SEC Filing | Gamestop Corp.

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gme-20211103

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): November 3, 2021

GameStop Corp.

(Exact name of Registrant as specified in its charter)

Delaware

1-32637

20-2733559

(State or Other Jurisdiction
of Incorporation)

(Commission
File Number)

(IRS Employer
Identification No.)

625 Westport Parkway, Grapevine, TX 76051

(817) 424-2000

(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)

Not Applicable

(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

Class A Common Stock

GME

NYSE

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 under the Securities Act (17 CFR 230.405) or Rule 12b-2 under the Exchange Act (17 CFR 240.12b-2).

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 Material Definitive Agreement.

On November 3, 2021, GameStop Corp. (the “Company”) entered into a Credit Agreement by and among the Company, certain subsidiaries of the Company (the “Borrowers”), certain other subsidiaries of the Company (the “Guarantors”), the other borrowers and guarantors from time to time party thereto, the lenders and issuers from time to time party thereto (the “Lenders”), Wells Fargo Bank, National Association, as Administrative Agent, Collateral Agent and Australian Security Trustee (the “Agent”), Wells Fargo Bank, National Association, JPMorgan Chase Bank, N.A., Regions Bank, and Fifth Third Bank, National Association, as Co-Syndication Agents, Wells Fargo Bank, National Association, BofA Securities Inc., JPMorgan Chase Bank, N.A., Regions Bank, and Fifth Third Bank, National Association, as Joint Lead Arrangers and Joint Bookrunners (the “Credit Agreement”). The Credit Agreement provides for an asset-based secured revolving credit facility with a borrowing capacity of $500 million and a maturity date of November 3, 2026, and includes a $50 million swing loan revolving sub-facility, a $50 million Canadian revolving sub-facility, and a $250 million letter of credit sublimit. The Credit Agreement also includes the ability to add a $25 million Australian revolving sub-facility, subject to the completion of certain conditions.

The Credit Agreement replaces the Second Amended and Restated Credit Agreement, dated as of March 25, 2014, by and among the Company, certain subsidiaries of the Company, Bank of America, N.A. and the other lending institutions listed therein, Bank of America, N.A., as Issuing Bank, Bank of America, N.A., as Agent, JPMorgan Chase Bank, N.A., as Syndication Agent, Wells Fargo Bank, National Association, U.S. Bank National Association and Regions Bank as Co-Documentation Agents and JPMorgan Chase Bank, N.A. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Joint Lead Arrangers and Joint Bookrunners (as amended, the “Prior Facility”). The Prior Facility was due to expire on November 20, 2022.

Borrowings under the Credit Agreement accrue interest at the election of the Company at an adjusted LIBOR rate plus an applicable margin (ranging from 1.25% to 1.50%) or an adjusted prime rate plus an applicable margin (ranging from 0.25% to 0.50%). The applicable margin is determined quarterly as a function of the Company’s average historical excess availability under the facility and is set at 0.50% for prime rate loans and 1.50% for LIBOR rate loans until the first day of the calendar quarter of the Company commencing on April 1, 2022. In addition, the Company is required to pay a commitment fee of 0.25% for any unused portion of the total commitment under the Credit Agreement. The obligations of the Borrowers under the Credit Agreement are guaranteed by the Company and certain of its subsidiaries, subject to exceptions that, among other things, limit the ability of the Company’s foreign subsidiaries to guarantee obligations owing by the Company and its domestic subsidiaries. The obligations of the Company and each subsidiary of the Company that is a Borrower and/or a Guarantor under the Credit Agreement are secured by substantially all of the assets of the Company and each such subsidiary, subject to customary exceptions.

The Credit Agreement places certain restrictions on the Company and its subsidiaries, including, but not limited to, limitations on additional liens, investments, acquisitions, loans, guarantees, the incurrence of additional indebtedness, certain fundamental changes, certain dispositions, certain dividends and distributions, and certain related party transactions. The Credit Agreement also provides for customary events of default, including, but not limited to, payment defaults, breaches of covenants and certain events of bankruptcy, insolvency and reorganization. In addition, the Credit Agreement provides for a fixed charge coverage ratio covenant if availability under the Credit Agreement is below a certain amount.

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

Item 1.02 Termination of a Material Definitive Agreement.

Effective November 3, 2021, the Prior Facility, which provided for a five-year, $420 million asset-based revolver (which could be increased by $200 million under certain circumstances) maturing on November 20, 2022, was terminated in connection with the Company’s entry into the Credit Agreement described in Item 1.01 to this Current Report on Form 8-K. The related Third Amended and Restated Security Agreement, dated as of November 20, 2017 (filed as Exhibit 10.2 to the Company’s Form 8-K filed on November 21, 2017), the Second Amended and Restated Patent and Trademark Security Agreement, dated as of March 25, 2014, as amended (filed as Exhibit 10.3 to the Company’s Form 8-K filed on March 28, 2014), and the Second Amended and Restated Pledge Agreement, dated as of March 25, 2014 (filed as Exhibit 10.5 to the Company’s Form 8-K filed on March 28, 2014), were also terminated in connection with the Company’s entry into the Credit Agreement.

Effective November 3, 2021, the Uncommitted Letter of Credit Facility, dated as of August 28, 2020, by and among the Company, the other borrowers party thereto and Bank of America, N.A. (filed as Exhibit 10.2 to the Company’s Form 8-K filed on September 2, 2020) was also terminated in connection with the Company’s entry into the Credit Agreement.

Item 2.03 Creation of a Direct Financial Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The disclosure provided under Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03 as if fully set forth herein.

Item 7.01 Regulation FD Disclosure.

On November 4, 2021, the Company issued a press release announcing its entry into the Credit Agreement described under Item 1.01 above, a copy of which is furnished as Exhibit 99.1 to this Current Report on Form 8-K.

The information furnished herewith pursuant to this Item 7.01 of this Current Report on Form 8-K shall not be deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to the liabilities of that section, and shall not be incorporated by reference into any registration statement or other document under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.


Exhibit No.			Description
10.1			Credit Agreeme nt, dated November 3, 2021, by and among GameStop Corp., the Borrowers party thereto, the Guarantors party thereto , the other borrowers and guarantors from time to time party thereto, the lenders and issuers from time to time party thereto, Wells Fargo Bank, National Association, as Administrative Agent, Collateral Agent and Australian Security Trustee, Wells Fargo Bank, National Association , Bank of America , N.A., JPMorgan Chase Bank, N.A., Regions Bank, and Fifth Third Bank, National Association , as Co-Syndication Agents, Wells Fargo Bank, National Association, BofA Securities Inc., JPMorgan Chase Bank, N.A., Regions Bank, and Fifth Third Bank, National Association , as Joint Lead Arrangers and Joint Bookrunners.
99.1			Press release, dated November 4 , 2021, issued by the Company
104			Cover Page Interactive Data File (embedded within the Inline XBRL document).

* Certain schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company will furnish supplementally a copy of any omitted exhibits or schedules to the Securities and Exchange Commission upon request.

SIGNATURE

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

GAMESTOP CORP.

(Registrant)

Date: November 4, 2021

By:

Name: Michael Recupero

Title: Chief Financial Officer

Document

Exhibit 10.1

CREDIT AGREEMENT

dated as of November 3, 2021,

among

GAMESTOP CORP.,

as Holdings and Lead Administrative Loan Party,

GAMESTOP, INC.,

MARKETING CONTROL SERVICES, INC.,

GEEKNET, INC.,

GAMESTOP TEXAS LTD.,

SUNRISE PUBLICATIONS, INC.,

SOCOM LLC,

GAMESTOP PENNSYLVANIA, LLC

ELECTRONICS BOUTIQUE CANADA INC., and

ELECTRONICS BOUTIQUE AUSTRALIA PTY. LIMITED,
each as a Borrower,

GS MOBILE, INC.,
ELBO, INC.,
EB INTERNATIONAL HOLDINGS, INC. and
GAMESTOP GLOBAL HOLDINGS S.À.R.L.
each as a Guarantor

THE OTHER BORROWERS AND GUARANTORS FROM TIME TO TIME PARTY HERETO,

THE LENDERS AND ISSUERS FROM TIME TO TIME PARTY HERETO,

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent, Collateral Agent and Australian Security Trustee

WELLS FARGO BANK, NATIONAL ASSOCIATION,
BANK OF AMERICA, N.A., JPMORGAN CHASE BANK, N.A.
REGIONS BANK, and FIFTH THIRD BANK, NATIONAL ASSOCIATION,
as Co-Syndication Agents,

WELLS FARGO BANK, NATIONAL ASSOCIATION,
BOFA SECURITIES INC., JPMORGAN CHASE BANK, N.A.
REGIONS BANK, and FIFTH THIRD BANK, NATIONAL ASSOCIATION,
as Joint Lead Arrangers and Joint Bookrunners


6674799.15

Table of Contents

Page


Article I DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS			8
SECTION 1.1 Defined Terms			8
SECTION 1.2 Other Interpretive Provisions			103
SECTION 1.3 Accounting Terms			105
SECTION 1.4 Rounding			105
SECTION 1.5 Letter of Credit Amounts			105
SECTION 1.6 References to Agreements, Laws, Etc			105
SECTION 1.7 Times of Day; Timing of Payments and Performance.			105
SECTION 1.8 Pro Forma Calculations, Etc.			105
SECTION 1.9 Limited Condition Transactions.			107
SECTION 1.10 Exchange Rates; Currency Equivalents.			108
SECTION 1.11 Additional Alternative Currencies.			110
SECTION 1.12 Change of Currency.			111
SECTION 1.13 Interest Rates			111
SECTION 1.14 Classification Among Negative Covenant Exceptions			111
SECTION 1.15 Rates			112
SECTION 1.16 Borrowing Base; Reserves; U.S. Allocated Availability.			112
SECTION 1.17 Australian Terms			115
SECTION 1.18 Banking Code of Practice (Australia)			115
SECTION 1.19 Syndicated Facility Agreement			115
SECTION 1.20 Luxembourg Terms			116
Article II THE FACILITIES			116
SECTION 2.1 The Commitments.			116
SECTION 2.2 Borrowing Procedures; Funding by Lenders.			118
SECTION 2.3 Swing Loans.			121
SECTION 2.4 Letters of Credit.			124
SECTION 2.5 Reduction and Termination of the Revolving Credit Commitments.			133
SECTION 2.6 Repayment of Loans.			134
SECTION 2.7 Evidence of Indebtedness.			135
SECTION 2.8 Optional Prepayments.			135
SECTION 2.9 Mandatory Prepayments.			136
SECTION 2.10 Interest.			138
SECTION 2.11 Conversions and Continuations of Loans.			139
SECTION 2.12 Fees.			141
SECTION 2.13 Payments and Computations.			142
SECTION 2.14 Joint and Several Liability; Additional Borrowers.			145
SECTION 2.15 Commitment Increases; FILO Incremental Facilities.			147
SECTION 2.16 Defaulting Lenders.			151
SECTION 2.17 Extensions of Loans.			153
SECTION 2.18 Designated Lenders			158
Article III TAXES, YIELD PROTECTION AND ILLEGALITY			158
SECTION 3.1 Taxes			158


6674799.15			2


SECTION 3.2 [Reserved].			162
SECTION 3.3 Illegality			162
SECTION 3.4 Inability to Determine Rates.			163
SECTION 3.5 Increased Cost and Reduced Return; Capital Adequacy; Reserves on LIBOR Rate Loans			168
SECTION 3.6 Funding Losses			169
SECTION 3.7 Matters Applicable to all Requests for Compensation.			169
SECTION 3.8 Replacement of Lenders under Certain Circumstances			170
SECTION 3.9 Survival			172
Article IV CONDITIONS PRECEDENT			172
SECTION 4.1 Conditions Precedent to Effectiveness and Initial Credit Extensions			172
SECTION 4.2 Conditions Precedent to Credit Extension After the Closing Date			175
SECTION 4.3 Conditions Precedent to Effectiveness of Initial Credit Extensions to Australian Borrowers			176
Article V REPRESENTATIONS AND WARRANTIES			179
SECTION 5.1 Existence, Qualification and Power; Compliance with Laws			179
SECTION 5.2 Authorization; No Contravention			179
SECTION 5.3 Governmental Authorization			180
SECTION 5.4 Binding Effect			180
SECTION 5.5 Financial Statements; No Material Adverse Effect.			180
SECTION 5.6 Litigation			181
SECTION 5.7 Labor Matters			181
SECTION 5.8 Ownership of Property; Liens			181
SECTION 5.9 Environmental Matters.			181
SECTION 5.10 Taxes			181
SECTION 5.11 ERISA and Pension Compliance.			181
SECTION 5.12 Subsidiaries			182
SECTION 5.13 Margin Regulations; Investment Company Act.			182
SECTION 5.14 Disclosure			183
SECTION 5.15 Intellectual Property; Licenses, Etc.			183
SECTION 5.16 Solvency			183
SECTION 5.17 OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws			183
SECTION 5.18 Collateral Documents			183
SECTION 5.19 Centre of Main Interests			184
SECTION 5.20 Senior Ranking			184
SECTION 5.21 Reserved.			184
SECTION 5.22 Patriot Act			184
Article VI FINANCIAL COVENANT			184
SECTION 6.1 Minimum Consolidated Fixed Charge Coverage Ratio			184
Article VII REPORTING AND MONITORING COVENANTS			184
SECTION 7.1 Financial Statements, Etc.			184
SECTION 7.2 Certificates; Other Information			186
SECTION 7.3 Notices			188
SECTION 7.4 Borrowing Base Certificates.			189
SECTION 7.5 Inventory Appraisals and Field Examinations.			190


6674799.15			3


Article VIII AFFIRMATIVE COVENANTS			191
SECTION 8.1 Preservation of Existence, Etc			191
SECTION 8.2 Compliance with Laws, Etc			191
SECTION 8.3 Designation of Subsidiaries			191
SECTION 8.4 Payment of Taxes, Etc			192
SECTION 8.5 Maintenance of Insurance			192
SECTION 8.6 Inspection Rights			193
SECTION 8.7 Books and Records			193
SECTION 8.8 Maintenance of Properties			193
SECTION 8.9 Use of Proceeds			193
SECTION 8.10 Compliance with Environmental Laws			194
SECTION 8.11 Covenant to Guarantee Obligations and Give Security			194
SECTION 8.12 Cash Receipts.			195
SECTION 8.13 Further Assurances			198
SECTION 8.14 [Reserved].			198
SECTION 8.15 OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws			199
SECTION 8.16 [Reserved].			199
SECTION 8.17 Post-Closing Obligations			199
Article IX NEGATIVE COVENANTS			199
SECTION 9.1 Liens			199
SECTION 9.2 Investments			203
SECTION 9.3 Indebtedness			206
SECTION 9.4 Fundamental Changes			209
SECTION 9.5 Dispositions			211
SECTION 9.6 Restricted Payments			216
SECTION 9.7 Change in Nature of Business			217
SECTION 9.8 Transactions with Affiliates			217
SECTION 9.9 Burdensome Agreements			219
SECTION 9.10 Changes in Fiscal Year			220
SECTION 9.11 Prepayment, Etc. of Indebtedness			220
SECTION 9.12 Modification of Junior Financing Agreements			221
SECTION 9.13 Australian Tax Matters			221
SECTION 9.14 IP Separation and Relicense Transaction			221
Article X EVENTS OF DEFAULT			221
SECTION 10.1 Events of Default			221
SECTION 10.2 Remedies upon Event of Default.			224
SECTION 10.3 Application of Proceeds.			225
SECTION 10.4 Right to Cure.			229
SECTION 10.5 Actions in Respect of Letters of Credit; Cash Collateral.			230
Article XI THE ADMINISTRATIVE AGENT			232
SECTION 11.1 Appointment and Authorization.			232
SECTION 11.2 Rights as a Lender			233
SECTION 11.3 Exculpatory Provisions			233
SECTION 11.4 Reliance by the Administrative Agent.			234
SECTION 11.5 Delegation of Duties			234


6674799.15			4


SECTION 11.6 Resignation of Administrative Agent and Collateral Agent.			235
SECTION 11.7 Non-Reliance on Administrative Agent and Other Lenders; Disclosure of Information by Agents			236
SECTION 11.8 No Other Duties; Other Agents, Arrangers, Managers, Etc			236
SECTION 11.9 Acceptable Intercreditor Agreements			237
SECTION 11.10 Administrative Agent May File Proofs of Claim			237
SECTION 11.11 Collateral and Guaranty Matters			238
SECTION 11.12 Secured Cash Management Agreements and Secured Hedge Agreements.			239
SECTION 11.13 Indemnification of Agents			240
SECTION 11.14 Certain ERISA Matters.			241
SECTION 11.15 [Reserved].			242
SECTION 11.16 Reports and Financial Statements			242
SECTION 11.17 Canadian Anti-Money Laundering Legislation			242
SECTION 11.18 Erroneous Payments			243
SECTION 11.19 Appointment of Australian Security Trustee; Australian Security Trust Deed.			245
SECTION 11.20 Rights and Remedies of the Australian Security Trustee.			246
SECTION 11.21 Australian PPSA Provisions.			247
Article XII MISCELLANEOUS			247
SECTION 12.1 Amendments, Etc.			247
SECTION 12.2 Successors and Assigns.			250
SECTION 12.3 Costs and Expenses			256
SECTION 12.4 Indemnities			256
SECTION 12.5 Limitation of Liability			258
SECTION 12.6 Right of Set-off			258
SECTION 12.7 Sharing of Payments			258
SECTION 12.8 Notices and Other Communications; Facsimile Copies.			259
SECTION 12.9 No Waiver; Cumulative Remedies.			261
SECTION 12.10 Waiver of Immunities			262
SECTION 12.11 Binding Effect			262
SECTION 12.12 Governing Law; Submission to Jurisdiction; Service of Process.			262
SECTION 12.13 Waiver of Jury Trial			263
SECTION 12.14 Marshaling; Payments Set Aside			263
SECTION 12.15 Execution in Counterparts; Integration; Effectiveness			264
SECTION 12.16 Electronic Execution; Electronic Records; Counterparts			264
SECTION 12.17 Confidentiality			265
SECTION 12.18 Use of Name, Logo, Etc			266
SECTION 12.19 USA PATRIOT Act Notice; Foreign Asset Control Regulations.			266
SECTION 12.20 No Advisory or Fiduciary Responsibility			267
SECTION 12.21 Severability			268
SECTION 12.22 Survival of Representations and Warranties			268
SECTION 12.23 Interest Rate Limitation			268
SECTION 12.24 Time of the Essence			269
SECTION 12.25 No Strict Construction			269


6674799.15			5


SECTION 12.26 Acceptable Intercreditor Agreements			269
SECTION 12.27 Keepwell			269
SECTION 12.28 Acknowledgment and Consent to Bail-In of Affected Financial Institutions			269
SECTION 12.29 Acknowledgement Regarding Any Supported QFCs			270
SECTION 12.30 Judgment Currency			270


6674799.15			6

Schedules

Schedule I - Revolving Credit Commitments

Schedule II - Subsidiary Guarantors

Schedule 1.1A - Existing Letters of Credit

Schedule 1.1B - Credit Card Agreements

Schedule 1.1C - Current Asset Collateral Definition
Schedule 1.1D - Freight Forwarders

Schedule 4.1(a) - Closing Date Collateral Documents

Schedule 4.1(b) - Australian Effective Date Collateral Documents

Schedule 4.1(g) - Local Counsel Opinions

Schedule 5.11 - Pension Plan Matters

Schedule 5.12 - Subsidiaries and Other Equity Investments

Schedule 8.12 - Deposit Accounts and Credit Card Processors

Schedule 8.17 - Post-Closing Obligations

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

Exhibits

Exhibit A - Form of Assignment and Assumption

Exhibit B-1 - Form of Revolving Credit Note

Exhibit C - Form of Notice of Borrowing

Exhibit D - Form of Swing Loan Request

Exhibit E - Form of Joinder Agreement

Exhibit F - Form of Interest Election Request

Exhibit G - Form of Credit Card Notification

Exhibit H - Form of Borrowing Base Certificate

Exhibit I - Reserved

Exhibit J - Form of Intercompany Subordination Agreement

Exhibit K-1 – K-4 - Form of U.S. Tax Compliance Certificates

Exhibit L - Form of Compliance Certificate

Exhibit M - Form of Solvency Certificate

Exhibit N - Form of Information Certificate


6674799.15

This CREDIT AGREEMENT, dated as of November 3, 2021, is entered into among (a) GAMESTOP CORP., a Delaware corporation (“Holdings” and the “Lead Administrative Loan Party”), as the Lead Administrative Loan Party (as defined herein) and a Guarantor (as defined herein), (b) GAMESTOP, INC., a Minnesota corporation, MARKETING CONTROL SERVICES, INC., a Minnesota corporation, GEEKNET, INC., a Delaware corporation, GAMESTOP TEXAS LTD., a Delaware corporation, SUNRISE PUBLICATIONS, INC., a Minnesota corporation, SOCOM LLC, a Delaware limited liability company, GAMESTOP PENNSYLVANIA, LLC, a Delaware limited liability company, ELECTRONICS BOUTIQUE CANADA INC., an Ontario corporation, and ELECTRONICS BOUTIQUE AUSTRALIA PTY. LIMITED, an Australian company, each as a Borrower, (c) each other Restricted Subsidiary (as defined herein) of Holdings from time to time party hereto as a Borrower, (d) GS MOBILE, INC., a Delaware corporation, ELBO, INC., a Delaware corporation, EB INTERNATIONAL HOLDINGS, INC., a Delaware corporation, and GAMESTOP GLOBAL HOLDINGS SARL, a Luxembourg private limited liability company (société a responsabilité limitée), incorporated under the laws of Luxembourg, having its registered office at 12F, rue Guillaume Kroll, L-1882, Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Register of Commerce and Companies (R.C.S. Luxembourg) under number B 142 918, each as a Guarantor (as defined herein), (e) each other Restricted Subsidiary (as defined herein) of Holdings from time to time party hereto as a Guarantor, (f) each Lender (as defined herein) from time to time party hereto, (f) WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent (in such capacity, including any successor thereto, the “Administrative Agent”), as collateral agent (in such capacity, including any successor thereto, the “Collateral Agent”) and, in its capacity as Australian security trustee (in such capacity, including any successor thereto, the “Australian Security Trustee”) under the Loan Documents, and (g) WELLS FARGO BANK, NATIONAL ASSOCIATION, BOFA SECURITIES INC., JPMORGAN CHASE BANK, N.A., REGIONS BANK, and FIFTH THIRD BANK, NATIONAL ASSOCIATINION, as Joint Lead Arrangers and Joint Bookrunners.

PRELIMINARY STATEMENTS

The Borrowers have requested that the Lenders provide a revolving credit facility, and the Lenders have indicated their willingness to lend and the Issuers (as defined below) have indicated their willingness to issue letters of credit, in each case, on the terms and subject to the conditions set forth herein.

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

ARTICLE I
DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS

SECTION 1.1 Defined Terms. As used in this Agreement, the following terms have the following meanings:

“75% Cash Consideration Basket” has the meaning assigned to such term in Section 9.5(j).

“ABL License” has the meaning specified in Section 9.5.

“Acceptable Intercreditor Agreement” means, with respect to any Indebtedness secured by any Liens on Collateral, any intercreditor agreement the terms of which are reasonably acceptable to the Lead Administrative Loan Party and the Administrative Agent.


6674799.15

“Account” means (a) “accounts” as defined in Article 9 of the UCC or in the PPSA or the Australian PPSA, as applicable, (b) all amounts owing from Credit Card Issuers and Credit Card Processors and all rights under contracts relating to the creation or collection of such amounts and (c) all rights to payment of a monetary obligation, whether or not earned by performance, (i) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (ii) for services rendered or to be rendered, or (iii) arising out of the use of a credit or charge card or information contained on or for use with the card. The term “Account” does not include (1) rights to payment evidenced by chattel paper or an instrument, (2) commercial tort claims, (3) deposit accounts, (4) investment property, or (5) letter-of-credit rights or letters of credit.

