise defined herein shall have the same meaning as in the Existing Credit Agreement, as amended by this Amendment (the “Amended Credit Agreement”).

 


 

2.
Representations and Warranties. Each Loan Party hereby represents and warrants that after giving effect to this Amendment, (i) no Default or Event of Default exists under the Amended Credit Agreement or under any other Loan Document, and (ii) all representations and warranties contained in the Amended 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” or “Material Adverse Effect”, which is true and correct in all respects) as of the date hereof, except 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” or “Material Adverse Effect”, which is true and correct in all respects) as of such earlier date.
3.
Amendments to Existing Credit Agreement. Subject to the satisfaction of the conditions precedent set forth in Section 4 below, the Existing Credit Agreement is hereby amended as following:
a.
Credit Agreement. The Existing Credit Agreement is hereby amended as set forth in Annex A attached hereto such that all of the newly inserted double underlined text (indicated textually in the same manner as the following example: double-underlined text) and any formatting changes attached hereto shall be deemed to be inserted and all stricken text (indicated textually in the same manner as the following example: stricken text) shall be deemed to be deleted therefrom.
b.
Exhibits to Credit Agreement. Exhibit A (Form of Assignment and Assumption), Exhibit C (Form of Notice of Borrowing), Exhibit F (Form of Notice of Conversion or Continuation), Exhibit J (Form of Borrowing Base Certificate), Exhibit N (Form of Compliance Certificate) and Exhibit O (Form of Solvency Certificate) to the Existing Credit Agreement are hereby deleted in their entirety and new Exhibit A, Exhibit C, Exhibit F, Exhibit J, Exhibit N and Exhibit O, respectively, are substituted in their stead as attached hereto in Annex B. Exhibit P (Form of FILO Note) attached hereto in Annex B is hereby added to the Amended Credit Agreement as Exhibit P thereto.
c.
Schedules to Credit Agreement. Schedule I (Commitments), Schedule II (Guarantors), Schedule 5.12 (Subsidiaries and Other Equity Investments), Schedule 9.1(b) (Existing Liens), Schedule 9.2(f) (Existing Investments), Schedule 9.3(b) (Existing Indebtedness), Schedule 9.8 (Transactions with Affiliates) and Schedule 12.8 (Administrative Agent’s Office, Certain Addresses for Notices) to the Existing Credit Agreement are hereby deleted in their entirety and new Schedule I, Schedule II, Schedule 5.12, Schedule 9.1(b), Schedule 9.2(f), Schedule 9.3(b), Schedule 9.8 and Schedule 12.8, respectively, are substituted in their stead as attached hereto in Annex C.
4.
Conditions to Effectiveness. This Amendment shall become effective on the date (the “Third Amendment Effective Date”) when each of the following conditions precedent has been fulfilled to the reasonable satisfaction of the Administrative Agent and the FILO Documentation Agent:
a.
Amendment Documents. (i) This Amendment shall have been duly executed and delivered by the Loan Parties, the Administrative Agent, the FILO Documentation Agent, the FILO Lenders and other Lenders under (and as defined in) the Existing Credit Agreement, (ii) the FILO Fee Letter shall have been duly executed and delivered by each of the parties thereto, and (iii) the Fee Letter referenced in clause (z)(ii) of the definition of “Fee Letter” in the Credit Agreement shall have been duly executed and delivered by each of the parties thereto.

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b.
FILO Note. A FILO Note, substantially in the form of Exhibit P to the Amended Credit Agreement, shall have been duly executed and delivered by the Borrower in favor of each FILO Lender requesting a FILO Note and reflecting the FILO Commitment of such FILO Lender after giving effect to this Amendment.
c.
Solvency Certificate. A Solvency Certificate shall have been duly executed and delivered by the chief financial officer of the Borrower substantially in the form of Exhibit O to the Amended Credit Agreement.
d.
Officer’s Closing Certificate. A certificate shall have been duly executed and delivered by a Responsible Officer of the Borrower, in form and substance reasonably satisfactory to the Administrative Agent and the FILO Documentation Agent, certifying as to satisfaction of the conditions precedent set forth in clauses (i) and (k) below and the representations and warranties set forth in Section 2 above.
e.
Information Certificate. An updated Information Certificate shall have been duly executed and delivered by the Loan Parties.
f.
Lien Searches. The Administrative Agent and the FILO Documentation Agent each shall have received the results of (i) searches of the UCC filings (or equivalent filings) and (ii) tax lien searches, made with respect to the Loan Parties in, with respect to searches in respect of clause (i), the states or other jurisdictions of formation of such Persons and, with respect to searches in respect of clause (ii), such other locations as are satisfactory to the Administrative Agent and the FILO Documentation Agent, together with copies of the financing statements (or, in the case of clause (ii), similar documents) disclosed by such searches.
g.
Corporate Action. All action on the part of the Loan Parties necessary for the valid execution, delivery and performance by the Loan Parties of this Amendment shall have been duly and effectively taken. The Administrative Agent and the FILO Documentation Agent each shall have received such customary corporate resolutions, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing the authority of each Loan Party to enter into this Amendment and the other Loan Documents to which such Loan Party is a party and the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Third Amendment Effective Date, good standing certificates, other certificates, copies of each Loan Party’s Constituent Documents and other customary corporate documents as the Administrative Agent or the FILO Documentation Agent shall reasonably request.
h.
Opinions of Counsel. The Administrative Agent and the FILO Documentation Agent shall have received a favorable opinion of (i) Latham & Watkins LLP, special counsel to the Borrower with respect to certain matters of federal and New York law and certain routine matters under Delaware law and (ii) Jones Day, Ohio counsel to the Loan Parties.
i.
No Default. After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
j.
Borrowing Base Certificate; Availability. The Administrative Agent and the FILO Documentation Agent each shall have received an executed Borrowing Base Certificate

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dated as of the Third Amendment Effective Date, relating to the fiscal month ending January 31, 2023. The Excess Availability under the Amended Credit Agreement on the Third Amendment Effective Date after giving effect to all amounts funded under the Amended Credit Agreement on such date (including the FILO Loans) and all prepayments of the Revolving Loans on the Third Amendment Effective Date, shall be equal to or greater than $120,000,000, based on the Borrowing Base Certificate delivered on the Third Amendment Effective Date.
k.
No Material Adverse Effect. No event shall have occurred after January 29, 2022 that could reasonably be expected to have a Material Adverse Effect on the Loan Parties, taken as a whole.
l.
Fees and Expenses. The Administrative Agent, the FILO Documentation Agent and the Lenders shall have received all applicable fees, including fees under the FILO Fee Letter and the Fee Letter referenced in clause (z)(ii) of the definition of “Fee Letter” in the Credit Agreement and other amounts due and payable on or prior to the Third Amendment Effective Date, including without limitation, to the extent invoiced prior to the Third Amendment Effective Date, reasonable and documented attorneys’ fees of one counsel to the Administrative Agent and one counsel to the FILO Documentation Agent, in connection with or relating to this Amendment, which shall have been reimbursed or paid.
m.
Documents. The Administrative Agent and the FILO Documentation Agent each shall have received such other documents, agreements, or items as the Administrative Agent or the FILO Documentation Agent may reasonably request in order to effectuate, or in connection with, the transactions contemplated hereby.

Without limiting the generality of the provisions Section 11.1 of the Amended Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent or the FILO Documentation Agent shall have received notice from such Lender prior to the proposed Third Amendment Effective Date specifying its objection thereto.

5.
Confirmation, Ratification and Reaffirmation.
a.
Each of the Loan Parties hereby ratifies and confirms all of its Obligations to the Agents, the Swing Loan Lender, the Issuer, and the Lenders under the Amended Credit Agreement, including, without limitation, the Revolving Loans, Swing Loans, FILO Loans and other Credit Extensions, and each of the Loan Parties hereby affirms its absolute and unconditional promise to pay to the Lenders, the Issuer and the Agents, as applicable, the Revolving Loans, FILO Loans, other Credit Extensions, reimbursement obligations and all other amounts due or to become due and payable to the Lenders, the Issuer, and the Agents, as applicable, under the Amended Credit Agreement and it is the intent of the parties hereto that nothing contained herein shall constitute a novation or accord and satisfaction. Except as expressly amended hereby, the Existing Credit Agreement shall continue in full force and effect. Each of the Loan Parties hereby further (i) ratifies and confirms all of the terms and conditions of each of the documents, instruments and agreements, including those documents, instruments and agreements set forth on Annex D hereto (as amended, restated, supplemented or otherwise modified and in effect from time to time, the “Ancillary Loan Documents”) to which it is a party and executed and delivered in connection with the

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Existing Credit Agreement, (ii) acknowledges and agrees that each of the Ancillary Loan Documents (including any schedules thereto) remain in full force and effect, and (iii) reaffirms that, after giving effect to the Amended Credit Agreement, all of its warranties and representations set forth in each of the Ancillary Loan Documents to which it is a party remain true and correct in all material respects as of the Third Amendment Effective Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, such representations and warranties remain true and correct in all material respects as of such earlier date; provided, further that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
b.
Each of the Guarantors hereby acknowledges, confirms and agrees that the Guaranteed Obligations of the Guarantors under, and as defined in, the Guaranty include, without limitation, all Obligations of the Loan Parties at any time and from time to time outstanding under the Amended Credit Agreement.
c.
Without in any manner limiting Section 5(a) above, each Loan Party hereby ratifies and reaffirms its grant of liens on and security interest in any and all Collateral as security for the Obligations arising under or pursuant to and as defined in the Existing Credit Agreement, and confirms and agrees that, after giving effect to the Amended Credit Agreement, such liens and security interests shall continue to secure all Obligations of the Loan Parties at any time and from time to time outstanding under the Amended Credit Agreement and the Ancillary Loan Documents (including, without limitation, the FILO Obligations), as such Obligations have been, and may hereafter be, amended, restated, amended and restated, supplemented, increased or otherwise modified from time to time.
6.
Joinder of FILO Lenders and FILO Documentation Agent. Subject to the satisfaction of the conditions precedent set forth in Section 4 above, each of the FILO Documentation Agent and each FILO Lender hereby:
a.
becomes a party to the Amended Credit Agreement as (i) the FILO Documentation Agent or (ii) a FILO Lender and a Lender, as applicable;
b.
agrees that (i) it shall be bound by all agreements, acknowledgments and obligations, and has all of the rights and benefits, of the FILO Documentation Agent or a FILO Lender, as applicable, under the Amended Credit Agreement and all other applicable Loan Documents and (ii) that it has received and acknowledged the Intercreditor Agreement and agrees to be bound by such agreement;
c.
agrees that it will perform in accordance with their terms all of the obligations that by the terms of the Amended Credit Agreement are required to be performed by it as the FILO Documentation Agent or a FILO Lender, as applicable;
d.
in the case of each FILO Lender, acknowledges and agrees that its FILO Commitment shall be the amount specified for such FILO Lender set forth on Schedule I to the Amended Credit Agreement;
e.
agrees that it will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time,

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continue to make its own credit decisions in taking or not taking action under the Amended Credit Agreement;
f.
in the case of each FILO Lender, irrevocably appoints and authorizes each of the Administrative Agent, the Collateral Agent and the FILO Documentation Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Amended Credit Agreement and the other Loan Documents as are delegated to such Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto; and
g.
confirms it has received such documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment.
7.
Binding Effect; Integration, Etc. 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. This Amendment and the Amended Credit Agreement shall hereafter be read and construed together as a single document, and all references in the Existing Credit Agreement, any other Loan Document or any agreement or instrument related to the Existing Credit Agreement shall hereafter refer to the Amended Credit Agreement. This Amendment shall constitute a Loan Document.
8.
Multiple Counterparts. This 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. Delivery of any executed counterpart of a signature page of this Amendment by telecopy or e-mail shall be effective as delivery of a manually executed counterpart of this Amendment.
9.
Governing Law; Waiver of Jury Trial. EACH PARTY HERETO HEREBY AGREES THAT THE PROVISIONS OF SECTION 12.12 AND SECTION 12.13 OF THE EXISTING CREDIT AGREEMENT SHALL APPLY TO THIS AMENDMENT.

[Signature Pages Follow.]

