EXHIBIT 10.1

FIRST LIEN CREDIT AGREEMENT

Dated as of October 29, 2018,

Among

DIFFERENTIAL BRANDS GROUP INC.,

as Borrower,

THE LENDERS PARTY HERETO,

and

ARES CAPITAL CORPORATION

as Joint Lead Arranger, Bookrunner and Administrative Agent

ACF FINCO I LP

as Revolving Agent and Collateral Agent

and

HPS INVESTMENT PARTNERS, LLC

as Joint Lead Arranger, Bookrunner and Documentation Agent

Table of Contents

Exhibits and Schedules

This FIRST LIEN CREDIT AGREEMENT , dated as of October 29 2018, (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “ Agreement ”), is made by among, DIFFERENTIAL BRANDS GROUP INC., a Delaware corporation (the “ Borrower ”), the Lenders (as hereinafter defined) from time to time party hereto, ARES CAPITAL CORPORATION, as administrative agent (together with any successor administrative agent appointed pursuant hereto, in such capacity, the “ Administrative Agent ”), Ares Commercial Finance as revolving agent (together with any successor revolving agent appointed pursuant hereto, in such capacity, the “ Revolving Agent ”) for the Revolving Lenders and ACF FINCO I LP as collateral agent (together with any successor collateral agent appointed pursuant hereto, in such capacity, the “ Collateral Agent ”) for all Lenders.

WHEREAS , pursuant to the Acquisition Agreement, the Borrower will acquire (the “ Closing Date Acquisition ”) 100% of the Equity Interests of Centric Brands Holding LLC, a Delaware limited liability company (the “ Acquired Business ”);

WHEREAS , the Borrower has requested that the Lenders extend credit in the form of (a) Term Loans on the Closing Date in an aggregate principal amount equal to $645,000,000 and (b) subject to the terms and conditions set forth herein, Revolving Loans at any time and from time to time on and after the Closing Date and prior to the Maturity Date in an aggregate principal amount at any one time outstanding (when taken together with the face amount of Letters of Credit and Swing Line Loans then outstanding) not to exceed $150,000,000; provided that the aggregate principal amount of Revolving Loans and Letters of Credit made on the Closing Date, shall not exceed $25,000,000, which shall solely be used (i) to fund a portion of the acquisition consideration for the Acquired Business, (ii) to satisfy working capital needs of the Borrower and its Subsidiaries, (iii) to satisfy working capital adjustments pursuant to the Acquisition Agreement and (iv) to finance the payment of the license agreement consent fees on the Closing Date (the “ Closing Date Revolver Cap ”); but in any event not to collectively exceed the Maximum Revolver Amount.  The proceeds of the Term Loans may be used on the Closing Date solely to fund consideration for the Closing Date Acquisition and fees, costs and expenses incurred in connection with the Transactions.  The proceeds of the Revolving Loans may be used on the Closing Date to fund the consideration for the Closing Date Acquisition, fees, costs and expenses incurred in connection with Transactions and working capital needs of the Borrower and its Subsidiaries, working capital adjustments pursuant to the Acquisition Agreement and to finance the payment of the license agreement consent fees pursuant to the Acquisition Agreement and after the Closing Date to provide for ongoing working capital needs and other general corporate purposes of the Borrower and its Subsidiaries;

WHEREAS , concurrently herewith, the Borrower is entering into the Second Lien Credit Agreement to incur second lien term loans, the proceeds of which will be used in accordance with the Second Lien Credit Agreement to fund consideration for the Closing Date Acquisition and fees, costs and expenses incurred in connection with the Transactions and will be subject to the terms of the First-Second Intercreditor Agreement;

WHEREAS , the Borrower and each other Loan Party desire to secure all of the Obligations by granting to the Collateral Agent, for the benefit of the Secured Parties, a security interest in and Lien upon substantially all of the property and assets of the Borrower and the other Loan Parties, subject to the limitations described herein and in the Security Documents;

WHEREAS , the Lenders are willing to extend such credit to the Borrower, and the Issuing Banks are willing to issue Letters of Credit for the account of the Borrower, in each case on the terms and subject to the conditions set forth herein; and

WHEREAS , the future name of Borrower will be Centric Brands Inc. and this Agreement is being executed prior to such name change becoming effective.

NOW, THEREFORE , in consideration of the above premises and the agreements hereinafter set forth, the parties hereto hereby agree as follows:

Article I

Definitions

Section 1.01       Defined Terms . As used in this Agreement, the following terms shall have the meanings specified below:

“ ABR ” shall mean, for any day, a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the Prime Rate in effect on such date, (c) the Eurocurrency Base Rate (after giving effect to any Eurocurrency Base Rate “floor”) (which rate shall be calculated based on an Interest Period of one month) plus 1.00% and (d) with respect to the Term Loans, 2.50%; provided that, if the ABR determined based on the foregoing is less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Any change in the ABR due to a change in the Prime Rate, the Federal Funds Rate or the Eurocurrency Base Rate shall be effective as of the opening of business on the effective day of such change in the Prime Rate, the Federal Funds Rate or the Eurocurrency Base Rate, respectively.

“ ABR Borrowing ” shall mean a Borrowing comprised of ABR Loans.

“ ABR Loan ” shall mean any ABR Term Loan or any ABR Revolving Loan.

“ ABR Revolving Borrowing ” shall mean a Borrowing comprised of ABR Revolving Loans.

“ ABR Revolving Loan ” shall mean any Revolving Loan bearing interest at a rate determined by reference to the ABR in accordance with the provisions of Article II .

“ ABR Term Loan ” shall mean any Term Loan bearing interest at a rate determined by reference to the ABR in accordance with the provisions of Article II .

ABR Term Loan Borrowing ” shall mean a Borrowing comprised of ABR Term Loans.

“ ACF ” shall mean ACF FINCO I LP.

“ Acquisition ” and “ Acquisitions ” shall mean, with respect to any Person, (a) the acquisition by such Person, in a single transaction or in a series of related transactions, of all or substantially all of the property of another Person, or any division, line of business or other business unit of another Person or (b) at least a majority of the voting Equity Interests of another Person, in each case whether or not involving a merger or consolidation with such other Person and whether for cash, property, services, assumption of Indebtedness, securities or otherwise; provided that the acquisition of assets and the assumption of liabilities in connection with entering into licensing agreements in the ordinary course of business shall not be deemed an “Acquisition”.

“ Acquisition Agreement ” shall mean that certain Purchase and Sale Agreement, dated as of June 27, 2018, by and among the Borrower, Global Brands Group Holdings Limited (“ GBG ”) and GBG USA Inc. (the “ Seller ”), as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“ Acquisition Consideration ” shall mean the purchase consideration paid by the Borrower and its Subsidiaries for any Permitted Business Acquisition, whether paid in cash or by exchange of properties or otherwise and whether payable at or prior to the consummation of such Permitted Business Acquisition or deferred for payment at any future time, whether or not any such future payment is subject to the occurrence of any contingency, and includes any and all payments by Borrower or any Subsidiary representing the purchase price and any assumptions of Indebtedness; provided that Acquisition Consideration shall exclude (a) any consideration paid in the form of Equity Interests (other than Disqualified Stock) issued to the applicable seller, (b) any cash consideration paid to the applicable seller that was financed with the proceeds of any issuance of (or contributions in respect of) Equity Interests (other than Disqualified Stock) on or prior to the Closing Date (other than any proceeds from the Equity Contribution), (c) any consideration paid in connection with the Existing Earn Out Obligations and (d) all fees, costs and expenses paid or payable in connection with the structuring, negotiation, documentation or consummation of such Permitted Business Acquisition.

“ Acquisition Representations ” shall mean the representations and warranties made by the Seller and GBG in the Acquisition Agreement which are material to the interests to the Lenders, but solely to the extent that the Borrower has the right to terminate its obligations under the Acquisition Agreement or not to consummate the transactions contemplated by the Acquisition Agreement as a result of a breach of (or the inability to make) such representations or warranties.

“ Additional Amounts ” shall have the meaning assigned to such term in definition of “Pricing Grid”.

“ Additional Lender ” shall have the meaning assigned to such term in Section 2.24(b) .

“ Additional Mortgage ” shall have the meaning assigned to such term in Section 5.11(c) .

“ Adjusted Eurocurrency Rate ” shall mean for any Interest Period with respect to a Eurocurrency Loan, a rate per annum equal to the higher of (a) with respect to the Term Loans, 1.50 %, (b) with respect to Revolving Loans, 0.00% and (c) a rate per annum determined by the Administrative Agent pursuant to the following formula:

“ Administrative Agent ” shall have the meaning assigned to such term in the preamble hereto.

“ Administrative Agent Fees ” shall have the meaning assigned to such term in Section 2.12(c) .

“ Administrative Questionnaire ” shall mean an Administrative Questionnaire in a form supplied by the Administrative Agent and any sub-agents.

“ Advance Ratio ” shall mean, with respect to any Securitization Financing, the ratio of upfront cash compensation to deferred payments.

“ Affiliate ” shall mean, when used with respect to a specified person, another person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the person specified provided , however , that, for purposes of Section 6.05 , 6.07 and 9.04 the term “Affiliate” or “Affiliated Lender” shall also include (i) any person that directly or indirectly owns 10% or more of any class of Equity Interests of the person specified or that is an officer or director of the Person, (ii) GSO and (iii) any portfolio company of Tengram.

“ Affiliated Lender ” shall mean any Affiliate of the Borrower other than the Borrower and its Subsidiaries.

“ Affiliated Lender Cap ” shall have the meaning assigned to such term in Section 9.04(h)(iii) .

“ Agent Parties ” shall have the meaning assigned to such term in Section 9.19(c) .

“ Agents ” shall mean the collective reference to the lead arrangers, syndication agents, documentation agents or bookrunners identified in the cover page hereto.

“ Agreement ” shall have the meaning assigned to such term in the preamble hereto, as amended from time to time in accordance with the terms hereof.

“ Agreement Among Lenders ” shall mean that certain Agreement Among Lenders dated as of the date hereof between Administrative Agent, Revolving Agent, Collateral Agent, the initial Lenders and acknowledged by the Loan Parties.

“ AHYDO Payment ” shall mean any interest payment, mandatory prepayment or redemption pursuant to the terms of any Indebtedness in an amount that is intended or designed to cause such Indebtedness not to be treated as an “applicable high yield discount obligation” within the meaning of Section 163(i) of the Code.

“ Anti-Corruption Laws ” shall mean all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Subsidiaries concerning or relating to bribery or corruption, including, without limitation: (a) the FCPA; (b) the UK Bribery Act 2010; (c) any activity prohibited by any resolution of the U.N. Security Council under Chapter VII of the U.N. Charter or the Organization for Economic Cooperation and Development’s Good Practice Guidance on Internal Controls, Ethics, and Compliance; (d) any laws implementing the principles described in the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed in Paris on 17 December 1997, which entered into force on 15 February 1999, and the Convention’s Commentaries; and (e) any other applicable anti-corruption or anti-bribery laws.

“ Applicable Margin ” shall mean for any day (a) with respect to any Term Loan, 6.00% per annum in the case of any Eurocurrency Loan, and 5.00% per annum in the case of any ABR Loan, (b) with respect to any Revolving Loan, 5.50% per annum in the case of any Eurocurrency Loan, and 4.50% per annum in the case of any ABR Loan and (c) with respect to the Commitment Fee, 0.75% per annum; provided that with respect to the Term Loans, the Applicable Margin shall be determined in accordance with the Pricing Grid at all times following the date of the delivery of financial statements pursuant to Section 5.04(a) or Section 5.04(b) for the first fiscal quarter or fiscal year, as applicable, ending following the one year anniversary of the Closing Date.

“ Applicable Percentage ” shall mean, in respect of the Term Loans, with respect to any Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term Loans represented by (i) such Term Lender’s Term Loan Commitment at such time and (ii) after the termination of such Term Lender’s Term Loan Commitment, the principal amount of such Term Lender’s Term Loans at such time, and in respect of the Revolving Loans, with respect to any Revolving Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Loans represented by such Revolving Lender’s Revolving Facility Commitment at such time. If the commitment of each Revolving Lender to make Revolving Loans and the obligation of the Issuing Bank to issue Letters of Credit and of Revolving Lenders to fund participations in Letters of Credit have been terminated pursuant to Section 7.01 , or if the Revolving Facility Commitments have expired, then the Applicable Percentage of each Revolving Lender in respect of the Revolving Loans shall be determined based on the relative amounts of the Revolving Facility Exposures of such Revolving Lender in respect of the total Revolving Facility Exposure most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender in respect of each Tranche is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender becomes a party hereto, as applicable.

“ Approved Fund ” shall have the meaning assigned to such term in Section 9.04(b) .

“ Ares ” shall mean Ares Capital Management LLC and/or its managed funds or Affiliates.

“ Asset Sale ” shall mean any loss, damage, destruction or condemnation of, or any sale, assignment, conveyance, exclusive or perpetual license, transfer or other Disposition (including any sale and leaseback of assets and any mortgage, lease or sublease of real property (including by allocation of assets by division or allocation of assets to any series of a limited liability company)) to any person of any asset or assets of any of the Borrower or any Subsidiary.

“ Assignee ” shall have the meaning assigned to such term in Section 9.04(b) .

“ Assignment and Acceptance ” shall mean an assignment and acceptance entered into by a Lender and an assignee, and accepted by the Administrative Agent and the Borrower (if required by Section 9.04 ), in the form of Exhibit A or such other form as shall be approved by the Administrative Agent and Revolving Agent.

“ Authorized Person ” shall mean any one of the individuals identified on Schedule A-1 , as such schedule is updated from time to time by written notice from Borrower to Revolving Agent.

“ Availability ” shall mean, as of any date of determination, the amount that Borrower is entitled to borrow as Revolving Loans under Section 2.01 (after giving effect to the then outstanding Revolving Facility Exposure).

“ Available Unused Commitment ” shall mean, with respect to a Revolving Lender at any time, an amount equal to the amount by which (a) the aggregate amount of the Revolving Facility Commitment of such Revolving Lender at such time exceeds (b) the Revolving Facility Exposure of such Revolving Lender at such time.

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

“ Bail-In Legislation ” shall mean, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

“ Beneficial Ownership Certification ” shall mean a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

“ Beneficial Ownership Regulation ” shall mean 31 C.F.R. § 1010.230.

“ Benefit Plan ” shall mean any (a) “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, or (b) “plan” as defined in and subject to Section 4975 of the Code.