“Account Debtor” has the meaning given to such term in Article 9 of the UCC or the PPSA, as applicable, and includes any Person obligated on an Account.

“ACH” means automated clearing house transfers.

“Additional FILO Lender” has the meaning specified in Section 2.15(b).

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

“Adjustment Date” means the first day of each calendar quarter, commencing with the calendar quarter beginning on April 1, 2022.

“Administrative Agent” has the meaning specified in the introductory paragraph to this Agreement, and shall include any branches or Affiliates of Wells Fargo in its or their capacity as Administrative Agent.

“Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 12.8 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify the Lead Administrative Loan Party and the Lenders.

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

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any U.K. 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 Borrowers 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 branches and the officers, directors, employees, agents, attorney-in-fact, partners, trustees and advisors of such Persons and of such Persons’ Affiliates and branches.

“Agents” means, collectively and without duplication, (a) the Administrative Agent, (b) the Collateral Agent, (c) Australian Security Trustee, (d) each co-agent or sub-agent (if any) appointed by the


6674799.15			9

Administrative Agent or the Collateral Agent from time to time pursuant to Section 11.5, and (e) the Arrangers.

“Agreed Security Principles” has the meaning specified in the definition of “Collateral and Guarantee Requirement”.

“Aggregate Revolving Credit Commitments” means the Revolving Credit Commitments of all the Revolving Credit Lenders. As of the Closing Date, the Aggregate Revolving Credit Commitments are $500,000,000.

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

“Agreement Currency” has the meaning specified in Section 12.30.

“Alternative Currency” means each of the following currencies: Euro, Sterling, Canadian Dollars and Australian Dollars, together with each other currency (other than Dollars) that is approved in accordance with Section 1.11; provided that for each Alternative Currency, such requested currency is an Eligible Currency.

“Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or the applicable Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.

“AML Legislation” has the meaning specified in Section 11.17.

“Announcements” has the meaning specified therefor in Section 1.15 of this Agreement.

“Annual Financial Statements” means the audited consolidated balance sheets of Holdings and its Subsidiaries for the Fiscal Year ended January 30, 2021, and the related consolidated statements of operations, changes in stockholders’ equity and cash flows for Holdings and its Subsidiaries for the Fiscal Year then ended, including the notes thereto.

“Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act of 2010, as amended, the Corruption of Foreign Public Officials Act (Canada), and all other applicable Laws and regulations or ordinances concerning or relating to bribery, money laundering or corruption in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business.

“Anti-Money Laundering Laws” means the applicable Laws or regulations in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto.

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

“Applicable Margin” means:


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(a) with respect to the Revolving Credit Facility, Revolving Loans, Swing Loans and Letters of Credit:

(i) from and after the Closing Date until the first Adjustment Date, the applicable percentage set forth in the table below corresponding to Level I, and

(ii) thereafter, the applicable percentage set forth in the table below based upon Average Historical Excess Availability as of the most recent Adjustment Date:


Level	Average Historical Excess Availability	LIBOR Rate Loans, Canadian BA Rate Loans, EURIBOR Term Rate Loans, and Australian Bill Rate Loans	Base Rate Loans and Canadian Base Rate Loans	SONIA Rate, EURIBOR Base Rate Loans, and Australian Base Rate Loans	Letter of Credit Fees
I	Greater than or equal to 50% of the Aggregate Revolving Credit Commitments	1.250%	0.250%	1.250%	1.250%
II	Less than 50% of the Aggregate Revolving Credit Commitments	1.500%	0.500%	1.500%	1.500%

(b) [reserved];

(c) with respect to any Revolving Loans, Letters of Credit and Swing Loans under Revolving Credit Commitments of any Revolving Extension Series or FILO Incremental Loans under any FILO Extension Series, the “Applicable Margin” set forth in the Incremental FILO Amendment, Revolving Extension Amendment or the FILO Extension Amendment (as applicable) relating thereto.

The Applicable Margin shall be adjusted quarterly in accordance with the table set forth 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 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 by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under any Debtor Relief Laws, automatically and without further action by the Administrative Agent, any Lender or any Issuer). If at any time the Aggregate Revolving Credit Commitments shall have been terminated pursuant to Section 10.2, the Applicable Margin shall be the applicable percentages per annum in effect on the date of the termination of the Aggregate Revolving Credit Commitments pursuant to Section 10.2, with respect to any outstanding Obligations.


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“Applicable Time” means, with respect to any Borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent or the applicable Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.

“Appropriate Lender” means, at any time, (a) with respect to the Revolving Credit Facility, a Lender that has a Commitment with respect to the Revolving Credit Facility or holds a Revolving Loan, respectively (or as applicable and as the context shall require, a Lender that has a Class of Commitments under the applicable Facility or holds a specified Class of Loans under the applicable Facility) at such time, (b) with respect to the Letter of Credit Sublimit, (i) each applicable Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.4, the Revolving Credit Lenders and (c) with respect to the Swing Loan Sublimit, (i) the Swing Loan Lender and (ii) if any Swing Loans are outstanding pursuant to Section 2.3, the Revolving Credit Lenders.

“Approved Account Bank” means an Approved U.S. Account Bank, an Approved Luxembourg Account Bank, an Approved Canadian Account Bank or an Approved Australian Account Bank, as the context may require.

“Approved Australian Account Bank” means a financial institution (or branch thereof) located in Australia at which any Loan Party maintains an Approved Australian Deposit Account.

“Approved Australian Deposit Account” means each Deposit Account located in Australia in respect of which any Loan Party and the Collateral Agent shall have established an Approved Control Arrangement.

“Approved Canadian Account Bank” means a financial institution (or branch thereof) located in Canada at which any Loan Party maintains an Approved Canadian Deposit Account.

“Approved Canadian Deposit Account” means each Deposit Account located in Canada in respect of which any Loan Party and the Collateral Agent shall have established an Approved Control Arrangement.

“Approved Control Arrangements” means (a) with respect to any Deposit Account at a depository bank located in the United States, delivery of a Deposit Account Control Agreement, (b) with respect to any Deposit Account at a depository bank located in Canada, either (i) if acceptable to the relevant depository bank, delivery of a Deposit Account Control Agreement or (ii) other arrangements reasonably satisfactory to the Administrative Agent under applicable Law to create a perfected security interest in such Deposit Account (and all funds therein) and to address the requirements hereunder upon a Cash Dominion Period, (c) with respect to any Deposit Account at a depository bank located in Australia, delivery of a Deposit Account Control Agreement, and (d) with respect to any Deposit Account at a depository bank located in any other jurisdiction (including Luxembourg), either (i) if acceptable to the relevant depository bank, delivery of a Deposit Account Control Agreement (including a Luxembourg Account Pledge Agreement), or (ii) delivery of a notice of charge, pledge or security assignment or other interest from the Collateral Agent or applicable Loan Party in customary form and receipt of a written acknowledgement from the applicable depository bank confirming that it acknowledges the terms of the notice of charge and will comply with the terms thereof (which shall, in any event, specify that upon the occurrence of a Cash Dominion Period, the Administrative Agent shall be entitled to serve a notice on the depository bank notifying it that instructions in respect of such Deposit Account may only be given by the Administrative Agent).


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“Approved Deposit Account” means an Approved U.S. Deposit Account, an Approved Luxembourg Deposit Account, an Approved Canadian Deposit Account or an Approved Australian Deposit Account, as the context may require.

“Approved Deposit Collection Account” means an Approved Deposit Account that is used solely by a Loan Party for purposes of the receipt of Cash Receipts and other payments and proceeds of Collateral in accordance with the terms hereof, including the Deposit Accounts identified as “Collection Accounts” on Schedule 8.12.

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

“Approved Luxembourg Account Bank” means a financial institution (or branch thereof) located in Luxembourg at which any Loan Party maintains an Approved Luxembourg Deposit Account.

“Approved Luxembourg Deposit Account” means each Deposit Account located in Luxembourg in respect of which any Loan Party and the Collateral Agent shall have established an Approved Control Arrangement

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

“Approved Securities Intermediary” means a securities intermediary at which any Loan Party maintains an Approved Securities Account.

“Approved U.S. Account Bank” means a financial institution (or branch thereof) located in the United States at which any Loan Party maintains an Approved U.S. Deposit Account.

“Approved U.S. Deposit Account” means each Deposit Account located in the United States in respect of which any Loan Party and the Collateral Agent shall have established an Approved Control Arrangement.

“Arrangers” means Wells Fargo Bank, National Association, BofA Securities Inc., JPMorgan Chase Bank, N.A., Regions Bank, and Fifth Third Bank, National Association, each in its capacity as a joint lead arranger and joint bookrunner under this Agreement.

“Assets Acquisition Date” means, with respect to any assets acquired in a Permitted Acquisition or other Investment permitted by this Agreement, the date of the consummation of the applicable Permitted Acquisition or other Investment.

“Assets Diligence Date” means, with respect to any assets acquired in a Permitted Acquisition or other Investment permitted by this Agreement or any assets that are held by a Subsidiary that is designated as a Borrower pursuant to Section 2.14(e), the earlier of (a) the date that is ninety (90) days after (i) in the case of assets acquired in a Permitted Acquisition or other Investment, the consummation of the applicable Permitted Acquisition or other Investment or (ii) in the case of assets held by a newly designated Borrower, the date such Subsidiary becomes a Borrower hereunder, as applicable, and (b) the date a Field Examination and/or Inventory Appraisal requested by the Administrative Agent in its Permitted Discretion, as applicable, covering such assets is completed.

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


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“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 (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.

“Assignment Tax” has the meaning specified in the definition of “Other Taxes”.

“Attorney Costs” means all reasonable and documented fees, expenses and disbursements of any law firm or other external legal counsel.

“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.

“Australia” means the Commonwealth of Australia.

“Australian Base Rate” means, for any day, the Australian Bank Bill Swap Reference Rate (Bid) as administered by ASX Benchmarks Pty Limited (or any other Person that takes over the administration of such rate) for a tenor equal to three (3) months displayed on the Australian Bill Rate Screen Rate at or about 11:00 am (Sydney, Australia time) (or such other time at which such rate customarily appears on that page, including if corrected, as recalculated and republished by the relevant administrator) on any relevant day (and, if such rate is below zero, the Australian Base Rate shall be deemed to be zero). When interest is determined in relation to Australian Base Rate, each change in the interest rate will become effective each Business Day that Administrative Agent determines that the Australian Base Rate has changed.

“Australian Base Rate Loan” means a Loan to an Australian Borrower that bears interest at a rate based on the Australian Base Rate. All Australian Base Rate Loans shall be denominated in Australian Dollars.

“Australian Bill Rate” means, with respect to an Interest Period, the Australian Bank Bill Swap Reference Rate (Bid) as administered by ASX Benchmarks Pty Limited (or any other Person that takes over the administration of such rate) for a tenor equal to such Interest Period displayed on the Australian Bill Rate Screen Rate, at or about 11:00 am (Sydney, Australia time) (or such other time at which such rate customarily appears on that page, including if corrected, as recalculated and republished by the relevant administrator) (2) Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period displayed on the Australian Bill Rate Screen (and, if such rate is below zero, the Australian Bill Rate shall be deemed to be zero).

“Australian Bill Rate Loan” means a Loan to an Australian Borrower that bears interest at a rate based on the Australian Bill Rate. All Australian Bill Rate Loans shall be denominated in Australian Dollars.

“Australian Bill Rate Screen Rate” means page BBSY of the Thomson Reuters screen, or, in the event such rate does not appear on a Thomson Reuters page or screen, on any successor or substitute page on such screen or service that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent after consultation with the Lead Administrative Loan Party.

“Australian Borrower” means any Borrower incorporated or organized under the Laws of Australia or a state or territory thereof.


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“Australian Borrowing Base” means, as of the date of determination thereof, on and after the Australian Effective Date, an amount equal to:

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

(b) the Net Recovery Percentage of Eligible Inventory of Australian Borrowers, multiplied by the Inventory Advance Rate, multiplied by the Cost of Eligible Inventory of Australian Borrowers, net of Inventory Reserves attributable to Eligible Inventory of Australian Borrowers; plus

(d) 100% of Qualified Cash of Australian Borrowers; minus

(e) Availability Reserves attributable to Australian Borrowers.

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

“Australian Collateral Documents” means (a) the Australian General Security Deed, (b) the Australian Specific Security Deed, (c) the Australian Security Trust Deed, (d) any Australian Security Agreement Supplement and (e) any other security document executed at any time by any Australian Loan Party to secure the Obligations or a Guarantee of the Obligations, in each case, together with all extensions, renewals, amendments, supplements, modifications, substitutions and replacements thereto and thereof.

“Australian Corporations Act” means the Corporations Act 2001 (Cth) of Australia.

“Australian Dollars” or “AUS$” means the lawful currency of Australia.

“Australian Effective Date” has the meaning set forth in Section 4.3.

“Australian General Security Deed” means the general security deed to be entered by each Australian Loan Party and the Australian Security Trustee, in form and substance reasonably satisfactory to Administrative Agent.

“Australian IWT” means any Taxes required to be withheld or deducted from any interest payment under Division 11A of Part III of the Australian Tax Act or Subdivision 12-F of Schedule 1 to the Taxation Administration Act 1953 (Cth).

“Australian LC Disbursement” means a payment made by an applicable Issuer pursuant to a drawing on an Australian Letter of Credit or pursuant to an Australian Reimbursement Undertaking.

“Australian LC Exposure” means, at any time of determination, the sum of (a) the aggregate undrawn amount of all outstanding Australian Letters of Credit at such time plus (b) the aggregate amount of all Australian LC Disbursements that have not yet been reimbursed by or on behalf of the Australian Borrowers or any other Australian Loan Party at such time less (c) the amount of Letter of Credit Collateralization in respect of Australian Letters of Credit. The Australian LC Exposure of any Revolving Lender at any time shall be its Pro Rata Share of the total Australian LC Exposure at such time.


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“Australian Letter of Credit” means a Letter of Credit issued by an applicable Issuer for the account of an Australian Borrower pursuant to this Agreement.

“Australian Letter of Credit Sublimit” means the Dollar Equivalent of $10,000,000.

“Australian Loan Cap” means an amount equal to the lesser of (a) the Australian Borrowing Base and (b) the Australian Loan Limit.

“Australian Loan Limit” means the Dollar Equivalent of $25,000,000.

“Australian Loan Party” means any Loan Party incorporated or organized under the Laws of Australia or a state or territory thereof.

“Australian Loans” means, individually and collectively as the context may require, the Australian Revolving Loans, Australian Swing Loans and the Australian Protective Advances.

“Australian Obligations” means Obligations of Australian Loan Parties.

“Australian Overadvance” means, as of any date of determination, the amount of any Australian Revolver Usage in excess of the Australian Loan Cap.

“Australian Pension Plan” means a superannuation, retirement benefit or pension fund (whether established by deed or under any statute of Australia or any state or territory of Australia) contributed to by, or to which there is or may be an obligation to contribute by, any Loan Party in respect of its Australian employees and officers or former employees and officers.

“Australian PPSA” means the Personal Property Securities Act 2009 (Cth) of Australia.

“Australian Priority Payables Reserves” means, as of any date of determination, an Availability Reserve, in such amount as the Administrative Agent may determine in its Permitted Discretion to reflect amounts secured by any Liens, choate or inchoate, or with respect to any rights, whether imposed by applicable law in Australia or elsewhere (and including rights to the payment or reimbursement of any costs, charges or other amounts in connection with any insolvency proceeding), which rank or are capable of ranking in priority to (or pari passu) the Liens on the Current Asset Collateral in favor of Collateral Agent or the Australian Security Trustee including, without limitation, to the extent applicable by operation of law, any such amounts due or which may become due and not paid for wages, long service leave, retrenchment, payment in lieu of notice, or vacation pay (including in all respects amounts protected by or payable pursuant to the Fair Work Act 2009 (Cth)) of Australia, any preferential claims as set out in the Australian Corporations Act, amounts due or which may become due and not paid under any legislation relating to workers’ compensation or to employment insurance, all amounts deducted or withheld and not paid and remitted when due under the Taxation Administration Act 1953 (Cth) (but excluding Pay as You Go income withholding tax) and amounts in the future, currently or past due and not contributed, remitted or paid in respect of any Australian Pension Plan, together with any charges which may be levied by a Governmental Authority as a result of any default in payment obligations in respect of any Australian Pension Plan.

“Australian Protective Advance” means a Protective Advance to or for the account of an Australian Borrower.

“Australian Revolver Usage” means, as of any date of determination, without duplication, the sum of (a) the principal amount of outstanding Australian Loans (including Australian Revolving Loans, Australian Swing Loans and Australian Protective Advances), plus (b) the sum of (i) the aggregate


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undrawn amount of all outstanding Australian Letters of Credit, plus (ii) the aggregate amount of outstanding reimbursement obligations with respect to Australian Letters of Credit which remain unreimbursed or which have not been paid through a Australian Revolving Loan.

“Australian Security Agreement Supplement” has the meaning given to the term Accession Deed specified in the applicable Australian Collateral Document.

“Australian Security Trust Deed” means the security trust deed to be executed by and among the Luxembourg Guarantor, each Australian Loan Party and the Australian Security Trustee in form and substance reasonably satisfactory to the Administrative Agent.

“Australian Security Trustee” shall have the meaning set forth in the preamble to this Agreement and shall include its successors and assigns.

“Australian Specific Security Deed” means the specific security deed to be entered by the Luxembourg Guarantor and the Australian Security Trustee, in form and substance reasonably satisfactory to the Administrative Agent.

“Australian Subsidiary” means a Subsidiary that is organized or incorporated under the laws of Australia.

“Australian Swing Loan” means any Swing Loan made to an Australian Borrower.

“Australian Swing Loan Limit” means the Dollar Equivalent of $5,000,000.

“Australian Tax Act” shall mean the Income Tax Assessment Act 1936 (Cth) of Australia or the Income Tax Assessment Act 1997 (Cth) of Australia, as applicable.

“Australian Tax Consolidated Group” shall mean a “consolidated group” or an “MEC group” as defined in the Australian Tax Act.

“Australian TFA” means any tax funding agreement for Australian tax consolidation purposes.

“Australian TSA” means an agreement between the members of an Australian Tax Consolidated Group which takes effect as a tax sharing agreement under section 721-25 of the applicable Australian Tax Act and complies with the applicable Australian Tax Act and any applicable law, official directive, request, guideline or policy (whether or not having the force of law) issued in connection with the applicable Australian Tax Act.

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if the then-current Benchmark is a term rate, any tenor for such Benchmark or (b) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 3.4(c)(iv); provided, that if the then-current Benchmark is based upon SOFR Average, such Benchmark shall be deemed to not have any Available Tenors.

“Availability Reserves” means, subject to Section 1.16 hereof:

(a) Without duplication of any other Reserves or items that are otherwise addressed or excluded through eligibility criteria, such reserves as the Administrative Agent from time to time determines in its


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Permitted Discretion as being appropriate (i) to reflect the impediments to the Collateral Agent’s ability to realize upon the assets included in any Revolving Borrowing Base, (ii) to reflect claims and liabilities that the Administrative Agent determines will need to be satisfied in connection with the realization upon the assets included in any Revolving Borrowing Base or (iii) to reflect criteria, events, conditions, contingencies or risks which adversely affect any component of any Revolving 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.

(b) Without limiting the generality of the foregoing clause (a), such Availability Reserves may include (but are not limited to): (i) the Dilution Reserve; (ii) the Canadian Priority Payables Reserve; (iii) the Canadian Wage Earner Protection Act Reserve; (iv) the Australian Priority Payables Reserve; (v) the Rent and Charges Reserve; (vi) the Customer Credit Liability Reserve; (vii) reserves in respect of outstanding Taxes and other governmental charges, including, without limitation, ad valorem, real estate, personal property, sales, and other Taxes which are pari passu to or would have priority over the interests of the Collateral Agent in the Current Asset Collateral; (viii) reserves in respect of freight, customs duties, and other costs to release imported Inventory; (ix) during the continuance of a Cash Dominion Period, reserves in respect of salaries, wages and benefits due to employees of the Loan Parties; (x) reserves based on Liens permitted under Section 9.1 which are pari passu with or would have priority over the interests of the Collateral Agent in the Current Asset Collateral; (xi) without duplication of any Designated Bank Product Reserve, reserves in respect of Cash Management Obligations; provided that reserves of the type described in this clause (xi) in respect of such Cash Management Obligations shall not be established unless either Excess Availability is less than thirty percent (30%) of the Total Revolving Loan Cap or an Event of Default is continuing; (xii) without duplication of any Designated Bank Product Reserve, reserves in respect of Obligations in respect of Secured Hedge Agreements; provided that reserves of the type described in this clause (xii) in respect of such Obligations shall not be established unless either Excess Availability is less than thirty percent (30%) of the Total Revolving Loan Cap or an Event of Default is continuing; (xiii) Designated Bank Product Reserves; (xiv) reserves in respect of accrued and unpaid royalties payable in connection with Inventory of the Borrowers subject to intellectual property licensing arrangements with third parties; (xiv) reserves in respect of self-insured group health plan liabilities of the Loan Parties and their Subsidiaries; (xv) reserves in respect of accrued payables in respect of Inventory consigned to the Loan Parties and their Subsidiaries or that is subject to any title retention agreements; and (xvi) reserves in respect of potential changes in currency values between currencies in which Loans are made or Letters of Credit issued and the currencies of Eligible Credit Card Receivables.

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

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

“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement 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 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).


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“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.

“Bank Levy” means any amount payable by any Tax Indemnitee or any of its Affiliates on the basis of, or in relation to, its balance sheet or capital base or any part of that person or its liabilities or minimum regulatory capital or any combination thereof and any other levy or tax in any jurisdiction levied on a similar basis or for a similar purpose), to the extent applying to that Tax Indemnitee or its Affiliates as at the date that Tax Indemnitee became a party to this Agreement as a Lender, Issuer or Agent (as the case may be).

“Bank Product Reserves” means, reserves of the types described in clauses (xi), (xii) and (xiii) of the definition of “Availability Reserve” in respect of Secured Hedge Agreements and Cash Management Obligations owing to a Secured Party, the amount of which may be based on the determination by the applicable Secured Party to whom such liabilities and obligations are owing.

“Base Rate” means the highest of (a) the Federal Funds Rate plus one-half percent (0.50%), (b) the one month LIBOR Rate (but if the LIBOR Rate at any time is below zero, the LIBOR Rate shall be deemed to be zero), plus one percent (1.00%), and (c) the rate of interest announced, from time to time, within Wells Fargo at its principal office in San Francisco as its “prime rate”, with the understanding that the “prime rate” is one of Wells Fargo’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as Wells Fargo may designate. The Base Rate shall in no event be less than zero.

“Base Rate Loan” means a Loan to a U.S. Borrower or a Canadian Borrower that bears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.

“Benchmark” means, initially, USD LIBOR; provided that if a Benchmark Transition Event, a Term SOFR Transition Event, or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to USD LIBOR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 3.4(c)(i).