 

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

 

JO-ANN STORES, LLC, as the Borrower

By: _/s/ Scott Sekella
Name: Scott Sekella
Title: Senior Vice President, Chief Financial Officer & Treasurer

NEEDLE HOLDINGS LLC, as Holdings

By: _/s/ Scott Sekella
Name: Scott Sekella
Title: Senior Vice President, Chief Financial Officer & Treasurer

JOANN.COM, LLC, as a Guarantor

By: _/s/ Scott Sekella
Name: Scott Sekella
Title: Vice President & Treasurer

JO-ANN STORES SUPPORT CENTER, INC., as a Guarantor

By: _/s/ Scott Sekella
Name: Scott Sekella
Title: Vice President & Treasurer

CREATIVEBUG, LLC, as a Guarantor

By: _/s/ Scott Sekella
Name: Scott Sekella
Title: Vice President & Treasurer

CREATIVE TECH SOLUTIONS LLC, as a Guarantor

By: _/s/ Scott Sekella
Name: Scott Sekella
Title: Vice President & Treasurer

 


WEAVEUP, INC., as a Guarantor

By: _/s/ Scott Sekella
Name: Scott Sekella
Title: Vice President & Treasurer

JOANN DITTO HOLDINGS INC., as a Guarantor

By: _/s/ Scott Sekella
Name: Scott Sekella
Title: Vice President & Treasurer

1943 HOLDINGS LLC, as a Guarantor

By: _/s/ Scott Sekella
Name: Scott Sekella
Title: Vice President & Treasurer

 

 

 

 


BANK OF AMERICA, N.A.,

as Administrative Agent, Collateral Agent and a Revolving Credit Lender

By: _/s/ Courtney Kolb
Name: Courtney Kolb
Title: Vice President

 

 

 

 


 

1903P LOAN AGENT, LLC,

as FILO Documentation Agent

By: _/s/ Kyle Shonak
Name: Kyle Shonak
Title: Senior Managing Director

 

 


GB FUNDING, LLC,

as a FILO Lender

By: _/s/ Kyle Shonak
Name: Kyle Shonak
Title: Senior Managing Director

 

 

 

 


CENTERBRIDGE CREDIT CS, L.P.,

as a FILO Lender

By: _/s/ Gavin Baiera
Name: Gavin Baiera
Title: Authorized Signatory

 


Wells Fargo Bank, National Association, as a Revolving Credit Lender

 

 

By: _/s/ Katelyn Murray
Name: Katelyn Murray
Title: Assistant Vice President

 

 


U.S. BANK NATIONAL ASSOCIATION, as a Revolving Credit Lender

 

 

By: _/s/ David Lawrence
Name: David Lawrence
Title: Vice President

 

 

 


BMO Harris Bank N.A., as a Revolving Credit Lender

 

 

By: _/s/ Joseph Basa
Name: Joseph Basa
Title: Vice President

 

 

 


PNC Bank, as a Revolving Credit Lender

 

 

By: _/s/ Ralph Mielnik
Name: Ralph Mielnik
Title: Assistant Vice President

 

 

 


TD Bank, N.A., as a Revolving Credit Lender

 

 

By: _/s/ Antimo Barbieri
Name: Antimo Barbieri
Title: Vice President

 


The Huntington National Bank, as a Revolving Credit Lender

 

 

By: _/s/ Patricia Scudder
Name: Patricia Scudder
Title: Relationship Manager/Vice President

 

 


ANNEX A

Composite Credit Agreement

[See Attached]

 

 


Annex A
Conformed Amended and Restated Credit Agreement through the
SecondThird Amendment

 

$500,000,000

AMENDED AND RESTATED CREDIT AGREEMENT
 

Dated as of October 21, 2016,
as amended on November 25, 2020,

and as further amended on December 22, 2021, and March 10, 2023
 

among


JO-ANN STORES, LLC,
as the Borrower,


NEEDLE HOLDINGS LLC,

as Holdings,
 

BANK OF AMERICA, N.A.,

as Administrative Agent, Collateral Agent and Issuer,
 

 

1903P LOAN AGENT, LLC,

as FILO Documentation Agent,
 

and
 

THE OTHER LENDERS AND ISSUERS PARTY HERETO
________________


JPMORGAN CHASE BANK, N.A.,

and


WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Co-Syndication AgentsSyndication Agent,
 

BMO HARRIS BANK, N.A.,

PNC BANK, NATIONAL ASSOCIATION,

TD BANK, N.A.
and

U.S. BANK NATIONAL ASSOCIATION,

as Co-Documentation Agents,
 

BANK OF AMERICA, N.A., and

JPMORGAN CHASE BANK, N.A.
and
 

 


WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Joint Lead Arrangers and Joint Bookrunners

 

 

 


 

Table of Contents

Page

Article I Definitions, Interpretation and Accounting Terms 1

Section 1.1 Defined Terms 1

Section 1.2 Other Interpretive Provisions 6668

Section 1.3 Accounting Terms 6769

Section 1.4 Rounding 6770

Section 1.5 Letter of Credit Amounts 6870

Section 1.6 References to Agreements, Laws, Etc 6870

Section 1.7 Times of Day 6870

Section 1.8 Pro Forma Calculations 68; Reclassification; IP Matters 70

Section 1.9 Limited Condition Acquisitions. 7072

Section 1.10 Interest Rates 7173

Section 1.11 FILO Documentation Agent 73

Article II The FacilityFacilities 7173

Section 2.1 The Revolving Credit Commitments 7173

Section 2.2 Borrowing Procedures 72 for Revolving Loans; Conforming Changes 74

Section 2.3 Swing Loans 7476

Section 2.4 Letters of Credit 7677

Section 2.5 Reduction and Termination of the Revolving Credit Commitments 8283

Section 2.6 Repayment of Loans 8283

Section 2.7 Evidence of Indebtedness. 8283

Section 2.8 Optional Prepayments 8384

Section 2.9 Mandatory Prepayments 8384

i

 

 


Table of Contents
(Continued)

Section 2.10 Interest 8485

Section 2.11 Conversion/Continuation Option 8586

Section 2.12 Fees 8587

Section 2.13 Payments and Computations 8788

Section 2.14 Special Provisions Governing Eurodollar Rate Loans 89[Reserved] 90

Section 2.15 Revolving Commitment Increase 8990

Section 2.16 Defaulting Lenders 91

Section 2.17 Extensions of Loans 93

Section 2.18 Sustainability Adjustments 96

Section 2.19 FILO Deficiency Reserve; Certain Availability Reserves 97

Article III TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY 9798

Section 3.1 Taxes 9798

Section 3.2 Illegality 100101

Section 3.3 Inability to Determine Rates 101102

Section 3.4 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar RateTerm SOFR Loans. 105104

Section 3.5 Funding Losses 106

Section 3.6 Matters Applicable to all Requests for Compensation. 106

Section 3.7 Replacement of Lenders under Certain Circumstances. 107106

Section 3.8 Survival 109108

Article IV Conditions Precedent 109108

Section 4.1 Conditions Precedent to Effectiveness of this Agreement 109108

Section 4.2 Conditions Precedent to Each Loan and Letter of Credit 111110

Section 4.3 Determinations of Effective Date Borrowing Conditions 112111

ii

 


Table of Contents
(Continued)

Article V Representations and Warranties 112111

Section 5.1 Existence, Qualification and Power; Compliance with Laws 113111

Section 5.2 Authorization; No Contravention 113111

Section 5.3 Governmental Authorization 113112

Section 5.4 Binding Effect 113112

Section 5.5 Financial Statements; No Material Adverse Effect 114112

Section 5.6 Litigation 114112

Section 5.7 Labor Matters 114113

Section 5.8 Ownership of Property; Liens 114113

Section 5.9 Environmental Matters 114113

Section 5.10 Taxes 115113

Section 5.11 ERISA Compliance 115113

Section 5.12 Subsidiaries 117115

Section 5.13 Margin Regulations; Investment Company Act 117115

Section 5.14 Disclosure 117115

Section 5.15 Intellectual Property; Licenses, Etc. 117115

Section 5.16 Solvency 118116

Section 5.17 OFAC; Sanctions 118116

Section 5.18 USA PATRIOT Act 118116

Section 5.19 Collateral Documents 118116

Section 5.20 Anti-Corruption Laws. 119116

Section 5.21 EEAAffected Financial Institution. 119117

Article VI Financial Covenant 119117

Section 6.1 Minimum Consolidated Fixed Charge Coverage Ratio 119117

iii

 


Table of Contents
(Continued)

Article VII Reporting Covenants 119117

Section 7.1 Financial Statements, Etc. 120117

Section 7.2 Certificates; Other Information 122119

Section 7.3 Notices 124122

Section 7.4 Borrowing Base Certificate 125Certificates; Appraisals; Field Examinations 122

Article VIII Affirmative Covenants 126124

Section 8.1 Preservation of Existence, Etc. 126124

Section 8.2 Compliance with Laws, Etc. 127124

Section 8.3 Designation of Subsidiaries 127124

Section 8.4 Payment of Taxes, Etc. 127125

Section 8.5 Maintenance of Insurance 128125

Section 8.6 Inspection Rights 128125

Section 8.7 Books and Records 129126

Section 8.8 Maintenance of Properties. 129126

Section 8.9 Use of Proceeds 129126

Section 8.10 Compliance with Environmental Laws 129126

Section 8.11 Covenant to Guarantee Obligations and Give Security 129127

Section 8.12 Cash Receipts 131128

Section 8.13 Further Assurances 132129

Article IX Negative Covenants 133130

Section 9.1 Liens 133130

Section 9.2 Investments 137133

Section 9.3 Indebtedness 139135

Section 9.4 Fundamental Changes 144139

Section 9.5 Dispositions 145141

iv

 


Table of Contents
(Continued)

Section 9.6 Restricted Payments 148143

Section 9.7 Change in Nature of Business 152146

Section 9.8 Transactions with Affiliates 152146

Section 9.9 Burdensome Agreements 154148

Section 9.10 Accounting Changes; Fiscal Year. 156150

Section 9.11 Prepayment, Etc. of Indebtedness. 156150

Section 9.12 Modification of Debt Agreements 156150

Section 9.13 Holdings 157151

Article X Events of Default and Remedies 157151

Section 10.1 Events of Default 157151

Section 10.2 Remedies upon Event of Default 160154

Section 10.3 Application of Funds 161156

Section 10.4 Borrower’s Right to Cure. 163157

Section 10.5 Actions in Respect of Letters of Credit; Cash Collateral 164158

Section 10.6 Post-Petition Financings; Insolvency Proceedings 159

Section 10.7 Separate Classification 161

Section 10.8 Avoidance and Reinstatement 161

Section 10.9 Payments Over 162

Section 10.10 Subrogation 162

Section 10.11 Credit Bidding 162

Section 10.12 FILO Purchase Option 163

Article XI The Administrative Agent 165

Section 11.1 Appointment and Authorization 165

Section 11.2 Rights as a Lender. 165

Section 11.3 Exculpatory Provisions 166

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Table of Contents
(Continued)

Section 11.4 Reliance by the Administrative Agent 167

Section 11.5 Delegation of Duties 168167

Section 11.6 Resignation of Administrative Agent 168

Section 11.7 Non-Reliance on Administrative Agent and Other Lenders; Disclosure of Information by Agents 169

Section 11.8 No Other Duties; Other Agents, Arrangers, Managers, Etc 170169

Section 11.9 Intercreditor Agreement 170169

Section 11.10 Administrative Agent May File Proofs of Claim 170

Section 11.11 Collateral and Guaranty Matters 171170

Section 11.12 Secured Cash Management Agreements, Secured Bank Product Agreements and Secured Hedge Agreements 172171

Section 11.13 Indemnification of Agents 173172

SECTIONSection 11.14 Certain ERISA Matters ……………………………………………….. 174 173

SECTIONSection 11.15 Recovery of Erroneous Payments …………………………………….. 176 . 174

Article XII Miscellaneous 176174

Section 12.1 Amendments, Etc. 176174

Section 12.2 Successors and Assigns 179

Section 12.3 Costs and Expenses 185184

Section 12.4 Indemnities 186185

Section 12.5 Limitation of Liability 187186

Section 12.6 Right of Set-off 187186

Section 12.7 Sharing of Payments. 188187

Section 12.8 Notices and Other Communications; Facsimile Copies 189188

Section 12.9 No Waiver; Cumulative Remedies 191189

Section 12.10 [Reserved]. 191190

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Table of Contents
(Continued)

Section 12.11 Binding Effect 191190

Section 12.12 Governing Law; Submission to Jurisdiction; Service of Process 191190

Section 12.13 Waiver of Jury Trial 192191

Section 12.14 Marshaling; Payments Set Aside 192191

Section 12.15 Execution in Counterparts 193191

Section 12.16 Electronic Execution of Assignments and Certain Other Documents 193192

Section 12.17 Confidentiality 194193

Section 12.18 Use of Name, Logo, etc. 195194

Section 12.19 USA PATRIOT Act Notice 196194

Section 12.20 No Advisory or Fiduciary Responsibility 196194

Section 12.21 Severability 197195

Section 12.22 Survival of Representations and Warranties 197195

Section 12.23 Lender Action 197195

Section 12.24 Interest Rate Limitation 198195

Section 12.25 Time of the Essence. 198196

Section 12.26 No Strict Construction. 198196

Section 12.27 Intercreditor Agreement. 198196

Section 12.28 Keepwell. 198196

Section 12.29 Acknowledgment and Consent to Bail-In of Affected Financial Institutions. 199197

Section 12.30 Acknowledgement Regarding Any Supported QFCs. 199197

Section 12.31 Amendment and Restatement. 200198

 

vii

 


Table of Contents
(Continued)

Schedules

Schedule I - Revolving Credit Commitments
Schedule II - Guarantors
Schedule 1.1C - [Reserved]

Schedule 1.1D - Designated Assets

Schedule 1.1E - Credit Card Agreements
Schedule 5.12 - Subsidiaries and Other Equity Investments
Schedule 8.12 - Material Bank Accounts; Credit Card Processors
Schedule 9.1(b) - Existing Liens
Schedule 9.2(f) - Existing Investments
Schedule 9.3(b) - Existing Indebtedness
Schedule 9.8 - Transactions with Affiliates
Schedule 9.9 - Burdensome Agreements
Schedule 12.8 - Administrative Agent’s Office, Certain Addresses for Notices

 

viii

 


Table of Contents
(Continued)

Exhibits

Exhibit A - Form of Assignment and Assumption
Exhibit B - Form of Revolving Credit Note
Exhibit C - Form of Notice of Borrowing
Exhibit D - Form of Swing Loan Request
Exhibit E - Form of Letter of Credit Request
Exhibit F - Form of Notice of Conversion or Continuation
Exhibit G-1 - [Reserved]

Exhibit G-2 - [Reserved]

Exhibit H - Form of Guaranty
Exhibit I - Form of Security Agreement
Exhibit J - Form of Borrowing Base Certificate
Exhibit K - Form of Intercreditor Agreement
Exhibit L - Form of Intercompany Subordination Agreement
Exhibit M - Form of United States Tax Compliance Certificate
Exhibit N - Form of Compliance Certificate
Exhibit O - Form of Solvency Certificate

 

Exhibit P - Form of FILO Note
 

 

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This AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of October 21, 2016, as amended on November 25, 2020, and as further amended on December 22, 2021, and March 10, 2023, among JO-ANN STORES, LLC, an Ohio limited liability company (the “Borrower”), NEEDLE HOLDINGS LLC, a Delaware limited liability company (“Holdings”), BANK OF AMERICA, N.A., as administrative agent (in such capacity, including any successor thereto, the “Administrative Agent”) and as collateral agent (in such capacity, including any successor thereto, the “Collateral Agent”) under the Loan Documents, 1903P LOAN AGENT, LLC, as documentation agent for the FILO Facility (in such capacity, including any successor thereto, the “FILO Documentation Agent”), and each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”).