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

“ Board of Directors ” shall mean, as to any person, the board of directors or managers, as applicable, of such person (or, if such person is a partnership, the board of directors or other governing body of the general partner of such person) or any duly authorized committee thereof.

“ Bona Fide Debt Fund ” shall mean, with respect to any Company Competitor or any Affiliate thereof, any debt fund, investment vehicle, regulated bank entity or unregulated lending entity (in each case, other than any Disqualified Institution) that is primarily (i) engaged in or advises funds or other investment vehicles that are engaged in making, purchasing, holding or otherwise investing in commercial loans, commitments and similar extensions of credit in the ordinary course of business and (ii) managed, sponsored or advised by any Person that is controlling, controlled by or under common control with the relevant Company Competitor or Affiliate thereof, but only to the extent that no personnel involved with the investment in the relevant Company Competitor (other than a limited number of senior employees in connection with the relevant Person’s internal legal, compliance, risk management and/or credit practices) (A) directly or indirectly makes (or has the right to make or participate with others in making) investment decisions on behalf of such debt fund, investment vehicle, regulated bank entity or unregulated entity or (B) has access to any information (other than information that is publicly available) relating to the Borrower, the Acquired Business or any entity that forms a part of any of their respective businesses (including any of their respective subsidiaries); it being understood and agreed that the term “ Bona Fide Debt Fund ” shall not include any Person that is separately identified to the Lead Arrangers or the Administrative Agent, as applicable, in accordance with clause (a) of the definition of “ Disqualified Institution ” or any Affiliate of any such Person that is reasonably identifiable as an Affiliate of such Person on the basis of such Affiliate’s name.

“ Borrower ” shall have the meaning assigned to such term in the preamble hereto.

“ Borrower Notice” shall have the meaning assigned to such term in Section 5.11(c) .

“ Borrowing ” shall mean a group of Loans of a single Type, Class and currency and made on a single date to a single Borrower and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect

“ Borrowing Base ” shall mean, as of any date of determination, the result of:

(i)       the lesser of (A) the product of 70% multiplied by the value (calculated at the lower of cost or market on a basis consistent with Borrower’s historical accounting practices) of Eligible Inventory at such time, and (B) the product of 90% multiplied by the Net Orderly Liquidation Percentage of Eligible Inventory (such determination may be made as to different categories of Eligible Inventory based upon the Net Orderly Liquidation Percentage applicable to such categories) at such time, minus

(ii)     without duplication, the aggregate amount of all Reserves in effect at such time.

“ Borrowing Base Certificate ” shall mean a certificate in the form of Exhibit B.

“ Borrowing Minimum ” shall mean $5,000,000.

“ Borrowing Multiple ” shall mean $1,000,000.

“ Borrowing Request ” shall mean a request by the Borrower in accordance with the terms of 2.04 and substantially in the form of Exhibit C or such other form that is reasonably acceptable to the Administrative Agent and the Borrower. Each such written Borrowing Request shall specify the following information:

(i)       the Class of such Borrowing;

(ii)      the aggregate amount of the requested Borrowing;

(iii)     the date of such Borrowing, which shall be a Business Day;

(iv)     whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;

(v)      in the case of a Eurocurrency Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “ Interest Period ”; and

(vi)    the location and number of the Borrower’s account(s) to which funds are to be disbursed.

“ Business Day ” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided , that when used in connection with a Eurocurrency Loan, the term “ Business Day ” shall also exclude any day on which banks are not open for dealings in deposits in the applicable currency in the London interbank market.

“ Capital Expenditures ” shall mean, for any person in respect of any period, without duplication, the aggregate of all expenditures incurred for any purchase or other acquisition of any asset, including capitalized leasehold improvements, which would be classified as a fixed or capital asset on a consolidated balance sheet of such person prepared in accordance with GAAP or are included as “ additions to property, plant or equipment ” reflected in the statement of cash flows of such Person; provided , however , that Capital Expenditures shall not include:

(a)       expenditures with funds that would have constituted Net Proceeds under clause (a) of the definition of the term “ Net Proceeds ” but for the application of the first   proviso to such clause (a) ;

(b)       expenditures with proceeds of insurance settlements, condemnation awards and other settlements in respect of lost, destroyed, damaged or condemned assets, equipment or other property to the extent such expenditures are made to replace or repair such lost, destroyed, damaged or condemned assets, equipment or other property or otherwise to acquire, maintain, develop, construct, improve, upgrade or repair assets or properties useful in the business of the Borrower and the Subsidiaries to the extent permitted hereunder;

(c)       interest capitalized during such period;

(d)       expenditures that are accounted for as capital expenditures of such person and that actually are paid for by a third party (excluding the Borrower or any Subsidiary, but including any landlord or other owner of real property leased in connection with such leasehold or property improvements made by such party) and for which neither Borrower nor any of its Subsidiaries has provided or is required to provide (or incur or is otherwise liable for (directly or indirectly)) any consideration or obligation to such third party (or any other person directed by such third person) (whether before, during or after such period);

(e)       the book value of any asset owned by such person prior to or during such period to the extent that such book value is included as a capital expenditure during such period as a result of such person reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period; provided , that (i) any expenditure necessary in order to permit such asset to be reused shall be included as a Capital Expenditure during the period that such expenditure actually is made and (ii) such book value shall have been included in Capital Expenditures when such asset was originally acquired;

(f)       the purchase price of equipment purchased during such period to the extent that the consideration therefor consists of any combination of (i) used or surplus equipment traded in at the time of such purchase and (ii) the proceeds of a concurrent sale of used or surplus equipment;

(g)       the Closing Date Acquisition, Investments in respect of a Permitted Business Acquisition or any other investment other than to the extent constituting a Capital Expenditure; or

(h)       capital expenditures to the extent made or financed with the cash and Cash Equivalent proceeds of issuances of Equity Interests (other than Disqualified Stock) or paid for with Equity Interests (other than Disqualified Stock).

“ Capital Lease ” shall mean, with respect to any person, any lease of, or other arrangement conveying the right to use, any property by such Person as lessee that are required to be accounted for as a capital lease on a balance sheet of such person prepared in accordance with GAAP.

“ Capital Lease Obligations ” shall mean, with respect to any person, the obligations of such person to pay rent or other amounts under any Capital Lease, and, for purposes hereof, the amount of such obligations at any time shall be the capitalized amount thereof that would appear on the balance sheet of such person at such time determined in accordance with GAAP.

“ Cash Collateralize ” shall mean to pledge and deposit with or deliver to the Collateral Agent, for the benefit of the Revolving Agent or any applicable Issuing Bank and the Lenders, as collateral for unreimbursed L/C Disbursements, or obligations of Lenders to fund participations in respect thereof (as the context may require), cash or deposit account balances in the amount of 105% of the outstanding L/C Exposure with respect thereto, or, if the applicable Issuing Bank benefitting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to (a) the Revolving Agent and (b) the applicable Issuing Bank. “ Cash Collateral ” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

“ Cash Dominion Event ” shall mean the occurrence of any of the following (a) an Event of Default pursuant to Section 7.01(a) (with respect to Section 3.22 , or any representation or warranty made in any Borrowing Base Certificate that results in an overstatement of the Borrowing Base by more than two percent (2%) of the value of Eligible Inventory set forth therein), (b) an Event of Default under Section 7.01(b) or 7.01(c) (in each case, with respect to Obligations in respect of the Revolving Credit Facility), (c) an Event of Default under Section 7.01(d) (with respect to a failure to comply with Section 6.10 or 6.05(d) ), (d) an Event of Default under Section 7.01(e) (with respect to a failure to comply with any of Sections 2.06 , 5.04(a) , 5.04(b) , 5.04(c), 5.04(e) or 5.21(a) , (e) an Event of Default under Sections 7.01(h) or 7.01(i), or (f) Excess Availability is less than $15,000,000 for a period of five consecutive Business Days. 

“ Cash Dominion Period ” shall mean the period commencing upon the occurrence of a Cash Dominion Event and ending upon the date when (i) if arising as a result of a failure to comply with clause (f) of the definition of Cash Dominion Event, Excess Availability exceeds $15,000,000 for a period of 45 consecutive days and (ii) if arising for any other reason, the applicable Cash Dominion Event that commenced such Cash Dominion Period is cured or waived.

“ Cash Equivalents ” shall mean:

(a)       U.S. Dollars, Sterling, or Euros or, in the case of any Foreign Subsidiary, such local currencies held by it from time to time in the ordinary course of business;

(b)       securities issued or directly and fully guaranteed or insured by the government of, or any agency or instrumentality thereof, the United States of America or any member state of the European Union, in each case, with maturities not exceeding two years after the date of acquisition;

(c)       in the case of any Foreign Subsidiary, securities issued or directly and fully guaranteed or insured by the government of, or any agency or instrumentality thereof, in each case with maturities not exceeding 365 days after the date of acquisition and held by it from time to time in the ordinary course of business;

(d)       certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances, in each case with maturities not exceeding one year and overnight bank deposits and demand deposits (in their respective local currencies), in each case with any commercial bank having capital and surplus in excess of $500,000,000 or the foreign currency equivalent thereof and whose long-term debt is rated “AA-” or “ Aa3 ” or the equivalent thereof by Moody’s or S&P, respectively (or, in the case of an obligor domiciled outside of the United States, reasonably equivalent ratings of another internationally recognized credit rating agency);

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

(f)       commercial paper issued by a corporation (other than an Affiliated Lender) rated at least “P-1” or “ A-1 ” or the equivalent thereof by Moody’s or S&P (or, in the case of an obligor domiciled outside of the United States, reasonably equivalent ratings of another internationally recognized credit rating agency) and in each case maturing within one year after the date of acquisition;

(g)       readily marketable direct obligations issued by any state of the United States of America or any political subdivision thereof having one of the two highest rating categories obtainable from either Moody’s or S&P in each case with maturities not exceeding two years from the date of acquisition;

(h)       Indebtedness issued by persons with a rating of “ A ” or higher from S&P or “ A-2 ” or higher from Moody’s (or, in the case of an obligor domiciled outside of the United States, reasonably equivalent ratings of another internationally recognized credit rating agency) in each case with maturities not exceeding two years from the date of acquisition; and

(i)       investment funds investing at least 95% of their assets in securities of the types described in clauses (a) through (g) above.

“ Cash Interest Expense ” shall mean, with respect to any person on a consolidated basis for any period, Interest Expense for such period, less , without duplication, the sum of (a) pay-in-kind Interest Expense or other noncash Interest Expense (including as a result of the effects of purchase accounting), (b) to the extent included in Interest Expense, the amortization of any financing fees paid by, or on behalf of, the Borrower or any Subsidiary, including such fees paid in connection with the Transactions, (c) the amortization of debt discounts, if any, or fees in respect of Swap Agreements and (d) cash interest income of the Borrower and the Subsidiaries for such period; provided , that Cash Interest Expense shall exclude any other financing fees paid in connection with the Transactions and any other one-time financing fees (including arrangement, amendment and consent fees), debt issuance costs, commissions, expenses and the amortization thereof.

“ CFC ” shall mean a “controlled foreign corporation” pursuant to Section 957 of the Code.

A “ Change in Control ” shall be deemed to occur if:

(a)       a “ change of control ” or other similar provision shall occur under or with respect to any Material Indebtedness; or

(b)       any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act(but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan)) other than the Permitted Holders, is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 35% (on a fully diluted basis) of the issued and outstanding Voting Stock of the Borrower aggregate ordinary voting power of the Borrower. It is understood that, for purposes of this definition, (x) no person shall be deemed to have beneficial ownership of Equity Interests solely by virtue of a stock purchase agreement, merger agreement, or similar agreement (or voting agreement entered into in connection with a stock purchase agreement, merger agreement or similar agreement) until the consummation of the transfer of the applicable Equity Interests to such person and (y) the issuance of Equity Interests to GSO and Ares and their Affiliates in connection with the consummation of the Transactions on or about the Closing Date shall not be a Change of Control.

“ Change in Law ” shall mean the occurrence, after the date of this Agreement or, if later, the date on which the applicable Lender becomes a Lender hereunder, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (x) the 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 United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“ Charge ” shall mean any fee, loss, charge, expense, cost, accrual or reserve of any kind (in each case, if applicable, as defined under GAAP).

“ Class ” when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Term Loans or Swingline Advances.

“ Closing Date ” shall mean October 29, 2018.

“ Closing Date Acquisition ” shall have the meaning assigned to such term in the preamble hereto.

“ Closing Date Subordinated Convertible Note ” shall mean, collectively, each subordinated convertible promissory note, dated as of the Closing Date, issued by the Borrower for the benefit of the parties listed therein and identified to the Administrative Agent, as investors, as the same may be amended, amended and restated, restated, supplemented or otherwise modified in accordance with the terms hereof.

“ Closing Date Revolver Cap ” shall have the meaning assigned to such term in the preamble hereto.

“ Code ” shall mean the Internal Revenue Code of 1986, as amended from time to time.

“ Collateral ” shall mean all “ Collateral ” and “ Mortgaged Property ” referred to in the Security Documents (including the Mortgaged Properties) and all other property that is or is intended to be subject to any Lien in favor of the Collateral Agent for the benefit of the Lenders but in all cases excluding any Excluded Assets.

“ Collateral Access Agreement ” shall mean a landlord waiver or other agreement, in a form as shall be reasonably satisfactory to the Collateral Agent, between the Collateral Agent and any third party (including any bailee, consignee, customs broker or other similar Person) in possession of any Collateral or any landlord of any premises where any Collateral is located, as such landlord waiver or other agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“ Collateral Agent ” shall have the meaning assigned to such term in the preamble hereto.