“Benchmark Replacement” means,

(a) with respect to any Benchmark Transition Event or Early Opt-in Election, the first alternative set forth in the order below that can be determined by Administrative Agent for the applicable Benchmark Replacement Date:

(i) for any Available Tenor, the sum of: (A) Term SOFR and (B) the related Benchmark Replacement Adjustment;

(ii) the sum of: (A) SOFR Average and (B) the related Benchmark Replacement Adjustment;

(iii) for any Available Tenor (if applicable), the sum of: (A) the alternate benchmark rate that has been selected by Administrative Agent and Lead Administrative Loan Party as the replacement for the then-current Benchmark for the applicable Corresponding Tenor (if applicable) giving due consideration to (1) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (2) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current


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Benchmark for Dollar-denominated syndicated credit facilities at such time and (B) the related Benchmark Replacement Adjustment; or

(b) with respect to any Term SOFR Transition Event, for any Available Tenor (if applicable), the sum of (i) Term SOFR and (ii) the related Benchmark Replacement Adjustment;

provided that, (x) in the case of clause (a)(i), if Administrative Agent decides that Term SOFR is not administratively feasible for Administrative Agent, then Term SOFR will be deemed unable to be determined for purposes of this definition and (y) in the case of clause (a)(i) or clause (b) of this definition, the applicable Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by Administrative Agent in its discretion. If the Benchmark Replacement as determined pursuant to clause (a)(i), (a)(ii) or (a)(iii) or clause (b) of this definition would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor (if applicable) for any setting of such Unadjusted Benchmark Replacement:

(a) for purposes of clauses (a)(i) and (b) of the definition of “Benchmark Replacement,” an amount equal to (A) 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, (B) 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration and (C) 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration, except if the Administrative Agent, Lenders and the Lead Administrative Loan Party each otherwise agree, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) may be such other percentages or method as are selected by the Administrative Agent and the Lead Administrative Loan Party giving due consideration to (A) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with Term SOFR by the Relevant Governing Body or (B) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with Term SOFR for U.S. dollar-denominated syndicated credit facilities at such time;

(b) for purposes of clause (a)(ii) of the definition of “Benchmark Replacement,” an amount equal to 0.11448% (11.448 basis points), except if the Administrative Agent, Lenders and the Lead Administrative Loan Party each otherwise agree, the spread adjustment may be such other percentage as is selected or recommended by the Relevant Governmental Body for the replacement of the tenor of USD LIBOR with a SOFR-based rate having approximately the same length as the frequency of interest payments required pursuant to Section 3.4(c)(i);

(c) for purposes of clause (a)(iii) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by Administrative Agent and Lead Administrative Loan Party giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Available Tenor (if applicable) of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Available Tenor (if applicable) of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities.


6674799.15			20

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including, as and to the extent applicable, changes to the definition of “Base Rate,” the definition of “SONIA Rate”, “Canadian BA Rate”, “Canadian Base Rate”, “CDOR Rate”, “EURIBOR”, “LIBOR Rate”, “Australian Bill Rate”, “Australian Base Rate”, the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that Administrative Agent decides, in consultation with Lead Administrative Loan Party, may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:

(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors (if applicable) of such Benchmark (or such component thereof);

(b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein;

(c) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after Administrative Agent has provided the Term SOFR Notice to the Lenders and the Lead Administrative Loan Party pursuant to Section 3.4(c)(i)(2); or

(d) in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as Administrative Agent has not received, by 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Requisite Lenders.

For the avoidance of doubt, (A) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (B) if the then-current Benchmark has any Available Tenors, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:

(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such


6674799.15			21

administrator has ceased or will cease to provide all Available Tenors (if applicable)of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor (if applicable) of such Benchmark (or such component thereof);

(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors (if applicable) of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor (if applicable) of such Benchmark (or such component thereof); or

(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors (if applicable) of such Benchmark (or such component thereof) are no longer representative.

For the avoidance of doubt, if the then-current Benchmark has any Available Tenors, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Unavailability Period” means the period (if any) (a) beginning at the time that a Benchmark Replacement Date pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.4(c) and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.4(c).

“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.

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

“Board of Directors” means, for any Person, the board of directors or board of managers (or equivalent governing body) of such Person or, if such Person does not have such a board of directors or board of managers (or equivalent governing body) and is owned or managed by another entity or entities, the board of directors or board of managers (or equivalent governing body) of such entity or entities.

“Borrower Materials” has the meaning specified in Section 7.2.

“Borrowers” means, collectively, (a) each wholly-owned Restricted Subsidiary of Holdings organized or incorporated in a Covered Jurisdiction that is identified as a Borrower on the signature pages


6674799.15			22

hereto, and (b) each other wholly-owned Restricted Subsidiary of Holdings that becomes a Borrower hereunder in accordance with the terms of this Agreement.

“Borrowing” means a borrowing consisting of Loans of the same Class, Type and currency made, converted or continued on the same date and, in the case of LIBOR Rate Loans, Australian Bill Rate Loans, EURIBOR Term Rate Loans or Canadian BA Rate Loans, having the same Interest Period.

“Borrowing Base Certificate” means a certificate of the Lead Administrative Loan Party substantially in the form of Exhibit H, duly executed by a Responsible Officer of the Lead Administrative Loan Party.

“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 jurisdiction where the Administrative Agent’s Offices in Boston are located or, solely with respect to any interest rate settings, any fundings, disbursements, settlements and payments in any Alternative Currency, or any other dealings in any Alternative Currency, the jurisdiction where the Administrative Agent’s Offices in London are located and:

(a) if such day relates to any interest rate settings as to a LIBOR Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such LIBOR Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such LIBOR Rate Loan, means any such day that is also a London Banking Day;

(b) if such day relates to any interest rate settings as to a EURIBOR Term Rate Loan or EURIBOR Base Rate Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such EURIBOR Rate Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Loan, means a TARGET Day;

(c) if such day relates to any interest rate settings as to a Canadian BA Rate Loan or a Canadian Base Rate Loan denominated in Canadian Dollars, any fundings, disbursements, settlements and payments in Canadian Dollars in respect of any such Loan, or any other dealings in Canadian Dollars to be carried out pursuant to this Agreement in respect of any such Loan, means any such day on which dealings in deposits in Canadian Dollars are conducted by and between banks in the Toronto, Ontario interbank market for Canadian Dollars;

(d) if such day relates to any interest rate settings as to a SONIA Rate Loan, any fundings, disbursements, settlements and payments in Sterling in respect of any such SONIA Rate Loan, or any other dealings in Sterling to be carried out pursuant to this Agreement in respect of any such SONIA Rate Loan, means any such day other than a day on which banks are closed for general business in London because such day is a Saturday, Sunday or a legal holiday under the laws of the United Kingdom;

(e) if such day relates to any interest rate settings as to an Australian Bill Rate Loan or an Australian Base Rate Loan denominated in Australian Dollars, any fundings, disbursements, settlements and payments in Australian Dollars in respect of any such Loan, or any other dealings in Australian Dollars to be carried out pursuant to this Agreement in respect of any such Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the Sydney, Australia interbank market for Australian Dollars;

(f) if such day relates to any interest rate settings as to a Loan denominated in a currency other than Dollars, Australian Dollars, Sterling, Canadian Dollars or Euro, means any such day on which dealings in


6674799.15			23

deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency; and

(g) if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars, Canadian Dollars, Australian Dollars, Sterling or Euro in respect of a Loan denominated in a currency other than Dollars, Canadian Dollars, Australian Dollars, Sterling or Euro, or any other dealings in any currency other than Dollars, Canadian Dollars, Australian Dollars, Sterling or Euro to be carried out pursuant to this Agreement in respect of any such Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.

“Business Optimization Initiative” means any asset sale, acquisition, merger, amalgamation, business combination, Investment, Disposition, operating improvement, restructuring, cost saving initiative and/or other similar initiative (including the entry into or renegotiation of, or in respect of which binding commitments have been entered for, any contract and/or other arrangement), any specified transaction and any plan.

“Canadian BA Rate” means the CDOR Rate.

“Canadian BA Rate Loan” means a Loan to a Canadian Borrower that bears interest at a rate based on the Canadian BA Rate. All Canadian BA Rate Loans shall be denominated in Canadian Dollars.

“Canadian Base Rate” means, for any day, a rate per annum equal to the greater of (a) the CDOR Rate existing on such day (which rate shall be calculated based upon an Interest Period of one (1) month), plus one percent (1.00%), and (b) the “prime rate” for Canadian Dollar commercial loans made in Canada as reported by Thomson Reuters under Reuters Instrument Code <CAPRIME=> on the “CA Prime Rate (Domestic Interest Rate) – Composite Display” page (or any successor page or such other commercially available service or source (including the Canadian Dollar “prime rate” announced by The Toronto-Dominion Bank or such other Schedule I bank under the Bank Act (Canada)) as Administrative Agent may designate from time to time). Each determination of the Canadian Base Rate shall be made by Administrative Agent and shall be conclusive in the absence of manifest error. The Canadian Base Rate shall in no event be less than zero.

“Canadian Base Rate Loan” means a Loan to a Canadian Borrower that bears interest at a rate based on the Canadian Base Rate. All Canadian Base Rate Loans shall be denominated in Canadian Dollars.

“Canadian Borrower” means any Borrower incorporated or organized under the Laws of Canada or a province or territory thereof.

“Canadian Borrowing Base” means, as of the date of determination thereof, the Dollar Equivalent amount equal to:

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

(b) the Net Recovery Percentage of Eligible Inventory (other than Eligible In-Transit Inventory) of Canadian Borrowers, multiplied by the Inventory Advance Rate, multiplied by the Cost of Eligible Inventory of Canadian Borrowers (other than Eligible In-Transit Inventory), net of Inventory Reserves attributable to Eligible Inventory (other than Eligible In-Transit Inventory) of Canadian Borrowers; plus


6674799.15			24

(c) the Net Recovery Percentage of Eligible In-Transit Inventory of Canadian Borrowers, multiplied by the Inventory Advance Rate, multiplied by the Cost of Eligible In-Transit Inventory of Canadian Borrowers, net of Inventory Reserves attributable to Eligible In-Transit Inventory of Canadian Borrowers, provided, that, notwithstanding anything to the contrary contained herein, in no event shall any Eligible In-Transit Inventory of Canadian Borrowers initially be included in the calculation of the Canadian. Borrowing Base unless and until Administrative Agent has agreed in writing after the Closing Date to include such Eligible In-Transit Inventory in the Canadian Borrowing Base in its Permitted Discretion; plus

(d) the U.S. Allocated Availability; plus

(e) 100% of Qualified Cash of Canadian Borrowers; minus

(f) Availability Reserves attributable to Canadian Borrowers.

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

“Canadian Collateral Documents” means, collectively, (a) the Canadian Security Agreement, (b) the Canadian Security Agreement Supplements, (c) the Canadian Intellectual Property Security Agreements, (d) the Canadian Deed of Hypothec, and (e) each of the other agreements, deeds of hypothec, pledge agreements, mortgages, instruments or documents that creates or purports to create a Lien to secure the Secured Obligations or a Guarantee of the Secured Obligations, in each case, in favor of the Administrative Agent or the Collateral Agent for the benefit of the Secured Parties, and that are governed by the Laws of Canada or any province or territory thereof.

“Canadian Deed of Hypothec” means the deed of hypothec, dated on or prior to the Closing Date, among the Loan Parties party thereto and the Collateral Agent (in its capacity as the hypothecary representative of the applicable Secured Parties as contemplated under Article 2692 of the Civil Code of Quebec), as may be amended, amended and restated, restated, supplemented or otherwise modified from time to time.

“Canadian Defined Benefit Plan” means a Canadian Pension Plan that contains a “defined benefit provision”, as such term is defined in Section 147.1(1) of the ITA.

“Canadian Dollar”, “CAD” and “CAD $” mean the lawful currency of Canada.

“Canadian Economic Sanctions and Export Control Laws” means any Canadian laws, regulations or orders governing transactions in controlled goods or technologies or dealings with countries, entities, organizations, or individuals subject to economic sanctions and similar measures, including the Special Economic Measures Act (Canada), the United Nations Act (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada), Part II.1 of the Criminal Code (Canada) and the Export and Import Permits Act (Canada), and any related regulations.

“Canadian Excess Availability” means at any time, the amount equal to (a) the Canadian Loan Cap at such time minus (b) Canadian Revolver Usage at such time.

“Canadian Intellectual Property Security Agreements” has the meaning specified in the Canadian Security Agreement.

“Canadian LC Disbursement” means a payment made by an applicable Issuer pursuant to a drawing on a Canadian Letter of Credit or pursuant to a Canadian Reimbursement Undertaking.


6674799.15			25

“Canadian LC Exposure” means, at any time of determination, the sum of (a) the aggregate undrawn amount of all outstanding Canadian Letters of Credit at such time plus (b) the aggregate amount of all Canadian LC Disbursements that have not yet been reimbursed by or on behalf of the Canadian Borrowers or any other Canadian Loan Party at such time less (c) the amount of Letter of Credit Collateralization in respect of Canadian Letters of Credit. The Canadian LC Exposure of any Revolving Lender at any time shall be its Pro Rata Share of the total Canadian LC Exposure at such time.

“Canadian Letter of Credit” means a Letter of Credit issued by an applicable Issuer or by a Canadian Underlying Issuer for the account of a Canadian Borrower pursuant to this Agreement.

“Canadian Letter of Credit Sublimit” means the Dollar Equivalent of $10,000,000.

“Canadian Loan Cap” means an amount equal to the lesser of (a) the Canadian Borrowing Base and (b) the Canadian Loan Limit.

“Canadian Loan Limit” means the Dollar Equivalent of $50,000,000.

“Canadian Loan Party” means any Loan Party incorporated or organized under the Laws of Canada or a province or territory thereof.

“Canadian Loans” means, individually and collectively as the context may require, the Canadian Revolving Loans, the Canadian Swing Loans, and the Canadian Protective Advances.

“Canadian Obligations” means Obligations of Canadian Loan Parties.

“Canadian Overadvance” means, as of any date of determination, the amount of any Canadian Revolver Usage in excess of the Canadian Loan Cap.

“Canadian Pension Event” means (a) the whole or partial withdrawal of a Canadian Loan Party from a Canadian Defined Benefit Plan during a plan year; (b) the filing of a notice of intent to terminate in whole or in part a Canadian Defined Benefit Plan; (c) the treatment by a Governmental Authority of a Canadian Defined Benefit Plan amendment as a termination or partial termination; or (d) the appointment of a trustee by a Governmental Authority to administer a Canadian Defined Benefit Plan.

“Canadian Pension Plan” means a pension plan that is required to be registered under applicable Canadian federal or provincial pension benefits standards legislation, and that is sponsored or maintained by any Loan Party in respect of its Canadian employees or former employees, but, for the avoidance of doubt, does not include any statutory plans such as the Canada Pension Plan and the Quebec Pension Plan.

“Canadian Priority Payables Reserve” means, as of any date of determination, an Availability Reserve in such amount as the Administrative Agent may determine in its Permitted Discretion to reflect amounts secured by any Liens, choate or inchoate, which rank or are capable of ranking in priority to the Liens of the Collateral Agent on the Current Asset Collateral and/or for amounts which may represent costs relating to the enforcement of the Liens of the Collateral Agent on the Current Asset Collateral, including any such amounts due and not paid for wages, vacation pay, severance pay, amounts due and not paid under any legislation relating to workers’ compensation or to employment insurance, all amounts deducted or withheld and not paid and remitted when due under the ITA, sales tax, goods and services tax, harmonized sales tax, excise tax, tax payable pursuant to Part IX of the Excise Tax Act (Canada) or similar applicable provincial legislation, government royalties, amounts currently or past due and not paid for realty, municipal or similar taxes (to the extent impacting personal or movable property), all amounts due and not contributed, remitted or paid to any Canadian Pension Plans (including all unfunded wind up


6674799.15			26

or solvency deficiency amounts), as required by the PBA, or under the Canada Pension Plan or the Quebec Pension Plan, and all amounts in respect of similar statutory or other claims, in each case, that would have or would reasonably be expected to have priority over or rank pari passu with any Liens of the Collateral Agent on the Current Asset Collateral in Canada now or in the future, other than amounts included in the Canadian Wage Earner Protection Act Reserve.

“Canadian Protective Advance” means a Protective Advance to or for the account of a Canadian Borrower.

“Canadian Reimbursement Undertaking” has the meaning assigned to it in Section 2.4(a).

“Canadian Revolver Usage” means, as of any date of determination, without duplication, the sum of (a) the principal amount of outstanding Canadian Loans (including Canadian Revolving Loans, Canadian Swing Loans and Canadian Protective Advances), plus (b) the sum of (i) the aggregate undrawn amount of all outstanding Canadian Letters of Credit, plus (ii) the aggregate amount of outstanding reimbursement obligations with respect to Canadian Letters of Credit which remain unreimbursed or which have not been paid through a Canadian Revolving Loan.

“Canadian Revolving Loans” means Revolving Loans to or for the account of a Canadian Borrower.

“Canadian Security Agreement” means the Canadian Security Agreement, dated as of the Closing Date, among the Loan Parties party thereto and the Collateral Agent, as may be amended, amended and restated, restated, supplemented or otherwise modified from time to time.

“Canadian Security Agreement Supplement” has the meaning specified in the Canadian Security Agreement.

“Canadian Subsidiary” means any Subsidiary formed under the laws of Canada or any province or territory thereof.

“Canadian Swing Loan” means any Swing Loan made to or for the account of a Canadian Borrower.

“Canadian Swing Loan Limit” means the Dollar Equivalent of $5,000,000.

“Canadian Underlying Issuer” means The Toronto-Dominion Bank or one of its Affiliates or such other Person that is acceptable to Administrative Agent in its Permitted Discretion.

“Canadian Wage Earner Protection Act Reserve” means, as of any date of determination, an Availability Reserve in such amount as the Administrative Agent may determine in its Permitted Discretion to reflect the amounts that may become due under the Wage Earner Protection Program Act (Canada) or secured by Section 81.3 or Section 81.4 of the Bankruptcy and Insolvency Act (Canada) with respect to the employees of any Loan Party employed in Canada which would give rise to a Lien on the Current Asset Collateral with priority under applicable Law over the Liens of the Collateral Agent, to the extent not otherwise covered in the definition of “Canadian Priority Payables Reserve”.

“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 Holdings and its Restricted Subsidiaries in accordance with GAAP and (b) the value of all assets under Capitalized Leases incurred by Holdings and its Restricted Subsidiaries during such period; provided that the term “Capital Expenditures” shall not include (i) expenditures made in connection with the


6674799.15			27

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 any Material Indebtedness, (iii) expenditures that are accounted for as capital expenditures by Holdings or any Restricted Subsidiary and that actually are paid for, or reimbursed to Holdings or any Restricted Subsidiary in cash or Cash Equivalents, by a Person other than Holdings or any Restricted Subsidiary and for which neither Holdings nor any Restricted Subsidiary has provided or is required to provide or incur, directly or indirectly, any consideration or obligation (other than rent) in 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 a Loan Party 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 Holdings or a capital contribution to Holdings 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 notwithstanding the foregoing, only those leases (assuming for purposes hereof that such leases were in existence prior to giving effect to the adoption of ASU No. 2016-02 “Leases (Topic 842)” and ASU No. 2018-11 “Leases (Topic 842)”) that would have constituted Capitalized Leases or financing leases in conformity with GAAP as in effect prior to giving effect to the adoption of ASU No. 2016-02 “Leases (Topic 842)” and ASU No. 2018-11 “Leases (Topic 842)”, shall be considered Capitalized Leases or financing leases hereunder, and all calculations and deliverables under this Agreement or any other Loan Document shall be made or delivered, as applicable, in accordance therewith (other than the financial statements delivered pursuant to this Agreement.

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


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

“Cash Dominion Period” means

(a) (i) with respect to U.S. Loan Parties and Canadian Loan Parties, each period beginning on the date that Excess Availability shall have been less than the greater of (A) twelve and one-half percent (12.5%) of the Total Revolving Loan Cap and (B) $15,000,000, 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 (1) twelve and one-half percent (12.5%) of the Total Revolving Loan Cap and (2) $15,000,000, in each case, for thirty (30) consecutive calendar days or (ii) solely with respect to Australian Loan Parties on or after the Australian Effective Date, if there are any Loans outstanding to Australian Borrowers or Letters of Credit issued for the account of any Australian Loan Party, that are not subject to Letter of Credit Collateralization, each period beginning on the date that Excess Availability shall have been less than the greater of (A) seventeen and one-half percent (17.5%) of the Total Revolving Loan Cap and (B) $21,000,000, 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 (1) seventeen and one-half percent (17.5%) of the Total Revolving Loan Cap and (2) $21,000,000, in each case, for thirty (30) 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;

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 Holdings or any Restricted Subsidiary:

(a) Dollars and each Alternative Currency;

(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 (i) federal government of United States or any agency or instrumentality thereof, (ii) federal government of Canada or any agency or instrumentality thereof, or (iii) the government of Australia or any agency or instrumentality thereof, in each case, the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government and with maturities of one year or less from the date of acquisition;

(d) (i) certificates of deposit, guaranteed investment certificates, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, (ii) demand deposits and bankers’ acceptances with maturities of one year or less and (iii) overnight bank deposits, in each case of (i) any


6674799.15			29

Lender or (ii) any commercial bank organized under the Laws of any Covered Jurisdiction and 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 one year after the date of creation thereof;

(g) (i) 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) and (ii) broad market ultra-short fixed income mutual funds or separately managed, customized accounts;

(h) readily marketable direct obligations issued by any state or commonwealth of the United States, any province of Canada or any other political subdivision or taxing authority in any Covered Jurisdiction 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 one year or less from the date of acquisition;

(i) (i) Investments with average maturities of one year 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 (ii) Investments in money market funds that comply with SEC rules including Rule 2a-7 under the Investment Company Act of 1940 rated AAAm by S&P or Aaa-mf 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 or an Alternative Currency as promptly as practicable and in any event within ten (10) Business Days following the receipt of such amounts.


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

“Cash Management Compliance Date” has the meaning specified in Section 8.12(a).

“Cash Management Obligations” means obligations owed by Holdings or any Restricted Subsidiary in respect of or in connection with any Cash Management Services (a) provided by the Administrative Agent or any Affiliate or branch thereof or (b) designated by any other Cash Management Bank and the Lead Administrative Loan Party in writing to the Administrative Agent as “Cash Management Obligations”.

“Cash Management Services” means any agreement or arrangement to provide cash management services, including automated clearinghouse transfers, controlled disbursement accounts, treasury, depository, overdraft, lease financing or related services, supply chain financing, merchant services, credit card processing or credit or debit card, purchase card, electronic funds transfer, foreign exchange facilities and other cash management arrangements.

“Cash Receipts” has the meaning specified in Section 8.12(d).

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

“CDOR” or “CDOR Rate” means the average rate per annum as reported on the Reuters Screen CDOR Page (or any successor page or such other page or commercially available service displaying Canadian interbank bid rates for Canadian Dollar bankers’ acceptances as Administrative Agent may designate from time to time, or if no such substitute service is available, the rate quoted by The Toronto-Dominion Bank or such other Schedule I bank under the Bank Act (Canada) selected by Administrative Agent at which such bank is offering to purchase Canadian Dollar bankers’ acceptances) as of 10:00 a.m. Eastern (Toronto) time on the date of commencement of the requested Interest Period, for a term, and in an amount, comparable to the Interest Period and the amount of the Canadian BA Rate Loan requested (whether as an initial Canadian BA Rate Loan or as a continuation of a Canadian BA Rate Loan or as a conversion of a Canadian Base Rate Loan to a Canadian BA Rate Loan) by a Borrower (and, if any such reported rate is below zero, then the rate determined pursuant to this definition shall be deemed to be zero). Each determination of the CDOR Rate shall be made by Administrative Agent and shall be conclusive in the absence of manifest error.

“Change in Law” means the occurrence, after Closing Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty (excluding the taking effect after the Closing Date of a law, rule, regulation or treaty adopted prior to the Closing Date), (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 or CRR, 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:


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(a) any Person or Persons 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 Act), directly or indirectly, of Equity Interests representing more than forty percent (40.0%) of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Holdings; or

(b) any “Change of Control” (or any comparable term) in any document governing Indebtedness for borrowed money having an individual outstanding principal amount in excess of Threshold Amount (including the amounts owing to all creditors under any combined or syndicated credit arrangement); or

(c) except as otherwise permitted by this Agreement, any Loan Party (other than Holdings) ceases to be a direct Wholly-Owned Subsidiary of Holdings or another Loan Party.

For purposes of this definition, a Person or group shall not be deemed to beneficially own Equity Interests subject to a stock or asset purchase agreement, merger agreement or similar agreement, until the consummation of the acquisition of the Equity Interests pursuant to the transactions contemplated by such agreement, unless such agreement otherwise provides that the Person or group has a beneficial interest in such Equity Interests prior to the actual transfer of ownership.