PRELIMINARY STATEMENTS

Holdings and the Borrower have entered into that certain Credit Agreement, dated as of March 18, 2011 (as amended and in effect, the “Original Credit Agreement”), among Holdings, the Borrower, the “Lenders” as defined therein, and Bank of America, N.A., as Administrative Agent and Collateral Agent thereunder.

The applicable Lenders have indicated their willingness to lend, and the Issuers have indicated their willingness to issue Letters of Credit, in each case, on the terms and subject to the conditions set forth herein, and to amend and restate the Original Credit Agreement in accordance with Section 12.1 of the Original Credit Agreement.

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree that the Original Credit Agreement shall be amended and restated in its entirety to read as follows:

Article I


Definitions, Interpretation and Accounting Terms
Section 1.1
Defined Terms.

As used in this Agreement, the following terms have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

Account” has the meaning given to such term in Article 9 of the UCC., and also means a right to payment of a monetary obligation, whether or not earned by performance, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of or (b) for services rendered or to be rendered.

Account Debtor” has the meaning given to such term in Article 9 of the UCC.

ACH” means automated clearing house transfers.

Additional Lender” has the meaning specified in Section 2.15(a).

Adjustment Date” means the first day of each Fiscal Quarter beginning with AprilJuly 30, 20222023.

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Administrative Agent” has the meaning specified in the introductory paragraph to this Agreement.

Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 12.8, or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.

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

Affected Financial Institution” any EEA Financial Institution or UK Financial Institution.

Affiliate” means, with respect to any Person, another Person that directly or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. For the avoidance of doubt, none of the Arrangers, the Agents or their respective lending affiliates or any entity acting as an Issuer hereunder shall be deemed to be an Affiliate of Holdings, the Borrower or any of their respective Subsidiaries.

Agent Parties” has the meaning specified in Section 12.8(d).

Agent-Related Persons” means the Agents, together with their respective Affiliates, and the officers, directors, employees, agents, attorney-in-fact, partners, trustees and advisors of such Persons and of such Persons’ Affiliates.

Agents” means, collectively, the Administrative Agent, the Collateral Agent, each of the Co-Syndication Agents, each of the Co-Documentation Agent, the FILO Documentation Agent, each co-agent or sub-agent (if any) appointed by the Administrative Agent from time to time pursuant to Section 11.5 and the Arrangers.

Aggregate Commitments” means the Revolving Credit Commitments of all the Lenders. As of the FirstThird Amendment Effective Date, the Aggregate Commitments are $500,000,000 (excluding, for the avoidance of doubt, the FILO Commitments).

Agreement” means this Credit Agreement, as amended, restated, modified, replaced, extended, renewed or supplemented from time to time in accordance with the terms hereof.

Annual Financial Statements” means the audited consolidated balance sheets of the Borrower and its Subsidiaries as of February 1January 29, 20202022, and the related consolidated statements of operations, changes in stockholders’ equity and cash flows for the Borrower for the Fiscal Years then ended.

Applicable Indebtedness” has the meaning specified in the definition of “Weighted Average Life to Maturity”.

Applicable Margin” means a percentage per annum equal to (a) from and after the SecondThird Amendment Effective Date until the first Adjustment Date, the percentages set forth in Level IIII of the pricing grid below; and (b) thereafter, the following percentages per annum, based upon Average Historical Excess Availability as of the most recent Adjustment Date:

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Level

Average Historical Excess Availability

Eurodollar Rate forTerm SOFR Loans and
Term SOFR Margin for Letter of Credit Fees (Standby Letters of Credit)

Base Rate

Letter of Credit Fees (Documentary Letters of Credit)

I

Greater than or equal to 4066 2/3% of the Maximum Credit

1.251.50%

0.250.50%

0.6250.75%

II

Less than 4066 2/3% of the Maximum Credit, but greater than or equal to 33 1/3% of the Maximum Credit

1.501.75%

0.500.75%

0.750.875%

III

Less than 33 1/3% of the Maximum Credit

2.00%

1.00%

1.00%

 

The Applicable Margin shall be adjusted quarterly in accordance with the table above on each Adjustment Date for the period beginning on such Adjustment Date based upon the Average Historical Excess Availability as the Administrative Agent shall determine in good faith within ten (10) Business Days after such Adjustment Date. Any increase or decrease in the Applicable Margin resulting from a change in the Average Historical Excess Availability shall become effective as of the first Business Day immediately following the Adjustment Date. If any Borrowing Base Certificates are at any time restated or otherwise revised or if the information set forth in any Borrowing Base Certificates otherwise proves to be false or incorrect such that the Applicable Margin would have been higher than was otherwise in effect during any period, without constituting a waiver of any Default or Event of Default arising as a result thereof, interest due under this Agreement shall be immediately recalculated at such higher rate for any applicable periods and shall be due and payable on demand.

Applicable Percentage” means with respect to any Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s Revolving Credit Commitment at such time, subject to adjustment as provided in Section 2.16(a)(iv). If the commitment of each Revolving Credit Lender to make Revolving Loans and the obligation of the Issuers to make L/C Credit Extensions have been terminated pursuant to Section 10.2(a)(i), or if the Aggregate Commitments have expired, then the Applicable Percentage of each Revolving Credit Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Revolving Credit Lender is set forth opposite the name of such Lender on Schedule I or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

Applicable Unused Commitment Fee Rate” means, for any day, a percentage per annum equal to 0.20% per annum.

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Approved Account Bank” means a financial institution at which the Borrower or a Guarantor maintains an Approved Deposit Account.

Approved Deposit Account” means each Deposit Account in respect of which a Loan Party shall have entered into a Deposit Account Control Agreement.

Approved Fund” means, with respect to any Lender, any Fund that is administered, advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages such Lender.

Approved Securities Account” means each Securities Account in respect of which the Borrower or any Subsidiary Guarantor shall have entered into a Securities Account Control Agreement.

Approved Securities Intermediary” means a securities intermediary at which the Borrower or a Subsidiary Guarantor maintains an Approved Securities Account.

Arrangers” means BofA Securities, Inc. (or any of its designated affiliates), Wells Fargo Bank, National Association, U.S. Bank National Association, and BMO Harris Bank, N.A., each in its capacity as a joint lead arranger and joint bookrunner under this Agreement.

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

Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee, and accepted by the Administrative Agent, in substantially the form of Exhibit A or any other form approved by the Administrative Agent.

Attorney Costs” means all reasonable and documented fees, expenses and disbursements of one counsel to the Administrative Agent, the Issuers and the Lenders taken as a whole, one counsel to the FILO Secured Parties taken as a whole, and, if necessary, of one local counsel in any relevant jurisdiction material to the interest of the Lenders and, in the event of any conflict of interest, one additional counsel in each relevant jurisdiction to each group of affected Lenders similarly situated taken as a whole of the affected parties.

Attributable Indebtedness” means, on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.

Availability Reserves” means, without duplication of any other reserves or items that are otherwise addressed or excluded through eligibility criteria, such reserves as the Administrative Agent (solely with respect to the Borrowing Base) or the FILO Documentation Agent (solely with respect to the FILO Borrowing Base) from time to time determines in its Permitted Discretion as being appropriate (a) to reflect the impediments to the Collateral Agent’s ability to realize upon the Current Asset Collateral, (b) to reflect claims and liabilities that the Administrative Agent or the FILO Documentation Agent determines will need to be satisfied in connection with the realization upon the Current Asset Collateral, or (c) to reflect criteria, events, conditions, contingencies or risks which adversely affect any component of the Borrowing Base or the FILO Borrowing Base, the Current Asset Collateral or the validity or enforceability of this Agreement or the other Loan Documents or any material remedies of the Secured Parties hereunder or thereunder. Without limiting the generality of the foregoing, Availability Reserves may include (but are not limited to) reserves based on: (i) rent; provided that, as long as no Event of Default is continuing, such Availability Reserves shall be limited to an

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amount not to exceed the sum of (x) past due rent for all of the Borrower and the Subsidiary Guarantors’ leased locations plus (y) one (1) month’s rent for all of the Borrower and the Subsidiary Guarantors’ leased locations (A) located in the states of Washington, Virginia, Pennsylvania and all other Landlord Lien States or (B) that are distribution centers or warehouses, other than, in each case, such locations, distribution centers or warehouses with respect to which the Administrative Agent has received a Collateral Access Agreement; (ii) customs duties, and other costs to release Inventory which is being imported into the United States; (iii) outstanding Taxes and other governmental charges, including, without limitation, ad valorem, real estate, personal property, sales, and other Taxes which would have priority over the interests of the Collateral Agent in the Current Asset Collateral; (iv) during the continuance of a Cash Dominion Period, salaries, wages and benefits due to employees of the Borrower,; (v) Customer Credit Liabilities and customer deposits; (vi) warehousemen’s or bailee’s charges and other Liens permitted under Section 9.1 which would have priority over the interests of the Collateral Agent in the Current Asset Collateral; and (vii) reserves in respect of(A) the Cash Management Reserve, (B) the Bank Product Reserve and (C) the Swap Obligations, Reserve; provided that reserves of the type described in, in each case, that any such Availability Reserve under this clause (vii) in respect of such Cash Management Obligations shall not be established unless either Excess Availability is less than $75,000,000 or an Event of Default is continuing; and (viii) reserves in respect of Obligations in respect of Secured Hedge Agreements, provided that, reserves of the type described in this clause (viii) in respect of such Obligations shall not be established unless either Excess Availability is less than $75,000,000 or an Event of Defaulthas occurred and is continuing. The amount of any Availability Reserve established or increased by the Administrative Agent or the FILO Documentation Agent shall (i) have a reasonable relationship to the event, condition or other matter that is the basis for the Availability Reserve and (ii) be limited to such Availability Reserves and changes as (1) the Administrative Agent determines, in its Permitted Discretion, are appropriate based on the analysis of facts or events first occurring or first discovered by the Administrative Agent after the First Amendment Effective Date or that differ from facts or events occurring and known to the Administrative Agent on the First Amendment Effective Date or (2) the FILO Documentation Agent determines, in its Permitted Discretion, are appropriate based on the analysis of facts or events first occurring or first discovered by the FILO Documentation Agent after the Third Amendment Effective Date or that differ from facts or events occurring and known to the FILO Documentation Agent on the Third Amendment Effective Date; provided, this clause (2) shall not prohibit the Administrative Agent or the FILO Documentation Agent from implementing Cash Management Reserves, Bank Product Reserves and/or Swap Obligations Reserves in accordance with clause (vii) above. Notwithstanding anything herein to the contrary, Availability Reserves shall not duplicate eligibility criteria contained in the definition of Eligible Credit Card Receivables, Eligible Trade Receivables, Eligible In-Transit Inventory, Eligible Inventory or Eligible Letter of Credit Inventory. For the avoidance of doubt, the FILO Deficiency Reserve shall not be deemed to be an Availability Reserve.

Average Historical Excess Availability” means, at any Adjustment Date, the average daily Excess Availability for the Fiscal Quarter immediately preceding such Adjustment Date.

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 (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule

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applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

Bank of America” means Bank of America, N.A., a national banking association, acting in its individual capacity, and its successors and assigns.

Bank Product Agreement” means any agreement or arrangement to provide Bank Products.

Bank Product Bank” means, as of any date of determination, any Person that is an Agent, a Revolving Credit Lender or an Affiliate of a Revolving Credit Lender on such date.

Bank Product Obligations” means obligations owed by any Loan Party to any Bank Product Bank in respect of or in connection with any Bank Products and either (i) in existence on the Third Amendment Effective Date or (ii) after the Third Amendment Effective Date, designated by the Bank Product Bank and the Borrower in writing to the Administrative Agent as “Bank Product Obligations”.

Bank Product Reserve” shall mean the aggregate amount of reserves established (based upon the obligations and liabilities of any Loan Party in respect of the Bank Product Obligations) by the Administrative Agent or the FILO Documentation Agent from time to time in its Permitted Discretion in respect of Bank Product Obligations then outstanding.

Bank Product / Swap Obligations Cap” shall mean, in respect of amounts applied to payment of Bank Product Obligations and obligations of any Loan Party arising under any Secured Hedge Agreement pursuant to Section 10.3, an aggregate amount equal to $5,000,000.

Bank Products” shall mean any of the following products, services or facilities extended to the Borrower or any Restricted Subsidiary from time to time by any Revolving Credit Lender or any of its Affiliates: (i) supply chain financing services and (ii) credit or debit cards, including purchase cards. Notwithstanding the foregoing, and for the avoidance of doubt, Bank Products shall not include any Cash Management Services or Swap Contracts.

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

Bankruptcy Code” means Title 11 of the United States Code or any similar federal or state law for the relief of debtors, as now and hereafter in effect, or any successor statute.

Base Rate” means for any day a fluctuating rate of interest per annum equal to the highest of (a) the Federal Funds 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 Eurodollar RateTerm SOFR plus 1.00%, and (d) the applicable Floor 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 3.3 hereof, then the Base Rate shall be the greaterhighest of clauses (a) and, (b) and (d) above and shall be determined without reference to clause (c) above. The Floor shall be determined

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separately for the Revolving Obligations and the FILO Obligations, as set forth in the definition of “Floor”.

Base Rate Loan” means a Loan that bears interest based on the Base Rate.

Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

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 and subject to 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.

Borrower” has the meaning specified in the preamble to this Agreement.

Borrower Materials” has the meaning specified in Section 7.2.

Borrowing” means a borrowing consisting of Loans of the same Class and Type made, converted or continued on the same date and, in the case of Eurodollar RateTerm SOFR Loans, having the same Interest Period.

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

(a) the face amount of Eligible Credit Card Receivables multiplied by the Credit Card Advance Rate; plus

(b) the face amount of Eligible Trade Receivables multiplied by the Trade Receivables Advance Rate, net of Receivables Reserves applicable thereto; provided that unless and until the Administrative Agent receives (A) a Field Examination of all Accounts arising from the sale of the Borrower’s or any Subsidiary Guarantor’s Inventory from a field examiner reasonably satisfactory to the Administrative Agent in its Permitted Discretion and establishes Receivables Reserves (if applicable) therefor in accordance with this Agreement, and (B) such other due diligence as the Administrative Agent may reasonably require, no Accounts shall be included in the Borrowing Base pursuant to this clause (b); plus

(bc) the Net Recovery Percentage of Eligible Inventory (other than, for the avoidance of doubt, Eligible Letter of Credit Inventory and Eligible In-Transit Inventory), multiplied by the Inventory Advance Rate multiplied by the Cost of Eligible Inventory (other than, for the avoidance of doubt, Eligible Letter of Credit Inventory and Eligible In-Transit Inventory), net of Inventory Reserves attributable to Eligible Inventory; plus

(cd) the Net Recovery Percentage of Eligible Letter of Credit Inventory multiplied by the Letter of Credit Advance Rate, multiplied by the Cost of Eligible Letter of Credit Inventory, net of Inventory Reserves attributable to Eligible Letter of Credit Inventory; plus

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(de) the Net Recovery Percentage of Eligible In-Transit Inventory multiplied by the In-Transit Advance Rate, multiplied by the Cost of Eligible In-Transit Inventory, net of Inventory Reserves attributable to Eligible In-Transit Inventory; minus

(f) the then amount of any FILO Deficiency Reserve; minus

(eg) the then amount of all Availability Reserves.

The Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent and the FILO Documentation Agent pursuant to Section 7.4, as adjusted to give effect to Availability Reserves and any FILO Deficiency Reserve following such delivery; provided, that such Availability Reserves shall not be established or changed except upon not less than three (3) Business Days’ notice to the Borrower (during which period the Administrative Agent shall be available to discuss any such proposed Availability Reserve with the Borrower and the Borrower may take such action as may be required so that the event, condition or matter that is the basis for such Availability Reserve no longer exists, in a manner and to the extent reasonably satisfactory to the Administrative Agent); provided further that, during such three (3) Business Day period, Credit Extensions hereunder shall be subject to the Borrowing Base as if such new or modified Availability Reserves were given effect; provided further that no such prior notice shall be required for changes to any Availability Reserves resulting solely by virtue of mathematical calculations of the amount of the Availability Reserve in accordance with the methodology of calculation previously utilized (such as, but not limited to, rent and Customer Credit Liabilities) or if an Event of Default is continuing.

Borrowing Base Certificate” means a certificate of the Borrower substantially in the form of Exhibit J.

Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the jurisdictionstate where the Administrative Agent’s Office with respect to Obligations is located and if such day relates to any interest rate settings as to a Eurodollar Rate Loan, any fundings, disbursements, settlements and payments in respect of any such Eurodollar Rate Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such Eurodollar Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market. is located.

Capital Expenditures” means, for any period, the aggregate of (a) all amounts that would be reflected as additions to property, plant or equipment on a Consolidated statement of cash flows of the Borrower and its Restricted Subsidiaries in accordance with GAAP and (b) the value of all assets under Capitalized Leases incurred by the Borrower and its Restricted Subsidiaries during such period; provided that the term “Capital Expenditures” shall not include (i) expenditures made in connection with the replacement, substitution, restoration or repair of assets to the extent financed with (x) insurance proceeds paid on account of the loss of or damage to the assets being replaced, substituted, restored or repaired or (y) awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced, (ii) the purchase of plant, property or equipment or software to the extent financed with the Net Cash Proceeds of Dispositions that are not required to be applied to prepay the Loans, or the Term Facilities, (iii) expenditures that are accounted for as capital expenditures by the Borrower or any Restricted Subsidiary and that actually are paid for, or reimbursed to the Borrower or any Restricted Subsidiary in cash or Cash Equivalents, by a Person other than the Borrower or any Restricted Subsidiary and for which neither the Borrower nor any Restricted Subsidiary has provided or is required to provide or incur, directly or indirectly, any consideration or obligation (other than rent) in

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respect of such expenditures to such Person or any other Person (whether before, during or after such period), including, without limitation, expenditures which are contractually required to be, and are, reimbursed to the Borrower or a Subsidiary Guarantor in cash by its landlords as tenant allowances during such period, (iv) expenditures to the extent constituting any portion of a Permitted Acquisition, (v) the purchase price of equipment purchased during such period to the extent the consideration therefor consists of any combination of (A) used or surplus equipment traded in at the time of such purchase, and (B) the Net Cash Proceeds of a concurrent sale of used or surplus equipment, in each case, in the ordinary course of business, provided that such portion of the purchase price in excess of the credit granted by the seller of such equipment for the equipment being traded in at such time or such Net Cash Proceeds, as applicable, shall not be excluded as “Capital Expenditures” hereunder, (vi) expenditures relating to the construction, acquisition, replacement, reconstruction, development, refurbishment, renovation or improvement of any property which has been transferred to a Person other than a Loan Party or any of its Restricted Subsidiaries during the same Fiscal Year in which such expenditures were made pursuant to a sale-leaseback transaction, to the extent of the Net Cash Proceeds received by a Loan Party or such Restricted Subsidiary pursuant to such sale-leaseback transaction, provided that such portion of the expenditures which exceed the Net Cash Proceeds received by a Loan Party or such Restricted Subsidiary pursuant to such sale-leaseback transaction shall not be excluded as “Capital Expenditures” hereunder, or (vii) expenditures financed with the proceeds of an issuance of Equity Interests of the Borrower or a capital contribution to the Borrower or Indebtedness permitted to be incurred hereunder, to the extent such expenditures are made within 365 days after the receipt of such proceeds.

Capitalized Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capitalized Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP.

Capitalized Leases” means all leases that have been or are required to be, in accordance with GAAP, recorded as capitalized leases; provided that for all purposes hereunder the amount of obligations under any Capitalized Lease shall be the Capitalized Lease Obligation with respect thereto; provided further that any lease that would be characterized as an operating lease in accordance with GAAP on the Effective Date (whether or not such operating lease was in effect on such date) shall continue to be accounted for as an operating lease (and not as a Capitalized Lease) for purposes of this Agreement regardless of any change in GAAP following the Effective Date that would otherwise require such lease to be recharacterized (on a prospective or retroactive basis or otherwise) as a Capitalized Lease.

Carve Out” means, in connection with any Insolvency Proceeding relating to any Loan Party, any carve out amount granted with respect to professional fees and expenses, court costs, filing fees, and fees and costs of the Office of the United States Trustee as granted by the court or as agreed to by the Administrative Agent in its reasonable discretion.

Cash Collateral” shall have a meaning correlative to “Cash Collateralize” and shall include the proceeds of such cash collateral and other credit support.

Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent, an Issuer or the Swing Loan Lender (as applicable) and the Revolving Credit Lenders, as collateral for Letter of Credit Obligations, Obligations in respect of Swing Loans, or obligations of Revolving Credit Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the applicable Issuer or Swing Loan Lender benefitting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to (a) the Administrative Agent and (b) the applicable Issuer or the Swing Loan Lender (as applicable).

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Cash Dominion Period” means (a) each period beginning on the date that Excess Availability shall have been less than the greater of (x) 10% of the Modified Maximum Credit and (y) $35,000,000, in either case, for five (5) consecutive Business Days, and ending on the date Excess Availability shall have been equal to or greater than the greater of (x) 10% of the Modified Maximum Credit and (y) $35,000,000, in each case, for twenty (20) consecutive calendar days or (b) upon the occurrence of a Specified Event of Default, the period that such Specified Event of Default shall be continuing; provided that a Cash Dominion Period shall be deemed continuing (even if Excess Availability exceeds the required amounts for twenty (20) consecutive calendar day) if a Cash Dominion Period has occurred and been discontinued on five (5) occasions in any twelve month period. The termination of a Cash Dominion Period as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Cash Dominion Period in the event that the conditions set forth in this definition again arise.

Cash Equivalents” means any of the following types of Investments, to the extent owned by the Borrower or any Restricted Subsidiary:

(a) Dollars;

(b) in the case of any Foreign Subsidiary that is a Restricted Subsidiary, such local currencies held by it from time to time in the ordinary course of business and not for speculation;

(c) readily marketable direct obligations issued or directly and fully and unconditionally guaranteed or insured by the United States government or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 12 months or less from the date of acquisition;

(d) certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, demand deposits, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any domestic or foreign commercial bank having capital and surplus of not less than $500,000,000;

(e) repurchase obligations for underlying securities of the types described in clauses (c) and (d) above or clause (g) below entered into with any financial institution meeting the qualifications specified in clause (d) above;

(f) commercial paper rated at least P-2 by Moody’s or at least A-2 by S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) and in each case maturing within 12 months after the date of creation thereof;

(g) marketable short-term money market and similar highly liquid funds having a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency);

(h) readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having an Investment Grade Rating from either Moody’s or S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) with maturities of 12 months or less from the date of acquisition;

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(i) Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency); and

(j) investment funds investing substantially all of their assets in securities of the types described in clauses (a) through (i) above.

In the case of Investments by any Foreign Subsidiary that is a Restricted Subsidiary or Investments made in a country outside the United States, Cash Equivalents shall also include (i) investments of the type and maturity described in clauses (a) through (j) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (ii) other short-term investments utilized by Foreign Subsidiaries that are Restricted Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (a) through (j) and in this paragraph.

Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clause (a) above, provided that such amounts are converted into Dollars as promptly as practicable and in any event within ten (10) Business Days following the receipt of such amounts.

Cash Management Agreement” means any agreement or arrangement to provide Cash Management Services.

Cash Management Bank” means, as of any date of determination, any Person that is an Agent, a Revolving Credit Lender or an Affiliate of a Revolving Credit Lender on such date.

Cash Management Obligations” means obligations owed by the Borrower or any Restricted SubsidiaryLoan Party to any Cash Management Bank in respect of or in connection with any Cash Management Services and either (i) in existence on the Third Amendment Effective Date or (ii) after the Third Amendment Effective Date, designated by the Cash Management Bank and the Borrower in writing to the Administrative Agent as “Cash Management Obligations”.

Cash Management Reserve” shall mean the aggregate amount of reserves established (based upon the obligations and liabilities of any Loan Party in respect of the Cash Management Obligations) by the Administrative Agent or the FILO Documentation Agent from time to time in its Permitted Discretion in respect of Cash Management Obligations then outstanding.

Cash Management Services” means any agreement or arrangement to provide (i) cash management services, including automated clearinghouse transfers, controlled disbursement accounts, treasury, depository, overdraft, credit card processing or credit or debit card, purchase card, electronic funds transfer and other cash management arrangements and (ii) supply chain financing services. Notwithstanding the foregoing, and for the avoidance of doubt, Cash Management Services shall not include any Bank Products or Swap Contracts.

Cash Receipts” shall have the meaning specified in Section 8.12(c).

Cash Taxes” means, with respect to any Test Period, all taxes paid or payable in cash by the Borrower and its Restricted Subsidiaries during such period.

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

Change of Control” means the earliest to occur of:

(a)
(i) at any time prior to the consummation of a Qualifying IPO, the Permitted Holders ceasing to own, in the aggregate, directly or indirectly, beneficially and of record, at least a majority of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Holdings; or

(ii) at any time upon or after the consummation of a Qualifying IPO (1) any Person (other than a Permitted Holder) or (2) Persons (other than one or more Permitted Holders) constituting a “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such Person and its Subsidiaries, and any Person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under such Exchange Act), directly or indirectly, of Equity Interests representing more than forty percent (40%) of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Holdings and the percentage of aggregate ordinary voting power so held is greater than the percentage of the aggregate ordinary voting power represented by the Equity Interests of Holdings beneficially owned, directly or indirectly, in the aggregate by the Permitted Holders;

unless, in the case of either clause (a)(i) or (a)(ii) above, the Permitted Holders have, at such time, the right or the ability by voting power, contract or otherwise to elect or designate for election at least a majority of the board of directors of Holdings; or

(b) any “Change of Control” (or any comparable term) in any document pertaining to any Term Facility; or

(c) the Borrower ceases to be a direct wholly owned Subsidiary of Holdings (or any successor under Section 9.4(a)).

Class” (a) when used with respect to commitments, refers to whether such commitment is a Revolving Credit Commitment or, an Extended Revolving Credit Commitment of a given Extension Series or, a New Revolving Credit Commitment or a FILO Commitment, (b) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Revolving Loans, Loans under Extended Revolving Credit Commitments of a given Extension Series or, Loans under New Revolving Credit Commitments or FILO Loans, and (c) when used with respect to Lenders, refers to whether such Lenders have a Loan or commitment with respect to a particular Class of Loans or commitments.

CME” means CME Group Benchmark Administration Limited.

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Co-Documentation Agents” means BMO Harris Bank, N.A., PNC Bank, National Association, TD Bank, N.A. and U.S. Bank National Association, each as a Co‑Documentation Agent under this Agreement.