“ Collateral Agreement ” shall mean the Collateral Agreement, substantially in the form of Exhibit D , among the Borrower, each Subsidiary Loan Party and the Collateral Agent, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“ Collateral and Guarantee Requirement ” shall mean, at any time, subject to (x) the applicable limitations set forth in this Agreement (including, without limitation, the Funding Conditions Provision) and any other Loan Documents and (y) the time periods (and extensions thereof) set forth in Section 5.11 , the requirement that:

(a)       the Administrative Agent shall have received (i) from the Borrower and each other Subsidiary Loan Party a counterpart of the Collateral Agreement, duly executed and delivered on behalf of each such person party thereto, (ii) from the Borrower and each other Loan Party a counterpart of the Guaranty Agreement, duly executed and delivered on behalf of each such person party thereto;

(b)       other than with respect to Excluded Assets, all outstanding Equity Interests directly owned by any Loan Party, and all Indebtedness owing to any Loan Party (other than intercompany indebtedness, which is governed by clause (c) below) shall have been pledged pursuant to the Collateral Agreement (or other applicable Security Document) and, the Collateral Agent shall have received certificates or other instruments representing or evidencing such Equity Interests and any notes or other instruments representing such Indebtedness in excess of $5,000,000, together with stock powers, note powers or other instruments of transfer with respect thereto endorsed in blank;

(c)       other than with respect to Excluded Assets, (i) all Indebtedness of the Borrower and each Subsidiary (other than any Indebtedness in an initial aggregate principal amount not exceeding $5,000,000 that is owing to any Loan Party shall be evidenced by a promissory note, a master intercompany note or an instrument in form reasonably satisfactory to the Administrative Agent and shall have been pledged pursuant to the Collateral Agreement (or other applicable Security Document), and (ii) the Collateral Agent shall have received all such promissory notes or instruments, together with note powers or other instruments of transfer with respect thereto endorsed in blank (other than with respect to any such intercompany debt the perfection of the pledge of which is not achieved by delivery to the Collateral Agent);

(d)       other than with respect to Excluded Assets and except as otherwise contemplated by any Security Document or elsewhere in this definition of Collateral and Guarantee Requirement (including with regard to deposit accounts), all documents and instruments, (including, in the United States of America, filings of Uniform Commercial Code financing statements and filings with the United States Copyright Office and the United States Patent and Trademark Office) and all other actions required by law or reasonably requested by the Administrative Agent or Collateral Agent, as applicable to be filed, registered or recorded to create the Liens intended to be created by the Security Documents (in each case, including any supplements thereto) and perfect such Liens to the extent required by, and with the priority required by, the Security Documents shall have been filed, registered or recorded or delivered to the Administrative Agent or Collateral Agent, as requested, for filing, registration or the recording or taken concurrently with, or promptly following, the execution and delivery of each such Security Document;

(e)       except as set forth pursuant to any Security Document, each Loan Party shall have obtained all consents and approvals required to be obtained by it in connection with (i) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (ii) the performance of its obligations thereunder (including the use of commercially reasonable efforts to obtain written consent, in each case, in form and substance reasonable satisfactory to the Administrative Agent and Collateral Agent, of each licensor of any material Intellectual Property to the security interest of the Collateral Agent and the rights of the Collateral Agent under the Security Documents);

(f)       subject to Section 5.11(g) , in the case of any person that (i) becomes a Loan Party after the Closing Date, the Administrative Agent shall have received from such Loan Party, (A) a supplement or joinder to each of the Guaranty Agreement and the Collateral Agreement, in the form specified therein, duly executed and delivered on behalf of such person, (B) such other Security Documents as may be required to be delivered pursuant to Section 5.11 , and (C) evidence that any other requirements of Section 5.11 shall have been complied with and (ii) becomes such a Subsidiary Loan Party, the Administrative Agent shall have received from the parent of such Subsidiary Loan Party, (A) supplements to the applicable Security Documents pursuant to which it shall have pledged the Equity Interests in the other Subsidiaries owned by it (other than Excluded Equity Interests), or other Security Documents, effecting the pledge of such Equity Interests in favor of the Collateral Agent, subject to the same exceptions and limitations as set forth in paragraph (c) above and clause (i)(B) above , (B) certificates and instruments representing or evidencing such Equity Interests, subject to the same exceptions and limitations as set forth in paragraph (c) above and (C) a joinder agreement to the First-Second Intercreditor Agreement and an acknowledgment to the Agreement Among Lenders, in a form reasonably satisfactory to the Administrative Agent;

(g)       other than with respect to Excluded Accounts, within 60 days after the Closing Date (with respect to each deposit account or securities account existing on the Closing Date) or 60 days after the acquisition or establishment of any deposit account or securities account (other than Excluded Accounts) after the Closing Date (or, in each case, such longer time as may be agreed to by the Collateral Agent in its reasonable discretion), the Loan Parties shall, with respect to such deposit account or securities account (other than Excluded Accounts) of the Loan Parties, use commercially reasonable efforts to deliver to the Collateral Agent a Control Agreement with respect to such deposit account or securities account.  From and after the date that is 60 days following the Closing Date or, with respect to any deposit account or securities account (other than Excluded Accounts) acquired or established after the Closing Date, 60 days following the date of such acquisition or establishment (or, in each case, such longer time as may be agreed to by the Collateral Agent in its reasonable discretion), except as otherwise provided under this Agreement, the Loan Parties shall not maintain, and shall not permit any of their Subsidiaries to maintain, cash, Cash Equivalents or other amounts in any deposit account or securities account (other than amounts in respect of minimum liquidity, charges for returned items and customary fees and expenses incurred in connection with such accounts or in the ordinary course of its business and amounts required to be maintained or deposited into Excluded Accounts in order to comply with applicable laws or contractual obligations not created in avoidance of this clause (g) ), unless to the extent such Subsidiary is a Loan Party and such assets in the applicable deposit or securities account are Collateral, the Collateral Agent shall have received a Control Agreement in respect of each such deposit account or securities account of a Loan Party (other than Excluded Accounts); and

(h)       with respect to any Securitization Financing the Secured Parties shall have received a pledge of the Loan Parties’ Equity Interests in the Securitization Subsidiary party to such Securitization Financing and notes receivable owing from a Securitization Subsidiary to any Loan Party.

The foregoing definition shall not require the creation or perfection of pledges of or security interests in particular assets if and for so long as the Collateral Agent and the Borrower reasonably agree in writing (which may be in the form of electronic mail) that the cost of creating or perfecting such pledges or security interests in such assets shall be excessive in view of the benefits to be obtained by the Secured Parties therefrom.

Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, (a) with respect to leases of real property entered into by any Loan Party, such Loan Party shall not be required to take any action with respect to creation or perfection of security interests with respect to such leases provided that each Loan Party, as applicable, shall use commercially reasonable efforts to deliver within (x) 90 days after the Closing Date or (y) 90 days after the request by the Collateral Agent therefore, Collateral Access Agreements in respect of the Headquarters and the Warehouses, (b) Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in the Security Documents and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and the Borrower, (c) the Collateral shall not include any Excluded Assets, (d) share certificates of Immaterial Subsidiaries and any other person that is only minority owned by the Loan Parties shall not be required to be delivered, (e) no perfection actions shall be required with respect to (i) motor vehicles and other assets and personal property subject to certificates of title except to the extent perfection is accomplished by the filing of a UCC financing statement or equivalent under applicable Law and letter of credit rights, except to the extent constituting a supporting obligation for other Collateral as to which perfection is accomplished by the filing of a UCC financing statement or equivalent under applicable Law (it being understood that no actions shall be required to perfect a security interest in assets subject to certificates of title or letter of credit rights, other than the filing of a UCC financing statement or equivalent under applicable Law) and (ii) commercial tort claims with an individual value of less than $5,000,000, (f) no actions in any non-U.S. jurisdiction or required by the Laws of any non-U.S. jurisdiction shall be required to be taken to create any security interests in assets located or titled outside of the U.S. or to perfect or make enforceable any security interests in any assets (it being understood that there shall be no Security Document (or other security agreements or pledge agreements) or other perfection instruments governed under the laws of any non U.S. jurisdiction), and (g) no Mortgage shall secure the Revolving Loans in those jurisdictions that impose a mortgage intangible or similar tax on pay-downs or re-advances.

“ Commitment Fee ” shall have the meaning assigned to such term in Section 2.12(a) .

“ Commitment Letter ” shall mean that certain Senior Secured Credit Facilities Commitment Letter dated as of June 27, 2018, by and among Ares Capital Corporation LLC, HPS Investment Partners, LLC and the Borrower.

“ Commitments ” shall mean, with respect to any Lender, such Lender’s Revolving Facility Commitment and/or Term Loan Commitment.

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

“ Communications ” shall have the meaning assigned to such term in Section 9.19(a) .

“ Company Competitor ” shall mean any person that is a competitor of the Borrower and/or any of its Subsidiaries and identified in writing to the Administrative Agent and Revolving Agent by the Borrower.

“ Compliance Certificate ” shall have the meaning assigned to such term in Section 5.04(e) .

“ Connection Income Taxes ” shall mean Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“ Consolidated First Lien Debt ” shall mean, as of any date of determination, the aggregate principal amount of Consolidated Total Debt of the Borrower and its Subsidiaries outstanding at such date that consists of, without duplication, Indebtedness that in each case is then secured by Liens on property or assets of the Borrower and its Subsidiaries (other than property or assets held in a defeasance or similar trust or arrangement for the benefit of the Indebtedness secured thereby) and both such Consolidated Total Debt and the Liens securing the same are not subordinated to the Obligations, or the Liens securing the same, respectively.

“ Consolidated First Lien Leverage Ratio ” shall mean, as of any date of determination, the ratio of (a) Consolidated First Lien Debt as of such date (provided that solely for purposes of Section 6.10 , Consolidated First Lien Debt (i) shall be calculated net of Unrestricted Cash and (ii) Indebtedness under the Revolving Credit Facility will be deemed to be (A) until the one year anniversary of the Closing Date, the average monthly balance drawn on the Revolving Credit Facility for the period of months completed since the Closing Date commencing with the first full fiscal month completed after the Closing Date and (B) thereafter, the average monthly drawn balance under the Revolving Credit Facility over the twelve month period most recently ended prior to such date of determination), determined on a consolidated basis in accordance with GAAP to (b) Net Receivables Financing Profit for such Test Period; provided , that Net Receivables Financing Profit shall be determined for the relevant Test Period on a Pro Forma Basis.

“ Consolidated Fixed Charge Coverage Ratio ” shall mean, with respect to any person, as of any date of determination, the ratio of (a) Net Receivables Financing Profit for the applicable Test Period calculated on a Pro Forma Basis minus Unfinanced Capital Expenditures made by such person or its Subsidiaries for such Test Period to (b) Consolidated Fixed Charges actually paid in cash for such Test Period.

“ Consolidated Fixed Charges ” shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis for any period, the sum , without duplication (in each case eliminating all offsetting debits and credits between Borrower and its Subsidiaries and all other items required to be eliminated in the course of the preparation of consolidated financial statements of Borrower and its Subsidiaries in accordance with GAAP), of:

(a)       the consolidated interest expense (net of interest income) to the extent it relates to Indebtedness of the Borrower and the Subsidiaries for such period, and to the extent such expense was deducted in computing Consolidated Net Income, whether paid or accrued, non-cash interest payments, the interest component of any deferred payment obligations, interest component of all payments associated with Capital Lease Obligations and all commissions, discounts and other fees and charges owed by the Borrower and its Subsidiaries in respect of letter of credit or bankers’ acceptance financings and net of the effect of all payments made or received pursuant to obligations under any Swap Agreement and excluding for the purposes of calculating the Consolidated Fixed Charge Coverage Ratio, any non-cash interest expense, the amortization or write-off of deferred financing fees or expenses of any bridge or other financing fees in connection with the Transactions and any other one-time financing fees (including arrangement, amendment and consent fees), debt issuance costs, commissions, expenses and the amortization thereof; plus

(b)       provision for cash income taxes made by Borrower and its Subsidiaries on a consolidated basis in respect of such period; plus

(c)       to the extent payable in cash, any interest expense (but excluding interest expense in connection with any Securitization Financing, factoring, credit insurance or similar receivables financing or any vendor financing, but, for the avoidance of doubt, without duplication for any such expense that is reflected as a deduction to Consolidated Net Income of the Borrower and its Subsidiaries, whether classified as interest or like expense or as an operating expense) on Indebtedness of another person that is Guaranteed by the Borrower and the Subsidiaries or secured by a Lien on assets of the Borrower and the Subsidiaries, whether or not such Guarantee or Lien is called upon; plus

(d)       scheduled payments made or payable during such period on account of principal of Indebtedness of the Borrower and its Subsidiaries (including scheduled principal payments in respect of the Term Loans, but excluding any voluntary prepayments made or mandatory prepayments required, in each case pursuant to Section 2.11 ), plus

(e)       charges and expenses related to Permitted Credit Support Agreements,

in each case, on a consolidated basis and in accordance with GAAP; plus

For purposes of determining Consolidated Fixed Charges for any period that includes the quarterly periods ending December 31, 2017, March 31, 2018, June 30, 2018 and September 30, 2018, the Consolidated Fixed Charges for such quarterly periods shall be $30,000,000, $30,000,000, $30,000,000 and $30,000,000, respectively.

“ Consolidated Net Income ” shall mean, with respect to any person for any period, the aggregate of the Net Income of such person and its subsidiaries for such period, on a consolidated basis, plus the amount that the provision for taxes exceeds cash taxes paid by such person and its Subsidiaries in such period; provided , however , that, without duplication,

(a)       (i) the income or loss of any Person accrued prior to the date on which such Person becomes a Subsidiary of such Person or is merged into or consolidated with such Person’s assets are acquired by such Person or any Subsidiary of such Person, and (ii) the income or gain subsequent to the date on which such Person ceases to be a Subsidiary of such Person following the Disposition of Equity Interests in such Subsidiary (or its assets), shall in each case under this clause (a) be excluded;

(b)       any increase in amortization or depreciation or any one-time non-cash Charges resulting from purchase accounting in connection with (i) the Transaction and (ii) any Acquisition that is consummated on or after the Closing Date shall be excluded;

(c)       the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification or interpretation of accounting policies required by such person’s auditors during such period shall be excluded;

(d)       any net after-tax gains or losses on disposal of discontinued operations shall be excluded;

(e)       any net after-tax gains or losses (less all Charges relating thereto) attributable to any Disposition, other than in the ordinary course of business (as determined in good faith by senior management or the Board of Directors of the Borrower) shall be excluded;

(f)       any net after-tax gains or losses (less all Charges relating thereto) attributable to the early extinguishment of (i) indebtedness, and (ii) Swap Agreements and other derivative instruments to the extent that such gains or losses have been realized by such person, in each case, shall be excluded;

(g)       the Net Income for such period of any person that is not a subsidiary of such person, or that is accounted for by the equity method of accounting, shall be included only to the extent of the amount of dividends or distributions or other payments actually paid in cash (or to the extent converted into cash) to the referent person or a subsidiary thereof in respect of such period;

(h)       the Net Income for such period of any subsidiary of such person shall be excluded to the extent that the declaration or payment of dividends or similar distributions by such subsidiary of its Net Income is not, at the date of determination, permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its Organizational Documents or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such subsidiary or its equity holders, unless such restrictions with respect to the payment of dividends or similar distributions have been legally waived; provided that the Consolidated Net Income of such person shall be increased by the amount of dividends or other distributions or other payments actually paid in cash (or converted into cash) by any such subsidiary to such person or a subsidiary of such person (subject to the provisions of this clause (h) ) , to the extent not already included therein;

(i)       any impairment or asset write-off or write-down (other than with respect to any Current Assets, but including any inventory acquired in connection with the Transaction or any Acquisition), including impairment or asset write-offs or write-downs related to intangible assets, goodwill, long-lived assets, investments in debt (including deferred financing costs) and equity securities recorded using the equity method or as a result of a change in Law, in each case, in accordance with GAAP, and the amortization of intangibles arising in accordance with GAAP shall be excluded;

(j)       any non-cash Charges, incurred, realized or resulting from employee benefit plans or post-employment benefit plans, management equity plan, pension plan long-term incentive plans or grants of stock appreciation or similar rights, stock options, restricted stock or other rights or equity-based incentive programs to officers, directors and employees of such person or any of its Subsidiaries shall be excluded;

(k)       any one-time non-cash compensation Charges shall be excluded;

(l)       non-cash gains, losses, income and expenses resulting from fair value accounting required by Statement of Financial Accounting Standards No. 133 and related interpretations shall be excluded;

(m)      any currency translation gains and losses unrealized from currency remeasurements of Indebtedness, and any unrealized net loss or gain from any Swap Agreements for currency exchange risk, in each case, that are actually paid in cash, shall be excluded; and

(n)       any gains or losses from Acquisitions shall be excluded.