“Class” means (a) when used with respect to any Commitment, refers to whether such Commitment is a Revolving Credit Commitment, an Extended Revolving Credit Commitment of a given Revolving Extension Series or a FILO Incremental 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 Revolving Extension Series, FILO Incremental Loans, or Extended FILO Loans of a given FILO Extension Series, 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. Loans under a Revolving Extension Series or FILO Extension Series that have different terms and conditions (together with the Commitments in respect thereof) from the initial Loans and Commitments therefor, respectively, or from Loans and Commitments under any other Revolving Extension Series or FILO Extension Series, as applicable, shall be construed to be in separate and distinct Classes.

“Closing Date” has the meaning set forth in Section 4.1, which for purposes hereof is November 3, 2021.

“Co-Syndication Agents” means Wells Fargo Bank, National Association, Bank of America, N.A.., JPMorgan Chase Bank, N.A., Regions Bank, and Fifth Third Bank, National Association, in their respective capacities as co-syndication agents 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, and shall include the U.S. Collateral, the Canadian Collateral and the Australian Collateral.

“Collateral Access Agreement” means an agreement reasonably satisfactory in form and substance to the Collateral Agent executed by, as the case may be, (a) a bailee or other Person in possession of Collateral, or (b) any landlord of any premises leased by any Loan Party, pursuant to which, except as the Collateral Agent otherwise may agree, such Person (i) acknowledges the Collateral Agent’s Lien on the Collateral, (ii) releases or subordinates such Person’s Liens on the Collateral held by such


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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 Collateral Agent may reasonably require.

“Collateral Agent” has the meaning specified in the introductory paragraph to this Agreement, and shall include any branches or Affiliates of Wells Fargo in its or their capacity as Collateral Agent.

“Collateral and Guarantee Requirement” means, at any time,

(a) subject to clauses (b), (c) and (d) below, the requirement that:

(i) the Administrative Agent shall have received each Collateral Document required to be delivered on the Closing Date pursuant to Section 4.1(a)(iii) or pursuant to Section 8.11, Section 8.12, Section 8.13 or Section 8.17 at such time, duly executed by each Loan Party thereto;

(ii) pursuant to the execution and delivery of the applicable Guaranty required to be delivered on the Closing Date or a joinder to the applicable Guaranty in the case of a Restricted Subsidiary formed or acquired after the date hereof or as otherwise required to be executed by a Restricted Subsidiary after the date hereof in each case under the circumstances provided for in Section 8.11(a), all Obligations shall have been unconditionally Guaranteed by (A) Holdings, (B) each Borrower (other than with respect to its own obligations), (C) each Restricted Subsidiary of Holdings that is a Wholly-Owned Subsidiary (other than (x) any Borrower or (y) any Excluded Subsidiary), including those Subsidiaries that are listed on Schedule II and (D) any Restricted Subsidiary of Holdings (not included in clause (B) or (C) above) that Guarantees any Material Indebtedness of any Loan Party (each such Subsidiary referred to in clauses (C) and (D) above, a “Subsidiary Guarantor”);

(iii) pursuant to the execution and delivery of the Collateral Documents provided for in Section 8.11, Section 8.13 and Section 8.17 and compliance with Section 8.12, the Obligations and the Guaranty shall have been secured by a perfected security interest in substantially all Collateral of each Loan Party, in each case, with the priority required by this Agreement and the Collateral Documents, subject only to Permitted Priority Liens.

The Administrative Agent may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including in connection with assets acquired, or Restricted Subsidiaries formed or acquired, after the Closing Date) where it reasonably determines to do so, in consultation with the Lead Administrative Loan Party.

(b) Notwithstanding the other provisions of this definition or anything in this Agreement or any other Loan Document to the contrary:

(i) in no event shall the Collateral include any Excluded Assets; it being understood that no assets (including any assets that would otherwise constitute Excluded Assets) shall be excluded from any security interest granted by any Australian Loan Party under any Australian Collateral Document other than those assets which if (x) a law or contractual obligation requires that something must be done before the Australian Loan Party may validly grant a security interest; or (y) a law or contractual obligation prohibits the granting of a security interest, then in each case the security interest will only be granted in relation to such assets (A) when the thing required is done or when any relevant prohibition expires, is terminated, waived or consented to; or (B) immediately before an administrator is


6674799.15			33

appointed to that Australian Loan Party pursuant to section 436A, 436B or 436C of the Australian Corporations Act; nor shall any Excluded Subsidiary be required to execute any Guaranty,

(ii) the other provisions of this definition shall not require the creation or perfection of Liens in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Loan Parties, or the provision of Guarantees by any Restricted Subsidiary, if, and for so long as the Administrative Agent and the Lead Administrative Loan Party shall have reasonably determined that the cost to the applicable Loan Party of creating or perfecting Liens in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees, outweighs the benefit to the Lenders,

(iii) the Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations otherwise set forth in this Agreement and in the Collateral Documents;

(iv) Deposit Account Control Agreements, Securities Account Control Agreements and perfection by “control” (as defined in the UCC or Australian PPSA or within the meaning of the PPSA or STA, as applicable) or any equivalent concept in any Covered Jurisdiction (other than in respect of certificated Equity Interests required to be pledged hereunder) shall not be required with respect to any Collateral, except to the extent required by Section 8.12, Section 3.4(b) of the U.S. Security Agreement, Section 3.4(b) of the Canadian Security Agreement or any equivalent provisions of any other Collateral Documents;

(v) with respect to each Loan Party, except with respect to assets included in any Revolving Borrowing Base in violation of the eligibility criteria applicable thereto, (A) no actions in any jurisdiction outside any Covered Jurisdiction or required by the Laws of any jurisdiction other than a Covered Jurisdiction shall be required in order to create any Liens in assets located or titled outside of any Covered Jurisdiction or to perfect such Liens, including any Intellectual Property registered in any jurisdiction that is not a Covered Jurisdiction and (B) no security agreement, pledge agreement, mortgage, deed, charge or other collateral document governed by the Laws of any jurisdiction other than a Covered Jurisdiction shall be required; it being understood that no Loan Party will be required to take any action to perfect a Lien in the Collateral in any jurisdiction other than a Covered Jurisdiction, except for any actions required by the Administrative Agent or the Collateral Agent during the occurrence of a Cash Dominion Period to secure or perfect security over the Accounts of a Borrower included in any Revolving Borrowing Base owing by an Account Debtor located outside any Covered Jurisdiction or subject to an underlying contract governed by a law other than the law of any Covered Jurisdiction;

(vi) in no event shall any Loan Party be required to take any action with respect to the perfection of Liens in (i) assets subject to certificates of title or any aircraft or aircraft engine, (ii) letter-of-credit rights (as defined in the UCC or the corresponding term in the PPSA or the Australian PPSA, as applicable) in an amount of less than $5,000,000, except to the extent constituting a Supporting Obligation (as defined in the UCC or the corresponding term in the PPSA or the Australian PPSA, as applicable) for other Collateral, or (iii) commercial tort claims (as defined in the UCC or the corresponding term in the PPSA or the Australian PPSA, as applicable) in an amount (taking the greater of the aggregate claimed damages thereunder or the reasonably estimated value thereof) less than $5,000,000, in each case of this clause (vi), beyond the filing of UCC, PPSA or Australian PPSA financing statements;

(vii) in no event shall any Loan Party be required to obtain any Collateral Access Agreement; provided that the foregoing shall not affect the right of the Administrative Agent to establish the Rent and Charges Reserves in accordance with the terms of this Agreement; and


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(viii) notwithstanding anything to the contrary in any Collateral Document, unless requested in writing by the Administrative Agent, in no event shall any Loan Party be required to deliver certificates representing Pledged Equity of a Subsidiary of Holdings that is not a Material Subsidiary.

(c) In addition to the provisions outlined above, the provisions of the Loan Documents relating to the creation or perfection of Liens, or the provision of Guarantees, by any Foreign Loan Party (other than a Canadian Loan Party, Australian Loan Party or Luxembourg Guarantor) will be subject to the following principles (collectively, the “Agreed Security Principles”):

(i) notification or other assignations or assignments to debtors (A) of receivables security (other than to the extent of a legend set forth in a promissory note evidencing one or more intercompany obligations of Holdings and its Restricted Subsidiaries) of security over goods held by third parties or (B) of security over Intellectual Property, in each case, will only be provided (after consultation with the Lead Administrative Loan Party) if an Event of Default or a Cash Dominion Period has occurred and is continuing (other than (A) customary filings of UCC financing statements, PPSA financing statements and Australian PPSA financing statements, as applicable, and (B) filings with the U.S. Patent and Trademark Office, the U.S. Copyright Office and the Canadian and Australian equivalents, or in each case of clauses (A) and (B), analogous filings, actions or procedures or delivery of customary notices and acknowledgments under applicable Laws of a Covered Jurisdiction);

(ii) if any such Foreign Loan Party or any of its Subsidiaries grants security over its Intellectual Property, no such grant of security shall constitute an assignment in full of such Intellectual Property; and

(iii) the applicable Collateral Documents executed and delivered by any such Foreign Loan Party will only operate to create Liens in the Collateral rather than to impose new commercial obligations and, accordingly, will not contain any additional representations, covenants or other terms unless the same are strictly required for the creation, perfection or priority of the Liens in the Collateral (or are otherwise consistent with practice in such jurisdiction and required to provide Agents and Lenders the equivalent of rights under the laws governing the other then existing Collateral Documents).

(d) In no event shall (i) any Foreign Subsidiary, any FSHCO and/or any Domestic Subsidiary of any Foreign Subsidiary and/or any FSHCO be obligated as a Borrower or a Guarantor in respect of, or pledge any asset to secure, any U.S. Obligation, (ii) any proceeds of any Collateral pledged by any Foreign Subsidiary and/or any FSHCO, including during the continuance of any Cash Dominion Period, be applied to satisfy any US Obligation or (iii) any U.S. Loan Party be deemed to have pledged more than sixty-five percent (65%) of the issued and outstanding voting Equity Interests of any Foreign Subsidiary and/or any FSHCO to secure any U.S. Obligation;

(e) No Loan Party shall be required to take any action to perfect any Lien in (i) any Deposit Account that is a zero balance account, (ii) a Deposit Account or Securities Account that individually has a balance at all times of less than $500,000 or $5,000,000 in the aggregate for all such Deposit Accounts and Securities Accounts described in this clause (ii), (iii) Store Accounts and/or (iv) on any date of determination, any Deposit Account or Securities Account that is not used for collections or disbursements if the aggregate amount of Cash and Cash Equivalents on deposit in Approved Deposit Accounts and Approved Securities Accounts of U.S. Loan Parties (other than in Deposit Accounts used for collections or disbursements) on such date of determination exceeds the Aggregate Revolving Credit Commitments, provided, that, with respect to the Deposit Accounts and Securities Accounts not subject to a Deposit Account Control Agreement or Securities Account Control Agreement pursuant to this clause (iv), promptly after the request of Collateral Agent at any time during a Cash Dominion Period, Loan Parties shall deliver to Collateral Agent a Deposit Account Control Agreement for any such Deposit


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Account or Securities Account Control Agreement for any such Deposit Account or Securities Account as duly executed and delivered by the applicable depository bank or securities intermediary and Loan Party; and

(f) It is understood and agreed for the avoidance of doubt that the Equity Interests of Holdings do not constitute Collateral.

“Collateral Documents” means, collectively, (a) each Security Agreement, (b) each Guaranty, (c) each of the security agreements or other similar agreements delivered to the Administrative Agent or the Collateral Agent and the Lenders pursuant to Section 4.1(a)(iii), Section 8.11, Section 8.12, Section 8.13 or Section 8.17, (d) each Credit Card Notification, (e) each Lien Acknowledgment Agreement, (f) each Acceptable Intercreditor Agreement, (g) the Securities Account Control Agreements (if any), (h) the Deposit Account Control Agreements and any other documentation evidencing Approved Control Arrangements, and (i) each of the other agreements, instruments or documents that creates or purports to create a Lien to secure the Obligations or a Guarantee of the Obligations, in each case, in favor of the Administrative Agent or the Collateral Agent for the benefit of the Secured Parties, and shall include each U.S. Collateral Document, each Canadian Collateral Document and each Australian Collateral Document.

“Commitments” means the Revolving Credit Commitments, an Extended Revolving Credit Commitment or a FILO Incremental Commitment, or any combination thereof (as the context requires).

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

“Communication” means this Agreement, any Loan Document and any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to any Loan Document.

“Compliance Certificate” means a certificate substantially in the form of Exhibit L or such other form to which the Lead Administrative Loan Party and the Administrative Agent may reasonably agree.

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

“Consolidated” means, when used to modify a financial term, test, statement, or report of a Person, the application or preparation of such term, test, statement or report (as applicable) on a consolidated basis in accordance with the applicable principles of consolidation under GAAP.

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

“Consolidated EBITDA” means, with respect to Holdings and its Restricted Subsidiaries on a Consolidated basis for any Test Period, Consolidated Net Income for such Test Period:

(a) increased by (without duplication):

(i) provision for taxes based on income or profits or capital, plus state, provincial, territorial, franchise, property or similar taxes and foreign withholding taxes and foreign unreimbursed value added taxes, of such Person for such Test Period (including, in each case, penalties and interest related to such taxes or arising from tax examinations), to the extent the same were deducted in computing Consolidated Net Income for such Test Period, plus


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(ii) (A) total interest expense of such Person for such Test Period and (B) bank fees and costs of surety bonds for such Test Period, 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 were deducted in computing Consolidated Net Income for such Test Period, plus

(iii) Consolidated Depreciation and Amortization Expense for such Test Period, to the extent the same was deducted in computing Consolidated Net Income for such Test Period, plus

(iv) any expenses or charges related to any issuance of Equity Interests, Investment, acquisition, disposition, recapitalization or the incurrence or repayment of Indebtedness including a refinancing thereof (in each case, whether or not successful) and any amendment or modification to the terms of any such transactions, including such fees, expenses or charges related to the Transactions, incurred during such Test Period, in each case, to the extent the same were deducted in computing Consolidated Net Income for such Test Period, plus

(v) the amount of any restructuring charge or reserve deducted in such Test Period in computing Consolidated Net Income, including any one-time costs incurred in connection with (A) Permitted Acquisitions after the Closing Date or (B) the closing of any Stores or distribution centers after the Closing Date; 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 product and Intellectual Property development after the Closing 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, provided, that, amounts added back pursuant to this clause (vi) with respect to any Test Period, together with amounts added back pursuant to clause (ix) with respect to any Test Period, shall not exceed twenty-five percent (25%) of Consolidated EBITDA for such Test Period (calculated after to giving effect to any adjustments pursuant to this clause (vi)), plus

(vii) any other non-cash charges including any write offs or write downs reducing such Consolidated Net Income for such Test Period (provided that, if any such non-cash charges represent an accrual or reserve for potential cash items in any future Test Period, (A) Holdings may determine not to add back such non-cash charge in the current Test Period and (B) to the extent Holdings decides to add back such non-cash charge, the cash payment in respect thereof in such future Test Period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior Test Period), plus

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

(ix) the amount of Expected Costs Savings that are reasonably identifiable, quantifiable and factually supportable (in the reasonable, good faith determination of the Lead Administrative Loan Party) related to (A) the Transactions, (B) any Business Optimization Initiative consummated prior to or on the Closing Date and/or (C) any Business Optimization Initiative consummated after the Closing Date (in each case, net of the amount of actual amounts realized during such Test Period from such actions); provided that (1) with respect to clause (C), the relevant action resulting in (or substantial steps towards the relevant action that would result in) such Expected Costs Savings must either be taken or reasonably expected to be taken within eighteen (18) months after the determination to take such action, (2) a Responsible Officer of the Lead Administrative Loan Party shall have certified to the Administrative Agent that such pro forma adjustments are reasonably identifiable, quantifiable and determined in the


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reasonable, good faith judgment of the Lead Administrative Loan Party and projected by the Lead Administrative Loan Party in its reasonable, good faith determination to result from actions that have either been taken, with respect to which substantial steps have been taken or that are expected to be taken (in the reasonable, good faith determination of the Lead Administrative Loan Party) within the applicable time period provided for in this clause (ix), (3) no Expected Cost Savings may be added pursuant to this clause (ix) to the extent duplicative of any expenses or charges relating thereto that are either excluded in computing Consolidated Net Income or included (i.e., added back) in computing Consolidated EBITDA for such period, and (4) amounts added back pursuant to this clause (ix) with respect to any Test Period, together with amounts added back pursuant to clause (vi) with respect to any Test Period, shall not exceed twenty-five percent (25%) of Consolidated EBITDA for such Test Period (calculated after giving effect to any adjustments pursuant to this clause (ix)); plus

(x) any (A) one-time fee, cost, charge or expense incurred during such Test Period in connection with regulatory fines or processes and (B) cost of, and payment of, actual or prospective litigations, legal settlements, fines, judgments or orders during such Test Period; plus

(xi) any fee, cost, charge or expense incurred in connection with (A) lease buy-outs or termination fees in connection with Store closures and (B) contract terminations (including holdback amounts) during such Test Period; plus

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

(xiii) any costs or expenses incurred by Holdings or any Restricted Subsidiary during such Test Period 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 Loan Parties or net cash proceeds of issuance of Equity Interests of the Loan Parties (other than Disqualified Equity Interests);

(b) decreased by (without duplication):

(i) any non-cash gains increasing Consolidated Net Income of such Person for such Test Period, excluding any gains that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior Test 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 Test Period unless such cash did not increase Consolidated EBITDA in such prior Test Period.

“Consolidated Fixed Charge Coverage Ratio” means, with respect to Holdings and its Restricted Subsidiaries on a Consolidated basis for any Test Period, the ratio of (a) Consolidated EBITDA for such Test Period minus (i) Capital Expenditures paid in cash during such Test Period and not financed with the proceeds of Indebtedness (other than Loans), minus (ii) Cash Taxes paid during such Test Period to (b) Fixed Charges for such Test Period, in each case of Holdings and its Restricted Subsidiaries on a Consolidated basis.

“Consolidated Interest Charges” means, with respect to Holdings and its Restricted Subsidiaries on a Consolidated basis for any Test Period, the sum of (a) all cash interest, premium payments, debt


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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, plus (b) the cash 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 Holdings and its Restricted Subsidiaries on a Consolidated basis for such Test Period in accordance with GAAP. For purposes of the foregoing, interest expense shall exclude, for the avoidance of doubt, (i) one-time financing fees (including arrangement, amendment and contract fees), debt issuance costs, commissions and expenses, (ii) the amortization of deferred financing costs, debt issuance costs, commissions, fees and expenses (including as a result of the effects of acquisition method accounting or pushdown accounting), (iii) any interest expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting, (iv) penalties and interest relating to Taxes, and (v) non-cash interest expense attributable to the movement of the mark-to-market valuation of obligations under hedging agreements or other derivative instruments pursuant to FASB Accounting Standards Codification No. 815-Derivatives and Hedging (other than any interest rate hedging agreement or other derivative instrument) and/or any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting, all as calculated on a Consolidated basis in accordance with GAAP.

“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 Holdings and its Restricted Subsidiaries that are not “Restricted” for purposes of GAAP on such balance sheet and are not included as Qualified Cash for purposes of the calculation of the Borrowing Base; provided that (i) the amount deducted pursuant to clause (b) shall not as of such date of determination exceed $250,000,000 and (ii) Consolidated Net Debt shall not include the principal amount of any Indebtedness with respect to which an irrevocable deposit of the necessary funds for the payment, redemption or satisfaction of such Indebtedness has been made (and, for the avoidance of any doubt, such deposits shall not be included as cash and Cash Equivalents pursuant to clause (b) above).

“Consolidated Net Income” means, with respect to Holdings and its Restricted Subsidiaries on a Consolidated basis for any Test Period, the aggregate of the Net Income of Holdings and its Restricted Subsidiaries for such Test Period 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 Transaction Expenses, relocation costs, integration costs, facility consolidation and closing costs, severance costs and 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 Lead Administrative Loan Party and its 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 the Transactions or any consummated Permitted Acquisition or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded,


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(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 Holdings, shall be excluded,

(f) the Net Income for such Test Period of any Person that is not a Restricted 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 Holdings 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 FASB Accounting Standards Codification 815 (Derivatives and Hedging), (ii) any net gain or loss resulting in such Test 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 Holdings has made a determination that a reasonable basis exists for indemnification or reimbursement shall be excluded (provided, that, to the extent that such amount is not in fact indemnified or reimbursed within 365 days of such determination there will be a deduction in the applicable future Test Period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days),

(j) to the extent covered by insurance and actually reimbursed, or, so long as the Lead Administrative Loan Party 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 Test 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 Test Period and all other Test 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 Holdings or any of its Restricted Subsidiaries in connection with the Transactions, shall be excluded.


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“Consolidated Total Debt” means, as of any date of determination, the aggregate principal amount of Indebtedness of Holdings and its 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 the Transactions, any Permitted Acquisition or any other Investment permitted hereunder) consisting of (a) Indebtedness for borrowed money, (b) unreimbursed obligations in respect of drawn letters of credit, (c) obligations in respect of Capitalized Leases and (d) 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)) or (ii) obligations under Swap Contracts.

“Consolidated Total Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Net Debt as of the last day of the most recently completed Test Period to (b) Consolidated Adjusted EBITDA for the most recently completed Test Period.

“Constituent Documents” means (a) with respect to any corporation or company, the certificate or articles of incorporation, the certificate or articles of amalgamation, the bylaws and memorandum of association (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, incorporation or organization, memorandum of association (if applicable) and operating or limited liability company agreement (if applicable); 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.

“Convertible Indebtedness” means Indebtedness of Holdings (which may be guaranteed by the other U.S. Loan Parties) permitted to be incurred hereunder that is either (a) convertible into common stock of Holdings (and cash in lieu of fractional shares) or cash (in an amount determined by reference to the price of such common stock) or (b) sold as units with call options, warrants or rights to purchase (or substantially equivalent derivative transactions) that are exercisable for common stock of Holdings or cash (in an amount determined by reference to the price of such common stock).

“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.

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


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“Covenant Trigger Event” means that Excess Availability on any day is less than the greater of (a) $12,500,000 and (b) ten percent (10.0%) of the Total Revolving Loan Cap. 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) $12,500,000 and (ii) ten percent (10.0%) of the Total Revolving Loan Cap, in 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:

(a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

(b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

“Covered Jurisdiction” means each of (a) the United States, any state or territory thereof or the District of Columbia, (b) Canada or any province or territory thereof, (c) on and after the Australian Effective Date, Australia or any state or territory thereof and (d) the Grand Duchy of Luxembourg or any other jurisdiction in which the parent company of any Borrower is organized.

“Covered Party” has the meaning specified in Section 12.29.

“Credit Card Agreements” means all agreements or arrangements now or hereafter entered into by any Loan Party, in each case with any Credit Card Issuer or 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 1.1B.

“Credit Card Issuer” means any Person (other than a Loan Party) who issues or whose members issue credit cards or debit cards (which may include “virtual” credit and debit 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 nonbank 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 of Exhibit G or in such other form to which Administrative Agent may reasonably agree, 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 Loan Parties’ sales transactions involving (a) credit card or debit card purchases by customers using credit cards or debit cards issued by any Credit Card Issuer and/


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or (b) other payment processing services, including PayPal, Afterpay, Apple Pay and/or similar services and/or processes (including “buy now pay later” services).

“Credit Card Receivables” means, collectively, (a) all present and future rights of any Loan Party 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 (including “virtual” credit or debit cards) or the other applicable payment service or process, and (b) all present and future rights of any Loan Party 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, in each case above calculated net of prevailing interchange charges.

“Credit Card Receivables Advance Rate” means with respect to the determination of each Revolving Borrowing Base, ninety percent (90.0%).