Co-Investor” means (a) the assignees, if any, of the equity commitments of any Sponsor who became holders of Equity Interests in the Borrower (or any of the direct or indirect parent companies of the Borrower) on or around March 18, 2011 (the “Original LBO Closing Date”) and (b) the transferees, if any, that acquired, within 60 days of the Original LBO Closing Date, any Equity Interests in the Borrower (or any of the direct or indirect parent companies of the Borrower) held by any Sponsor as of the Original LBO Closing Date.

Co-Syndication Agents” means Wells Fargo Bank, National Association, U.S. Bank National Association, and BMO Harris Bank, N.A., each as a Co‑Syndication Agent under this Agreement.

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

Collateral” means all the “Collateral” (or equivalent term) as defined in any Collateral Document.

Collateral Agent” has the meaning specified in the introductory paragraph to this Agreement.

Collateral Access Agreement” means an agreement reasonably satisfactory in form and substance to the Administrative Agent executed by, as the case may be, (a) a bailee or other Person in possession of Collateral, and (b) any landlord of any premises leased by any Loan Party, pursuant to which, except as the Administrative Agent otherwise may agree, such Person (i) acknowledges the Collateral 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 premises, (iii) agrees to provide the Collateral Agent with access to the Collateral held by such bailee or other Person or located in or on such premises for the purpose of conducting field exams, appraisals or a Liquidation, and (iv) makes such other agreements with the Collateral Agent as the Administrative Agent may reasonably require.

Collateral and Guarantee Requirement” means, at any time, the requirement that:

(a) the Administrative Agent shall have received (i) each Collateral Document required to be delivered on the Effective Date pursuant to Section 4.1(a)(iv), pursuant to Section 8.11, Section 8.12 or Section 8.13 at such time and pursuant to Section 4 of the First Amendment required to be delivered on the SecondFirst Amendment Effective Date, duly executed by each Loan Party thereto, or (ii) a ratification of each Collateral Document delivered on or prior to the Effective Date or, the Second Amendment Effective Date or the Third Amendment Effective Date (to the extent such Collateral Document shall remain in effect as of the Effective Date or, the Second Amendment Effective Date or the Third Amendment Effective Date, as applicable);

(b) all Obligations shall have been unconditionally guaranteed by Holdings, each Restricted Subsidiary of the Borrower that is a Wholly-Owned Subsidiary that is a Material Domestic Subsidiary and not an Excluded Subsidiary, including those Subsidiaries that are listed on Schedule II hereto (each such guarantor, a “Guarantor”) and any Restricted Subsidiary of the Borrower that Guarantees any Indebtedness pursuant to the Term Facilities, any Junior Financing (or, in each case, any Permitted Refinancing thereof) shall be a Guarantor hereunder;

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(c) the Obligations and the Guaranty shall have been secured by a first-priority perfected security interest in substantially all Current Asset Collateral of the Loan Parties, in each case, with the priority required by the Collateral Documents and Section 8.12 shall have been complied with;

(d) the Obligations and the Guaranty shall have been secured by a perfected security interest (subject in priority only to the Lien of the First Lien Term Facility Administrative Agent to secure the obligations under the First Lien Term Facility, any Permitted Pari Passu Secured Debt (as defined in the Term Facility Credit Agreements as in effect on the Second Amendment Effective Date or, subject to prior consent of the Administrative Agent, as in effect after the Second Amendment Effective Date) or, in each case, any Permitted Refinancing thereof, and to any non-consensual Liens permitted by Section 9.1) in (i) all Equity Interests of the Borrower, (ii) all Equity Interests of each direct Wholly-Owned Subsidiary that is a Domestic Subsidiary (other than a Domestic Subsidiary described in the following clause (iii)(A)) of the Borrower or any Subsidiary Guarantor, and (iii) 65% of the issued and outstanding Equity Interests of (A) each Wholly-Owned Subsidiary that is a Domestic Subsidiary that is directly owned by the Borrower or by any Subsidiary Guarantor and substantially all of the assets of which consist of Equity Interests in one or more Foreign Subsidiaries and (B) each Wholly-Owned Subsidiary that is a Foreign Subsidiary that is directly owned by the Borrower or by any Subsidiary Guarantor;

(e) the Obligations and the Guaranty shall have been secured by a perfected security interest (subject in priority only to the Lien of the First Lien Term Facility Administrative Agent to secure the obligations under the First Lien Term Facility, any Permitted Pari Passu Secured Debt (as defined in the Term Facility Credit Agreements as in effect on the Second Amendment Effective Date or, subject to prior consent of the Administrative Agent, as in effect after the Second Amendment Effective Date) or, in each case, any Permitted Refinancing thereof, and to any non-consensual Liens permitted by Section 9.1) (to the extent such security interest may be perfected by delivering certificated securities, filing financing statements under the UCC or making any necessary filings with the United States Patent and Trademark Office or United States Copyright Office) in substantially all other tangible and intangible personal property of the Borrower and each Guarantor other than the Current Asset Collateral, in each case subject to exceptions and limitations otherwise set forth in this Agreement and the Collateral Documents.

The foregoing definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, surveys, abstracts or appraisals with respect to, (i) any real property or (ii) any other particular assets if and for so long as, in the case of this clause (ii) in the reasonable judgment of the Administrative Agent and the Borrower, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance, surveys, abstracts or appraisals in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom.

The Administrative Agent may grant extensions of time for the perfection of security interests in particular assets where it reasonably determines, in consultation with the Borrower, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.

Collateral Documents” means, collectively, the Security Agreement, the Intellectual Property Security Agreements, the Security Agreement Supplements, security agreements or other similar agreements delivered to the Administrative Agent or the Collateral Agent and the Lenders pursuant to Section 4.1(a)(iv), Section 8.11, Section 8.12 or Section 8.13, the Guaranty, each Lien Acknowledgment Agreement, the Intercreditor Agreement, the Securities Account Control Agreements (if any), the Deposit Account Control Agreements, and each of the other agreements, instruments or documents that creates or purports to create a Lien or Guarantee in favor of the Administrative Agent or the Collateral Agent for the benefit of the Secured Parties.

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

Communication” has the meaning specified in Section 12.6.

Compliance Certificate” means a certificate substantially in the form of Exhibit N and which certificate shall in any event be a certificate of the chief financial officer (a) certifying as to whether a Default has occurred and is continuing and, if applicable, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (b) setting forth a reasonably detailed calculation of Consolidated EBITDA and the Consolidated Fixed Charge Coverage Ratio for the most recently completed Test Period, and (c) setting forth reasonably detailed calculations, in the case of financial statements delivered under Section 7.1 of the Net Cash Proceeds received during the applicable period by or on behalf of, Holdings or any of its Restricted Subsidiaries in respect of any Disposition subject to prepayment pursuant to Section 2.9(b)..

Concentration Account” has the meaning specified in Section 8.12(c).

Conforming Changes” means, with respect to the use, administration of or any conventions associated with SOFR or any proposed Successor Rate or Term SOFR, as applicable, any conforming changes to the definitions of “Base Rate”, “SOFR”, “Term SOFR” and “Interest Period”, the addition of the concept of an “interest period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Administrative Agent determined in consultation with the Borrower (and, to the extent pertaining to the FILO Obligations, the FILO Documentation Agent), to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).

Concentration AccountConforming Post-Petition Financing” has the meaning specified in Section 8.1210.6(ca).

Consolidated” means, with respect to any Person, the consolidation of accounts of such Person and any other Person in accordance with GAAP.

Consolidated Depreciation and Amortization Expense” means, with respect to the Borrower and its Restricted Subsidiaries for any period, the total amount of depreciation and amortization expense of the Borrower and its Restricted Subsidiaries, including the amortization of deferred financing fees or costs for such period on a Consolidated basis and otherwise determined in accordance with GAAP.

Consolidated EBITDA” means, with respect to the Borrower and its Restricted Subsidiaries for any Test Period, the Consolidated Net Income of the Borrower and its Restricted Subsidiaries for such Test Period:

(a) increased by (without duplication):

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(i) (A) provision for taxes based on income or profits or capital, plus state, provincial, franchise, property or similar taxes and foreign withholding taxes and foreign unreimbursed value added taxes, of such Person for such period (including, in each case, penalties and interest related to such taxes or arising from tax examinations) deducted in computing Consolidated Net Income and (B) amounts paid to Holdings or any direct or indirect parent of Holdings in respect of taxes in accordance with Section 9.6(g), solely to the extent such amounts were deducted in computing Consolidated Net Income, plus

(ii) (A) total interest expense (including (A) imputed interest on Capitalized Lease Obligations and Attributable Indebtedness (which, in each case, will be deemed to accrue at the interest rate reasonably determined by a Responsible Officer of the Borrower to be the rate of interest implicit in such Capitalized Lease Obligations or Attributable Indebtedness), (B) commissions, discounts and other fees, charges and expenses owed with respect to letters of credit, bankers’ acceptance financing, surety and performance bonds and receivables financings, (C) amortization and write-offs of deferred financing fees, debt issuance costs, debt discounts, commissions, fees, premium and other expenses, as well as expensing of bridge, commitment or financing fees, (D) payments made in respect of hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, (E) cash contributions to any employee stock ownership plan or similar trust to the extent such contributions are used by such plan or trust to pay interest or fees to any Person (other than such Person or a wholly-owned Restricted Subsidiary) in connection with Indebtedness incurred by such plan or trust, (F) all interest paid or payable with respect to discontinued operations, (G) the interest portion of any deferred payment obligations) and (H) all interest on any Indebtedness that is (x) Indebtedness of others secured by any Lien on property owned or acquired by such Person or its Restricted Subsidiaries, whether or not the obligations secured thereby have been assumed, but limited to the fair market value of such property, (y) contingent obligations in respect of Indebtedness; provided that such interest expense shall be calculated after giving effect to Hedge Agreements related to interest rates (including associated costs), but excluding unrealized gains and losses with respect to such Hedge Agreements or (z) fee and expenses paid to the Administrative Agent or the FILO Documentation Agent (in each case, in its capacity as such and for its own account) pursuant to the Loan Documents and fees and expenses paid to the administrative agent, the collateral agent, trustee or other similar Persons for any other Indebtedness permitted by Section 9.3) of such Person for such period and (B) bank fees and costs of surety bonds, in each case under this clause (B), in connection with financing activities and, in each case under clauses (A) and (B), to the extent the same was deducted in computing Consolidated Net Income, plus

(iii) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent such depreciation and amortization were deducted in computing Consolidated Net Income, plus

(iv) any fees, expenses or charges related to any issuance of Equity Interests, Investment, acquisition, disposition, recapitalization or the incurrence or repayment of Indebtedness permitted to be incurred hereunder including a refinancing thereof (whether or not successful) and any amendment, restatement or modification to the terms of any such transactions, including such fees, expenses or charges incurred in connection with the First Amendment and any amendment or refinancing of the Term Facilities, in each case, deducted in computing Consolidated Net Income, plus

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(v) (1) the amount of any charge, cost, loss, expense or reserve deducted in such period in computing Consolidated Net Income, including charges, costs, losses, expenses or reserves related to: (A) restructuring (including restructuring charges or reserves, whether or not classified as such under GAAP), severance, relocation, consolidation, integration or other similar items, (B) strategic and/or business initiatives, business optimization (including costs and expenses relating to business optimization programs, which, for the avoidance of doubt, shall include, without limitation, implementation of operational and reporting systems and technology initiatives; strategic initiatives; retention; severance; systems establishment costs; systems conversion and integration costs; contract termination costs; recruiting and relocation costs and expenses; costs, expenses and charges incurred in connection with curtailments or modifications to pension and post-retirement employee benefits plans; costs to start-up, pre-opening, opening, closure, transition and/or consolidation of distribution centers, operations, officers and facilities) including in connection with any Investment permitted hereunder, and new systems design and implementation, as well as consulting fees and any one-time expense relating to enhanced accounting function, (C) business or facilities (including greenfield facilities) start-up, opening, transition, consolidation, shut-down and closing, (D) signing, retention and completion bonuses, (E) severance, relocation or recruiting, (F) public company registration, listing, compliance, reporting and related expenses, (G) charges and expenses incurred in connection with litigation (including threatened litigation), any investigation or proceeding (or any threatened investigation or proceeding) by a regulatory, governmental or law enforcement body (including any attorney general), and (H) expenses incurred in connection with casualty events or asset sales outside the ordinary course of business and (2) any one-time costs, expenses or charges incurred in connection with (A) Permitted Acquisitions or other Investments permitted hereunder after the Effective Date or (B) the closing of any Stores or distribution centers after the First Amendment Effective Date; provided that the aggregate amount added back pursuant to this clause (v) when taken together with the aggregate amount added back to Consolidated EBITDA pursuant to clause (xiii) shall not exceed 20% of Consolidated EBITDA for such Test Period (calculated after giving effect to any increase to Consolidated EBITDA pursuant to this clause (v) and clause (xiii)); plus

(vi) the amount of costs relating to pre-opening and opening costs for Stores, signing, retention and completion bonuses, costs incurred in connection with any strategic initiatives, transition costs, consolidation and closing costs for Stores and costs incurred in connection with non-recurring (without, in any such case, limitation on the calculation hereof by Item 10(e) of Regulation S-K promulgated by the SEC) product and intellectual property development after the First Amendment Effective Date, other business optimization expenses (including costs and expenses relating to business optimization programs), and new systems design and implementation costs and project start-up costs, plus

(vii) any other non-cash charges including any write offs or write downs reducing such Consolidated Net Income for such period (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, (1) the Borrower may determine not to add back such non-cash charge in the current period and (2) to the extent the Borrower does decide to add back such non-cash charge, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period), including the following: (A) non-cash expenses in connection with, or resulting from, stock option plans, employee benefit plans or agreements or