“ Consolidated Total Assets ” shall mean, as of any date, the total assets of the Borrower and the Subsidiaries, determined on a consolidated basis in accordance with GAAP, as set forth on the consolidated balance sheet of the Borrower as of the last day of the fiscal quarter most recently ended and Reported.

“ Consolidated Total Debt ” shall mean, as of any date of determination, an amount equal to the sum of (without duplication) the outstanding principal amount of all Indebtedness (other than (a) letters of credit, to the extent undrawn and (b) the Closing Date Subordinated Convertible Note) consisting of Capital Lease Obligations, Indebtedness for borrowed money, the Hudson Notes, Disqualified Stock and Indebtedness in respect of the deferred purchase price of property or services of the Borrower and the Subsidiaries determined on a consolidated basis on such date.

“ Consolidated Total Leverage Ratio ” shall mean, as of any date of determination, the ratio of (a) Consolidated Total Debt as of such date (provided that solely for purposes of Section 6.10 , Consolidated Total Debt (i) shall be calculated net of Unrestricted Cash and (ii) Indebtedness under the Revolving Credit Facility will be deemed to be (A) until the one year anniversary of the Closing Date, the average monthly balance drawn on the Revolving Credit Facility for the period of months completed since the Closing Date commencing with the first full fiscal month completed after the Closing Date and (B) thereafter, the average monthly drawn balance under the Revolving Credit Facility over the twelve month period most recently ended prior to such date of determination) to (b) Net Receivables Financing Profit for such Test Period; provided , that Net Receivables Financing Profit shall be determined for the relevant Test Period on a Pro Forma Basis.

“ Contractual Obligation ” shall mean, with respect 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 ” shall mean 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 ownership of voting securities, by contract or otherwise, and “ Controlling ” and “ Controlled ” shall have meanings correlative thereto.

“ Controlled Account ” shall have the meaning as assigned in Section 2.06 .

“ Control Agreement ” shall mean, with respect to any deposit account, any securities account, commodity account, securities entitlement or commodity contract, an agreement, in form and substance reasonably satisfactory to the Collateral Agent, among the Collateral Agent, the financial institution or other person at which such account is maintained or with which such entitlement or contract is carried and the Loan Party maintaining such account, effective to grant “control” (as defined under the applicable UCC) over such account to the Collateral Agent; it being understood that unless specifically specified in this Agreement, any reference to a Control Agreement shall mean a Control Agreement subject to springing dominion pursuant to which the applicable Loan Party shall maintain control unless and until the notice of spring control has been given by the Collateral Agent to the financial institution or other person at which such account is maintained or with which such entitlement or contract is carried.

“ Credit Event ” shall have the meaning assigned to such term in Article IV .

“ Credit Extension ” shall mean (a) the making of a Loan, (b) an L/C Borrowing or (c) the making of a Swingline Advance.

“ Credit Facilities ” shall mean, collectively, (i) the Revolving Credit Facility (including the L/C Facility available thereunder pursuant to Section 2.05) , and (ii) the term facility represented by the Term Loans.

“ Credit Servicers ” and “ Credit Servicer ” shall mean each of the Initial CIT Servicers and each other person designed by the Borrower as a “ Credit Servicer ” pursuant to a Permitted Credit Support Arrangement from time to time.

“ Credit Support Assets ” shall mean (a) the Receivables and other Collateral (as defined in the Permitted CIT Agreements as of the date hereof) pledged or sold pursuant to the terms of the Permitted CIT Agreements and (b) in respect of any other Permitted Credit Support Arrangement, the accounts receivable and supporting obligations and proceeds in respect thereof and other ancillary property and rights related to such accounts receivable pledged or sold pursuant to the terms of such Permitted Credit Support Arrangement.

“ Current Assets ” shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis at any date of determination, all assets (other than cash and Cash Equivalents) that would, in accordance with GAAP, be classified on a consolidated balance sheet of the Borrower and the Subsidiaries as current assets at such date of determination, other than amounts related to current or deferred Taxes based on income or profits.

“ Current Liabilities ” shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis at any date of determination, all liabilities that would, in accordance with GAAP, be classified on a consolidated balance sheet of the Borrower and the Subsidiaries as current liabilities at such date of determination, other than (a) the current portion of any long-term Indebtedness, (b) accruals of Interest Expense (excluding Interest Expense that is due and unpaid), (c) accruals for current or deferred Taxes based on income or profits, (d) accruals, if any, of transaction costs resulting from the Transactions, (e) accruals of any costs or expenses related to (i) severance or termination of employees prior to the Closing Date or (ii) bonuses, pension and other post-retirement benefit obligations, and (f) accruals relating to restructuring reserves for add-backs to EBITDA included in clause (a)(iv) of the definition of such term.

“ Customary Intercreditor Agreement ” shall mean (a) to the extent executed in connection with the incurrence of secured Indebtedness incurred by a Loan Party, the Liens on the Collateral securing which are intended to rank equal in priority to the Liens on the Collateral securing the Obligations, at the option of the Borrower and the Administrative Agent acting together in good faith, a customary intercreditor agreement in form and substance reasonably acceptable to the Administrative Agent and the Borrower, which agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank equal in priority to the Liens on the Collateral securing the Obligations and (b) to the extent executed in connection with the incurrence of secured Indebtedness incurred by a Loan Party, the Liens on the Collateral securing which are intended to rank junior in priority to the Liens on the Collateral securing the Obligations, at the option of the Borrower and the Administrative Agent acting together in good faith, a customary intercreditor agreement in form and substance reasonably acceptable to the Administrative Agent and the Borrower, which agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank junior in priority to the Liens on the Collateral securing the Obligations.

“ Debt Service ” shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis for any period, Cash Interest Expense for such period plus scheduled principal amortization of Consolidated Total Debt for such period.

“ Debtor Relief Laws ” shall mean Title 11 of the United States Code entitled “Bankruptcy” as now and hereafter in effect, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States of America or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

“ Declined Amounts ” shall have the meaning as assigned in Section 2.11(e) .

“ Default ” shall mean any event or condition that upon notice, lapse of time or both would constitute an Event of Default.

“ Defaulting Lender ” shall mean, subject to Section 2.23(b) , any Lender that, as determined by the Administrative Agent, (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Letters of Credit, Extraordinary Advances and/or Swingline Advances, within three Business Days of the date required to be funded by it hereunder, (b) has notified the Borrower or the Administrative Agent that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by the Administrative Agent or the Borrower to confirm in a manner satisfactory to the Administrative Agent and the Borrower that it will comply with its funding obligations, 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 a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority.

“ Defaulting Lender Rate ” shall mean (a) for the first 3 days from and after the date the relevant payment is due, the Prime Rate, and (b) thereafter, the interest rate then applicable to Loans as if the Prime Rate were applicable thereto.

“ Designated Account ” shall mean the deposit account of Borrower identified on Schedule D-1 (as such schedule may be updated in writing by Borrower to Agent) or such other account of the Borrower as set forth in a Borrowing Request.

“ Designated Non-Cash Consideration ” shall mean the fair market value (as reasonably determined by the Borrower and the Administrative Agent in good faith) of non-Cash consideration received by the Borrower or any of its Subsidiaries in connection with any sale or Disposition pursuant to Section 6.05(s) that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower, setting forth the basis of such valuation (which amount will be reduced by the amount of cash or Cash Equivalents received in connection with a subsequent sale or conversion of such Designated Non-Cash Consideration to cash or Cash Equivalents).

“ Disposition ” or “ Dispose ” shall mean the sale, lease, sublease, transfer, swap or other disposition of any property of any person (including by allocation of assets by division or allocation of assets to any series of a limited liability company).

“ Disqualified Institution ” shall mean:

(a)       any person identified in writing to the Administrative Agent on or before the Closing Date; and/or

(b)       any Company Competitor; and/or

(c)       any Affiliate of any person described in clauses (a) or (b) above that is reasonably identifiable as an Affiliate of such person on the basis of such Affiliate’s name, other than, in the case of clause (b) above, a Bona Fide Debt Fund;

it being understood and agreed that the identification of any person as a Disqualified Institution after the Closing Date (i) shall not be effective until two days after delivery to the Administrative Agent, (ii) shall not apply to retroactively disqualify any person that has previously acquired an assignment or participation interest in any Loan, subject, in the case of assignments and participations made after the date on which any such person is identified as a Disqualified Institution, to the provisions of Section 9.04(f) , and (iii) “Disqualified Institutions” shall exclude any person that the Borrower has designated as no longer being a “Disqualified Institution” by written notice delivered to the Administrative Agent and Revolving Agent from time to time.

“ Disqualified Stock ” shall mean, with respect to any person, any Equity Interests of such person that, by their terms (or by the terms of any security into which such Equity Interests are convertible or for which such Equity Interests are redeemable or exchangeable), or upon the happening of any event, (i) mature or are mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than as a result of a change of control or asset sale), (ii) are convertible or exchangeable other than at the option of the issuer thereof for Indebtedness or Disqualified Stock or (iii) are redeemable at the option of the holder thereof (other than upon the occurrence of a Change in Control (or similar event), sale or Disposition of all or substantially all of the assets of the Borrower and its Subsidiaries, or the acceleration of the Loans, subject, in each case, to the prior Payment In Full), in whole or in part, in each case prior to 91 days after the Latest Maturity Date; provided , however , that only the portion of the Equity Interests that so mature or are mandatorily redeemable, are so convertible or exchangeable or are so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock; provided , further , that if such Equity Interests are issued to any employee or to any plan for the benefit of employees of the Borrower or the Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Stock solely because they may be required to be repurchased by the Borrower in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided , further , that any class of Equity Interests of such person that by its terms authorizes such person to satisfy its obligations thereunder by delivery of Equity Interests that are not Disqualified Stock shall not be deemed to be Disqualified Stock.

“ Dividends ” shall have the meaning assigned to such term in Section 6.06 .

“ Documentation Agent ” shall mean the documentation agent identified in the cover page.

“ Documentation Agent Fees ” shall have the meaning assigned to such term in Section 2.12(d) .

“ Dollar ,” “ U.S.$ ” and “ $ ” shall mean lawful money of the United States of America.

“ Domestic Subsidiary ” shall mean any Subsidiary that is not a Foreign Subsidiary.

“ Drawing Document ” shall mean any Letter of Credit or other document presented for purposes of drawing under any Letter of Credit.

“ Earn Out Obligations ” shall mean, with respect to any Acquisition, all obligations of the Borrower or any Subsidiary to make earn out or similar payments based on the achievement of specified financial results or other performance metrics over time pursuant to the documentation relating to such Acquisition; provided , that Earn Out Obligations shall exclude any Existing Earn Out Obligation.

“ EBITDA ” shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis for any period, the Consolidated Net Income of the Borrower and the Subsidiaries for such period, plus

(a) the sum of, in each case without duplication, the following amounts to the extent either deducted or otherwise excluded in calculating Consolidated Net Income for such period or, if not otherwise reflected in the definition of “Consolidated Net Income”, described in clauses (a)(iv), (a)(viii), (a)(xii) , (a)(xiii) and (a)(xiv) below):

(i)       federal, state, local or other taxes paid and any provision for such taxes based on income, profits or capital of the Borrower and the Subsidiaries for such period;

(ii)      Consolidated Fixed Charges (but solely with regard to clauses (a) and (c) thereto) of the Borrower and the Subsidiaries for such period;

(iii)     depreciation, amortization (including amortization of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and all non-cash Charges (excluding any such non-cash Charges to the extent that it represents an accrual of or reserve for cash Charges in any future period or amortization of a prepaid cash expense that was paid in a prior period) of the Borrower and the Subsidiaries for such period;

(iv)     (A) the amount of any Charges attributable to the undertaking and/or implementation of IT systems in connection with the acquisition and integration of the Closing Date Acquisition prior to December 31, 2020 (or such later date as Agents may agree) and (B) the amount of any business optimization Charges, integration Charges and restructuring Charges (which, for the avoidance of doubt, shall include, Charges attributable to the undertaking and/or implementation of cost savings initiatives, cost rationalization programs and/or operating expense reductions in connection with office and plant closures, facility consolidations, start-up costs and pre-opening Charges, retention payments and special supplemental bonuses payable, costs associated with recruiting management personnel, including sign-on and relocation expenses, exit costs, severance payments, systems establishment costs (including establishing financial reporting, enterprise resource planning, and human resource systems), Charges associated with establishing an off-shore operations, logistics and administrative support center, duplicative employee costs related to transitioning of employees, re-branding Charges, inventory or systems optimization costs, any inventory optimization program or excess pension Charges (including, with respect to any Test Period ending on or prior to the date that is 18 months after the Closing Date, accounting, compliance, professional, legal and accounting Charges resulting from the Transactions); provided , that (1) the aggregate total amount of all such Charges or other amounts that may be added back under clause (iv)(A) shall not exceed $30,000,000 during the term of this Agreement and (2) the aggregate total amount of all such Charges or other amounts that may be added back under clause (iv)(B) shall not exceed, when taken together with the amounts added back pursuant to clauses (v) , (vii)(B) , (xix) and (xx) below, (A) with respect to all Test Periods ending on or prior to December 31, 2019, $55,000,000 and (B) with respect to any Test Period ending thereafter, 7.5% of EBITDA (or such larger percentage of EBITDA to the extent consented to from time to time by the Agents) for the relevant Test Period (calculated prior to giving effect to such addback);