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

“Credit Extension Conditions” means, in relation to any determination thereof at any time, the requirements that, as applicable:

(a) the Total Revolving Credit Outstandings at such time shall not exceed the Total Revolving Loan Cap at such time (other than as a result of any Protective Advance);

(b) the Revolving Credit Exposure of any Revolving Credit Lender (other than the Revolving Credit Lender acting as the Swing Loan Lender) at such time shall not exceed the Revolving Credit Commitment of such Lender at such time (or, as applicable, the Revolving Credit Commitments of any applicable Class of such Revolving Credit Lender);

(c) solely in connection with any Credit Extension to a Canadian Borrower, after giving effect to the request for such Credit Extension, the Canadian Revolver Usage shall not exceed the Canadian Loan Cap (other than as a result of any Protective Advance);

(d) solely in connection with any Credit Extension to a U.S. Borrower, after giving effect to the request for such Credit Extension, the U.S. Revolver Usage shall not exceed the U.S. Loan Cap (other than as a result of any Protective Advance);

(e) on and after the Australian Effective Date, solely in connection with any Credit Extension to an Australian Borrower, after giving effect to the request for such Credit Extension, the Australian Revolver Usage shall not exceed the Australian Loan Cap (other than as a result of any Protective Advance);

(f) solely in connection with the Issuance of any Letter of Credit, the Letter of Credit Obligations at such time shall not exceed the Letter of Credit Sublimit;

(g) solely in connection with the Issuance of any Canadian Letter of Credit, the Letter of Credit Obligations of Canadian Borrowers at such time shall not exceed the Canadian Letter of Credit Sublimit;

(h) on and after the Australian Effective Date, solely in connection with the Issuance of any Australian Letter of Credit, the Letter of Credit Obligations of Australian Borrowers at such time shall not exceed the Australian Letter of Credit Sublimit;

(i) solely in connection with the Issuance of any U.S. Letter of Credit, the Letter of Credit Obligations of U.S. Borrowers at such time shall not exceed the U.S. Letter of Credit Sublimit;


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(j) solely in connection with the making of any Swing Loans, the Swing Loan Obligations at such time shall not exceed the Swing Loan Sublimit;

(k) solely in connection with the making of any U.S. Swing Loans, the Swing Loan Obligations of U.S. Borrowers at such time shall not exceed the U.S. Swing Loan Sublimit;

(l) solely in connection with the making of any Canadian Swing Loans, the Swing Loan Obligations of Canadian Borrowers at such time shall not exceed the Canadian Swing Loan Sublimit; and

(m) solely in connection with the making of any Australian Swing Loans, the Swing Loan Obligations of Australian Borrowers at such time shall not exceed the Australian Swing Loan Sublimit.

“CRR” means either CRR-EU or, as the context may require, CRR-UK.

“CRR-EU” means Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and Regulation (EU) No 2019/876 of the European Union amending Regulation (EU) No 575/2013 and all delegated and implementing regulations supplementing that Regulation.

“CRR-UK” means CRR-EU as amended and transposed into the laws of the United Kingdom by the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020 and as amended by the Capital Requirements (Amendment) (EU Exit) Regulations 2019.

“Cure Amount” has the meaning specified in Section 10.4(b).

“Cure Expiration Date” has the meaning set forth in Section 10.4(a).

“Current Asset Collateral” has the meaning set forth in Schedule 1.1C hereto.

“Customer Credit Liabilities” means, at any time, the aggregate remaining balance at such time of (a) outstanding gift certificates and gift cards of the Loan Parties (or any Subsidiary that issues gift cards) 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 of the Loan Parties, and (b) outstanding merchandise credits and, to the extent not fully processed, customer refund obligations of the Loan Parties with respect to Inventory of the Loan Parties.

“Customer Credit Liability Reserve” means a reserve in respect of Customer Credit Liabilities and customer deposits.

“Debtor Relief Laws” means the Bankruptcy Code of the United States, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-up and Restructuring Act (Canada), the Australian Corporations Act, the reorganization provisions of applicable corporate statutes and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, arrangement, adjustment, administration, composition, receivership, examinership, insolvency, reorganization, or similar debtor relief Laws of any Covered Jurisdiction 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 Obligations under the Revolving Credit Facility (other than Letter of Credit Fees), (A) the Base Rate plus (B) the Applicable Margin applicable to


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Revolving Loans that are Base Rate Loans plus (C) two percent (2.0%) per annum; provided that, with respect to the outstanding principal amount of any Revolving Loan (including any Swing Loan), the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Margin) otherwise applicable to such Revolving Loan (giving effect to Section 2.10) plus two percent (2.0%) per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to (A) the Applicable Margin for Letter of Credit Fees, plus (B) two percent (2.0%) per annum, in each case of clause (a) and (b), 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 Lender that,

(a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Lead Administrative Loan Party in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuer, the Swing Loan Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Loans) within two (2) Business Days of the date when due,

(b) has notified the Lead Administrative Loan Party, the Administrative Agent, an Issuer or the Swing Loan Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied),

(c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Lead Administrative Loan Party, to confirm in writing to the Administrative Agent and the Lead Administrative Loan Party that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Lead Administrative Loan Party), or

(d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, interim receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other Governmental Authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or any other Covered Jurisdiction or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.

Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to


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Section 2.16(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Lead Administrative Loan Party, each Issuer, the Swing Loan Lender and each other Lender promptly following such determination.

“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 and any deposit account which has the meaning given to the term “ADI account” in the Australian PPSA. 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.

“Deposit Account Control Agreement” means a control agreement reasonably satisfactory to the Collateral Agent or the Australian Security Trustee, as applicable, executed by an institution maintaining a Deposit Account for a Loan Party, to perfect or evidence a Lien on, or control of, such account in favor of the Collateral Agent as security for the Obligations.

“Designated Bank Product Reserve” means an Availability Reserve in respect of Cash Management Obligations and/or Obligations under Secured Hedge Agreements that, without limitation of any rights of the Administrative Agent with respect to Availability Reserves, the Administrative Agent has established at the written request of the Lead Administrative Loan Party.

“Designated Lender” has the meaning set forth in Section 2.18.

“Designated Non-Cash Consideration” means the fair market value of non-cash consideration received by any Loan Party 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 Lead Administrative Loan Party, 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 Factors” means, without duplication, with respect to any period, the aggregate amount of all deductions, credit memos, returns, adjustments, allowances, bad debt write-offs, charge-offs and other non-cash credits and account adjustments which are recorded to reduce Credit Card Receivables in a manner consistent with current and historical accounting practices of the Borrowers.

“Dilution Ratio” means, for any relevant period of determination (as selected by the Administrative Agent in its Permitted Discretion), the amount (expressed as a percentage) equal to (a) the aggregate amount of the applicable Dilution Factors for such period with respect to Credit Card Receivables divided by (b) the aggregate amount of sales comprising such Credit Card Receivables for such period.

“Dilution Reserve” means, at any time of determination, an Availability Reserve in an amount sufficient to reduce the advance rate against Eligible Credit Card Accounts Receivable by one (1) percentage point for each percentage point by which the applicable Dilution Ratio exceeds five percent (5%).

“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction, any sale or issuance of Equity Interests in a Restricted Subsidiary or any sale, transfer, license, lease or other disposition effected pursuant to any Investment) of any property


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by any Person, 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 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 Borrowers 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 Borrowers or the Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations.

“Disqualified Institution” means:

(a) any Person that is a competitor of Holdings and its Restricted Subsidiaries and identified by the Lead Administrative Loan Party in good faith in writing to the Administrative Agent from time to time after the Closing Date;

(b) those financial institutions, other institutional lenders and investors and other entities that were identified by the Lead Administrative Loan Party as such in writing to the Administrative Agent on or prior to October 31, 2021; and

(c) any Affiliates of Persons described in the foregoing clauses (a) and (b) 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 (b) 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 (b) above make investment decisions);

provided that in no event shall any update to the list of Disqualified Institutions (i) be effective prior to two (2) Business Days after receipt thereof by the Administrative Agent or (ii) 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 (i) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (ii) have any liability with respect to or arising out of any assignment or participation of Loans, FILO Incremental Commitments, Revolving Credit Exposure or Revolving Credit Commitments,


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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).

“Disqualifying Event” has the meaning set forth in the definition of “Eligible Currency”.

“Division” means, in reference to any Person which is an entity, the division of such Person into two (2) or more separate Persons with the dividing Person either continuing or terminating its existence as part of the division including as contemplated under Section 18-217 of the Delaware Limited Liability Act for limited liability companies formed under Delaware law or any analogous action taken pursuant to any applicable Law with respect to any corporation, limited liability company, partnership or other entity. The word “Divide”, when capitalized shall have correlative meaning.

“Document” has the meaning set forth in Article 9 of the UCC and, if applicable, includes a “document of title” as defined in the PPSA or the Australian PPSA.

“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 a Loan Party in the ordinary course of its business.

“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any other currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the applicable Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such other currency.

“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 or territory thereof (to the extent such territory is not treated as “foreign” under the Code) or the District of Columbia.

“Drawing Document” means any Letter of Credit or other document presented for purposes of drawing under any Letter of Credit, including by electronic transmission such as SWIFT, electronic mail, facsimile or computer generated communication.

“Early Opt-in Election” means, if the then-current Benchmark is USD LIBOR, the occurrence of:

(a) a notification by Administrative Agent to (or the request by Lead Administrative Loan Party to Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding Dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and

(b) the joint election by Administrative Agent and Lead Administrative Loan Party to trigger a fallback from USD LIBOR and the provision by Administrative Agent of written notice of such election to the Lenders.

“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


6674799.15			48

definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

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

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

“Effective Date” means the date indicated in a document or agreement to be the date on which such document or agreement becomes effective, or, if there is no such indication, the date of execution of such document or agreement.

“Electronic Record” and “Electronic Signature” have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.

“Eligible Assignee” means (a) a Lender or any of its Affiliates or branches; (b) a bank, insurance company, or company engaged in the business of making commercial loans, which Person, together with its Affiliates and branches, 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)(iii) and (v) (subject to such consents, if any, as may be required under Section 12.2(b)(iii)). For the avoidance of doubt, no Disqualified Institution shall constitute an Eligible Assignee.

“Eligible Credit Card Receivables” means, as of the date of determination thereof, Credit Card Receivables due to the Borrowers on a nonrecourse basis from Visa, Mastercard, American Express Co., Discover and other Credit Card Issuers or Credit Card Processors reasonably acceptable to the Administrative Agent as arise in the ordinary course of business, which have been earned by performance and are deemed by the Administrative Agent in its Permitted Discretion to be included in the determination of Eligible Credit Card Receivables. In determining the amount to be so included in the calculation of the value of an Eligible Credit Card Receivable, the face amount thereof shall be reduced by, without duplication, (x) the amount of all customary fees and expenses in connection with any credit card or debit card arrangements, as applicable, required to be borne by any Loan Party, (y) the aggregate amount of all cash received in respect thereof but not yet applied by the applicable Borrower to reduce the amount of such Eligible Credit Card Receivable and (z) sales or use taxes that may be included in the face amount thereof (including any amounts that constitute Tax Trust Funds). For certain Credit Card Processors (and including any third party obligated in respect of Credit Card Receivables pursuant to a private label program), Administrative Agent may require information concerning the amounts, terms, performance and other customary information that is reasonably satisfactory to it in determining whether a Credit Card Receivable owing from such Credit Card Processor is included in the determination of Eligible Credit Card Receivables in its Permitted Discretion as provided above. Without limiting the foregoing, unless otherwise approved in writing by the Administrative 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;


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(b) any Credit Card Receivable with respect to which a Borrower 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 the benefit of the Secured Parties, pursuant to the Collateral Documents, (ii) Liens permitted under Sections 9.1(p), (w), (ee) and (ff) and (iii) Liens permitted under Section 9.1 that are pari passu with or that have priority by operation of applicable Law over the Liens of the Collateral Agent or the Australian Security Trustee, as applicable (to the extent, in the case of this clause (iii), an Availability Reserve is maintained against the applicable Revolving Borrowing Base in respect thereof);

(c) any Credit Card Receivable that is not subject to a first-priority security interest in favor of the Collateral Agent (or the Australian Security Trustee, as applicable), for the benefit of the Secured Parties, pursuant to the Collateral Documents (other than Liens permitted under Section 9.1 that are pari passu with or that have priority by operation of applicable Law over the Liens of the Collateral Agent (or the Australian Security Trustee, as applicable) (to the extent, an Availability Reserve is maintained against the applicable Revolving Borrowing Base in respect thereof), it being the intent that chargebacks in the ordinary course by a Credit Card Processor shall not be deemed violative of this clause;

(d) any Credit Card Receivable that is disputed, or is 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);

(e) any Credit Card Receivable with respect to which, to the knowledge of any Loan Party, the applicable Credit Card Issuer or Credit Card Processor (i) is the subject of a proceeding under any Debtor Relief Law or (ii) is a target of Sanctions, is a Sanctioned Person or a Sanctioned Entity;

(f) any Credit Card Receivable that is due from a Credit Card Processor (i) that is not located in the Local Covered Jurisdiction of the Borrower that owns such Credit Card Receivable or (ii) is an Affiliate of any Loan Party;

(g) any Credit Card Receivable that arises from any private label credit card program or other similar credit program of a Borrower, except if such Credit Card Receivable arises pursuant to a private label credit card program which is on a non-recourse basis where an unaffiliated third party is obligated to pay such Credit Card Receivables and Administrative Agent has received all information that it requires in its Permitted Discretion, completed its review thereof and has determined in its Permitted Discretion that such third party payor is acceptable as provided above in connection with a Credit Card Processor;

(h) any Credit Card Receivable that is payable in any currency other than (i) with respect to the U.S. Borrowers, Dollars, (ii) with respect to the Canadian Borrowers, Dollars or Canadian Dollars, or (ii) with respect to the Australian Borrowers, Dollars or Australian Dollars; or

(i) unless the Administrative Agent otherwise agrees, any Credit Card Receivable owing from any Credit Card Processor that has not received a Credit Card Notification.

Any Credit Card Receivables which are not Eligible Credit Card Receivables shall nevertheless be part of the Collateral unless such Credit Card Receivables constitute Excluded Assets.

“Eligible Currency” means any lawful currency other than Dollars that is readily available, freely transferable and convertible into Dollars in the international interbank market available to the Lenders in such market and as to which a Dollar Equivalent may be readily calculated. If, after the designation by the Lenders of any currency as an Alternative Currency, any change in currency controls or exchange regulations, or any other Laws or regulation or any change in the national or international financial, political or economic conditions in the country in which such currency is issued, results in, in the


6674799.15			50

reasonable opinion of the Administrative Agent (in the case of any Loans to be denominated in an Alternative Currency) or the applicable Issuer (in the case of any Letter of Credit to be denominated in an Alternative Currency), (a) such currency no longer being readily available, freely transferable and convertible into Dollars, (b) a Dollar Equivalent no longer being readily calculable with respect to such currency or (c) a Lender or Issuer no longer being permitted to make or receive payments in such Alternative Currency (each of the foregoing clauses, a “Disqualifying Event”), then the Administrative Agent shall promptly notify the Lenders and the Lead Administrative Loan Party, and such country’s currency shall no longer be an Alternative Currency until such time as the Disqualifying Event(s) no longer exist; provided that (i) each Alternative Currency shall be (and the Borrowers shall be authorized to treat each Alternative Currency as) an Eligible Currency unless and until the Lead Administrative Loan Party receives notice of any Disqualifying Event with respect to such Alternative Currency (which notice may, for the avoidance doubt, be given in connection with any request for a Credit Extension denominated in such Alternative Currency) and (ii) Administrative Agent may elect to determine as to an Alternative Currency that such Disqualifying Event for such Alternative Currency shall only apply for purposes of Credit Extensions requested or made after such Disqualifying Event. Within five (5) Business Days after receipt of such notice from the Administrative Agent, the applicable Borrower or Borrowers shall either, at the election of the Lead Administrative Loan Party, repay all Loans in such currency to which the Disqualifying Event applies or convert such Loans into the Dollar Equivalent of Loans in Dollars, subject to the other terms contained herein.

“Eligible In-Transit Inventory” shall mean, as of the date of determination thereof, without duplication of other Eligible Inventory, Inventory of a U.S. Borrower or Canadian Borrower:

(a) which is currently in transit by vessel (and not by air or land) (i) in the case of any such Inventory of a U.S. Borrower, from a location outside of the continental United States to a location in the continental United States and (ii) in the case of any such Inventory of a Canadian Borrower, from a location outside of Canada to a location in Canada;

(b) for which the purchase order for such Inventory is in the name of a Borrower and payment has been made by the applicable Borrower and title has passed to such Borrower (and Administrative Agent shall have received such evidence thereof as it may from time to time reasonably require);

(c) which is insured against loss, damage, hazards, and risks in accordance with the provisions of this Agreement, including marine cargo insurance with respect thereto (and Administrative Agent shall have received such evidence thereof as to a particular shipment as it may from time to time request);

(d) unless Administrative Agent otherwise agrees in writing, which is either:

(i) the subject of a negotiable bill of lading governed by the laws of a state within the United States in the case of such Inventory of a U.S. Borrower or a province or territory of Canada in the case of such Inventory of Canadian Borrower, (A) that is consigned to Administrative Agent or one of the Freight Forwarders (either directly or by means of endorsements), (B) that was issued by the carrier (including a non-vessel operating common carrier) in possession of the Inventory that is subject to such bill of lading, and (C) that either is in the possession of Administrative Agent or a Freight Forwarder (in each case in the continental United States or Canada), or

(ii) the subject of a negotiable forwarder’s cargo receipt governed by the laws of a state within the United States or a province or territory of Canada, and is not the subject of a bill of lading (other than a negotiable bill of lading consigned to, and in the possession of, a consolidator or Administrative Agent, or their respective agents) and such negotiable cargo receipt on its face indicates the name of the Freight Forwarder as a carrier or multimodal transport operator and has been signed or


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otherwise authenticated by it in such capacity or as a named agent for or on behalf of the carrier or multimodal transport operator, in any case respecting such Inventory (A) consigned to Administrative Agent or one of the Freight Forwarders that is handling the importing, shipping and delivery of such Inventory (either directly or by means of endorsements), (B) that was issued by a consolidator respecting the subject Inventory, and (C) that is in the possession of Administrative Agent or a Freight Forwarder (in each case in the continental United States or Canada, as applicable);

provided, that, Administrative Agent may permit such Inventory to be subject to a non-negotiable bill of lading governed by the laws of a state within the United States (or a province of territory of Canada in the case of Inventory of a Canadian Borrower) that is consigned to a U.S. Borrower (or Canadian Borrower, as applicable) with a Freight Forwarder handling the importing of such Inventory, except, that, at any time, promptly upon Administrative Agent’s request, on and after the date of such request, U.S. Borrowers and Canadian Borrowers shall cause all Inventory shipped thereafter to be subject to a negotiable bill of lading as provided above,

(e) which is in the possession of a common carrier (including on behalf of any non-vessel operating common carrier) that has issued the bill of lading or other document of title with respect thereto or the Freight Forwarder handling the importing, shipping and delivery of such Inventory

(f) which the documents of title related thereto are subject to the valid and perfected first priority Lien of Collateral Agent (subject to Liens permitted under Section 9.1 that are pari passu with or that have priority by operation of applicable Law over the Liens of the Collateral Agent to the extent an Availability Reserve is maintained against the applicable Revolving Borrowing Base in respect thereof);

(g) which is not subject to a Letter of Credit;

(h) except as the Administrative Agent may otherwise reasonably agree from time to time, which shall not have been in transit for more than sixty (60) days; and

(i) which otherwise would

constitute Eligible Inventory;

provided, that, (A) the Administrative Agent may, in its Permitted Discretion, exclude any particular Inventory from the definition of “Eligible In-Transit Inventory” in the event the Administrative Agent determines in its Permitted Discretion that such Inventory is subject to any Person’s right of reclamation, repudiation, stoppage in transit or any event has occurred or is reasonably anticipated by the Administrative Agent to arise which may otherwise adversely impact the value of such Inventory or the ability of the Collateral Agent to realize upon such Inventory, and (B) notwithstanding anything to the contrary contained herein, in no event shall any Eligible In-Transit Inventory be initially included in the calculation of the U.S. Borrowing Base or the Canadian Borrowing Base unless and until Administrative Agent has agreed in writing in its Permitted Discretion after the Closing Date to include Eligible In-Transit Inventory in such Revolving Borrowing Base. Nothing contained in this Agreement should be construed as a commitment to do so and no such commitment should be implied from any action by or on behalf of any Agent or any Lender, provided, that, notwithstanding anything to the contrary in this clause (B) or the definitions of “Canadian Borrowing Base” or “U.S. Borrowing Base”, on and after the date on which the Administrative Agent has agreed to include Eligible In-Transit Inventory in the Canadian Borrowing Base or the U.S. Borrowing Base, as applicable, Inventory that constitutes Eligible In-Transit Inventory shall be included in the Canadian Borrowing Base or the U.S. Borrowing Base, as applicable, to the extent provided in, and subject to, the definitions thereof (including the eligibility criteria) without regard to the consent requirements set forth in clause (C) of the definitions of “Canadian Borrowing Base” or “U.S. Borrowing Base” or clauses (B) and (C) of this paragraph, and (C) the initial addition of Eligible In-Transit Inventory to the U.S. Borrowing Base or Canadian Borrowing Base is subject to,


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among other things, satisfactory completion (in the Administrative Agent’s Permitted Discretion) of due diligence and the satisfaction of Administrative Agent (in its Permitted Discretion) with the reporting thereof by Borrowers and such other information that is, and shall be required to continue to be, provided to it in connection therewith.

“Eligible Inventory” means, as of the date of determination thereof, items of Inventory of the Borrowers (or in the case of Australian Borrowers, on and after the Australian Effective Date) that are finished goods, merchantable and readily saleable to the public in the ordinary course and are deemed by the Administrative Agent in its Permitted Discretion to be included in the determination of Eligible Inventory. Without limiting the foregoing, unless otherwise approved in writing by the Administrative Agent, none of the following shall be deemed to be Eligible Inventory:

(a) Inventory that is not owned solely by a Borrower, or with respect to which a Borrower 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, (ii) Liens permitted under Sections 9.1(p), (w), (ee), and (ff) and (iii) non-consensual Liens permitted under Section 9.1 that are pari passu with or that have priority by operation of applicable Law over the Liens of the Collateral Agent (to the extent, in the case of this clause (iii), an Availability Reserve is maintained against the applicable Revolving Borrowing Base in respect thereof);

(b) Inventory which is on consignment to a Borrower or which is consigned by a Borrower to a Person which is not a Borrower;

(c) Inventory (other than Eligible In-Transit Inventory) that is not located at (i) a warehouse facility used by a Borrower or (ii) a property that is owned or leased by a Loan Party, which warehouse or other property, as applicable, is located (A) in the case of Inventory owned by a U.S. Borrower, in the United States (excluding, for the avoidance of doubt, the territories and possessions thereof) or Canada, or (B) in the case of Inventory owned by a Canadian Borrower, in Canada or the United States (excluding, for the avoidance of doubt, the territories and possessions thereof), or (C) in the case of Inventory owned by an Australian Borrower, in Australia;

(d) Inventory that is comprised of goods which (i) are damaged, defective, “seconds” or otherwise unmerchantable (including incomplete or mismatched sets), (ii) have been returned or traded in by the buyer and are not in immediately saleable condition or are to be returned to the vendor, and such other conditions as Administrative Agent may require, (iii) are work-in-process or raw materials, (iv) are obsolete or custom items or that constitute spare, tooling or replacement parts, (v) are promotional, marketing, packaging and shipping materials or supplies used or consumed in a Loan Party’s business, (vi) 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 (vii) are bill and hold goods; provided that, notwithstanding the foregoing, Eligible Inventory that is “refurbished Inventory” may be deemed to be Eligible Inventory in the Permitted Discretion of Administrative Agent subject to such advance rates and sublimit as Administrative Agent may determine in its Permitted Discretion, provided, that, such Inventory has been subject to an Inventory Appraisal, the completion by Administrative Agent of due diligence that is satisfactory to Administrative Agent in its Permitted Discretion and the satisfaction of Administrative Agent in its Permitted Discretion with the reporting thereof by Borrowers and such other information that is and can continue to be provided to it in connection therewith;

(e) Inventory that is not located (i) in the case of Inventory owned by a U.S. Borrower, in the United States (excluding, for the avoidance of doubt, the territories and possessions thereof) or Canada (except, in the event that any Eligible In-Transit Inventory of a U.S. Borrower is included in the U.S. Borrowing Base, as to such Eligible In-Transit Inventory) or (ii) in the case of Inventory owned by a Canadian


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Borrower, in Canada or the United States (excluding, for the avoidance of doubt, the territories and possessions thereof) (except, in the event that any Eligible In-Transit Inventory of a Canadian. Borrower is included in the Canadian Borrowing Base, as to such Eligible In-Transit Inventory) or (iii) in the case of Inventory owned by an Australian Borrower, in Australia;

(f) 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, pursuant to the Collateral Documents, under the Laws of the Covered Jurisdiction where such Inventory is located (subject only to non-consensual Liens permitted under Section 9.1 that are pari passu with or that have priority by operation of applicable Law over the Liens of the Collateral Agent (to the extent an Availability Reserve is maintained against the applicable Revolving Borrowing Base in respect thereof);

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

(h) Inventory as to which insurance in compliance with the provisions of Section 8.5 is not in effect;

(i) Inventory which has been sold but not yet delivered or as to which a Loan Party or any Subsidiary has accepted a deposit (except to the extent that an Availability Reserve has been established in respect of such deposits);

(j) Inventory that is subject to any licensing, patent, royalty, trademark, trade name or copyright agreement with any third Person (i) which would require any consent of any third Person for the sale or disposition of that Inventory (which consent has not been obtained) or the payment of any monies to any third Person upon such sale or other disposition (to the extent of such monies) or (ii) from whom any Loan Party has received notice of a dispute in respect of such agreement, to the extent that the Administrative Agent determines, in its Permitted Discretion, that such dispute could be expected to prevent or impair the sale of such Inventory;

(k) Inventory which is being Disposed of in a Store closing, “going-out-of-business” or similar sale, except if such Inventory is being Disposed of in a Store closing, “going-out-of-business” or similar sale in accordance with liquidation agreements and with professional liquidators reasonably acceptable to the Administrative Agent, and such liquidators have provided such information with respect to the value thereof as the Administrative Agent may reasonably require for purposes of the amounts to use for purposes of the calculation of the Borrowing Base;

(l) Inventory which has been purchased by a Borrower directly from a Person that is a target of Sanctions, a Sanctioned Person or a Sanctioned Entity; and

(m) except to the extent and for so long as such Inventory is permitted to be included in the applicable Revolving Borrowing Base pursuant to Section 1.16, Inventory acquired in a Permitted Acquisition or similar Investment, unless and until the Administrative Agent has completed or received (i) an appraisal of such Inventory from appraisers satisfactory to the Administrative Agent, and has established Inventory Reserves (if applicable) therefor, and (ii) such other due diligence as the Administrative Agent may require, all of the results of the foregoing to be reasonably satisfactory to the Administrative Agent.