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post-employment benefit plans or agreements, or grants or sales of stock, stock appreciation or similar rights, stock options, restricted stock, preferred stock or other similar rights, (B) non-cash currency translation losses related to changes in currency exchange rates (including re-measurements of Indebtedness (including intercompany Indebtedness) and any net non-cash loss resulting from hedge agreements for currency exchange risk), (C) non-cash losses, expenses, charges or negative adjustments attributable to the movement in the mark-to-market valuation of hedge agreements or other derivative instruments, including the effect of FASB Accounting Standards Codification 815 and International Accounting Standard No. 9 and their respective related pronouncements and interpretations, (D) non-cash charges for deferred tax asset valuation allowances, (E) any non-cash impairment charge or asset write-off or write-down related to intangible assets (including goodwill), long-lived assets, and Investments in debt and equity securities, (F) any non-cash charges or losses resulting from any purchase accounting adjustment or any step-ups with respect to re-valuing assets and liabilities in connection with any Investments permitted hereunder, (G) all non-cash losses from Investments permitted hereunder recorded using the equity method and (H) the excess of GAAP rent expense over actual cash rent paid during such period due to the use of straight line rent for GAAP purposes and (z) any non-cash interest expense); plus

(viii) the amount of any minority interest expense deducted in calculating Consolidated Net Income, plus

(ix) the amount of management, monitoring, consulting and advisory fees (including termination fees) and related indemnities and expenses paid or accrued in such period under the Sponsor Management Agreement or otherwise to the Sponsors to the extent permitted under Section 9.8 and deducted in such period in computing Consolidated Net Income; plus

(x) Public Company Costs, plus

(xi) cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (b) below for any previous period and not added back, plus

(xii) any costs or expenses incurred by the Borrower or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or stockholders agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Borrower or net cash proceeds of issuance of Equity Interests of the Borrower (other than Disqualified Equity Interests); plus

(xiii) the amount of “run rate” cost savings, operating expense reductions and other cost synergies that are projected by the Borrower in good faith to result from actions taken, committed to be taken or expected to be taken no later than 12 months after the end of such Test Period (which amounts will be determined by the Borrower in good faith and calculated on a pro forma basis as though such amounts had been realized on the first day of the Test Period for which Consolidated EBITDA is being determined), net of the amount of actual benefits realized during such Test Period from such actions; provided that, in the good faith judgment of the Borrower such cost savings are reasonably

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identifiable, reasonably anticipated to be realized and factually supportable (it being agreed such determinations need not be made in compliance with Regulation S-X or other applicable securities law); provided that the aggregate amount added back pursuant to this clause (xiii) when taken together with the aggregate amount added back to Consolidated EBITDA pursuant to clause (v) shall not exceed shall not exceed 20% of Consolidated EBITDA for such Test Period (calculated after giving effect to any increase to Consolidated EBITDA pursuant to this clause (xiii) and clause (v)), plus

(xiv) proceeds of business interruption insurance actually received (to the extent not counted in any prior period in anticipation of such receipt) or, to the extent not counted in any prior period, reasonably expected to be received, and

(b) decreased by (without duplication):

(i) any non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any gains that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period (other than such cash charges that have been added back to Consolidated Net Income in calculating Consolidated EBITDA in accordance with this definition), plus

(ii) any non-cash gains with respect to cash actually received in a prior period unless such cash did not increase Consolidated EBITDA in such prior period.

Consolidated Fixed Charge Coverage Ratio” means, for any Test Period, the ratio of (a) (i) Consolidated EBITDA for such period, minus (ii) Capital Expenditures made during such period and not financed with the proceeds of Indebtedness, minus (iii) Cash Taxes during such period to (b) Debt Service Charges of or by the Borrower and its Restricted Subsidiaries on a Consolidated basis for the most recently completed Test Period in accordance with GAAP.

Consolidated Interest Charges” means, for any Test Period, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, and (b) the portion of rent expense with respect to such period under Capitalized Lease Obligations that is treated as interest in accordance with GAAP, minus (c) cash interest income during such period, in each case of or by the Borrower and its Restricted Subsidiaries on a consolidated basis for the most recently completed Test Period in accordance with GAAP. For purposes of the foregoing, interest expense shall exclude one-time financing fees (including arrangement, amendment and contract fees), debt issuance costs, commissions, expenses and, in each case, the amortization thereof.

Consolidated Net Debt” means, as of any date of determination, (a) Consolidated Total Debt, minus (b) the amount of cash and Cash Equivalents on a consolidated balance sheet of the Borrower that are not “Restricted” for purposes of GAAP on such balance sheet.

Consolidated Net Income” means, with respect to the Borrower and its Restricted Subsidiaries for any Test Period, the aggregate of the Net Income of the Borrower and its Restricted Subsidiaries for such Test Period on a Consolidated basis and otherwise determined in accordance with GAAP; provided, however, that, without duplication,

(a) any net after-tax extraordinary, non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses, and fees and expenses in connection with relocation costs, integration costs, facility consolidation and closing costs, severance costs and

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expenses and non-recurring compensation charges (without, in any such case, limitation on the calculation hereof by Item 10(e) of Regulation S-K promulgated by the SEC), shall be excluded,

(b) the Net Income for such Test Period shall not include the cumulative effect of a change in accounting principles during such Test Period, whether effected through a cumulative effect adjustment or a retroactive application in each case in accordance with GAAP,

(c) effects of adjustments (including the effects of such adjustments pushed down to the Borrower and the Restricted Subsidiaries) in such Person’s Consolidated financial statements pursuant to GAAP (including in the inventory, property and equipment, software, goodwill, intangible assets, in-process research and development, deferred revenue and debt line items thereof) resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to any consummated Permitted Acquisition or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded,

(d) any net after-tax income (loss) from disposed or discontinued operations and any net after-tax gains or losses on disposal of disposed or discontinued operations shall be excluded,

(e) any net after-tax gains or losses (less all fees and expenses relating thereto) attributable to asset Dispositions or the other Disposition of any Equity Interests of any Person other than in the ordinary course of business, as determined in good faith by the Borrower, shall be excluded,

(f) the Net Income for such Test Period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of the Borrower and its Restricted Subsidiaries shall include the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash) to the referent Person or a Restricted Subsidiary thereof in respect of such Test Period,

(g) (i) any net unrealized gain or loss (after any offset) resulting in such Test Period from obligations in respect of Swap Contracts and the application of Financial Accounting Standards Board Accounting Standards Codification 815 (Derivatives and Hedging), (ii) any net gain or loss resulting in such period from currency translation gains or losses related to currency remeasurements of Indebtedness (including the net loss or gain (A) resulting from Swap Contracts for currency exchange risk and (B) resulting from intercompany Indebtedness) and all other foreign currency translation gains or losses to the extent such gain or losses are non-cash items, and (iii) any net after-tax income (loss) for such Test Period attributable to the early extinguishment or conversion of (A) Indebtedness, (B) obligations under any Swap Contracts or (C) other derivative instruments, shall be excluded,

(h) any impairment charge or asset write-off, including impairment charges or asset write-offs or write-downs related to intangible assets, long-lived assets, investments in debt and equity securities or as a result of a change in law or regulation, in each case pursuant to GAAP, and the amortization of intangibles arising pursuant to GAAP shall be excluded,

(i) any expenses, charges or losses that are covered by indemnification or other reimbursement provisions in connection with any Investment, Permitted Acquisition or any sale, conveyance, transfer or other Disposition of assets permitted under this Agreement, to the extent actually reimbursed, or, so long as the Borrower has made a determination that a reasonable basis exists for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days), shall be excluded,

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(j) to the extent covered by insurance and actually reimbursed, or, so long as the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed within 365 days of the date of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within such 365 days), expenses, charges or losses with respect to liability or casualty events or business interruption shall be excluded, and

(k) any non-cash (for such period and all other periods) compensation charge or expense, including any such charge or expense arising from the grants of stock appreciation or similar rights, stock options, restricted stock or other rights or equity incentive programs shall be excluded, and any cash charges associated with the rollover, acceleration or payout of Equity Interests by, or to, management of the Borrower or any of its Restricted Subsidiaries, shall be excluded.

Consolidated Total Debt” means, as of any date of determination, the aggregate principal amount of Indebtedness of the Borrower and the Restricted Subsidiaries outstanding on such date, determined on a Consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with any Permitted Acquisition or any other Investment permitted hereunder), consisting of Indebtedness for borrowed money, unreimbursed obligations in respect of drawn letters of credit, obligations in respect of Capitalized Leases and debt obligations evidenced by promissory notes or similar instruments; provided that Consolidated Total Debt shall not include Indebtedness in respect of (i) any letter of credit, except to the extent of unreimbursed obligations in respect of drawn letters of credit (provided that any unreimbursed amount under commercial letters of credit shall not be counted as Consolidated Total Debt until three (3) Business Days after such amount is drawn (it being understood that any borrowing, whether automatic or otherwise, to fund such reimbursement shall be counted)) and (ii) obligations under Swap Contracts.

Constituent Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating or limited liability company agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

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

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

Cost” means the cost of purchases of Inventory determined according to the accounting policies used in the preparation of the Borrower’s financial statements.

Covenant Trigger Event” means that Excess Availability on any day is less than the greater of (i) $35,000,000 and (ii) 10% of the Modified Maximum Credit. For purposes hereof, the occurrence of a Covenant Trigger Event shall be deemed to be continuing until Excess Availability is equal to or greater than the greater of (i) $35,000,000 and (ii) 10% of the Modified Maximum Credit, in

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each case, for thirty (30) consecutive calendar days, in which case a Covenant Trigger Event shall no longer be deemed to be continuing for purposes of this Agreement. The termination of a Covenant Trigger Event as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Covenant Trigger 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).

Covered Party” has the meaning specified in Section 12.30.

Credit Card Advance Rate” means 90%.

Credit Card Agreements” means all agreements or arrangements now or hereafter entered into by the Borrower or any Guarantor for the benefit of the Borrower or a Subsidiary Guarantor, in each case with any Credit Card Issuer or any Credit Card Processor, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, including, but not limited to, the agreements or arrangements set forth on Schedule 1.1E hereto.

Credit Card Issuer” means any Person (other than the Borrower or a Guarantor) who issues or whose members issue credit cards, including, without limitation, MasterCard or VISA bank credit or debit cards or other bank credit or debit cards issued through MasterCard International, Inc., Visa, U.S.A., Inc. or Visa International and American Express, Discover, Diners Club, Carte Blanche and other non‑bank credit or debit cards, including, without limitation, credit or debit cards issued by or through American Express Travel Related Services Company, Inc., and Novus Services, Inc.

Credit Card Notification” means, collectively, the notices to Credit Card Issuers or Credit Card Processors who are parties to Credit Card Agreements in substantially the form delivered under the Original Credit Agreement, which Credit Card Notifications shall require the ACH or wire transfer no less frequently than each Business Day (and whether or not there are then any outstanding Obligations) to an Approved Deposit Account of all payments due from Credit Card Processors.

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

Credit Card Receivables” means, collectively, (a) all present and future rights of the Borrower or any Guarantor to payment from any Credit Card Issuer, Credit Card Processor or other third party arising from sales of goods or rendition of services to customers who have purchased such goods or services using a credit or debit card and (b) all present and future rights of the Borrower or any Guarantor to payment from any Credit Card Issuer, Credit Card Processor or other third party in connection with the sale or transfer of Accounts arising pursuant to the sale of goods or rendition of services to customers who have purchased such goods or services using a credit card or a debit card, including, but not limited to, all amounts at any time due or to become due from any Credit Card Issuer or Credit Card Processor under the Credit Card Agreements or otherwise, in each case above calculated net of prevailing interchange charges.

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Credit Extension” means each of the following: (a) a Borrowing and (b) a L/C Credit Extension.

Cure Amount” has the meaning specified in Section 10.4.

Current Asset Collateral” means all the “ABL Priority Collateral” as defined in the Intercreditor Agreement.

Customer Credit Liabilities” means, at any time, the aggregate remaining balance at such time of (a) outstanding gift certificates and gift cards of the Borrower and each Subsidiary Guarantor entitling the holder thereof to use all or a portion of the certificate or gift card to pay all or a portion of the purchase price for any Inventory and (b) outstanding merchandise credits of the Borrower or such Subsidiary Guarantor, in each case, net of any dormancy reserves maintained by the Borrower on its books and records in the ordinary course of business consistent with past practices.

Customs Broker/Carrier Agreement” means an agreement in form and substance reasonably satisfactory to the Administrative Agent among a Loan Party, a customs broker, freight forwarder, consolidator, or other carrier, and the Collateral Agent, in which the customs broker, freight forwarder, consolidator, or carrier acknowledges that it has control over and holds the documents evidencing ownership of, or other shipping documents relating to, the subject Inventory or other property for the benefit of the Collateral Agent and agrees, upon notice from the Collateral Agent (which notice shall be delivered only upon the occurrence and during the continuance of an Event of Default), to hold and dispose of the subject Inventory and other property solely as directed by the Collateral Agent.

Daily Simple SOFR” with respect to any applicable determination date means the SOFR published on such date on the Federal Reserve Bank of New York’s website (or any successor source).

Debt Service Charges” means for any Test Period, the sum of (a) Consolidated Interest Charges paid, or required to be paid, in cash for such Test Period, plus (b) scheduled principal payments made or required to be made on account of Indebtedness of the types set forth in clauses (a), (b), (c) and (f) of the definition of “Indebtedness” (excluding the Obligations but including, without limitation, Capitalized Lease Obligations) for such Test Period, in each case determined on a consolidated basis in accordance with GAAP.