(v)      any net after-tax extraordinary, nonrecurring or unusual Charges; provided that the aggregate total amount of all such net after-tax extraordinary, nonrecurring or unusual Charges or other amounts that may be added back pursuant to this clause (v) shall not exceed, when taken together with the amounts added back pursuant to clause (iv)(B) above and clauses (xix), (vii)(B) and (xx) below, (A) with respect to all Test Periods ending on or prior to December 31, 2019, $55,000,000 and (B) with respect to any Test Period ending thereafter, 7.5% of EBITDA for the relevant Test Period (calculated prior to giving effect to such addback);

(vi)     (A) any Earn Out Obligation and (B) any Existing Earn Out Obligation, in each case, incurred, paid or accrued (including any adjustments thereto) during such period, provided that the aggregate total amount that may be added back under clause (vi)(A) shall not exceed $10,000,000 in any Test Period and in no event shall exceed $50,000,000 in the aggregate after the Closing Date;

(vii)   (A) any Charges related to the Closing Date Acquisition including any Charges related to the Obligations and the consummation of the Transactions (including, without limitation, any Charges related to licensing consent agreements and the assumption and satisfaction of certain liabilities of GBG, the Seller or their affiliates unrelated to the continuing business of the Borrower) and (B) any Charges related to any issuance of Equity Interests, conversion of debt, Acquisition, Disposition, Investment, Permitted Business Acquisition, recapitalization or the incurrence, amendment, modification or repayment of Indebtedness permitted to be incurred by this Agreement (in the case of factoring, securitization, credit insurance or similar financing solely to the extent such Charges would be included in the definition of Consolidated Fixed Charges), in each case, whether or not successful, and any amendment or other modification with respect to any of the foregoing, provided , that the aggregate total amount of all such Charges or other amounts that may be added back under this clause (vii)(B) shall not exceed, when taken together with the amounts added back pursuant to clauses (iv)(B) and (v) above and clauses (xix) and (xx) below, (A) with respect to all Test Periods ending on or prior to December 31, 2019, $55,000,000 and (B) with respect to any Test Period ending thereafter, 7.5% of EBITDA (or such larger percentage of EBITDA to the extent consented to from time to time by the Agents) for the relevant Test Period (calculated prior to giving effect to such addback);

(viii)     the amount of any Charge that is actually reimbursed or reimbursable by one or more third parties pursuant to indemnification or reimbursement provisions or similar agreements; provided that the Borrower shall deliver a certificate of a Responsible Officer of the Borrower to the Administrative Agent certifying that any such Charge is reasonably expected to be reimbursed within the next four fiscal quarters (it being understood that, to the extent any such amount is not actually reimbursed within such fiscal quarters, such amount shall be deducted in calculating EBITDA for such fiscal quarters);

(ix)       any Charge incurred in connection with the rollover, acceleration or payout of Equity Interests held by management of the Borrower and/or any Subsidiary, to the extent that any such Charge is funded with Net Proceeds contributed to the Borrower (other than by a Subsidiary thereof) as a capital contribution or as a result of the sale or issuance of Equity Interests (other than Disqualified Stock) of the Borrower;

(x)        non-cash gains and losses with respect to Swap Agreements and other derivative instruments;

(xi)       non-cash currency translation gains and losses related to currency remeasurements of Indebtedness, and any net non-cash loss or gain resulting from any Swap Agreement for currency exchange risk;

(xii)      without duplication of any amount referred to in clause (viii) above, expenses incurred with respect to liability or casualty events or business interruption (to the extent covered by insurance) and, without duplication, cash proceeds of business interruption insurance actually received by the Borrower or any of its Subsidiaries;

(xiii)     cash actually received (or any netting arrangement resulting in reduced cash expenditures) during such period so long as the non-cash gain relating to the relevant cash receipt or netting arrangement was deducted in the calculation of EBITDA for any previous period and not added back;

(xiv)     the amount of any pro forma “run-rate” expected cost savings, operating expense reductions and synergies (net of actual amounts realized) that are reasonably identifiable and factually supportable (in the good faith determination of such person) related to (A) the Transactions and (B) after the Closing Date, any permitted Investment, Disposition, operating improvement, restructuring, cost savings or similar initiative, cost rationalization program, tax and/or tariff mitigation program, and/or other Specified Transaction; provided that such amounts under this clause (xiv) are realized or projected in good faith to be realized within 18 months of the consummation of the applicable transaction; provided   further that the aggregate amount that is added back to EBITDA under this clause (xiv) shall not exceed, when taken together with all adjustments referred to in the final sentence of the definition of “Pro Forma Basis”, (A) with respect to all Test Periods ending on or prior to (i) December 31, 2018, 1.875% of EBITDA for the relevant Test Period (calculated prior to giving effect to such addback), (ii) March 31, 2019, 3.75% of EBITDA for the relevant Test Period (calculated prior to giving effect to such addback), (iii) June 30, 2019, 5.625% of EBITDA for the relevant Test Period (calculated prior to giving effect to such addback) and (iv) September 30, 2019, 7.5% of EBITDA for the relevant Test Period (calculated prior to giving effect to such addback) and (B) with respect to any Test Period ending thereafter, 5.0% of EBITDA (or such larger percentage of EBITDA to the extent consented to from time to time by the Agents) for the relevant Test Period (calculated prior to giving effect to such addback);

(xv)      [reserved];

(xvi)     Charges incurred under the Loan Documents, the Second Lien Loan Documents or any Permitted Credit Support Arrangement (including in connection with any amendment or other modification (or proposed amendment or modification) hereto or thereto) and Charges paid or reimbursed to (or for the benefit of) any Agents, the Administrative Agent, the Collateral Agent, the Revolving Agent, any Lender, any other Secured Party or any “Secured Party” (as defined in the Second Lien Credit Agreement) under the Second Lien Credit Facility or the Credit Servicer or any other factor under any Permitted Credit Support Arrangement;

(xvii)    debt discount, debt issuance costs and prepayment expense, and any other Charges, incurred in connection with the issuance of Indebtedness permitted by the Loan Documents or the prepayment, repayment or retirement of existing Indebtedness or other obligations (including any premiums or other expenses paid in connection with the early termination of an operating lease or other Contractual Obligation);

(xviii)   Charges related to key man life insurance policies if the Administrative Agent is entitled to receive any of the proceeds thereof;

(xix)     Charges from (or incurred in connection with) discontinued operations, divested joint ventures, brand separations resulting from carve-out transactions, and other divested investments and other Charges related to the disposition, cessation or wind down of a brand, unit or division; provided that the aggregate total amount that may be added back pursuant to this clause (xix) shall not exceed, when taken together with the amounts added back pursuant to clauses (iv)(B), (v) and (vii)(B) above and clause (xx) below, (A) with respect to all Test Periods ending on or prior to December 31, 2019, $55,000,000 and (B) with respect to any Test Period ending thereafter, 7.5% of EBITDA (or such larger percentage of EBITDA to the extent consented to from time to time by the Agents) for the relevant Test Period (calculated prior to giving effect to such addback); and

(xx)       any Charge associated with any litigation and settlements thereof and/or payment of any actual or prospective legal settlement, fine, judgment or order arising from, or related to, the Transactions (including, without limitation, the failure obtain consents to licensing agreements) ; provided that the aggregate total amount of all such Charges or other amounts that may be added back pursuant to this clause (xx) shall not exceed, when taken together with the amounts added back pursuant to clauses (iv)(B) , (v) , (vii)(B) and (xix) above, (A) with respect to all Test Periods ending on or prior to December 31, 2019, $55,000,000 and (B) with respect to any Test Period ending thereafter, 7.5% of EBITDA (or such larger percentage of EBITDA to the extent consented to from time to time by the Agents) for the relevant Test Period (calculated prior to giving effect to such addback); minus

(b)       the sum of without duplication, those amounts which, have been included in calculating Consolidated Net Income for such period:

(i)       non-cash items, gains or credits increasing such Consolidated Net Income for such period (excluding the recognition of deferred revenue or any non-cash items which represent the reversal of any accrual of, or reserve for, anticipated cash charges in any prior period and any items for which cash was received in any prior period);

(ii)       any net after-tax nonrecurring or unusual gains or income (including for the avoidance of doubt, cancellation of debt income in connection with the Transactions or otherwise); and

(iii)       any net after-tax gains or income from (or incurred in connection with) discontinued operations, divested joint ventures and other divested investments.

Notwithstanding the preceding, the provision for taxes based on the income or profits of, the Consolidated Fixed Charges of, the depreciation and amortization and other non-cash expenses or non-cash items of and the restructuring charges or expenses of, a Subsidiary of the Borrower will be added to (or subtracted from, in the case of non-cash items described in clause (b) above) Consolidated Net Income to compute EBITDA, (A) in the same proportion that the Net Income of such Subsidiary was added to compute such Consolidated Net Income of the Borrower, and (B) only to the extent that a corresponding amount of the Net Income of such Subsidiary would be permitted at the date of determination to be dividended or distributed to the Borrower by such Subsidiary without prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Subsidiary or its stockholders.

Notwithstanding the foregoing, (A) EBITDA for the four fiscal period ended September 30, 2018 shall be $231,300,000 and for purposes of determining EBITDA for any Test Period that includes the quarterly periods ending December 31, 2017, March 31, 2018, June 30, 2018 and September 30, 2018, EBITDA for such quarterly periods shall be $60,000,000, $46,200,000, $23,100,000 and $102,000,000, respectively. For the avoidance of doubt, (x) EBITDA for the periods set forth in the immediately preceding sentence shall not be subject to further adjustment for such historical periods pursuant to the other provisions of the definition of “EBITDA” or the definition of “Pro Forma Basis” and (B) for purposes of determining EBITDA for any Test Period that includes the quarterly period ending December 31, 2018, EBITDA for such period shall be an amount equal to the sum of (x) the EBITDA of the Borrower and its Subsidiaries on a consolidated basis for the period from the Closing Date through December 31, 2018 and (y) the product of (i) the gross revenue of the Borrower and its consolidated Subsidiaries for the period from October 1, 2018 through the Closing Date times (ii) the Applicable EBITDA Margin (as defined below). For purposes of the foregoing sentence, the “Applicable EBITDA Margin” shall be the actual profit margin of the Borrower over the time period described in the foregoing clause (x).

Notwithstanding anything to the contrary set forth herein, to the extent any Capital Expenditures are not included in Consolidated Fixed Charges, the amount of any such Capital Expenditures in any Test Period shall reduce the combined cap on adjustments to EBITDA contained in clauses (a)(iv), (v), (vii), (xix), and (xx) for such Test Period on a dollar for dollar basis.

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

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

“ EEA Resolution Authority ” shall mean 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 Yield ” shall mean, as to any Loans of any Class, the effective yield on such Loans as determined by the Administrative Agent, taking into account the applicable interest rate margins, any interest rate floors or similar devices and all fees, including upfront or similar fees or original issue discount (amortized over the shorter of (x) the life of such Loans and (y) four years following the date of incurrence thereof) payable generally to Lenders making such Loans, but excluding any arrangement, structuring, ticking or underwriting or other fees payable in connection therewith that are not generally paid or shared with the relevant Lenders and customary consent fees paid generally to consenting Lenders. All such determinations made by the Administrative Agent shall, absent manifest error, be final, conclusive and binding on the Borrower and the Lenders and the Administrative Agent shall have no liability to any person with respect to such determination absent gross negligence or willful misconduct.

“ Eligible Assignee ” shall mean (a) any Lender, (b) any commercial bank, insurance company, or finance company, financial institution, any fund that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act), (c) any Affiliate of any Lender, (d) any Approved Fund of any Lender, (e) Ares Capital and (f) to the extent permitted under Section 9.04(g) , any Affiliated Lender; provided that in any event, “Eligible Assignee” shall not include (i) any natural person, (ii) any Disqualified Institution (provided that the list of Disqualified Institutions (other than any “reasonably identifiable affiliate” (on the basis of such Affiliate’s name) included in the definition of “Disqualified Institution” is permitted to be made available to any Lender who specifically requests a copy thereof)) or (iii) except as permitted under Section 9.04(g) , the Borrower or any of its Affiliates.

“Eligible Inventory” shall mean Inventory consisting of first quality finished goods held for sale in the ordinary course of the Loan Parties’ business as conducted on the Closing Date, that complies with each of the representations and warranties respecting Eligible Inventory made in the Loan Documents, and that is not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided , however , that such criteria may be revised from time to time by Revolving Agent in Revolving Agent’s Permitted Discretion, including to address the results of any audit or appraisal performed by Revolving Agent from time to time after the Closing Date. An item of Inventory shall not be included in Eligible Inventory of a Loan Party if:

(a)       the Loan Parties does not have good, valid, and marketable title thereto,

(b)       the Loan Parties does not have actual and exclusive possession thereof (either directly or through a bailee or agent of such Loan Party),

(c)       it is not located (x) at one of the locations in the continental United States or Canada (excluding Quebec) set forth on Schedule 5.18 (or in-transit from one such location to another such location), or (y) at, or in transit to, any retail store of a Loan Party located within the continental United States and Canada (excluding Quebec),

(d)       it is In-Transit Inventory;

(e)       it is located on real property leased by a Loan Party or in a contract warehouse, in each case, unless it is subject to a Collateral Access Agreement executed by the lessor or warehouseman (or Revolving Agent has established a Landlord Reserve with respect to such location), as the case may be, and unless it is segregated or otherwise separately identifiable from goods of others, if any, stored on the premises,

(f)       it is the subject of a bill of lading or other document of title,

(g)       it is not subject to a valid and perfected first priority lien in favour of the Collateral Agent,

(h)       it consists of goods returned or rejected by a customer of the Loan Parties as a result of being defective or unmerchantable,

(i)        it consists of goods that are obsolete, restrictive or custom items, work-in-process, raw materials, or goods that constitute spare parts, packaging supplies, labels and shipping materials, maintenance items, supplies used or consumed in the Loan Parties’ business, bill and hold goods, defective goods, “seconds” or Inventory on consignment,

(j)        it shall have been in the Loan Parties’ possession or control for a period of 365-days or longer; provided , that Inventory (other than Inventory that has been assigned a “replenishment” code by the Loan Parties) that has been in the Loan Parties possession for greater than 180-days shall not be Eligible Inventory unless the Net Orderly Liquidation Percentage in respect thereof has been included in an appraisal satisfactory to Collateral Agent in its Permitted Discretion;

(k)       it is subject to a claim, lien or security interest (other than a Permitted Lien);

(l)        it is produced in violation of the Fair Labor Standards Act and subject to the “hot goods” provisions contained in Title 29 U.S.C. §215;

(m)      it is not salable in the United States or is manufactured specifically for a non-U.S. customer;

(n)       if it is represented or covered by any Certificate Of Title, Instrument, Document or Chattel Paper (each as defined in the NYUCC), or a Loan Party is not the sole owner of each such Certificate Of Title, Instrument, Document or Chattel Paper (in the possession of such Loan party), or it has been sold, assigned or otherwise transferred, and or it is subject to any claim, lien or security interest;

(o)        it exhibits, includes or is identified by any trademark, tradename or other Intellectual Property right which trademark, tradename or other Intellectual Property right (i) is subject to a restriction that could reasonably be expected to adversely affect the Collateral Agent’s ability to liquidate such Inventory or (ii) the relevant Loan Party does not have the right to use in connection with the sale of such Inventory, either through direct ownership or through a written license or sublicense; or

(p)       Revolving Agent shall have determined in its Permitted Discretion that it is unacceptable due to age, type, category, quality and/or quantity.