Any Inventory which is not Eligible Inventory shall nevertheless be part of the Collateral unless such Inventory constitutes an Excluded Asset.

“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.


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“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, 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.

“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


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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).

“Erroneous Payment” has the meaning specified therefor in Section 11.18 of this Agreement.

“Erroneous Payment Deficiency Assignment” has the meaning specified therefor in Section 11.18 of this Agreement.

“Erroneous Payment Impacted Loans” has the meaning specified therefor in Section 11.18 of this Agreement.

“Erroneous Payment Return Deficiency” has the meaning specified therefor in Section 11.18 of this Agreement.

“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.

“EURIBOR” has the meaning set forth in the definition of EURIBOR Base Rate.

“EURIBOR Base Rate” means, for any day, the rate per annum equal to the Euro Interbank Offered Rate (“EURIBOR”), as administered by the European Money Markets Institute, or a comparable or successor administrator approved by Administrative Agent for a tenor of thirty (30) days at approximately 11:00 a.m., Brussels time (or such other time at which such rate customarily is published, including if corrected, as recalculated and republished by the relevant administrator) on the date two (2) Business Days prior to any relevant day (and, if such rate is below zero, the EURIBOR Base Rate shall be deemed to be zero). When interest is determined in relation to the EURIBOR Base Rate, each change in the interest rate will become effective each Business Day that Administrative Agent determines that the EURIBOR Base Rate has changed.

“EURIBOR Term Rate” means, with respect to an Interest Period, the rate per annum equal to EURIBOR, as administered by the European Money Markets Institute, or a comparable or successor administrator approved by Administrative Agent at approximately 11:00 a.m., Brussels time (or such other time at which such rate customarily is published, including if corrected, as recalculated and republished by the relevant administrator) on the date that is two (2) Business Days prior to the commencement of such Interest Period, with a term equivalent to such Interest Period (and, if such rate is below zero, the EURIBOR Term Rate shall be deemed to be zero).

“Euro” and “€” mean the single currency of the Participating Member States.

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

“Excess Availability” means at any time, the amount equal to (a) the Total Revolving Loan Cap minus (b) the sum of (i) the principal amount of outstanding Revolving Loans (including Swing Loans) plus (ii) the sum of (A) the aggregate undrawn amount of all outstanding Letters of Credit, plus (B) the aggregate amount of outstanding reimbursement obligations with respect to Letters of Credit which remain unreimbursed or which have not been paid through a Revolving Loan.

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


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“Excluded Accounts” means Deposit Accounts and Securities Accounts (a) used solely for the purpose of making payroll and withholding tax payments related thereto, and other employee wage and benefit payments and accrued and unpaid employee compensation (including salaries, wages, bonuses, benefits and expense reimbursements) to or for the benefit of the employees of Holdings and its Subsidiaries, and any other Deposit Account or financial asset in which such security interest would be unlawful or in violation of any employee benefit plan or employee benefit agreement, (b) used for the sole purpose of paying or remitting taxes, including sales taxes, (c) used solely as an escrow account or as fiduciary or trust accounts for the benefit of unaffiliated third parties (other than Loan Parties and their subsidiaries, except to the extent of the relevant Loan Party’s or subsidiary’s residual interest therein) and (d) used solely for cash collateral to secure obligations to unaffiliated third parties, to the extent such obligations and the lien on such collateral are permitted under the Loan Documents.

“Excluded Assets” means:

(a) Excluded Accounts;

(b) (i) any fee-owned real property and (ii) any leasehold interest in real property;

(c) any governmental licenses or state or local franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby (except to the extent such prohibition or restriction is ineffective under the UCC, the PPSA, the Australian PPSA or other applicable Law) other than Proceeds thereof, the assignment of which is expressly deemed effective under the UCC, the PPSA, the Australian PPSA or other applicable Law notwithstanding such prohibition;

(d) any asset the granting of a security interest in which is prohibited or restricted by applicable Law (including any requirement to obtain the consent of any Governmental Authority (unless such consent has been received));

(e) any Excluded Equity Interest;

(f) pledges and security interests in agreements, licenses or leases that are prohibited or restricted by such agreement, licenses or (including any requirement to obtain the consent of any Governmental Authority or of any other third party (other than Holdings or any Affiliate of Holdings), unless such consent has been received), to the extent prohibited or restricted thereby (except to the extent such prohibition or restriction is ineffective under the UCC, the PPSA, the Australian PPSA or other applicable Law) other than Proceeds thereof, the assignment of which is expressly deemed effective under the UCC, the PPSA, the Australian PPSA or other applicable Law notwithstanding such prohibition;

(g) any “intent-to-use” (or similar) trademark application prior to the filing and acceptance of a “Statement of Use”, “Amendment to Allege Use” or similar filing with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use (or similar) trademark application under applicable Law;

(h) any asset subject to a purchase money security interest, Capitalized Lease Obligations or similar arrangement, in each case, permitted under this Agreement and to the extent the grant of a security interest herein would violate or invalidate such purchase money, Capitalized Lease Obligation or similar arrangement or create a right of termination in favor of any other party thereto (other than Holdings or any Subsidiary or Affiliate of Holdings), other than Proceeds and Accounts arising therefrom;


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(i) any asset of a Restricted Subsidiary acquired by Holdings or any Restricted Subsidiary pursuant to a Permitted Acquisition or other similar Investment which has (at the time of such Permitted Acquisition or similar investment) been financed with Indebtedness permitted to be incurred pursuant to this Agreement as assumed Indebtedness (and not incurred in contemplation of such Permitted Acquisition or such similar Investment) and any Restricted Subsidiary thereof that Guarantees such Indebtedness, in each case to the extent, and so long as, such Indebtedness prohibits such assets from being pledged to secure the Obligations;

(j) any asset the grant or perfection of a security interest thereon would be reasonably likely to result in material and adverse Tax consequences as reasonably determined by the Lead Administrative Loan Party in consultation with the Administrative Agent (including as a result of the operation of Section 956 of the Code or any similar law or regulation) including, for the avoidance of doubt, any asset described in clause (d)(ii) of the definition of “Collateral and Guarantee Requirement”;

(k) any asset to the extent that the Administrative Agent and the Lead Administrative Loan Party shall have reasonably determined that the cost of the grant or perfection of a security interest thereon would outweigh the benefit to the Lenders;

(l) with respect to (i) Covered Jurisdictions (other than the United States, any state or territory thereof or the District of Columbia or Canada or any province or territory thereof or Australia or any state or territory thereof, or Luxembourg), all other assets specifically described in the Security Agreement governed by the laws of such Covered Jurisdiction as being excluded from the grant of a Lien in favor of the Collateral Agent and (ii) with respect to Luxembourg, assets other than Equity Interests and related assets and Deposit Accounts and Securities Accounts and related assets;

(m) cash deposits and cash collateral permitted to be subject to Liens under Section 9.1 hereof (including cash pledged as collateral to secure Indebtedness permitted hereunder in connection with the Standalone Letter of Credit Facility permitted hereunder); and

provided that Excluded Assets shall not include any Proceeds of Excluded Assets unless such Proceeds otherwise constitute Excluded Assets.

“Excluded Equity Interests” means:

(a) solely with respect to any U.S. Loan Party, more than sixty-five percent (65%) of the issued and outstanding Equity Interests entitled to vote of each Subsidiary of such U.S. Loan Party that is (i) a FSHCO or (ii) a Foreign Subsidiary;

(b) any Equity Interest of any Person that (i) is not a Wholly-Owned Subsidiary or (ii) is an Unrestricted Subsidiary;

(c) any Equity Interest if, to the extent and for so long as the pledge of such Equity Interest hereunder is prohibited by any applicable Law, including any requirement to obtain the consent of any Governmental Authority (other than to the extent that any such prohibition would be rendered ineffective pursuant to the UCC, PPSA, the Australian PPSA or any other applicable Law); provided that such Equity Interest shall cease to be an Excluded Equity Interest pursuant to this clause (c) at such time as such prohibition ceases to be in effect;

(d) any Equity Interest the grant or perfection of a security interest in which would be reasonably likely to result in material and adverse Tax consequences to Holdings and its Restricted Subsidiaries as reasonably determined by the Lead Administrative Loan Party in consultation with the Administrative


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Agent (including as a result of the operation of Section 956 of the Code or any similar law or regulation), except that the foregoing shall not apply to such Equity Interests for purposes of securing any Obligations of Canadian Loan Parties or Australian Loan Parties other than any Guarantee by Canadian Loan Parties or Australian Loan Parties of Obligations of U.S. Loan Parties unless there is a change in any Requirement of Law after the Closing Date that would be reasonably likely to result in material and adverse Tax consequences as reasonably determined by the Lead Administrative Loan Party in consultation with the Administrative Agent (but in no event shall Collateral Agent be required to release any Lien on Equity Interests granted prior to such change without its consent);

(e) any Margin Stock; and

(f) any Equity Interests to the extent that the burden or cost of the grant or perfection of a security interest thereon would be excessive in light of the practical benefit afforded to the Lenders thereby (as reasonably determined by the Lead Administrative Loan Party and the Administrative Agent);

“Excluded Subsidiary” means:

(a) any Subsidiary that is not a Wholly-Owned Subsidiary that is a Restricted Subsidiary of Holdings;

(b) (i) any Subsidiary that is organized or incorporated under the Laws of a jurisdiction that is not a Covered Jurisdiction and (ii) any Subsidiary organized or incorporated under the laws of Luxembourg other than GameStop Global Holdings S.a.r.l., except if any such Subsidiary owns any Equity Interests in any Loan Party;

(d) any Subsidiary that is not a Material Subsidiary;

(e) any Subsidiary that is prohibited or restricted from providing a Guaranty by (i) applicable Law or (ii) any Contractual Obligation that, in the case of this clause (ii), exists on the Closing Date or at the time such Subsidiary becomes a Subsidiary and was not incurred in contemplation of such Subsidiary’s acquisition;

(f) any Subsidiary for which the provision of a Guaranty would require a governmental (including regulatory) or third party consent (other than from any Loan Party or any Affiliate thereof), approval, license or authorization that is required on the Closing Date or at the time of the acquisition of such Subsidiary (unless such consent, approval, license or authorization has been received);

(g) any Subsidiary where the provision of a Guaranty would result in material and adverse Tax consequences to Holdings, the Lead Administrative Loan Party and/or any of its direct or indirect Restricted Subsidiaries (as reasonably determined in good faith by the Lead Administrative Loan Party in consultation with the Administrative Agent);

(h) any Warranty Subsidiary, any Subsidiary that is a not-for-profit organization, any Subsidiary that is subject to regulation as an insurance company; and any Subsidiary that is special purpose securitization vehicle (or similar entity) that has no direct or indirect Subsidiaries other than special purpose entities;

(i) any subsidiary acquired by Holdings or any Restricted Subsidiary pursuant to a Permitted Acquisition or other similar Investment which has (at the time of such Permitted Acquisition or similar Investment) been financed with Indebtedness permitted to be incurred pursuant to this Agreement as assumed indebtedness (and not incurred in contemplation of such Permitted Acquisition or similar


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Investment) and any Restricted Subsidiary thereof that Guarantees such Indebtedness, in each case to the extent, and so long as, such Indebtedness prohibits such Subsidiary from becoming a Subsidiary Guarantor;

(j) any Unrestricted Subsidiary; and

(k) any Subsidiary to the extent that the Administrative Agent and the Lead Administrative Loan Party shall have reasonably determined that the cost of providing a Guaranty from such Subsidiary outweighs the benefit to the Lenders, as evidenced by a writing from the Administrative Agent to the Lead Administrative Loan Party;

provided that, notwithstanding the foregoing or any other provision of any Loan Document to the contrary, no Loan Party shall subsequently be deemed to be an Excluded Subsidiary, unless the Lead Administrative Loan Party shall have first complied with the provisions of Section 7.4(b), to the extent applicable.

“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 12.27 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.

“Excluded Taxes” means, with respect to any Agent, the Australian Security Trustee, 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 (however denominated), gains or profits (or franchise tax or minimum tax imposed in lieu of such tax on net income or profits) and capital taxes 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 or any political subdivision thereof (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 clause (a), (c) with respect to any Foreign Lender (other than any Foreign Lender becoming a party hereto pursuant to the Borrowers’ request under Section 3.8), 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,


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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 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 U.S. federal withholding tax imposed as a result of such recipient’s failure to establish a complete exemption under FATCA, (f) any Canadian withholding tax that would not have been imposed but for the recipient (A) not dealing at arm’s length (within the meaning of the ITA) with any Loan Party or (B) being a specified shareholder (as defined in subsection 18(5) of the ITA) of any Loan Party or not dealing at arm’s length with such a specified shareholder for purposes of the ITA, except where the non-arm’s length relationship arises, or where the recipient is a “specified non-resident shareholder” or does not deal at arm’s length with a “specified shareholder”, in each case, on account of such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, or enforced this Agreement or any other Loan Document, (g) any amounts paid or deducted from a payment to a recipient in compliance with a notice or direction under section 260-5 Schedule 1 to the Taxation Administration Act 1953 (Cth) of Australia, section 255 of the Australian Tax Act or any analogous provisions, and (h) any interest, additions to taxes and penalties with respect to any taxes described in clauses (a) through (g) of this definition.

“Exempt Account” means any Excluded Account and any Deposit Account or Securities Account of the type described in clause (e) of the definition of “Collateral and Guarantee Requirement.”

“Existing Credit Agreement” means that certain Second Amended and Restated Credit Agreement, dated as of March 25, 2014, by and among Holdings, the Subsidiaries of Holdings party thereto as borrowers or guarantors, the lenders and other parties party thereto and Bank of America, N.A., as administrative agent and collateral agent, as amended, supplemented or otherwise modified prior to the Closing Date.

“Existing Credit Agreement Refinancing” means the refinancing and repayment of the Indebtedness outstanding under the Existing Credit Agreement (other than Existing Letters of Credit), the termination of all commitments under the Existing Credit Agreement and termination and release of guarantees in connection therewith.

“Existing Letter of Credit” means any letter of credit previously issued for the account of any Loan Party that is outstanding on the Closing Date and listed on Schedule 1.1A.

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

“Expected Cost Savings” means pro forma “run rate” expected cost synergies, cost savings, operating expense reductions and operational improvements.

“Extended FILO Loans” has the meaning specified in Section 2.17(f).

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

“Extending FILO Lender” has the meaning specified in Section 2.17(g).

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

“Facility” means the Revolving Credit Facility, or in the event of any FILO Incremental Facility, the FILO Incremental Facility, as the context may require.


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“Facilities” means the Revolving Credit Facility and in the event of any FILO Incremental Facility, such FILO Incremental Facility, collectively.

“FATCA” means Sections 1471 through 1474 of the Code as in effect on the date hereof (including, for the avoidance of doubt, any agreements between governmental authorities implementing such provisions, any law implementing such agreements and any agreements entered into pursuant to Section 1471(b)(1) of the Code) and any amended or successor provisions that are substantively comparable and not materially more onerous to comply with (and, in each case, any regulations promulgated thereunder or official interpretations thereof).

“FATCA Deduction” means a deduction or withholding from a payment under a Loan Document required by FATCA.

“FATCA Exempt Party” means a party to this Agreement that is entitled to receive payments free from any FATCA Deduction.

“FCA” has the meaning specified therefor in Section 1.15 of this Agreement.

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

“Federal Reserve Board” means the Board of Governors of the United States Federal Reserve System, or any successor thereto.

“Fee Letter” means the Fee Letter, dated as of September 8, 2021, by and between Lead Arranger and Holdings, as amended, amended and restated, supplemented or replaced and in effect from time to time.

“Field Examination” has the meaning specified in Section 7.5(b).

“FILO Extension” means any establishment of Extended FILO Loans pursuant to Section 2.17 and the applicable FILO Extension Amendment.

“FILO Extension Amendment” has the meaning specified in Section 2.17(h).

“FILO Extension Election” has the meaning specified in Section 2.17(g).

“FILO Extension Request” has the meaning specified in Section 2.17(f).

“FILO Extension Series” has the meaning specified in Section 2.17(f).

“FILO Incremental Commitment” has the meaning set forth in Section 2.15(b).

“FILO Incremental Facility” has the meaning set forth in Section 2.15(b).

“FILO Incremental Loan” has the meaning set forth in Section 2.15(b).

“FILO Incremental Push-Down Reserve” has the meaning set forth in Section 2.15(f).


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“FILO Lender” means any Lender that has a FILO Incremental Commitment or holds a FILO Loan.

“FILO Loan” means FILO Incremental Loans and Loans under any FILO Extension Series.

“FILO Outstandings” means, at any particular time, the principal amount of the FILO Loans outstanding at such time.

“Financial Officer” means, with respect to any Loan Party, the chief financial officer, chief accounting officer, treasurer, assistant treasurer, controller or assistant controller of such Loan Party or, in each case, any Person with reasonably equivalent duties. Any document delivered hereunder that is signed by a Financial Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Financial Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

“Financial Performance Projections” means (a) the projected Consolidated balance sheets, statements of income and cash flows of Holdings and its Restricted Subsidiaries, (b) projected forecasts of Excess Availability, in each case, prepared by management of Holdings, in form, and with results and assumptions, reasonably satisfactory to the Lead Arranger (i) for each Fiscal Quarter for each of the five (5) Fiscal Quarters after the date of such projections, and (ii) on an annual basis for a period of five (5) years following the date of such projections, and in each case, giving effect to the Transactions, and (c) projected forecasts of U.S. Excess Availability, Canadian Excess Availability (and upon the request of Administrative Agent, after the Australian Effective Date, Australian Excess Availability), in each case, prepared by management of Holdings, in form, and with results and assumptions, reasonably satisfactory to Lead Arranger for each Fiscal Month for each of the twelve (12) Fiscal Months after the date of the projections, and in each case, giving effect to the Transactions.

“Fiscal Month” means any fiscal month of any Fiscal Year, which month shall generally consist of either four (4) or five (5) weeks in accordance with the fiscal accounting calendar of Holdings and its Subsidiaries.

“Fiscal Quarter” means any fiscal quarter of any Fiscal Year, which quarters shall generally consist of thirteen (13) weeks or fourteen (14) weeks in accordance with the fiscal accounting calendar of Holdings and its Subsidiaries.

“Fiscal Year” means any period of twelve (12) consecutive months ending on the Saturday closest to the last day of January of each calendar year.

“Fixed Charges” means, with respect to Holdings and its Restricted Subsidiaries on a Consolidated basis for any Test Period, the sum of (a) Consolidated Interest Charges paid, or required to be paid, in cash on account of Indebtedness of the types set forth in clauses (a), (b) and (f) of the definition of “Indebtedness” 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) and (f) of the definition of “Indebtedness” (excluding the Obligations but including, without limitation, Capitalized Lease Obligations and purchase money Indebtedness arising from the acquisition of any fixed assets for the purpose of financing all or any part of the acquisition cost thereof) of or by Holdings and its Restricted Subsidiaries for such Test Period, in each case determined on a Consolidated basis in accordance with GAAP.


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“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to USD LIBOR.

“Foreign Lender” means any Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code.

“Foreign Loan Party” means any Loan Party that is not a U.S. Loan Party, including each Canadian Loan Party, each Australian Loan Party and the Luxembourg Guarantor.

“Foreign Plan” means any material employee benefit plan, program or agreement maintained or contributed to by, or entered into with, Holdings or any Subsidiary of Holdings with respect to employees employed outside the United States or Canada).

“Foreign Subsidiary” means any direct or indirect Subsidiary that is not a Domestic Subsidiary.

“Freight Forwarder Agreement” shall have the meaning set forth for such term in the definition of Freight Forwarders.

“Freight Forwarders” means the persons listed on Schedule 1.1D hereto or such other person or persons as may be selected by Lead Administrative Loan Party after the date hereof and after written notice by Lead Administrative Loan Party to Administrative Agent who are reasonably acceptable to Administrative Agent to handle the receipt of Inventory within the United States or Canada, as applicable, or to clear Inventory through the Bureau of Customs and Border Protection, the Canada Border Services Agency or other domestic or foreign export control authorities or otherwise perform port of entry services to process Inventory imported by a Borrower from outside the United States or Canada, as applicable (such persons sometimes being referred to herein individually as a “Freight Forwarder”), provided, that, as to each such person, (a) Administrative Agent shall have received a Freight Forwarder agreement by such person in favor of Administrative Agent (in form and substance satisfactory to Agent in its Permitted Discretion) duly authorized, executed and delivered by such person (a “Freight Forwarder Agreement”), (b) such agreement shall be in full force and effect and (c) such person shall be in compliance in all material respects with the terms thereof.

“Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving Credit Lender, (a) with respect to an Issuer, such Defaulting Lender’s Revolving Commitment Percentage of the outstanding Letter of Credit Obligations to the extent that such Defaulting Lender’s Revolving Commitment Percentage of such outstanding Letter of Credit Obligations has not been reallocated pursuant to Section 2.16(a)(iv) or Cash Collateralized pursuant to Section 2.16(c), and (b) with respect to the Swing Loan Lender, such Defaulting Lender’s Revolving Commitment Percentage of Swing Loans to the extent that such Defaulting Lender’s Revolving Commitment Percentage of Swing Loans has not been reallocated pursuant to Section 2.16(a)(iv) or Cash Collateralized pursuant to Section 2.16(c).