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

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

Default Rate” means (a) when used with respect to Revolving Obligations, an interest rate equal to (ai) the Base Rate plus (bii) the Applicable Margin applicable to Base Rate Loans plus (ciii) 2.0% per annum; provided that with respect to the outstanding principal amount of any Loan constituting a Revolving Obligation, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Margin) otherwise applicable to such Loan (giving effect to Section 2.10) plus 2.0% per annum, in each case, to the fullest extent permitted by applicable Laws., and (b) when used with respect to FILO Obligations, an interest rate equal to (i) the Base Rate plus (ii) the FILO Applicable

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Margin applicable to Base Rate Loans plus (iii) 2.0% per annum; provided that with respect to the outstanding principal amount of any Loan constituting a FILO Obligation, the Default Rate shall be an interest rate equal to the interest rate (including any FILO Applicable Margin) otherwise applicable to such Loan (giving effect to Section 2.10) plus 2.0% per annum, in each case, to the fullest extent permitted by applicable Laws.

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 2.16(b), any Revolving Credit Lender that, as reasonably determined by the Administrative Agent, (a) has failed to perform any of its funding obligations hereunder, including in respect of its Revolving Loans or participations in respect of Letters of Credit or Swing Loans, within three (3) Business Days of the date required to be funded by it hereunder, (b) has notified the Borrower or the Administrative Agent that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit generally, (c) has failed, within three Business Days after request by the Administrative Agent, to confirm in a manner satisfactory to the Administrative Agent that it will comply with its funding obligations (provided that any Lender that has failed to give such timely confirmation shall cease to be a Defaulting Lender under this clause (c) upon receipt of such confirmation by the Administrative Agent), 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) become subject to a Bail-In Action or had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; 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.

Deposit Account” means any checking or other demand deposit account maintained by the Loan Parties, including any “deposit accounts” within the meaning given to such term in Article 9 of the UCC. All funds in such Deposit Accounts 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 the Deposit Accounts, subject to the Security Agreement and the Intercreditor Agreement.

Deposit Account Control Agreement” has the meaning specified in Section 8.12(a).

Designated Assets” means the assets set forth on Schedule 1.1D.

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

Designated Non-Cash Consideration” means the fair market value of non-cash consideration received by the Borrower or a Restricted Subsidiary in connection with a Disposition pursuant to Section 9.5(j) that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower, setting forth the basis of such valuation (which amount will be reduced by the fair market value of the portion of the non-cash consideration converted to cash within one-hundred eighty (180) days following the consummation of the applicable Disposition).

Dilution Reserve” means, for any period, that percentage reasonably determined by the Administrative Agent (or, if Eligible Trade Receivables are included in the FILO Borrowing

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Base, the FILO Documentation Agent) based upon the immediately prior 12 months (or such shorter period as determined by the Administrative Agent (or, if Eligible Trade Receivables are included in the FILO Borrowing Base, the FILO Documentation Agent) in its Permitted Discretion) by dividing (A) the amount of charge-offs of Eligible Trade Receivables and returns of goods purchased from the Borrower and the Subsidiary Guarantors during such period which had, at the time of sale, resulted in the creation of an Eligible Trade Receivable, by (B) the amount of sales (exclusive of sales and other similar taxes) of the Borrower and the Subsidiary Guarantors during such period and thereafter (“Dilution”) but only to the extent to which Dilution is in excess of 5%.

Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (in one transaction or in a series of transactions and whether effected pursuant to a Division or otherwise) of any property by any Person (including any sale and leaseback transaction and any sale or issuance of Equity Interests in a Restricted Subsidiary), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Revolving Credit Commitments and all outstanding Letters of Credit (unless the Outstanding Amount of the Letter of Credit Obligations related thereto has been Cash Collateralized or back-stopped by a letter of credit in form and substance reasonably satisfactory to the applicable Issuer)), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after Latest Maturity Date at the time of issuance; provided that if such Equity Interests are issued pursuant to a plan for the benefit of employees of Holdings, the Borrower or the Restricted Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by Holdings, the Borrower or the Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations.

Disqualified Institution” means:

(1) any Person that is a competitor of the Borrower and identified by the Borrower in good faith in writing to the Administrative Agent from time to time after the Effective Date;

(2) those banks, financial institutions, other institutional lenders and investors and other entities that were identified by the Borrower as such in writing to the Administrative Agent on or prior to the Third Amendment Effective Date; and

(3) any Affiliates of Persons described in the foregoing clauses (1) and (2) that are readily identifiable as such solely on the basis of their names (other than any such Affiliate that is a bank, financial institution or fund (other than a Person described in clause (2) above) that regularly invest in commercial loans or similar extensions of credit in the ordinary course of business and for which no personnel involved with the relevant competitor or Person referred to in clause (2) above make investment decisions);

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provided that in no event shall any update to the list of Disqualified Institutions (A) be effective prior to two Business Days after receipt thereof by the Administrative Agent or (B) apply retroactively to disqualify any Persons that have previously acquired an assignment or participation interest under this Agreement or that is party to a pending trade.

Notwithstanding anything in the Loan Documents to the contrary, the Administrative Agent shall not be responsible (or have any liability) for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions thereof relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (1) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (2) have any liability with respect to or arising out of any assignment or participation of Revolving Credit Exposure or, Revolving Credit Commitments or FILO Loans, or disclosure of confidential information, to any Disqualified Institution. The list of Disqualified Institutions may be made available by the Administrative Agent on the Platform and to prospective assignees and Participants (including Public Lenders).

Dividing Person” has the meaning assigned to it in the definition of “Division.”

Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.

Division Successor” means any Person that, upon the consummation of a Division of a Dividing Person, holds all or any portion of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division. A Dividing Person which retains any of its assets, liabilities and/or obligations after a Division shall be deemed a Division Successor upon the occurrence of such Division.

Document” has the meaning set forth in Article 9 of the UCC.

Documentary Letter of Credit” means any Letter of Credit that is drawable upon presentation of documents evidencing the sale or shipment of goods purchased by the Borrower or a Guarantor in the ordinary course of its business.

Dollar Equivalent” of any amount means, at the time of determination thereof, (a) if such amount is expressed in Dollars, such amount or (b) if such amount is denominated in any other currency, the equivalent of such amount in Dollars as determined by the Administrative Agent using any method of determination it reasonably deems appropriate.

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

Domestic Subsidiary” means any Subsidiary that is organized under the Laws of the United States, any state thereof or the District of Columbia (excluding, for the avoidance of doubt, any Subsidiary organized under the Laws of Puerto Rico or any other territory).

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

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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 first date all the conditions precedent in Section 4.1 were satisfied or waived in accordance with Section 12.1.

Effective Date Quarterly Financial Statements” means the unaudited Consolidated balance sheets and related statements of income, and cash flows of the Borrower and its Subsidiaries for the most recent Fiscal Quarters after the date of the Effective Date Annual Financial Statements (other than the fourth Fiscal Quarter of the Borrower’s Fiscal Year) and ended at least forty-five (45) days before the Effective Date (and the corresponding period of the prior Fiscal Year).

Effective Date Annual Financial Statements” means the audited consolidated balance sheets of the Borrower and its Subsidiaries as of the Saturday closest to each of January 31, 2016, 2015 and 2014, and the related consolidated statements of operations, changes in stockholders’ equity and cash flows for the Borrower for the Fiscal Years then ended.

Electronic Copy” has the meaning specified in Section 12.6.

Electronic Record” has the meaning specified in Section 12.6.

Electronic Signature” has the meaning specified in Section 12.6.

Eligible Assignee” means (a) a 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 that meets the requirements to be an assignee under Section 12.2(b)(iv) and (v) (subject to such consents, if any, as may be required under Section 12.2(b)(iii)).; provided that, with respect to the Revolving Facility (other than in connection with any exercise of the purchase option under Section 10.12), no FILO Lender, Affiliate of any FILO Lender or Approved Fund with respect to any FILO Lender may be an Eligible Assignee without the written approval of Administrative Agent (which may be granted or withheld at the Administrative Agent’s sole discretion).

Eligible Credit Card Receivables” means Credit Card Receivables due to the Borrower or any Subsidiary Guarantor on a non‑recourse basis from Visa, Mastercard, American Express Co., Discover and other major credit card processors reasonably acceptable to the Administrative Agent and the FILO Documentation Agent as arise in the ordinary course of business, which have been earned by performance and are deemed by the Administrative Agent and the FILO Documentation Agent, each in its Permitted Discretion, to be eligible for inclusion in the calculation of the Borrowing Base and the FILO Borrowing Base. Without limiting the foregoing, unless otherwise approved in writing by the

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Administrative Agent and the FILO Documentation Agent, none of the following shall be deemed to be Eligible Credit Card Receivables:

(a)
Any Credit Card Receivable that has been outstanding for more than five (5) Business Days from the date of sale of the Inventory giving rise to such Credit Card Receivable;
(b)
Credit Card Receivables with respect to which the Borrower or a Subsidiary Guarantor does not have good, valid and marketable title thereto, free and clear of any Lien (other than (i) Liens granted to the Collateral Agent, for its benefit and the ratable benefit of the Secured Parties, pursuant to the Collateral Documents and (ii) (A) Liens permitted under Section 9.1 having priority by operation of applicable Laws over the Liens of the Collateral Agent, and (B) Liens under Section 9.1(w) securing obligations under the Term Facilities and any Permitted Refinancings thereof);
(c)
Credit Card Receivables that are not subject to a first priority security interest in favor of the Collateral Agent, for the benefit of itself and the Secured Parties (it being the intent that chargebacks in the ordinary course by the credit card processors shall not be deemed violative of this clause); or
(d)
Credit Card Receivables which are disputed, are with recourse, or with respect to which a claim, counterclaim, offset or chargeback has been asserted (to the extent of such claim, counterclaim, offset or chargeback).

Any Credit Card Receivables which are not Eligible Credit Card Receivables shall nevertheless be part of the Collateral.

Eligible In-Transit Inventory” means, as of the date of determination thereof, without duplication of other Eligible Inventory, Inventory (a) located outside of the United States or in transit within or outside of the United States to the Borrower or any Subsidiary Guarantor from vendors and suppliers for receipt by the Borrower or a Subsidiary Guarantor within sixty (60) days of the date of determination that has not yet been received into a distribution center or store of such Person, (b) for which the purchase order for such Inventory is in the name of the Borrower or a Subsidiary Guarantor and title has passed to the Borrower or a Subsidiary Guarantor, (c) which has been consigned to the Borrower or a Subsidiary Guarantor (along with delivery to the Borrower or a Subsidiary Guarantor of the documents of title with respect thereto), (d) as to which a Customs Broker/Carrier Agreement, reasonably satisfactory to the Administrative Agent, is in effect or with respect to which Inventory Reserves have been established by the Administrative Agent or the FILO Documentation Agent, and (e) which otherwise would constitute Eligible Inventory; provided that the Administrative Agent or the FILO Documentation Agent may, in its Permitted Discretion, and upon notice to the Borrower, exclude any particular Inventory from the definition of “Eligible In-Transit Inventory” in the event that the Administrative Agent or the FILO Documentation Agent determines in its Permitted Discretion and upon notice to the Borrower that such Inventory is subject to any Person’s right or claim which is (or is capable of being) senior to, or pari passu with, the Lien of the Collateral Agent (such as, without limitation, a right of reclamation or stoppage in transit), as applicable, and would be reasonably likely to adversely impact the ability of the Collateral Agent to realize upon such Inventory.

Eligible Inventory” means, as of the date of determination thereof, (a) Eligible In-Transit Inventory, (b) Eligible Letter of Credit Inventory but only if and to the extent that the Administrative Agent and the FILO Documentation Agent, each in its Permitted Discretion, determines to include such as Eligible Inventory, and (c) items of Inventory of the Borrower or a Subsidiary Guarantor that are finished goods, merchantable and readily saleable to the public in the ordinary course deemed by the Administrative Agent and the FILO Documentation Agent, each in its Permitted Discretion, to be eligible for inclusion in the calculation of the Borrowing Base and the FILO Borrowing Base. Without

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limiting the foregoing, unless otherwise approved in writing by the Administrative Agent and the FILO Documentation Agent, none of the following shall be deemed to be Eligible Inventory:

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

(b) Inventory (including any portion thereof in transit from vendors, other than Eligible In-Transit Inventory) that is not located at a warehouse facility used by the Borrower or a Subsidiary Guarantor in the ordinary course or at a property that is owned or leased by the Borrower or a Subsidiary Guarantor;

(c) Inventory that is comprised of goods which (i) are damaged, defective, “seconds,” or otherwise unmerchantable, (ii) are to be returned to the vendor, (iii) are obsolete or slow moving, or custom items, work‑in‑process, raw materials, or that constitute spare parts, promotional, marketing, packaging and shipping materials or supplies used or consumed in the Borrower’s or a Subsidiary Guarantor’s business, (iv) are not in compliance in all material respects with all standards imposed by any Governmental Authority having regulatory authority over such Inventory, its use or sale, or (v) are bill and hold goods;

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

(e) Inventory that is not subject to a perfected first‑priority security interest in favor of the Collateral Agent for the benefit of the Secured Parties (subject only to Liens permitted under Section 9.1 having priority by operation of applicable Law over the Liens of the Collateral Agent);

(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 8.5 hereof is not in effect;

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

(i) Inventory which is being Disposed of in a Store closing, “going-out-of-business” or similar sale; and

(j) Inventory acquired in a Permitted Acquisition, unless and until the Collateral Agent has completed or received (A) an appraisal of such Inventory from appraisers satisfactory to the Administrative Agent, and and the FILO Documentation Agent, and the Administrative Agent or the FILO Documentation Agent has established Inventory Reserves (if applicable) therefor, and (B) such other due diligence as the Administrative Agent or the FILO Documentation Agent may require, all of the results of the foregoing to be reasonably satisfactory to the Administrative Agent and the FILO Documentation Agent, each in its Permitted Discretion.

Any Inventory which is not Eligible Inventory shall nevertheless be part of the Collateral.