“ EMU Legislation ” shall mean the legislative measures of the European Union for the introduction of, changeover to or operation of the euro in one or more member states.

“ environment ” shall mean ambient and indoor air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata, natural resources such as flora and fauna, the workplace or as otherwise defined in any Environmental Law.

“ Environmental Laws ” shall mean all applicable laws (including common law), rules, regulations, codes, ordinances, orders, decrees, directives, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by or with any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the generation, management, Release or threatened Release of, or exposure to, any Hazardous Material or to health and safety matters (to the extent relating to the environment or Hazardous Materials).

“ Equity Contribution ” shall mean receipt by the Borrower of at least $80,000,000 in cash common or rollover Equity Interests from Lenders, investors and members of management, of which at least (x) $25,000,000 shall be from Ares, (y) $25,000,000 shall be from Jason Rabin and (x) $25,000,000 shall be from GSO.

“ Equity Interests ” of any person shall mean any and all shares, interests, membership interests, rights to purchase or otherwise acquire, warrants, options, participations or other equivalents of or interests in (however designated) equity or ownership of such person, including any preferred stock, any limited or general partnership interest and any limited liability company membership interest, and any securities or other rights or interests convertible into or exchangeable for any of the foregoing.

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

“ ERISA Affiliate ” shall mean any trade or business (whether or not incorporated) that, together with the Borrower or a Subsidiary, is treated as a single employer under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302 or 303 of ERISA or Section 412 or 430 of the Code, is treated as a single employer under Section 414 of the Code.

“ ERISA Event ” shall mean (a) any Reportable Event; (b)the failure to meet the minimum funding standard of Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA with respect to any Plan, whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the failure to make by its due date a required contribution under Section 412(m) of the Code with respect to any Plan; (e) the failure to make any required contribution to a Multiemployer Plan; (f) the incurrence by the Borrower, a Subsidiary or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention, or the institution by the PBGC of proceedings, to terminate any Plan or to appoint a trustee to administer any Plan; (g) the incurrence by the Borrower, a Subsidiary or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (h) the receipt by the Borrower, a Subsidiary or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower, a Subsidiary or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, (I) in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA, (II) in “at risk” status (as defined in Section 430 of the Code or Section 303 of ERISA) or (III) insolvent within the meaning of Title IV of ERISA.

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

“ euro ” or “ € ” shall mean the currency constituted by the Treaty on the European Union and as referred to in the EMU Legislation.

“ Eurocurrency Base Rate ” shall mean, for such Interest Period, the rate per annum equal to the ICE Benchmark Administration LIBOR Rate (“ LIBOR ”), as published by Reuters (or other commercially available source providing quotations of LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period (such rate the, “ LIBO Screen Rate ”). If the LIBO Screen Rate is not available at such time for any reason for such Interest Period (an “ Impacted Interest Period ”), then the “Eurocurrency Base Rate” for such Interest Period shall be the Interpolated Rate. If such Interpolated Rate is unavailable at such time for any reason, then LIBOR for such Interest Period shall be the rate per annum determined by Administrative Agent to be the rate per annum equal to the offered quotation rate for first class banks in the London interbank market for deposits (for delivery on the first day of the relevant period) in Dollars of amounts in same day funds comparable to the principal amount of the applicable Eurocurrency Loan of 3 major London banks for which LIBOR is then being determined with maturities comparable to such Interest Period as of approximately 11:00 a.m. London time, two (2) Business Days prior to the commencement of such Interest Period, which determination shall be conclusive absent manifest error. Notwithstanding the foregoing, if the Eurocurrency Base Rate determined based on the foregoing is less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.

“ Eurocurrency Borrowing ” shall mean a Borrowing comprised of Eurocurrency Loans.

“ Eurocurrency Loan ” shall mean any Eurocurrency Term Loan or Eurocurrency Revolving Loan.

“ Eurocurrency Reserve Percentage ” shall mean, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency Liabilities”). The Adjusted Eurocurrency Rate for each outstanding Eurocurrency Loan shall be adjusted automatically as of the effective date of any change in the Eurocurrency Reserve Percentage.

“ Eurocurrency Revolving Borrowing ” shall mean a Borrowing comprised of Eurocurrency Revolving Loans.

“ Eurocurrency Revolving Loan ” shall mean any Revolving Loan bearing interest at a rate determined by reference to the Adjusted Eurocurrency Rate in accordance with the provisions of Article II .

“ Eurocurrency Term Loan ” shall mean any Term Loan bearing interest at a rate determined by reference to the Adjusted Eurocurrency Rate in accordance with the provisions of Article II .

“ Event of Default ” shall have the meaning assigned to such term in Section 7.01 .

“ Excess Availability ” shall mean, as of any date of determination, the amount equal Availability minus the aggregate amount, if any, of all trade payables of Borrower and its Subsidiaries aged in excess of 90 days and all book overdrafts of Borrower and its Subsidiaries in excess of historical practices with respect thereto as determined by the Revolving Agent in its Permitted Discretion.

“ Excess Cash Flow ” shall mean, with respect to the Borrower and the Subsidiaries on a consolidated basis for any Excess Cash Flow Period, Net Receivables Financing Profit for such Excess Cash Flow Period (which shall be calculated without giving effect to (a)(xiv) ), minus , the sum of the following, without duplication, and, in each case, to the extent paid in cash (or committed to be paid in cash on or prior the date of any required prepayment pursuant to Section 2.11) :

(a)       Debt Service for such Excess Cash Flow Period, reduced by the aggregate principal amount of prepayments of Consolidated Total Debt (other than prepayments of the Loans) that would otherwise constitute scheduled principal amortization during such Excess Cash Flow Period, to the extent not financed, or intended to be financed, using the proceeds of, without duplication, the incurrence of Indebtedness (other than revolving loans and securitization and/or factoring advances), the sale or issuance of any Equity Interests or any Net Proceeds not otherwise required to prepay the Loans pursuant to Section 2.11 or the definition of the term “ Net Proceeds ”;

(b)       the amount of any voluntary prepayment or repurchases permitted hereunder of term Indebtedness (other than any Term Loans) during such Excess Cash Flow Period, in each case to the extent not financed, or intended to be financed, using the proceeds of, without duplication, the incurrence of Indebtedness (other than revolving loans and securitization and/or factoring advances), the sale or issuance of any Equity Interests or any Net Proceeds not otherwise required to prepay the Loans pursuant to Section 2.11 or the definition of the term “ Net Proceeds ”, in each case, to the extent that the amount of such prepayment is not already reflected in Debt Service;

(c)       (i) Capital Expenditures by the Borrower and the Subsidiaries on a consolidated basis during such Excess Cash Flow Period that are paid in cash and (ii) the aggregate consideration paid in cash during such Excess Cash Flow Period in respect of Permitted Business Acquisitions or any other Investments permitted hereunder, in each case, to the extent not financed with the proceeds of, without duplication, the incurrence of Indebtedness (other than revolving loans and factoring advances), the sale or issuance of any Equity Interests or any Net Proceeds not otherwise required to prepay the Loans pursuant to Section 2.11 or the definition of the term “ Net Proceeds ” ( less any amounts received in respect thereof as a return of capital);

(d)       cash payments made in respect of (i) Earn Out Obligations or similar deferred or contingent purchase price obligations or (ii) Existing Earn Out Obligations during such Excess Cash Flow Period to the extent not financed, or intended to be financed, using the proceeds of, without duplication, the incurrence of Indebtedness (other than revolving loans and factoring advances), provided that the aggregate total that may reduce Excess Cash Flow under clause (d)(i) shall not exceed $7,500,000 in any Excess Cash Flow Period and in no event shall exceed $37,500,000 in the aggregate after the Closing Date;

(e)       the amount of Dividends made pursuant to Section 6.06 (other than Section 6.06(d) and (g) ), Junior Indebtedness Payments made in cash pursuant to Section 6.09(b)(i) , during such Excess Cash Flow Period, in each case, to the extent not financed, or intended to be financed, using the proceeds of, without duplication, the incurrence of Indebtedness (other than revolving loans and securitization and/or factoring advances);

(f)       cash payments made in respect of the Transactions or any other Acquisition, including to satisfy any payment obligations owing under the Acquisition Agreement or any other acquisition or purchase agreement, payments with respect to transition services, spin out and set up costs, brand separations, licensing consent agreements and other Charges described in clause (iv) of the definition of EBITDA (up to the amount of such cash payments actually made) and amounts required to be paid in connection with, or as a result, of any working capital purchase price adjustments during such Excess Cash Flow Period, in each case, to the extent not financed, or intended to be financed, using the proceeds of, without duplication, the incurrence of Indebtedness (other than revolving loans and securitization and/or factoring advances) and other than any such cash payments made with the proceeds of amounts funded to the Company and its Subsidiaries in connection with the Transactions;

(g)       Taxes paid in cash by the Borrower and the Subsidiaries on a consolidated basis during such Excess Cash Flow Period or that will be paid within six months after the close of such Excess Cash Flow Period and for which reserves have been established, including tax expense measured by income or capital to the extent added back to Consolidated Net Income in the determination of Net Receivables Financing Profit; provided , that any amount so deducted that will be paid after the close of such Excess Cash Flow Period shall not be deducted again in a subsequent Excess Cash Flow Period;

(h)       an amount equal to any increase in Working Capital of the Borrower and the Subsidiaries for such Excess Cash Flow Period;

(i)       cash expenditures made in respect of Swap Agreements during such Excess Cash Flow Period, to the extent not reflected in the computation of Net Receivables Financing Profit or Cash Interest Expense;

(j)       without duplication of any exclusions to the calculation of Consolidated Net Income or Net Receivables Financing Profit, amounts paid in cash during such Excess Cash Flow Period on account of (A) items that were accounted for as noncash reductions of Net Income in determining Consolidated Net Income or as noncash reductions of Consolidated Net Income in determining Net Receivables Financing Profit in a prior Excess Cash Flow Period and (B) reserves or accruals established in purchase accounting;

(k)       to the extent not deducted in the computation of Net Proceeds in respect of any asset Disposition or condemnation giving rise thereto, the amount of any mandatory prepayment of Indebtedness (other than Indebtedness created hereunder or under any other Loan Document), together with any interest, premium or penalties required to be paid (and actually paid) in connection therewith to the extent that the income or gain realized from the transaction giving rise to such Net Proceeds exceeds the aggregate amount of all such mandatory prepayments and Capital Expenditures made with such Net Proceeds;

(l)       all amounts increasing Net Receivables Financing Profit in accordance with the definition of “Pro Forma Basis” or otherwise in accordance with any provision of the Loan Documents that required Net Receivables Financing Profit to be calculated on a Pro Forma Basis;

(m)       the amount related to items that were added to or not deducted from Net Income in calculating Consolidated Net Income or were added to or not deducted from Consolidated Net Income in calculating Net Receivables Financing Profit to the extent such items represented a cash payment (which had not reduced Excess Cash Flow upon the accrual thereof in a prior Excess Cash Flow Period), or an accrual for a cash payment, by the Borrower and the Subsidiaries or did not represent cash received by the Borrower and the Subsidiaries, in each case on a consolidated basis during such Excess Cash Flow Period;

(n)       the aggregate amount of all non-cash income, gains and credits included in the calculation of Consolidated Net Income or specifically added back to Consolidated Net Income in the calculation of Net Receivables Financing Profit for such Excess Cash Flow Period; and

(o)       any fees or expenses paid in cash during such Excess Cash Flow Period in connection with any Investment, Disposition, incurrence or repayment of Indebtedness, issuance of Equity Interests or amendment or modification to any debt instrument (including any amendment or other modification to this Agreement or the other Loan Documents), and any transaction undertaken and not completed, in each case, to the extent not financed, or intended to be financed, using the proceeds of, without duplication, the incurrence of Indebtedness (other than revolving loans and securitization and/or factoring advances),

plus , without duplication,

(a)       an amount equal to any decrease in Working Capital of the Borrower and the Subsidiaries for such Excess Cash Flow Period;

(b)       the amount of net proceeds in the form of cash or Cash Equivalents received by the Borrower or any Subsidiary with respect to the termination of license agreements;

(c)       all amounts referred to in clause (c) above to the extent funded with, without duplication, (i) the proceeds of the sale or issuance of Equity Interests of, or capital contributions to, the Borrower after the Closing Date, (ii) the proceeds of Indebtedness (other than Revolving Loans) or (iii) any Net Proceeds not otherwise required to prepay the Loans pursuant to Section 2.11 or the definition of the term “ Net Proceeds ”, in each case, to the extent there is a corresponding deduction from Excess Cash Flow above;

(d)        [reserved];

(e)       cash payments received in respect of Swap Agreements during such Excess Cash Flow Period to the extent (i) not included in the computation of Net Receivables Financing Profit or (ii) such payments do not reduce Cash Interest Expense;

(f)       any extraordinary or nonrecurring gain realized in cash during such Excess Cash Flow Period, except to the extent such gain consists of Net Proceeds subject to Section 2.11(b) or not otherwise required to prepay the Loans pursuant to Section 2.11 or the definition of the term “ Net Proceeds ”;

(g)       to the extent deducted in the computation of Net Receivables Financing Profit, cash interest income; and

(h)       the amount related to items that were deducted from or not added to Net Income in connection with calculating Consolidated Net Income or were deducted from or not added to Consolidated Net Income in calculating Net Receivables Financing Profit to the extent either (x) such items represented cash received by the Borrower or any Subsidiary or (y) such items do not represent cash paid by the Borrower or any Subsidiary, in each case on a consolidated basis during such Excess Cash Flow Period, in each case, except to the extent such amount consists of Net Proceeds subject to Section 2.11(b) or not otherwise required to prepay the Loans pursuant to Section 2.11 or the definition of the term “ Net Proceeds ”.