“FSHCO” means any Domestic Subsidiary that has no material assets other than Equity Interests (or Equity Interests and Indebtedness) of one or more Foreign Subsidiaries, or one or more other FSHCOs.

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


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“GAAP” means generally accepted accounting principles in the United States, as in effect from time to time; provided, however, that (a) accounting for leases shall be subject to the terms of the definition of “Capitalized Leases” and (b) if the Lead Administrative Loan Party notifies the Administrative Agent that the Loan Parties request an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof (including through the adoption of IFRS) on the operation of such provision (or if the Administrative Agent notifies the Lead Administrative Loan Party that the Requisite Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof (including through the adoption of IFRS), then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.

“General Restricted Debt Payment Basket” has the meaning specified in Section 9.11(b).

“General Restricted Payment Basket” has the meaning specified in Section 9.6(k).

“Governmental Authority” means the government of the United States, Canada, Australia or any other nation, or of any political subdivision thereof, whether state, provincial, territorial, municipal or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“Granting Lender” has the meaning specified in Section 12.2(g).

“Guarantee” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or monetary other obligation of the payment or performance of such Indebtedness or other monetary obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other monetary obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other monetary obligation of any other Person, whether or not such Indebtedness or monetary other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness for borrowed money). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.


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“Guaranty” means, collectively, (a) the Guaranty, dated as of the Closing Date, among the U.S. Loan Parties, the Administrative Agent and the Collateral Agent on behalf of the Secured Parties, (b) the Guaranty, dated as of the Closing Date, among the Canadian Loan Parties, the Luxembourg Loan Party, the Administrative Agent and the Collateral Agent on behalf of the Secured Parties, (c) on and after the Australian Effective Date, the Guaranty to be entered into by the Australian Loan Parties, the Administrative Agent and the Collateral Agent on behalf of the Secured Parties, and (d) each other guaranty and guaranty supplement delivered pursuant to Section 8.11.

“Hazardous Materials” means all explosive or radioactive substances or wastes, all substances, wastes, contaminants or pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, and radon gas, regulated pursuant to any Environmental Law.

“Hedge Bank” means, as of any date of determination, (a) any Person that is a Lender or an Affiliate or branch of a Lender on such date or (b) any Person who (i) was a Lender or an Affiliate or branch of a Lender at the time the applicable Swap Contract was entered into and who is no longer a Lender or an Affiliate or branch of a Lender, (ii) is, and at all times remains, in compliance with the provisions of Section 11.12, and (iii) agrees in writing that the Agents and the other Secured Parties shall have no duty to such Person (other than the payment of any amounts to which such Person may be entitled under Section 10.3 and acknowledges that the Agents and the other Secured Parties may deal with the Loan Parties and the Collateral as they deem appropriate (including the release of any Loan Party or all or any portion of the Collateral) without notice or consent from such Person, whether or not such action impairs the ability of such Person to be repaid the Secured Obligations under the Secured Hedge Agreements) and agrees to be bound by Sections 11.12, in each case such Person being a party to a Secured Hedge Agreement.

“Holdings” has the meaning specified in the preamble to this Agreement.

“Impacted Loans” has the meaning specified in Section 3.4(a).

“IBA” has the meaning specified therefor in Section 1.15 of this Agreement.

“Incremental Availability” means, at any time of determination, an amount equal to the greater of (a) $500,000,000 minus the aggregate amount of the sum of (i) all Revolving Commitment Increases, plus (ii) all FILO Incremental Facilities, in each case, made or established prior to such time pursuant to Section 2.15 or 2.16, as applicable, in reliance on this clause (a), plus (iii) the outstanding principal amount of all Incremental Equivalent FILO Debt, and (b) the lowest amount by which the Total Revolving Borrowing Base has been greater than the Aggregate Revolving Credit Commitments over the thirty (30) consecutive days immediately preceding the effective date of the applicable Revolving Commitment Increase, FILO Incremental Facility or Incremental Equivalent FILO Debt.

“Incremental Equivalent FILO Debt” means Indebtedness in the form of secured revolving loans and/or term loans (and/or commitments in respect thereof) that may be advanced against a “borrowing base” incurred by a Borrower in lieu of FILO Incremental Commitments; provided that, (a) the aggregate amount of such Incremental Equivalent FILO Debt shall not exceed the Incremental Availability (after giving effect to such Incremental Equivalent FILO Debt), (b) at the time of any such Incremental Equivalent FILO Debt (and after giving effect thereto), no Event of Default shall exist, (c) there shall be no more than eight (8) requests for all Revolving Commitment Increases, FILO Incremental Commitments and Incremental Equivalent FILO Debt during the term of this Agreement, (d) any such Incremental Equivalent FILO Debt shall be in an aggregate principal amount that is not less than $10,000,000 (provided that such amount may be less than $10,000,000 (i) if such amount represents all


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remaining Incremental Availability or (ii) with the consent of the Administrative Agent (not to be unreasonably withheld or delayed)), (e) any Incremental Equivalent FILO Debt that is secured shall be secured only by the Collateral and junior and subordinated to the Lien of Collateral Agent and subject to an Acceptable Intercreditor Agreement, and (f) the terms of any such Incremental FILO Equivalent Debt shall satisfy each of the conditions set forth in Section 2.15(d)(ii) hereof that are otherwise applicable to a FILO Incremental Facility.

“Incremental FILO Amendment” has the meaning specified in Section 2.15(b).

“Incremental Revolving Amendment” has the meaning specified in Section 2.15(a).

“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(b) the maximum amount (after giving effect to any prior drawings or reductions that may have been reimbursed) of all outstanding letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person;

(d) all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable and accrued expenses payable in the ordinary course of business, (ii) any earn-out obligation until such obligation is not paid after becoming due and payable and (iii) accruals for payroll and other liabilities accrued in the ordinary course of business);

(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse, provided that if such Indebtedness has not been assumed by such Person, the amount of Indebtedness under this clause (e) shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value (as determined by such Person in good faith) of the property encumbered thereby;

(f) all Attributable Indebtedness;

(g) all obligations of such Person in respect of Disqualified Equity Interests; and

(h) all Guarantees of such Person in respect of any of the foregoing.

For all purposes hereof, (x) the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, except to the extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness would be included in the calculation of Consolidated Total Debt, (y) the amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date, and (z) loans and advances made by Loan Parties to Restricted Subsidiaries that are not Loan Parties which have a term not exceeding 364 days (inclusive of any roll over or extensions of terms) and which


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are made in the ordinary course of business shall not be deemed “Indebtedness” hereunder (except for purposes of Sections 9.2(c) and 9.3(d)) solely to the extent that such intercompany loans and advances are evidenced by one or more notes in form and substance reasonably satisfactory to the Administrative Agent and pledged as Collateral.

“Indemnified Liabilities” has the meaning specified in Section 12.4.

“Indemnitees” has the meaning specified in Section 12.4.

“Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant of nationally recognized standing that is, in the good faith judgment of the Lead Administrative Loan Party, qualified to perform the task for which it has been engaged and that is independent of Holdings and its Affiliates.

“Information” has the meaning specified in Section 12.17.

“Information Certificate” means, collectively, (a) the Information Certificate, dated as of the Closing Date, executed by each of the Loan Parties, and (b) each other information certificate (or update to the which shall be delivered by any Loan Party pursuant to the terms hereof, in each case, substantially in the form of Exhibit N or such other form as may be approved by the Administrative Agent.

“Initial Australian Borrower” means Electronics Boutique Australia Pty. Limited, a company incorporated under the Laws of Australia.

“Insolvency Regulation” means the Council Regulation (EU) No. 2015/848 of 20 May 2015 on insolvency proceedings (recast).

“Intellectual Property” means all present and future: trade secrets, know-how and other proprietary information; trademarks, Internet domain names, service marks, trade dress, trade names, business names, designs, logos, slogans (and all translations, adaptations, derivations and combinations of the foregoing), indicia and other source and/or business identifiers, all of the goodwill related thereto, and all registrations and applications for registrations thereof; works of authorship and other copyrighted works (including copyrights for computer programs), and all registrations and applications for registrations thereof; inventions (whether or not patentable) and all improvements thereto; patents and patent applications, together with all continuances, continuations, divisions, revisions, extensions, reissuances, and reexaminations thereof; industrial design applications and registered industrial designs; books, records, writings, computer tapes or disks, flow diagrams, specification sheets, computer software, source codes, object codes, executable code, data, databases and other physical manifestations, embodiments or incorporations of any of the foregoing; all other intellectual property; all rights to sue and recover at law or in equity for any past, present or future infringement, dilution or misappropriation, or other violation thereof; and all common law and other rights throughout the world in and to all of the foregoing.

“Intellectual Property Security Agreement” means a U.S. Intellectual Property Security Agreement or a Canadian Intellectual Property Security Agreement, as the context may require.

“Intercompany Subordination Agreement” means an agreement executed by Holdings and each of its relevant Restricted Subsidiaries, in substantially the form of Exhibit J.

“Interest Election Request” means a notice of (a) a conversion of Loans from one Type to the other, or (b) a continuation of LIBOR Rate Loans, Canadian BA Rate Loans, EURIBOR Term Rate Loans or Australian Bill Rate Loans or any portion thereof, in each case, pursuant to Section 2.11, which


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shall be substantially in the form of Exhibit F or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Lead Administrative Loan Party.

“Interest Period” means

(a) with respect to each LIBOR Rate Loan, a period commencing on the date of the making of such LIBOR Rate Loan (or the continuation of a LIBOR Rate Loan or the conversion of a Base Rate Loan to a LIBOR Rate Loan), and ending one (1), three (3) or six (6) months thereafter (or such other period that is available and acceptable to all Lenders),

(b) with respect to each Canadian BA Rate Loan, a period commencing on the date of the making of such Canadian BA Rate Loan (or the continuation of a Canadian BA Rate Loan or the conversion of a Canadian Base Rate Loan to a Canadian BA Rate Loan) and ending one (1), two (2) or three (3) months thereafter (or such other period that is available and acceptable to all Lenders),

(c) with respect to each EURIBOR Term Rate Loan, a period commencing on the date of the making of such EURIBOR Term Rate Loan (or the continuation of a EURIBOR Term Rate Loan or the conversation of a EURIBOR Base Rate Loan to a EURIBOR Term Rate Loan) and ending one (1), three (3) or six (6) months thereafter (or such other period that is available and acceptable to all Lenders),

(d) with respect to each Australian Bill Rate Loan, a period commencing on the date of the making of such Australian Bill Rate Loan (or the continuation of an Australian Bill Rate Loan or the conversion of an Australian Bill Rate Loan to an Australian Base Rate Loan) and ending one (1) or three (3) months thereafter (or such other period that is available and acceptable to all Lenders);

provided, that, for each Loan, (i) any Interest Period that would end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) with respect to an Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period), the Interest Period shall end on the last Business Day of the calendar month that is one, two, three or six months, as applicable, after the date on which the Interest Period began, as applicable, (iii) a Borrower (or Lead Administrative Loan Party on behalf of a Borrower) may not elect an Interest Period which will end after the Scheduled Termination Date of the Class of Loans of which the Loan is a part.

“Inventory” means, individually and collectively, (a) “Inventory” as defined in Article 9 of the UCC, and (b) “Inventory” as defined in the PPSA and the Australian PPSA, as applicable.

“Inventory Advance Rate” means with respect to each Revolving Borrowing Base, (a) during any Seasonal Inventory Advance Period, 92.5% and (b) at all other times, 90.0%.

“Inventory Appraisal” has the meaning specified in Section 7.5(a).

“Inventory Reserves” means (a) such reserves as may be established from time to time by the Administrative Agent, in its Permitted Discretion, with respect to changes in the determination of the saleability, at retail, of the Eligible Inventory or which reflect such other factors as negatively affect the market value of the Eligible Inventory, (b) Shrink Reserves and (c) with respect to Eligible In-Transit Inventory, those reserves that Administrative Agent deems necessary or appropriate, in its Permitted Discretion, to establish and maintain (i) for the estimated costs relating to unpaid freight charges,


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warehousing or storage charges, taxes, duties, and other similar unpaid costs associated with the acquisition of such Eligible In-Transit Inventory, plus (ii) for the estimated reclamation claims of unpaid sellers of such Eligible In-Transit Inventory.

“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, by means of (a) the purchase or other acquisition (including without limitation by merger, amalgamation or otherwise) of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person (excluding, in the case of Holdings and its Restricted Subsidiaries, intercompany loans, advances, or Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business) or (c) the purchase or other acquisition (in one transaction or a series of transactions, including without limitation by merger, amalgamation or otherwise) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. For purposes of covenant compliance, the amount of any Investment at any time shall be the amount actually invested (measured at the time made (which, in the case of any Investment constituting the contribution of an asset or property (other than cash or Cash Equivalents), shall be based on the Lead Administrative Loan Party’s good faith estimate of the fair market value of such asset or property at the time such Investment is made)), without adjustment for subsequent changes in the value of such Investment, net of any return representing a return of capital with respect to such Investment.

“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other nationally recognized statistical rating agency selected by Holdings.

“IP Rights” has the meaning specified in Section 5.15.

“IP Separation and Relicense Transaction” means any transfer by any Loan Party or any Restricted Subsidiary of any Material Intellectual Property or interest therein, whether as an Investment, Restricted Payment, Disposition, asset transfer, pledge, lien or otherwise, to any Unrestricted Subsidiary, in each case, which Material Intellectual Property is, following the consummation of such transaction, licensed back by Holdings and/or any Restricted Subsidiary from the recipient of such Material Intellectual Property for use by Holdings and/or such Restricted Subsidiary in the ordinary course of business, provided, that, so long as Administrative Agent shall receive an ABL License with respect to such Material Intellectual Property, an “IP Separation and Relicense Transaction” shall not arise on account of (a) a transfer to an Unrestricted Subsidiary that is a bona fide operational joint venture with a material portion of the equity interest of such joint venture owned by a unaffiliated third party that is established for legitimate business purposes, or (b) the license back is pursuant to a bona fide “transition service” or similar arrangement or in the same manner and terms as other customers, suppliers or commercial partners of the relevant transferee generally.

“IRS” means the Internal Revenue Service of the United States.

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

“Issue” means, with respect to any Letter of Credit, to issue, extend the expiry of, renew or increase the maximum face amount (including by deleting or reducing any scheduled decrease in such


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maximum face amount) of, such Letter of Credit. The terms “Issued”, “Issuing” and “Issuance” shall have a corresponding meaning.

“Issuer” means each of Wells Fargo Bank, National Association, Wells Fargo Canada in its capacity as an issuer of Canadian Reimbursement Undertakings pursuant to Section 2.4, Bank of America, N.A., JPMorgan Chase, N.A., Regions Bank and Fifth Third Bank, National Association, and any other Revolving Credit Lender which at the request of the Lead Administrative Loan Party and after notice to the Administrative Agent agrees to become an Issuer for the purpose of issuing Letters of Credit or Canadian Reimbursement Undertakings pursuant to Section 2.4. Each Issuer may, in its discretion, arrange for one or more Letters of Credit or Canadian Reimbursement Undertakings to be issued by Affiliates of such Issuer, in which case the term “Issuer” shall include any such Affiliate or branch with respect to Letters of Credit or Canadian Reimbursement Undertakings issued by such Affiliate or branch. Notwithstanding anything to the contrary contained herein, Bank of America, N.A. as Issuer shall not be required to issue any Letter of Credit for the account of a Canadian Borrower or an Australian Borrower.

“Issuer Documents” means, with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by an Issuer and the Loan Parties (or any of their Subsidiaries) or in favor of such Issuer and relating to such Letter of Credit.

“Issuer Sublimit” means, as of the Closing Date, (a) $62,500,000, in the case of Wells Fargo, (b) $60,000,000, in the case of Bank of America, N.A., (c) $42,500,000, in the case of JPMorgan Chase Bank, N.A., (d) $42,500,000, in the case of Regions Bank, (e) $42,500,000, in the case of Fifth Third Bank, National Association, and (f) such amount as shall be designated to the Administrative Agent and the Lead Administrative Loan Party in writing by any other Issuer; provided that any Issuer shall be permitted at any time to increase its Issuer Sublimit (to an amount not exceeding the Letter of Credit Sublimit) upon providing three (3) Business Days’ prior written notice thereof to the Administrative Agent and the Lead Administrative Loan Party.

“ITA” means the Income Tax Act (Canada).

“Joinder Agreement” shall mean a joinder agreement, substantially in the form of Exhibit E.

“Joint Venture” means (a) any Person which would constitute an “equity method investee” of any Loan Party or any Restricted Subsidiary and (b) any Person in whom any Loan Party or any Restricted Subsidiary beneficially owns any Equity Interest that is not a Restricted Subsidiary (other than an Unrestricted Subsidiary).

“Joint Venture Investments” means Investments in any Joint Venture or Unrestricted Subsidiary in an aggregate amount not to exceed the greater of (a) $25,000,000 and (b) fifteen percent (15.0%) of Consolidated EBITDA as of the most recently ended Test Period, determined on a Pro Forma Basis.

“Judgment Currency” has the meaning specified in Section 12.30.

“Junior Financing” means any (a) Indebtedness for borrowed money of any Loan Party that is subordinated in right of payment to the Obligations expressly by its terms (other than Indebtedness among Holdings, the Borrowers and their Restricted Subsidiaries), (b) Incremental Equivalent FILO Debt, (c) Indebtedness for borrowed money of any Loan Party that is secured by Liens that are junior to the Liens securing the Secured Obligations (other than Indebtedness among Holdings, the Borrowers and their Restricted Subsidiaries) and (d) unsecured Indebtedness for borrowed money of any Loan Party with an aggregate outstanding principal amount in excess of the Threshold Amount (other than Indebtedness among Holdings, the Borrowers and their Restricted Subsidiaries).


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“Junior Financing Documentation” means any documentation governing any Junior Financing described in clause (a) of the definition of “Junior Financing”.

“Landlord Lien Jurisdiction” means Washington, Virginia, Pennsylvania and any state, province (including the province of Quebec to the extent a hypothec has been granted by a Loan Party to a landlord), territory or other jurisdiction in which, at any time, a landlord’s claim for rent has priority (notwithstanding any contractual provision to the contrary) by operation of applicable Law over the Lien of the Collateral Agent on any of the Collateral.

“Latest Maturity Date” means, at any date of determination, the latest Scheduled Termination Date applicable to any Class of Loans or Commitments hereunder at such time, including the latest termination date of any Extended Revolving Credit Commitment or any Extended FILO Loans, as further extended in accordance with this Agreement from time to time.

“Laws” means, collectively, all applicable international, foreign, federal, state, provincial, territorial, municipal and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities and executive orders, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.

“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.

“LC Disbursement” means a U.S. LC Disbursement, a Canadian LC Disbursement or an Australian LC Disbursement.

“LC Exposure” means the sum of the Dollar Equivalent of U.S. LC Exposure, the Dollar Equivalent of Canadian LC Exposure and the Dollar Equivalent of Australian LC Exposure.

“LCT Election” has the meaning specified in Section 1.9(a).

“LCT Test Date” mean, with respect to any Limited Condition Transaction,

(a) that is an acquisition or other similar Investment, the date the definitive agreement for such acquisition or other similar Investment is entered into,

(b) that is a Restricted Payment, the date of the declaration of such Restricted Payment, or

(c) that is a payment to be made pursuant to Section 9.11, the date of delivery of irrevocable (which may be conditional) notice with respect to such payment.

“Lead Administrative Loan Party” has the meaning specified in the introductory paragraph to this Agreement.

“Leases” means, with respect to any Person, all of those leasehold estates in real property of such Person, as lessee, as such may be amended, supplemented or otherwise modified from time to time.

“Lender” means the Swing Loan Lender, each Revolving Credit Lender and each FILO Lender. The term “Lender” shall include any Designated Lender who has funded any Credit Extension.


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“Lender Group” means each of the Lenders (including each Issuer and the Swing Loan Lender) and Administrative Agent, or any one or more of them.

“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Lead Administrative Loan Party and the Administrative Agent which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office.

“Letter of Credit” means any Banker’s Acceptance or any letter of credit Issued (or deemed Issued) pursuant to Section 2.4 and any Existing Letter of Credit. A Letter of Credit may be a Documentary Letter of Credit or a Standby Letter of Credit. Letters of Credit may be issued in Dollars or in an Alternative Currency.

“Letter of Credit Application” means an application and agreement for the Issuance of a Letter of Credit in the form from time to time in use by the applicable Issuer.

“Letter of Credit Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit that has not been reimbursed on the applicable Reimbursement Date or refinanced as a Revolving Loan. All Letter of Credit Borrowings shall be denominated in Dollars.

“Letter of Credit Collateralization” means either (a) providing cash collateral (pursuant to documentation reasonably satisfactory to Administrative Agent) to be held by Administrative Agent for the benefit of the Revolving Credit Lenders in an amount equal to one hundred three percent (103%) of the then existing LC Exposure in the relevant currency in which such LC Exposure is denominated, (b) delivering to Administrative Agent documentation executed by all beneficiaries under the Letters of Credit, in form and substance reasonably satisfactory to Administrative Agent and Issuer, terminating all of such beneficiaries’ rights under the Letters of Credit, or (c) providing Administrative Agent with a standby letter of credit, in form and substance reasonably satisfactory to Administrative Agent, from a commercial bank acceptable to Administrative Agent (in its sole discretion) in an amount equal to (i) one hundred three percent (103%) of the then existing LC Exposure in the relevant currency in which such LC Exposure is denominated (it being understood that the Letter of Credit Fee and all fronting fees set forth in this Agreement will continue to accrue while the Letters of Credit are outstanding and that any such fees that accrue must be an amount that can be drawn under any such standby letter of credit).

“Letter of Credit Expiration Date” means, as to any applicable Issuer, the date that is the earlier to occur of (a) five (5) Business Days prior to the Scheduled Termination Date for the applicable Class of Revolving Credit Commitments maintained by such Issuer (in its capacity as a Revolving Credit Lender hereunder) (or, if such day is not a Business Day, the next preceding Business Day) and (b) the Revolving Credit Termination Date.

“Letter of Credit Fee” has the meaning specified in Section 2.12(b)(ii).

“Letter of Credit Indemnified Costs” has the meaning assigned to it in Section 2.4(f).

“Letter of Credit Obligations” means, at any time, the aggregate of all liabilities at such time of any Loan Party to all Issuers with respect to Letters of Credit, whether or not any such liability is contingent, including, without duplication, the sum of (a) the Reimbursement Obligations at such time and (b) the Letter of Credit Undrawn Amounts at such time.


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“Letter of Credit Related Person” has the meaning assigned to it in Section 2.4(f).

“Letter of Credit Sublimit” means $250,000,000, as such amount may be increased or reduced in accordance with the provisions of this Agreement. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Commitments.

“Letter of Credit Undrawn Amounts” means, at any time, the aggregate undrawn Stated Amount of all Letters of Credit outstanding at such time.

“LIBOR” or “LIBOR Rate” means the rate per annum as published by ICE Benchmark Administration Limited (or in any case, any successor page or other commercially available source as Agent may designate from time to time) as of 11:00 a.m., London time, two Business Days prior to the commencement of the requested Interest Period, for a term, and in an amount, and in the currency, comparable to the Interest Period and the amount and currency of the LIBOR Rate Loan requested (whether as an LIBOR Rate Loan or as a continuation of a LIBOR Rate Loan or as a conversion of a Base Rate Loan to a LIBOR Rate Loan) by Borrowers in accordance with the Loan Documents (and, if any such rate is below zero, the LIBOR Rate shall be deemed to be zero).

“Lien” means any mortgage, pledge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest (including, without limitation, any “security interest” as defined in sections 12(1) and 12(2) of the Australian PPSA) or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capitalized Lease having substantially the same economic effect as any of the foregoing); provided, that in no event shall an operating lease in and of itself be deemed a Lien.

“Lien Acknowledgment Agreement” means each Collateral Access Agreement and Freight Forwarder Agreement.