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Eligible Letter of Credit Inventory” means, as of the date of determination thereof, without duplication of other Eligible Inventory, Inventory (a) which does not constitute Eligible In-Transit Inventory and for which no documents of title have then been issued, (b) the purchase of which is supported by a Documentary Letter of Credit or Banker’s Acceptance having an expiry within sixty (60) days of such date of determination, which Documentary Letter of Credit or Banker’s Acceptance provides that it may be drawn only after the Inventory is completed and after documents of title have been issued for such Inventory reflecting the Borrower, a Subsidiary Guarantor or the Collateral Agent as consignee of such Inventory, and (c) which otherwise would constitute Eligible Inventory. For the avoidance of doubt, Eligible Letter of Credit Inventory is without duplication of Eligible In-Transit Inventory.

Eligible Trade Receivables” means Accounts arising from the sale of the Borrower’s or any Subsidiary Guarantor’s Inventory (but excluding, for the avoidance of doubt, Credit Card Receivables) that satisfies the following criteria at the time of creation and continues to meet the same at the time of such determination: such Account (i) has been earned by performance and represents the bona fide amounts due to the Borrower or any Subsidiary Guarantor from an account debtor, and in each case is originated in the ordinary course of business of the Borrower or such Subsidiary Guarantor, and (ii) in each case is acceptable to the Administrative Agent (and, if Eligible Trade Receivables are included in the FILO Borrowing Base, the FILO Documentation Agent), in its Permitted Discretion, and is not ineligible for inclusion in the calculation of the Borrowing Base pursuant to any of clauses (a) through (r) below. Without limiting the foregoing, to qualify as an Eligible Trade Receivable, an Account shall indicate no Person other than the Borrower or a Subsidiary Guarantor as payee or remittance party. In determining the amount to be so included, and without duplication of eligibility criteria or Availability Reserves, the face amount of an Account shall be reduced by, without duplication, to the extent not reflected in such face amount, (i) the amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments, finance charges or other allowances (including any amount that the Borrower or a Subsidiary Guarantor may be obligated to rebate to a customer pursuant to the terms of any written agreement) and (ii) the aggregate amount of all cash received in respect of such Account but not yet applied by the Borrower or Subsidiary Guarantors to reduce the amount of such Eligible Trade Receivable. Except as otherwise agreed by the Administrative Agent (and, if Eligible Trade Receivables are included in the FILO Borrowing Base, the FILO Documentation Agent), any Account included within any of the following categories shall not constitute an Eligible Trade Receivable:

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

(b) Accounts that have been outstanding for more than ninety (90) days from the date of sale or more than sixty (60) days past the due date;

(c) Accounts due from any account debtor for which more than fifty percent (50%) of the accounts of such account debtor are accounts described in clause (b), above;

(d) All Accounts owed by an account debtor and/or its Affiliates together exceed fifteen percent (15%) (or such higher percentage as the Administrative Agent (and, if Eligible Trade Receivables are included in the FILO Borrowing Base, the FILO Documentation Agent) may establish from time to time in its Permitted Discretion) of the amount of all Accounts at any one time (but the portion of the Accounts not in excess of the applicable percentage may be deemed Eligible Trade Receivables, in the Administrative Agent’s (and, if Eligible Trade Receivables are included in the FILO Borrowing Base, the FILO Documentation Agent’s) discretion);

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(e) Accounts (i) that are not subject to a perfected first-priority security interest in favor of the Collateral Agent, for its benefit and the ratable benefit of the Secured Parties, or (ii) with respect to which the Borrower or a Subsidiary Guarantor does not have good and valid title thereto, free and clear of any Lien (other than (i) Liens granted to the Collateral Agent, for its benefit and the ratable benefit of the Secured Parties, pursuant to the Collateral Documents and (ii) (A) Liens permitted under Section 9.1 having priority by operation of applicable Laws over the Liens of the Collateral Agent, and (B) Liens under Section 9.1(w) securing obligations under the Term Facilities and any Permitted Refinancings thereof);

(f) Accounts which are disputed or with respect to which a claim, counterclaim, offset or chargeback has been asserted, but only to the extent of such dispute, counterclaim, offset or chargeback; provided that no Account that otherwise constitutes an Eligible Trade Receivable shall be rendered ineligible by virtue of this clause (f) to the extent, but only to the extent, that the account debtor’s right of setoff is limited by an enforceable agreement that is reasonably satisfactory to the Administrative Agent (and, if Eligible Trade Receivables are included in the FILO Borrowing Base, the FILO Documentation Agent);

(g) Accounts which arise out of any sale (i) not made in the ordinary course of business, or (ii) are not payable in Dollars;

(h) [reserved];

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

(j) Accounts for which all consents, approvals or authorizations of, or registrations or declarations with any Governmental Authority required to be obtained, effected or given in connection with the performance of such Account by the account debtor or in connection with the enforcement of such Account by the Administrative Agent have not been duly obtained, effected or given and are not in full force and effect;

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

(l) Accounts due from any Governmental Authority except to the extent that the subject account debtor is the federal government of the United States of America and the Borrower or Subsidiary Guarantors have complied with the Federal Assignment of Claims Act of 1940;

(m) Accounts (i) owing from any Person that is also a supplier to or creditor of the Borrower or any Subsidiary Guarantor or (ii) representing any manufacturer’s or supplier’s credits, discounts, incentive plans or similar arrangements entitling the Borrower or any Subsidiary Guarantor to discounts on future purchase therefrom;

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

(o) Accounts arising out of sales to account debtors outside the United States unless either (i) such Accounts are fully backed by an irrevocable letter of credit on terms, and issued by a financial institution, acceptable to the Administrative Agent (and, if Eligible Trade

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Receivables are included in the FILO Borrowing Base, the FILO Documentation Agent) and such irrevocable letter of credit is in the possession of the Collateral Agent or (ii) covered by credit insurance reasonably acceptable to the Administrative Agent (and, if Eligible Trade Receivables are included in the FILO Borrowing Base, the FILO Documentation Agent);

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

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

(r) Accounts acquired in a Permitted Acquisition, unless and until the Collateral Agent has completed or received (A) a Field Exam in respect of such Accounts, which Field Exam shows results reasonably satisfactory to the Administrative Agent (and, if Eligible Trade Receivables are included in the FILO Borrowing Base, the FILO Documentation Agent), and the Administrative Agent (or, if Eligible Trade Receivables are included in the FILO Borrowing Base, the FILO Documentation Agent) has established Receivables Reserves (if applicable) therefor, and (B) such other due diligence as the Administrative Agent (or, if Eligible Trade Receivables are included in the FILO Borrowing Base, the FILO Documentation Agent) may require, all of the results of the foregoing to be reasonably satisfactory to the Administrative Agent (and, if Eligible Trade Receivables are included in the FILO Borrowing Base, the FILO Documentation Agent) in its Permitted Discretion.

Entitlement Holder” has the meaning given to such term in Article 8 of the UCC.

Entitlement Order” has the meaning given to such term in Article 8 of the UCC.

Environmental Claim means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations (other than internal reports prepared by any Loan Party or any of its Subsidiaries (a) in the ordinary course of such Person’s business or (b) as required in connection with a financing transaction or an acquisition or disposition of real estate) or proceedings with respect to any Environmental Liability (hereinafter “Claims”), including (i) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief pursuant to any Environmental Law.

Environmental Laws” means any and all Laws relating to the protection of the environment or, to the extent relating to exposure to Hazardous Materials, human health.

Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities) of any Loan Party or any of its Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal 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.

Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.

Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase,

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acquisition or exchange from such Person of any of the foregoing (including through convertible securities).

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

ERISA Affiliate” means any trade or business (whether or not incorporated) that together with any Loan Party is treated as a single employer within the meaning of Section 414 of the Code or Section 4001 of ERISA.

ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Loan Party or any of their respective ERISA Affiliates from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party or any of their respective ERISA Affiliates from a Multiemployer Plan, written notification of any Loan Party or any of their respective ERISA Affiliates concerning the imposition of Withdrawal Liability or written notification that a Multiemployer Plan is insolvent within the meaning of Title IV of ERISA; (d) the filing under Section 4041(c) of ERISA of a notice of intent to terminate a Pension Plan, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) the imposition of any liability under Title IV of ERISA with respect to the termination of any Pension Plan or Multiemployer Plan, other than for the payment of plan contributions or PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any of their respective ERISA Affiliates; (f) the failure to satisfy the minimum funding standard (within the meaning of Section 302 of ERISA or Section 412 of the Code) with respect to a Pension Plan, whether or not waived, (g) the application for a minimum funding waiver under Section 302(c) of ERISA with respect to a Pension Plan; (h) the imposition of a lien under Section 303(k) of ERISA with respect to any Pension Plan; or (i) a determination that any Pension Plan is in “at risk” status (within the meaning of Section 303 of ERISA).

ESG” has the meaning specified in Section 2.18.

ESG Amendment” has the meaning specified in Section 2.18.

ESG Pricing Provisions” has the meaning specified in Section 2.18.

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.

Eurodollar Rate” means the higher of:

(i) the LIBOR Floor, and

(ii)(a) for any Interest Period with respect to a Eurodollar Rate 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 (“LIBOR”) as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the

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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;

(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, 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.

Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the Eurodollar Rate.

Event of Default” has the meaning specified in Section 10.1.

Excess Availability” means, at any time, (a) the Maximum Credit at such time minus (b) the aggregate Revolving Credit Outstandings at such time.

Exchange Act” means the Securities Exchange Act of 1934, as amended.

Excluded Accounts” means deposit or securities accounts (a) established (or otherwise maintained) (including deposit accounts that are that are zero balance accounts) by the Loan Parties that do not have cash balances at any time exceeding $5,000,000 in the aggregate for all such accounts, (b) solely containing cash allocated as proceeds of the sale of Term Priority Collateral (as such term is defined in the Intercreditor Agreement), (c) payroll, trust and tax withholding accounts, (d) used by the Loan Parties exclusively for disbursements and payments in the ordinary course of business, or (e) that are located outside of the United States.

Excluded Subsidiary” means (a) any Subsidiary that is not a wholly owned Subsidiary of the Borrower or a Guarantor, (b) any Foreign Subsidiary, (c) any Domestic Subsidiary substantially all of the assets of which consist of Equity Interests in one or more Foreign Subsidiaries, (d) any Domestic Subsidiary that is a direct or indirect Subsidiary of a Foreign Subsidiary, (e) any Subsidiary that is prohibited or restricted by applicable Law from providing a Guaranty or if such Guaranty would require governmental (including regulatory) consent, approval, license or authorization, (f) any special purpose securitization vehicle (or similar entity), (g) any Subsidiary that is a not-for-profit organization, (h) any other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent (confirmed in writing by notice to the Borrower), the cost or other consequences (including any adverse tax consequences) of providing the Guaranty shall be excessive in view of the benefits to be obtained by the Lenders therefrom and (i) each Unrestricted Subsidiary.

Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Loan Party under the Guaranty of, or the grant under a Loan Document by such Loan 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 Loan 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 12.28 hereof and any and all guarantees of such Loan Party’s Swap Obligations by other Loan Parties) at the time the guaranty of such Loan Party, or grant by such Loan 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 Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such guaranty or security interest becomes illegal.

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Excluded Taxes” means, with respect to any Agent, any Lender, any Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (a) any tax on such recipient’s net income or profits (or franchise tax or minimum tax imposed in lieu of such tax on net income or profits) imposed by a jurisdiction as a result of such recipient being organized or having its principal office or applicable Lending Office located in such jurisdiction (including, for the avoidance of doubt, any backup withholding in respect of such a tax under section 3406 of the Code) or as a result of any other present or former connection between such recipient and the jurisdiction (including as a result of such recipient carrying on a trade or business, having a permanent establishment or being a resident for tax purposes in such jurisdiction), other than a connection arising solely from such recipient having executed, delivered, enforced, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction specifically contemplated by, or enforced, any Loan Documents, (b) any branch profits tax under Section 884(a) of the Code, or any similar tax, imposed by any jurisdiction described in (a), (c) with respect to any Foreign Lender (other than any Foreign Lender becoming a party hereto pursuant to the Borrower’s request under Section 3.7), any U.S. federal withholding tax that is imposed on amounts payable to such Foreign Lender pursuant to a Law in effect at the time such Foreign Lender becomes a party hereto (or where the Foreign Lender is a partnership for U.S. federal income tax purposes, pursuant to a Law in effect on the later of the date on which such Foreign Lender becomes a party hereto or the date on which the affected partner becomes a partner of such Foreign Lender) or designates a new Lending Office or experiences a change in circumstances (other than a Change in Law), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, immediately prior to the time of designation of a new Lending Office (or assignment or change in circumstances), to receive additional amounts from a Loan Party with respect to such U.S. federal withholding tax pursuant to Section 3.1, (d) any withholding tax attributable to such recipient’s failure to comply with Section 3.1(c), (e) any tax imposed as a result of such recipient’s failure to establish a complete exemption under FATCA and (f) any interest, additions to taxes and penalties with respect to any taxes described in clauses (a) through (e) of this definition.

Existing Revolver Tranche” has the meaning specified in Section 2.17(a).

Extended Revolving Credit Commitments” has the meaning specified in Section 2.17(a).

Extending Revolving Credit Lender” has the meaning specified in Section 2.17(b).

Extension” means any establishment of Extended Revolving Credit Commitments pursuant to Section 2.17 and the applicable Extension Amendment.

Extension Amendment” has the meaning specified in Section 2.17(d).

Extension Election” has the meaning specified in Section 2.17(b).

Extension Request” has the meaning specified in Section 2.17(a).

Extension Series” has the meaning specified in Section 2.17(a).

Facility” means the Revolving Credit Commitments and the provisions herein related to the Revolving Loans, Swing Loans and Letters of Credit, Loans under Extended Revolving Credit Commitments and Loans under New Revolving Credit Commitments.

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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)