“ Excess Cash Flow Period ” shall mean (a) the fiscal year of the Borrower ending on December 31, 2019, and (b) each fiscal year of the Borrower ended thereafter.

“ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.

“ Excluded Accounts ” shall mean (a) deposit accounts, securities accounts, or commodity accounts (each as defined in the Uniform Commercial Code) which in the aggregate contain less than $5,000,000 at any one time, including the market value of any securities, commodities, contracts or other assets therein, (b) any other deposit account, securities account or commodity account that is or used exclusively as a (i) payroll, healthcare or other employee wage benefits account, (ii) withholding tax account (including sales tax account), (iii) escrow or permitted defeasance and redemption account, (iv) fiduciary or trust account, together with the funds or other property held in or maintained in any such account (including, without limitation) any fiduciary accounts required to be maintained by any regulatory or quasi-regulatory body) or (v) zero balance account, (c) deposit accounts, securities accounts, or commodity accounts maintained in the ordinary course of business with depositary banks outside the United States.

“ Excluded Assets ” shall mean:

“ Excluded Contributions ” shall mean the cash and Cash Equivalents received by the Borrower from:

(a)       contributions in respect of its Equity Interests (other than Disqualified Stock), and

(b)       the sale (other than to a Subsidiary of the Borrower or pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Borrower or any of its Subsidiaries) of Equity Interests (other than Disqualified Stock) of the Borrower,

in each case, as designated as Excluded Contributions pursuant to an Officer’s Certificate executed by a Responsible Officer of the Borrower.

“ Excluded Equity Interests ” shall mean:

(a)       any Equity Interests with respect to which, in the reasonable judgment of the Administrative Agent, the Collateral Agent and the Borrower, the cost of pledging such Equity Interests shall be excessive in view of the benefits to be obtained by the Secured Parties therefrom,

(b)      Voting Stock in excess of 65% of the issued and outstanding Voting Stock of any wholly-owned first tier subsidiary that is an Excluded Foreign Subsidiary (provided, that any first-tier foreign subsidiary that is a disregarded entity for tax purposes shall be deemed to be a Domestic Subsidiary for purposes of this clause (b) ),      

(c)       any Equity Interests in any Subsidiary to the extent, and for so long as, the pledge thereof would be prohibited by any applicable Law (including any legally effective requirement to obtain the consent of any Governmental Authority unless such consent has been obtained),

(d)       any Equity Interests of any Subsidiary (other than as described in clause (b) ) to the extent that the pledge of such Equity Interests would result in material adverse tax consequences to the Borrower or any Subsidiary as reasonably determined by the Borrower and the Administrative Agent; and

(e)       any Equity Interests issued by any entity other than a Wholly Owned Subsidiary (other than any Domestic Subsidiary that becomes a non-Wholly Owned Subsidiary after the Closing Date as a result of (i) the disposition or issuance of Equity Interests of such Domestic Subsidiary in either case to a Person that is not an unaffiliated third party, (ii) any transaction entered into in contemplation hereof or primarily in contemplation of such Domestic Subsidiary’s ceasing to constitute a Subsidiary Guarantor or (iii) the disposition or issuance of Equity Interests of such Domestic Subsidiary for less than the fair market value of such shares as reasonably determined by the Borrower) to the extent prohibited by the Organizational Documents or other Contractual Obligation applicable to such person requiring third party consent (other than the consent of Borrower or any of its Subsidiaries).

“ Excluded Foreign Subsidiary ” shall mean (i) any Foreign Subsidiary that is a CFC and (ii) any Subsidiary that has no material assets other than Equity Interests of, or Equity Interests and indebtedness of, one or more CFCs.

“ Excluded Indebtedness ” shall mean all Indebtedness permitted to be incurred under Section 6.01 (as amended or waived from time to time).

“ Excluded Subsidiary ” shall mean (with the exception of any Subsidiary that owns any material Intellectual Property that is used in the business of any of the Loan Parties or any Subsidiary that is party to any Material License Agreement):

(a)       any Subsidiary that is not a Wholly Owned Subsidiary on any date such Subsidiary would otherwise be required to become a Guarantor pursuant to the requirements of Section 5.11 (for so long as such Subsidiary remains a non-Wholly Owned Subsidiary), other than any Domestic Subsidiary that becomes a non-Wholly Owned Subsidiary after the Closing Date as a result of (i) the disposition or issuance of Equity Interests of such Domestic Subsidiary in either case to a Person that is not an unaffiliated third party, (ii) any transaction entered into primarily in contemplation of such Domestic Subsidiary’s ceasing to constitute a Subsidiary Loan Party or (iii) the disposition or issuance of Equity Interests of such Domestic Subsidiary for less than the fair market value of such shares as reasonably determined by the Borrower),

(b)       any Subsidiary that is prohibited by (x) subject to clause (g) below, applicable Law or (y) Contractual Obligation from guaranteeing or securing the Obligations (and for so long as such restriction is in effect); provided that in the case of clause (y) , such Contractual Obligation existed on the Closing Date or, with respect to any Subsidiary acquired by the Borrower or a Subsidiary after the Closing Date (and so long as such Contractual Obligation was not incurred in contemplation of such acquisition), on the date such Subsidiary is so acquired,

(c)       (i) any direct or indirect Foreign Subsidiary, (ii) any Subsidiary that is described in clause (ii) of the defined term “Excluded Foreign Subsidiary”, (iii) any direct or indirect Subsidiary of an Excluded Foreign Subsidiary, or (iv) any other Subsidiary for which the provision of a Guarantee or granting a security interest in respect of such Subsidiary would result in a material adverse tax consequence to Borrower or one of its Subsidiaries (as reasonably determined by the Borrower in consultation with the Agents),

(d)       any Immaterial Subsidiary for so long as such Subsidiary remains an Immaterial Subsidiary,

(e)       any other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent, the Collateral Agent and the Borrower, the cost of providing a Guarantee or granting a security interest shall be excessive in view of the benefits to be obtained by the Lenders therefrom,

(f)       any Subsidiary that would require any consent, approval, license or authorization from any Governmental Authority to provide a Guarantee or grant a security interests unless such consent, approval, license or authorization has been received, or is received after commercially reasonable efforts by the Borrower and/or such Subsidiary to obtain the same, and

(g)       any captive insurance Subsidiaries, any special purpose factoring entities or any special purpose securitization vehicle or any Securitization Subsidiary (in each case, solely to the extent subject to a Qualified Securitization Financing or a Permitted Credit Support Arrangement), any broker-dealer subsidiaries, bank or trust company subsidiaries or a not-for-profit Subsidiary.

“ Excluded Taxes ” shall mean, with respect to any Recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, the following Taxes:

(a)       Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes,

(b)       in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.19(b) ) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.17 , amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office,

(c)       Taxes attributable to such Recipient’s failure to comply with Section 2.17(g) and

(d)        any withholding Taxes imposed under FATCA.

“ Existing Earn Out Obligations ” shall mean those Earn Out Obligations existing on the Closing Date and described on Schedule F .

“ Existing Indebtedness ” shall mean all third party Indebtedness of the Borrower, the Acquired Business and their respective Subsidiaries (other than existing Indebtedness (including ordinary course Capital Leases, equipment financings, letters of credit, Existing Letters of Credit and other similar financings arrangements) contemplated hereby to remain outstanding after the Closing Date and listed on Schedule 6.01).

“ Existing Letters of Credit ” shall mean those letters of credit described on Schedule E .

“ Extraordinary Advance ” shall have the meaning as assigned in Section 2.03(c)(iii) .

“ fair market value ” shall mean, with respect to any asset or property, the price that could be negotiated in an arms’ length transaction between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction.

“ FATCA ” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

“ FCPA ” shall mean the Foreign Corrupt Practices Act of 1977, as amended.

“ Federal Funds Rate ” shall mean, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (charged on such day on such transactions as determined by the Administrative Agent).

“ Fee Letter ” shall mean that certain Senior Secured Credit Facilities Fee Letter dated as of the Closing Date, by and among Ares Capital Management LLC, Ares Capital Corporation, HPS Investment Partners, LLC and the Borrower.

“ Fees ” shall mean the Commitment Fees, the L/C Participation Fees, the Issuing Bank Fees, the Administrative Agent Fees, the Collateral Agent Fees and any other fees due hereunder (including, without limitation, pursuant to Section 2.12 ) .

“ Field Exam ” shall have the meaning as assigned in Section 5.07(b) .

“ Financial Officer ” of any person shall mean the Chief Financial Officer, principal accounting officer, Treasurer, Assistant Treasurer or Controller of such person.

“ First-Second Intercreditor Agreement ” shall mean (x) that Intercreditor Agreement dated as of the date hereof among the Collateral Agent as Senior Agent, U.S. Bank National Association, as Junior Agent and the representatives for purposes thereof for holders of one or more other classes of Indebtedness, the Borrower, the other Loan Parties and the other parties thereto and (y) any other intercreditor agreement entered into from time to time by the holders of one or more classes of Indebtedness, the Loan Parties and the Collateral Agent and any lender or agent from time to time and designated by the Collateral Agent and the Borrower as a “First-Second Intercreditor Agreement”, in each case, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, and which term shall also include any replacement intercreditor agreement entered into in accordance with the terms hereof.

“ Foreign Lender ” shall mean any Lender which for U.S. federal income tax purposes (i) is regarded as a separate entity and is not a U.S. Person or (ii) is disregarded as a separate entity and has a regarded owner that is not a U.S. Person.

“ Foreign Subsidiary ” shall mean any Subsidiary (together with its successors) that is incorporated or organized under the laws of any jurisdiction other than the United States of America, any State thereof or the District of Columbia.

“ Fronting Exposure ” shall mean, at any time there is a Defaulting Lender, (a) with respect to each Issuing Bank, such Defaulting Lender’s Applicable Percentage of the outstanding Letter of Credit obligations other than Letter of Credit obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Revolving Agent, such Defaulting Lender’s Applicable Percentage of Swingline Advances or Extraordinary Advances (other than Swingline Advances and Extraordinary Advances as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders).

“ Funding Conditions Provision ” shall have the meaning assigned to such term in Section 4.02 .

“ Funding Date ” shall mean the date on which a Revolving Borrowing occurs.

“ GAAP ” shall mean generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis, subject to the provisions of Section 1.02 ; provided , that any reference to the application of GAAP in Sections 3.13(a) , 3.13(b) , 3.20 , 5.03 , 5.07 and 6.02(e) , to a Foreign Subsidiary (and not as a consolidated Subsidiary of the Borrower) shall mean generally accepted accounting principles in effect from time to time in the jurisdiction of organization of such Foreign Subsidiary.

“ Governmental Authority ” shall mean the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including (i) any supra-national bodies or public international organizations such as the European Union or the European Central Bank, or World Bank and (ii) the National Association of Insurance Commissioners).

“ GSO ” shall mean GSO Capital Partners LP and/or its managed funds or Affiliates.

“ Guarantee ” of or by any person (the “ guarantor ”) shall mean (a) any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation (whether arising by virtue of partnership arrangements, by agreement to keep well, to purchase assets, goods, securities or services, to take-or-pay or otherwise) or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, (iv) entered into for the purpose of assuring in any other manner the holders of such Indebtedness or other obligation of the payment thereof or to protect such holders against loss in respect thereof (in whole or in part) or (v) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or other obligation, or (b) any Lien on any assets of the guarantor securing any Indebtedness or other obligation (or any existing right, contingent or otherwise, of the holder of Indebtedness or other obligation to be secured by such a Lien) of any other person, whether or not such Indebtedness or other obligation is assumed by the guarantor; provided , however , 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. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (1) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (2) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith. 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. The term “Guarantee” as a verb has a corresponding meaning.

“ Guaranty Agreement ” shall mean the Guaranty Agreement, in the substantially in the form of Exhibit E , as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, among the Borrower, each Loan Party and the Collateral Agent.

“ Hazardous Materials ” shall mean all pollutants, contaminants, wastes, chemicals, materials, substances and constituents, including explosive or radioactive substances or petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls or radon gas, of any nature subject to regulation or which can give rise to liability under any Environmental Law.

“ Headquarters ” shall mean the Borrower’s headquarters located at 350 Fifth Ave, Empire State Building, New York, NY 10118.

“ Highest Lawful Rate ” shall mean the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum non-usurious interest rate than applicable laws now allow.

“ Honor Date ” shall have the meaning assigned to such term in Section 2.05 .

“ HPS ” shall mean HPS Investment Partners, LLC and/or its managed funds or Affiliates.

“ Hudson Notes ” shall mean the notes set forth on Schedule G .

“ IFRS ” shall mean the International Financial reporting Standards issued by the International Accounting Standards Board.

“ Immaterial Subsidiary ” shall mean any Subsidiary that did not, as of the last day of the fiscal quarter of the Borrower most recently ended and Reported, have assets with a value in excess of 2.5% of the Consolidated Total Assets or have Net Receivables Financing Profit representing in excess of 2.5% of Net Receivables Financing Profit as of such date and, when taken together with all other Immaterial Subsidiaries as of the last day of the fiscal quarter of the Borrower most recently ended and Reported, did not have assets with a value in excess of 5.0% of the Consolidated Total Assets or Net Receivables Financing Profit representing in excess of 5.0% of Net Receivables Financing Profit as of such date (the “ Excluded Subsidiary Limit ”). In the event that the Immaterial Subsidiaries, taken together, as of the last day of the fiscal quarter of the Borrower most recently ended and Reported have assets representing in excess of 5.0% of the Consolidated Total Assets or Net Receivables Financing Profit in excess of 5.0% of Net Receivables Financing Profit as of such date, the Borrower shall designate, in its reasonable discretion, one or more Immaterial Subsidiaries to no longer be Immaterial Subsidiaries as may be necessary such that the foregoing Excluded Subsidiary Limit shall not be exceeded, and any such Subsidiary shall thereafter not be deemed to be an Immaterial Subsidiary hereunder (each such change, an “ Immaterial Subsidiary Update ”). Each Immaterial Subsidiary as of the Closing Date shall be set forth on Schedule 1.01(b) , and to the extent that there is an Immaterial Subsidiary Update from time to time, in connection with such update (but not more frequently than the delivery of a quarterly Compliance Certificate is required pursuant to Section 5.04(e) ) the Borrower shall provide the Administrative Agent with an updated Schedule 1.01(b) which reflect the Immaterial Subsidiaries at such time. Notwithstanding the foregoing, no Subsidiary shall constitute an Immaterial Subsidiary if such Subsidiary owns or possesses rights to any material intellectual property used in the business of the Borrower and its Subsidiaries or if such Subsidiary is a party to any Material License Agreement.