“Limited Condition Transaction” means (a) any Restricted Payment, (b) any acquisition or other Investment (including any Permitted Acquisition) permitted hereunder by Holdings or one or more of its Restricted Subsidiaries whose consummation is not conditioned on (i) the availability of, or on obtaining, third party financing or (ii) compliance with the terms of this Agreement, and (c) any repayment, repurchase or refinancing of Indebtedness with respect to which a notice of repayment (or similar notice) is required to be delivered, which may be conditional, and in each case of clauses (a), (b) and (c), which is designated as a Limited Condition Transaction by the Lead Administrative Loan Party in writing to the Administrative Agent on or before the LCT Test Date applicable thereto.

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

“Loan” means any loan made by any Lender pursuant to this Agreement, including, without limitation, Swing Loans, Revolving Loans and FILO Loans.

“Loan Account” has the meaning set forth in Section 2.13(i).


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“Loan Documents” means, collectively, this Agreement, the Revolving Credit Notes, any Incremental FILO Amendment, any Incremental Revolving Amendment, any Revolving Extension Amendment, any FILO Extension Amendment, the Guaranty, the Fee Letter, the Collateral Documents, the Issuer Documents, each Information Certificate and each certificate, agreement or document executed by a Loan Party and delivered to the Administrative Agent or any Lender in connection with or pursuant to any of the foregoing.

“Loan Parties” means, collectively, (a) Holdings, (b) the Borrowers and (c) each Subsidiary Guarantor.

“Local Covered Jurisdiction” means with respect to (a) any U.S. Loan Party, the United States, any state or territory thereof or the District of Columbia, (b) any Canadian Loan Party, Canada or any province or territory thereof, and (c) any Australian Loan Party, Australia or any state or territory thereof.

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

“Luxembourg Account Pledge Agreement” means the Luxembourg law governed account pledge agreement among the Luxembourg Guarantor as pledgor and Wells Fargo Bank National Association as Collateral Agent.

“Luxembourg Guarantor” means GameStop Global Holdings S.a.r.l., a Luxembourg private limited liability company (société a responsabilité limitée) incorporated under the laws of Luxembourg, having its registered office at 12F, rue Guillaume Kroll, L-1882 Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Register of Commerce and Companies (R.C.S. Luxembourg) under number B 142 918.

“Luxembourg Security Agreements” means the Luxembourg Share Pledge Agreement and the Luxembourg Account Pledge Agreement.

“Luxembourg Share Pledge Agreement” means the Luxembourg law governed share pledge agreement among EB International Holdings, Inc. as pledgor , Wells Fargo Bank National Association as Collateral Agent and the Luxembourg Guarantor as company.

“Margin Stock” has the meaning set forth in Regulation U of the Board of Governors of the United States Federal Reserve System, or any successor thereto.

“Master Agreement” has the meaning specified in the definition of “Swap Contract.”

“Material Adverse Effect” means any event, circumstance or condition that has had a materially adverse effect on (a) the business, operations, assets, liabilities (actual or contingent) or financial condition of Holdings and its Subsidiaries, taken as a whole, (b) the ability of the Loan Parties (taken as a whole) to perform their respective material payment obligations under any Loan Document to which any of the Loan Parties is a party or (c) the rights and remedies of the Lenders, the Collateral Agent or the Administrative Agent (taken as a whole) under any Loan Document.

“Material Deposit Accounts” has the meaning specified in Section 8.12(a).

“Material Indebtedness” means Indebtedness for borrowed money having an individual outstanding principal amount in excess of $15,000,000 (including the amounts owing to all creditors under any combined or syndicated credit arrangement).


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“Material Intellectual Property” means any Intellectual Property owned or licensed by a Loan Party or a Restricted Subsidiary that is reasonably necessary (as determined by the Administrative Agent in its Permitted Discretion) in connection with the enforcement of any rights or remedies with respect to the Current Asset Collateral, including such Intellectual Property the sale, assignment, pledge, transfer, contribution or other disposition of which could reasonably be expected to adversely affect the ability of the Administrative Agent to sell or otherwise liquidate the assets included in any Revolving Borrowing Base or the amount the Administrative Agent or the Collateral Agent is able to realize upon any such sale or Liquidation (it being understood that such Intellectual Property shall not constitute “Material Intellectual Property” if, after giving effect to the relevant sale, assignment, pledge, transfer, contribution or other disposition, the Loan Parties no longer own Inventory or other assets previously included in the calculation of a Revolving Borrowing Base relating to such Intellectual Property).

“Material Junior Financing” means, at any time of determination, Junior Financing with an individual principal amount equal to the greater of (a) $20,000,000 (including all amounts owing to creditors under any combined or syndicated credit arrangement) and (b) four and one-half percent (4.5%) of Consolidated EBITDA as of the most recently ended Test Period, determined on a Pro Forma Basis.

“Material Subsidiary” means, at any date of determination, each Restricted Subsidiary of Holdings (a) whose total assets at the last day of the most recent Test Period were equal to or greater than two and one-half percent (2.5%) of Total Assets at such date or (b) whose gross revenues for such Test Period were equal to or greater than two and one-half percent (2.5%) of the Consolidated gross revenues of Holdings and its Restricted Subsidiaries for such period, in each case determined in accordance with GAAP; provided that if, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Loan Parties solely because they do not meet the thresholds set forth in clauses (a) or (b) comprise in the aggregate more than five percent (5.0%) of Total Assets as of the end of the most recently ended Fiscal Quarter of Holdings or more than five percent (5.0%) of the consolidated gross revenues of Holdings and its Restricted Subsidiaries for the most recently ended Test Period, then the Lead Administrative Loan Party shall (i) deem one or more of such Restricted Subsidiaries as “Material Subsidiaries” to the extent required such that the foregoing condition ceases to be true and (ii) by the date specified in Section 8.11, comply with (or cause to be complied with) the provisions of Sections 8.11, 8.12 and 8.13 applicable to any such Restricted Subsidiary.

“Maximum Rate” has the meaning specified in Section 12.23.

“Monthly Borrowing Base Reporting Period” means any period that is not a Weekly Borrowing Base Reporting Period.

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

“Multiemployer Plan” means any multiemployer plan as defined in Section 4001(a)(3) of ERISA and subject to Title IV of ERISA, to which any Loan Party or any of their respective ERISA Affiliates makes or is obligated to make contributions, or during the preceding five plan years has made or been obligated to make contributions.

“Net Cash Proceeds” means:

(a) with respect to the Disposition of any asset by Holdings or any of its Restricted Subsidiaries, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Disposition (including any cash and Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness that is


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secured by the asset subject to such Disposition and that is required to be repaid in connection with such Disposition (other than Indebtedness under the Loan Documents), (B) the out-of-pocket fees and expenses (including attorneys’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees) actually incurred by Holdings or such Restricted Subsidiary in connection with such Disposition, (C) in the case of any Disposition by a non-wholly-owned Restricted Subsidiary, the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (C)) attributable to minority interests and not available for distribution to or for the account of Holdings or a wholly-owned Restricted Subsidiary as a result thereof, (D) taxes paid or reasonably estimated to be payable in connection therewith (including taxes imposed on the distribution or repatriation of any such Net Cash Proceeds), provided that to the extent that the actual taxes are less than such estimate, the excess shall constitute Net Cash Proceeds, and (E) any funded reserve for adjustment in respect of (x) the sale price of such asset or assets established in accordance with GAAP and (y) any liabilities associated with such asset or assets and retained by Holdings or any Restricted Subsidiary after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction, it being understood that “Net Cash Proceeds” shall include the amount of any reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in this clause (E); and

(b) (i) with respect to the incurrence or issuance of any Indebtedness by Holdings or any Restricted Subsidiary or any Permitted Equity Issuance by, or capital contribution to, Holdings or any Restricted Subsidiary, the excess, if any, of (A) the sum of the cash and Cash Equivalents received in connection with such incurrence or issuance over (B) the investment banking fees, underwriting discounts, commissions, costs and other out-of-pocket expenses and other customary expenses, incurred by Holdings or such Restricted Subsidiary in connection with such incurrence or issuance and (ii) with respect to any Permitted Equity Issuance or capital contribution, the amount of cash from such Permitted Equity Issuance or capital contribution contributed to the capital of the Loan Parties.

“Net Income” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends.

“Net Recovery Percentage” means the fraction, expressed as a percentage (a) the numerator of which is the amount equal to the recovery on the aggregate amount of the applicable category of Eligible Inventory or Eligible In-Transit Inventory at such time based on the appraised orderly liquidation value, net of costs and expenses to be incurred in connection with any such liquidation, as set forth in the most recent Inventory Appraisal received by the Administrative Agent prior to the Closing Date and thereafter the most recent Inventory Appraisal received by the Administrative Agent conducted in accordance with Section 7.5 or Section 9.5(j), as applicable, and (b) the denominator of which is the cost of the aggregate amount of the Eligible Inventory or Eligible In-Transit Inventory subject to such Inventory Appraisal. The Net Recovery Percentage for any category of Inventory used in determining the applicable Revolving Borrowing Base shall be based on the applicable percentage in the most recent Inventory Appraisal received by the Administrative Agent prior to the Closing Date and thereafter the most recent Inventory Appraisal received by the Administrative Agent conducted in accordance with Section 7.5 or Section 9.5(j).

“New Revolving Commitment Lenders” has the meaning specified in Section 2.17(c).

“Non-Consenting Lender” has the meaning specified in Section 3.8.

“Non-Excluded Taxes” means all Taxes other than Excluded Taxes and Other Taxes.


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“Non-Loan Party” means any Restricted Subsidiary of Holdings that is not a Loan Party.

“Notice of Borrowing” means a notice of Borrowing pursuant to Section 2.2, which shall be substantially in the form of Exhibit C or such other form as may be reasonably approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and where applicable, signed by a Responsible Officer of a Borrower or Lead Administrative Loan Party.

“Notice of Intent to Cure” has the meaning specified in Section 7.2(a).

“Obligations” means all (a) advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, Letter of Credit or Canadian Reimbursement Undertakings, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, fees and expenses that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, fees and expenses are allowed claims in such proceeding, (b) obligations of any Loan Party or any Restricted Subsidiary arising under any Secured Hedge Agreement, and (c) Cash Management Obligations. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents (and any of their Subsidiaries to the extent they have obligations under the Loan Documents) include the obligation (including guarantee obligations) to pay principal, interest, Letter of Credit, Canadian Reimbursement Undertakings, reimbursement obligations, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party under any Loan Document; provided that Obligations of a Loan Party shall exclude any Excluded Swap Obligations with respect to such Loan Party.

“Obligations Payment Date” means the date on which (a) the Obligations have been paid in full in cash and in the required currency (other than (i) contingent indemnification obligations and other obligations of the Loan Parties that expressly survive the termination of the Loan Documents for which no claim has been asserted, (ii) Obligations in respect of Secured Hedge Agreements and Cash Management Obligations, in each case, not yet due and payable; unless the Administrative Agent has received written notice, at least two (2) Business Days prior to the proposed Obligations Payment Date, stating that arrangements reasonably satisfactory to the applicable Hedge Bank or Cash Management Bank, as the case may be, in respect thereof have not been made and (iii) obligations in respect of Letters of Credit, which are addressed in clause (b) below), (b) all Letters of Credit shall have expired or terminated (or been Cash Collateralized or backstopped in a manner reasonably satisfactory to the applicable Issuer), (c) all Letter of Credit Obligations have been reduced to zero (or Cash Collateralized or backstopped in a manner reasonably satisfactory to the applicable Issuer) and (d) all lending commitments under this Agreement and the other Loan Documents have been terminated.

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

“OID” means original issue discount.

“Other Taxes” means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes or any other excise or property Taxes arising from any payment made under any Loan Document or from the execution, delivery, performance, registration or enforcement of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document excluding, in each case, any such tax that result from an Assignment and Assumption, grant of a participation, transfer or assignment to or designation of a new applicable Lending Office or other office


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for receiving payments under any Loan Document (an “Assignment Tax”), but only if (1) such Assignment Tax is imposed as a result of a present or former connection of the assignor or assignee and the jurisdiction imposing such Assignment Tax (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) and (2) the assignment, participation, etc., giving rise to such Assignment Tax did not take place at the request of the Borrowers.

“Outstanding Amount” means (a) with respect to the Revolving Loans, FILO Loans and Swing Loans on any date, the Dollar Equivalent amount of the aggregate Outstanding Amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Loans (including any refinancing of Letter of Credit Obligations as a Revolving Loan), FILO Loans and Swing Loans, as the case may be, occurring on such date; and (b) with respect to any Letter of Credit Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of such Letter of Credit Obligations on such date after giving effect to any related extension of any Letter of Credit occurring on such date and any other changes thereto as of such date, including as a result of any reimbursements of outstanding Letter of Credit Obligations (including any refinancing of outstanding Letter of Credit Obligations under related Letters of Credit or related extensions of any Letters of Credit as a Revolving Loan) or any reductions in the maximum amount available for drawing under related Letters of Credit taking effect on such date.

“Overadvance” means a U.S. Overadvance, a Canadian Overadvance, or on and after the Australian Effective Date, an Australian Overadvance, as the context may require.

“Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent, an Issuer, or the Swing Loan Lender, as applicable, in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in an Alternative Currency, the rate of interest per annum at which overnight deposits in the applicable Alternative Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of Wells Fargo in the applicable offshore interbank market for such currency to major banks in such interbank market.

“Participant” has the meaning specified in Section 12.2(d).

“Participant Register” has the meaning specified in Section 12.2(e).

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

“Patriot Act” has the meaning specified therefor in Section 5.22 of this Agreement.

“Payment Conditions” means, at any time of determination, with respect to any Payment Conditions Transaction, the requirements that:

(a) as of the date of any such Payment Conditions Transaction, and immediately after giving effect thereto, no Specified Event of Default shall exist or have occurred and be continuing,

(b) as of the date of any such Payment Conditions Transaction and immediately after giving effect thereto, either:


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(i) Excess Availability on a Pro Forma Basis, and as projected for each day of the 3 months following such Payment Conditions Transaction, will be equal to or greater than seventeen and one-half percent (17.5%) of the Total Revolving Loan Cap (or, in the case of a Restricted Payment, twenty percent (20.0%) of the Total Revolving Loan Cap); or

(ii) both (A) Excess Availability on a Pro Forma Basis, and as projected for each day of the 3 months immediately following such Payment Conditions Transaction, will be equal to or greater than twelve and one-half percent (12.5%) of the Total Revolving Loan Cap (or, in the case of a Restricted Payment, fifteen percent (15.0%) of the Total Revolving Loan Cap) and (B) the Consolidated Fixed Charge Coverage Ratio, on a Pro Forma Basis, after giving effect to the Payment Conditions Transaction for the most recently ended Test Period,, shall be not less than 1.00 to 1.00; and

(c) for any such Payment Conditions Transaction in excess of $75,000,000, the Administrative Agent shall have received a certificate of a Responsible Officer of Lead Administrative Loan Party in accordance with Section 7.2(e).

“Payment Conditions Transaction” means any Investment (including any Permitted Acquisition), any Restricted Payment, any payment made pursuant to Section 9.11 or any other transaction that in each case is subject to the satisfaction of the Payment Conditions.

“Payment Recipient” has the meaning specified therefor in Section 11.18 of this Agreement.

“PBA” means the Pension Benefits Act (Ontario) or any other Canadian federal or provincial pension benefits standards legislation applicable to a Canadian Pension Plan.

“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.

“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Loan Party or any of their respective ERISA Affiliates or to which any Loan Party or any of their respective ERISA Affiliates contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions in the preceding five plan years.

“Permitted Acquisition” means the purchase or other acquisition by Holdings or any of its Restricted Subsidiaries of property and assets or businesses of any Person or of assets constituting a business unit, a line of business or division of such Person, or Equity Interests in a Person that, upon the consummation thereof, will be a direct or indirect wholly-owned Restricted Subsidiary of Holdings (including as a result of a merger, amalgamation or consolidation); provided that, with respect to each such purchase or other acquisition:

(a) both before and after giving effect thereto, no Event of Default has occurred and is continuing;

(b) to the extent required by the Collateral and Guarantee Requirement, the property, assets and businesses acquired in such purchase or other acquisition shall constitute Collateral and any newly created or acquired Subsidiary (and, to the extent required under the Collateral and Guarantee Requirement, the Subsidiaries of such created or acquired Subsidiary) shall be a Loan Party, and shall have complied with the requirements of Section 8.11, 8.12 and 8.13, within the times specified therein (for the avoidance of doubt, in the event of any inconsistency between this clause (b) and any provisions of the Collateral and Guarantee Requirement or Sections 8.11, 8.12 or 8.13, the provisions of the Collateral and Guarantee Requirement or Sections 8.11, 8.12 or 8.13, shall govern);


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(c) the Borrowers are in compliance, on a Pro Forma Basis after giving effect to such transaction, with the Payment Conditions;

(d) the Board of Directors of the Person to be acquired (or the seller of the relevant assets) shall have duly approved such Acquisition; and

(e) with respect to any Acquisition for consideration in excess of $75,000,000, the Lead Administrative Loan Party shall have delivered to the Administrative Agent, in accordance with Section 7.2(e), a certificate of a Responsible Officer of the Lead Administrative Loan Party as described in Section 7.2(e).

“Permitted Bond Hedge Transaction” means any call or capped call option (or substantively equivalent derivative transaction) on Holdings’ common stock purchased by Holdings in connection with the issuance of any Convertible Indebtedness; provided that the purchase price for such Permitted Bond Hedge Transaction, less the proceeds received by Holdings from the sale of any related Permitted Warrant Transaction, does not exceed the net proceeds received by Holdings from the Convertible Indebtedness issued in connection with the Permitted Bond Hedge Transaction.

“Permitted Discretion” means a determination made by the Administrative Agent or the Collateral Agent (as applicable) in good faith in the exercise of its reasonable (from the perspective of a secured asset-based lender) business judgment.

“Permitted Equity Issuance” means any sale or issuance of any Qualified Equity Interests of Holdings, in each case to the extent permitted hereunder.

“Permitted Priority Lien” means any Permitted Lien that is (a) a non-consensual Lien permitted by Section 9.1 that by operation of the law providing for such non-consensual Lien has priority over the Liens securing the Secured Obligations (it being understood and agreed for the avoidance of doubt that the any agreement between any Loan Party and the holder of any non-consensual Lien that acknowledges such non-consensual Lien shall not be construed as a “consensual” Lien to the extent that the applicable assets would be subject to such Lien in the absence of such contractual acknowledgement), (b) purchase money security interest permitted under Section 9.1 to the extent that the holder of such purchase money security interest shall have complied with all applicable laws so as to have priority over a previously perfected security interest, (c) the interest of any lessor under any Capital Lease, (d) in the case of assets other than Current Asset Collateral, a Lien subject to any Acceptable Intercreditor Agreement, (e) a customary bankers’ liens arising by operation of law or pursuant to the terms of the applicable deposit arrangement to secure payment of customary service fees and other charges directly related to the administration of such arrangements, (f) a Lien on an Exempt Account or (g) such other Lien as agreed to by the Administrative Agent.

“Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided that:

(a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium (including tender premiums) thereon plus fees and expenses (including upfront fees and OID) reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder,


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(b) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Sections 9.3(b) and (e), such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended,

(c) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Sections 9.3(e), at the time thereof, no Event of Default shall have occurred and be continuing, and

(d) if such Indebtedness being modified, refinanced, refunded, renewed, replaced or extended is subordinated in right of payment to the Obligations, (i) such modification, refinancing, refunding, renewal, replacement or extension shall be subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended, (ii) the terms and conditions (excluding as to subordination, pricing, premiums and optional prepayment or redemption provisions) of any such modified, refinanced, refunded, renewed or extended Indebtedness, taken as a whole, are not materially less favorable to the Loan Parties or the Lenders than the terms and conditions of the Indebtedness being modified, refinanced, refunded, renewed or extended; provided that a certificate of a Responsible Officer of Holdings delivered to the Administrative Agent at least five (5) Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that Holdings has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies Holdings within such five Business Day period that it disagrees with such determination (including a description of the basis upon which it disagrees) and (iii) such modification, refinancing, refunding, renewal or extension is incurred by the Person who is the obligor of the Indebtedness being modified, refinanced, refunded, renewed or extended and no additional obligors become liable for such Indebtedness.

“Permitted Senior Debt” means Indebtedness of one or more Loan Parties that (a) does not mature earlier than the date that is ninety (90) days after the Latest Maturity Date, (b) does not have required scheduled amortization payments prior to the Latest Maturity Date in excess of ten percent (10.00%) per annum of the original principal amount thereof, (c) if secured, (i) is not secured by any asset other than the Collateral; provided that such Indebtedness may be secured by real property of one or more Loan Parties and (ii) is subject to an Acceptable Intercreditor Agreement and (d) if guaranteed, is not guaranteed by any Person that is not a Loan Party; provided, that, (A) for purposes of clause (d), the obligation of any Person with respect to the payment back of any proceeds of such Indebtedness received by such Person which are deposited and held in customary escrow arrangements shall be deemed not to constitute a guarantee by any Person that is not a Loan Party, (B) any Indebtedness that is funded into escrow pursuant to customary escrow arrangements may be secured by the applicable proceeds and related assets held in escrow (and the proceeds thereof) until the date on which such proceeds are released from escrow, and such security shall not constitute a Lien on an asset that does not constitute Collateral for purposes of any requirement under this Agreement and (C) the requirements set forth in clauses (a) and (b) above shall not prohibit Permitted Senior Debt in the form of a customary bridge financing so long as any instrument into which such bridge financing converts or is exchanged satisfies the requirements set forth in clauses (a) and (b) above and no Person shall have any obligation to repay such loans prior to the dates required under clause (a) (it being understood that a cashless conversion or exchange of any such loans shall not be deemed to constitute a “repayment” for purposes of this provision) except for customary mandatory prepayments in respect of specified events or with a Permitted Refinancing with respect to such bridge financing.


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“Permitted Senior Debt Intercreditor Agreement” has the meaning assigned to such term in Section 9.1(ff).

“Permitted Tax Distributions” means, with respect to any taxable period for which a Loan Party is a member of a consolidated, combined, affiliated, unitary or similar tax group for U.S. federal and/or applicable state, local or foreign tax purposes of which a direct or indirect parent of such Loan Party is the common parent, Restricted Payments by such Loan Party to Holdings that are used by it to pay its federal, state, local and non-U.S. tax liabilities attributable to such Loan Party, then due and payable, reduced by any such taxes paid directly by such Loan Party to the relevant taxing authority, provided, that, the amount of such Restricted Payments by a Loan Party shall not be greater than the amount of such taxes that would have been due and payable by such Loan Party had such Loan Party not filed a consolidated, combined, unitary or similar type return with Holdings (or such parent corporation) but had been a stand-alone corporate taxpayer for the applicable taxable period and Restricted Payments by a Loan Party attributable to the income of any Unrestricted Subsidiary shall be permitted only to the extent that such Unrestricted Subsidiary made distributions to such Loan Party for such purpose. For purposes hereof, allowable loss carryovers and credits against Tax shall be taken into account in computing Taxes due and payable.

“Permitted Warrant Transaction” means any call option, warrant or right to purchase (or substantively equivalent derivative transaction) on Holdings’ common stock sold by Holdings substantially concurrently with the consummation by Holdings of a related Permitted Bond Hedge Transaction.

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

“Plan” means any material “employee benefit plan” (as such term is defined in Section 3(3) of ERISA), other than a Foreign Plan, established by any Loan Party or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any of their respective ERISA Affiliates.

“Platform” has the meaning specified in Section 7.2.

“Pledged Debt” means, collectively, (a) the “Intercompany Notes” (as defined in the U.S. Security Agreement) and (b) the “Intercompany Notes” (as defined in the Canadian Security Agreement).

“Pledged Equity” means, collectively, (a) the “Pledged Equity” (as defined in the U.S. Security Agreement), (b) the “Pledged Equity” (as defined in the Canadian Security Agreement), and (c) any equivalent term in any Australian Collateral Document.

“PPSA” means the Personal Property Security Act (Ontario), including the regulations thereto and related Minister’s Orders, provided that, i