“ Impacted Interest Period ” shall have the meaning set forth in the definition of “Eurocurrency Base Rate.”

“ In-Transit Inventory ” shall mean Inventory that is being shipped or otherwise transported to a Loan Party from a point of origin within the continental United States or is being shipped or otherwise transported to or from a point of origin outside of the continental United States (other than Inventory in transit (x) between locations set forth on Schedule 5.18 or (y) to any retail store of a Loan Party located within the United States and Canada (excluding Quebec)).

“ Indebtedness ” of any person shall mean, without duplication:

(a)       all obligations of such person for borrowed money and all obligations of such person evidenced by bonds (other than performance, surety or statutory bonds or other similar instruments issued in the ordinary course of business), debentures, notes or similar instruments;

(b)       all obligations of such person under conditional sale or other title retention agreements relating to property or assets purchased by such person (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business);

(c)       all obligations of such person (other than intercompany items) issued or assumed as the deferred purchase price of property or services incurred in the ordinary course of business and maturing within 365 days after the incurrence thereof (other than (x) accrued expense obligations and trade accounts payable in the ordinary course of business and (y) Earn Out Obligations or similar deferred or contingent purchase price obligations that are not yet due and payable and are not expected to be due and payable in accordance with the documentation giving rise thereto);

(d)       all Guarantees by such person of Indebtedness of others treated as Indebtedness pursuant to another clause of this definition;

(e)       all Capital Lease Obligations of such person;

(f)       all net payments that such person would have to make in the event of an early termination, on the date Indebtedness of such person is being determined, in respect of outstanding Swap Agreements;

(g)       the principal component of all obligations, contingent or otherwise, of such person as an account party in respect of letters of credit;

(h)       the principal component of all obligations of such person in respect of bankers’ acceptances; and

(i)       the amount of all obligations of such person with respect to the redemption, repayment or other repurchase of any Disqualified Stock (excluding accrued dividends that have not increased the liquidation preference of such Disqualified Stock).

The Indebtedness of any person shall include the Indebtedness of any partnership in which such person is a general partner, other than to the extent that the instrument or agreement evidencing such Indebtedness expressly limits the liability of such person in respect thereof in which case such Indebtedness shall not be more than the amount of such Indebtedness that is recourse to such person; provided , however , that, notwithstanding the foregoing, Indebtedness for purposes of this Agreement and the other Loan Documents, including for the purposes of calculating the financial covenant in Section 6.10 or calculating any financial ratio (including for the purposes of calculating Pro Forma Compliance with respect of any incurrence or other test hereunder), Indebtedness shall be deemed not to include (i) contingent obligations incurred in the ordinary course of business, (ii) deferred or prepaid revenues, (iii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller, (iv) [reserved], (v) obligations to make payments in respect of money backed guarantees offered to customers in the ordinary course of business, (vi) obligations to make payments to one or more insurers in respect of profit sharing arrangements entered into in the ordinary course of business, (vii) any amounts available and not drawn under any available commitments or (viii) the obligations of any person to pay rent or other amounts under any lease (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations would be required to be classified and accounted for as an operating lease under GAAP as in effect on the Closing Date, or in excess of the amount of such Indebtedness that would be recourse to such person.

“ Indemnified Taxes ” shall mean (a) Taxes , other than Excluded Taxes , imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

“ Indemnitee ” shall have the meaning assigned to such term in Section 9.05(b) .

“ Information ” shall have the meaning assigned to such term in Section 3.14(a) .

“ Intellectual Property ” shall have the meaning assigned to such term in the Collateral Agreement.

“ Intellectual Property Security Agreements ” shall mean a Copyright Security Agreement, a Patent Security Agreement, and a Trademark Security Agreement, forms of which are attached as exhibits to the Collateral Agreement.

“ Intercreditor Agreement ” shall mean each of the First-Second Intercreditor Agreement, the PNC Intercreditor Agreement, any other Customary Intercreditor Agreement or any other agreement designated by the Borrower and the Administrative Agent from time to time as an “ Intercreditor Agreement ”, and “ Intercreditor Agreements ” means any two or more of each of the foregoing, in each case, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“ Interest Election Request ” shall mean a request by the Borrower to convert or continue a Term Borrowing or Revolving Borrowing in accordance with Section 2.07 .

“ Interest Expense ” shall mean, with respect to any person for any period, the sum of, without duplication, (a) gross interest expense of such person for such period on a consolidated basis, including (i) the amortization of debt discounts, (ii) the amortization of all fees (including fees with respect to Swap Agreements) payable in connection with the incurrence of Indebtedness to the extent included in interest expense, (iii) the portion of any payments or accruals with respect to Capital Lease Obligations allocable to interest expense and (iv) net payments and receipts (if any) pursuant to interest rate hedging obligations, and excluding amortization of deferred financing fees and expensing of any bridge or other financing fees, (b) capitalized interest of such person, whether paid or accrued, and (c) commissions, discounts, yield and other fees and charges incurred for such period in connection with any accounts receivables financing of such person or any of its subsidiaries that are payable to persons other than the Borrower and the Subsidiaries.

“ Interest Payment Date ” shall mean, (a) with respect to any Eurocurrency Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period of more than three months’ duration each day that would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Borrowing and, in addition, the date of any refinancing or conversion of such Borrowing with or to a Borrowing of a different Type and (b) with respect to any ABR Loan, the last Business Day of each calendar quarter (being the last Business Day of March, June, September and December of each year).

“ Interest Period ” shall mean, as to any Eurocurrency Borrowing, the period commencing on the date of such Borrowing or on the last day of the immediately preceding Interest Period applicable to such Borrowing, as applicable, and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is 3 or 6 months thereafter (or 12 months thereafter, a period shorter than 3 months or such other period, in each case, if at the time of the relevant Borrowing, all Lenders agree to make interest periods of such length available), as the Borrower may elect, or the date any Eurocurrency Borrowing is converted to an ABR Borrowing in accordance with Section 2.07 or repaid or prepaid in accordance with Section 2.09 , 2.10 or 2.11 ; provided , however , that if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period.

“ Interpolated Rate ” shall mean, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period (for which the LIBO Screen Rate is available) that is shorter than the Impacted Interest Period and (b) the LIBO Screen Rate for the shortest period (for which the LIBO Screen Rate is available) that exceeds the Impacted Interest Period, in each case, at such time.

“ Inventory ” shall have the meaning as assigned in the NYUCC.

“ Inventory Appraisal ” shall have the meaning as assigned in Section 5.07(b) .

“ Investment ” shall have the meaning set forth in Section 6.04 .

“ ISP ” shall mean, with respect to any Letter of Credit, the International Standby Practices 1998 (International Chamber of Commerce Publication No. 590) and any subsequent revision thereof adopted by the International Chamber of Commerce on the date such Letter of Credit is issued.

“ Issuing Bank ” shall mean Revolving Agent or any Revolving Lender (for the avoidance of doubt, other than HPS unless agreed to in writing in its sole discretion) or any bank or financial institution selected by Revolving Agent in Revolving Agent’s sole discretion and that agrees to act as an Issuing Bank, in each case that issues a Letter of Credit. For the avoidance of doubt, HPS shall not act as an Issuing Bank unless agreed to in writing in its sole discretion.

“ Issuing Bank Fees ” shall have the meaning assigned to such term in Section 2.12(b) .

“ Junior Indebtedness ” shall mean, collectively, Indebtedness of the Borrower or any of its Subsidiaries that is (x) secured by a Lien that is junior in priority to the Lien securing the Obligations, or (y) by its terms contractually subordinated in right of payment to all or any portion of the Obligations or (z) unsecured, in each case, other than intercompany Indebtedness among the Borrower and its Subsidiaries and Indebtedness incurred under Section 6.01(e) ; which for the avoidance of doubt, as of the Closing Date includes, the Indebtedness under the Second Lien Credit Agreement, the Hudson Notes and the Closing Date Subordinated Note, but excludes any Existing Earn Out Obligations.

“ Latest Maturity Date ” shall mean, as of any date of determination, the latest final stated maturity date applicable to any Class of Loans or Commitments hereunder at such time, in each case as extended in accordance with this Agreement from time to time.

“ Laws ” shall mean, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, 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, in each case whether or not having the force of law.

“ L/C Borrowing ” shall mean an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing.

“ L/C Disbursement ” shall mean each payment or distribution made by an Issuing Bank to the beneficiary of a Letter of Credit under or in connection with such Letter of Credit.

“ L/C Exposure ” shall mean (i) with respect to an individual Letter of Credit, the undrawn face amount of such Letter of Credit at such time (as such face amount may have been reduced after issuance), plus the aggregate amount of all L/C Disbursements in connection with such Letter of Credit that have not been paid or reimbursed to the Issuing Bank or converted to Revolving Loans at such time, and (ii) with respect to all Letters of Credit, the aggregate undrawn face amount of all Letters of Credit plus the aggregate amount of all L/C Disbursements in connection with all Letters of Credit that have not been paid or reimbursed to the Issuing Bank or converted to Revolving Loans.

“ L/C Facility Termination Date ” shall have the meaning as provided in Section 2.5(a) .

“ L/C Participation Fee ” shall have the meaning assigned such term in Section 2.12(b) .

“ L/C Sublimit ” shall have the meaning as provided in Section 2.5(a) .

“ Landlord Reserve ” shall mean,as to each location at which the Loan Parties have Collateral or books and records located and as to which a Collateral Access Agreement has not been received by Collateral Agent, a reserve, which initially shall be in an amount equal to (such amount, the “ Initial Landlord Reserve ”) the greater of (a) the number of months’ rent for which the landlord will have, under applicable Law, a Lien in the Collateral of the Loan Parties to secure the payment of rent or other amounts under the lease relative to such location, or (b) 1 month’s rent under the lease relative to such location, which reserve may be adjusted by the Revolving Agent in its Permitted Discretion (but in no event in an amount greater than the Initial Landlord Reserve).

“ Lead Arrangers ” shall mean Ares Capital Management LLC and HPS Investments Partners, LLC.

“ Leased Material Real Property ” shall mean the leased real property set forth on Schedule 3.18 .

“ Lender ” shall mean each Revolving Lender, each Term Lender and, unless the context requires otherwise, each Issuing Bank.

“ Letter of Credit ” shall mean each letter of credit, if any, issued to the account of Borrower pursuant to Section 2.05 .

“ Letter of Credit Application ” shall mean an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by any applicable Issuing Bank.

“ Letter of Credit Indemnified Costs ” shall have the meaning as assigned in Section 2.05(i) .

“ Letter of Credit Related Person ” shall have the meaning as assigned in Section 2.05(i) .

“ LIBO Screen Rate ” shall have the meaning set forth in the definition of “Eurodollar Base Rate”.

“ Lien ” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, hypothecation, pledge, encumbrance, charge or security interest in or on such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities (other than securities representing an interest in a joint venture that is not a Subsidiary), any purchase option, call or similar right of a third party with respect to such securities; provided , that in no event shall an operating lease or an agreement to sell be deemed to constitute a Lien.

“ Limited Condition Acquisition ” shall mean any Permitted Business Acquisition by the Borrower or one or more of its Subsidiaries whose consummation is not conditioned on the availability of, or on obtaining, third party financing.

“ Loan Documents ” shall mean this Agreement, the Letters of Credit, the Security Documents, each Borrowing Base Certificate, each Compliance Certificate, any promissory note issued under Section 2.09(e) , solely for the purposes of 7.01(c) hereof, the Fee Letter and all other documents, certificates, instruments or agreements executed and delivered by or on behalf of a Loan Party for the benefit of any Agent, Issuing Bank or Lender in connection herewith on or after the date hereof.

“ Loan Parties ” shall mean the Borrower and the Subsidiary Loan Parties.

“ Loans ” shall mean the Term Loans, the Revolving Loans (including, for the avoidance of doubt, any Swingline Advances and Extraordinary Advances).

“ Local Time ” shall mean New York City time.

“ Majority Lenders ” of any Tranche shall mean, at any time, (i) the Lenders under such Tranche having Loans and unused Commitments representing more than 50% of the sum of all Loans outstanding under such Tranche and unused Commitments under such Tranche at such time; together with (2) (a) Ares, but only if Ares at such time is a Lender under this Agreement and continues to hold Loans and unused Commitments in an aggregate amount equal to at least 50% of the aggregate amount of Loans and unused Commitments it held as of the Closing Date in such Tranche and (b) HPS, but only if HPS at such time is a Lender under this Agreement and continues to hold Loans and unused Commitments in an aggregate amount equal to at least 50% of the aggregate amount of Loans and unused Commitments it held as of the Closing Date in such Tranche.

“ Margin Stock ” shall have the meaning assigned to such term in Regulation U.

“ Material Adverse Effect ” shall mean (a) on the Closing Date, a Material Adverse Effect (as defined in the Acquisition Agreement) as it relates to the Closing Date Acquisition and (b) after the Closing Date, the existence of any event, development or circumstance that, has had or would reasonably be expected to have a material adverse effect on (i) the business, property, operations or financial condition of the Borrower and the Subsidiaries, taken as a whole, (ii) the ability of the Loan Parties, taken as whole, to fully and timely perform their Obligations or (iii) the validity or enforceability of this Agreement or any other Loan Document or the security interest of the Collateral Agent in any material Collateral or the rights and remedies of the Administrative Agent, Revolving Agent, Collateral Agent or any of the Lenders thereunder.

“ Material Agreement ” shall mean any agreement, contract or instrument to which any Loan Party is a party or by which any Loan Party or any of its properties is bound (including, without limitation with respect to customers and/or suppliers) (i) pursuant to which any Loan Party receives or will receive revenue (as determined in accordance with GAAP on the financial statements of the Borrower), in excess of $50,000,000 in any Test Period, (ii) governing, creating, evidencing or relating to Material Indebtedness of any Loan Party, (iii) the termination or suspension of which, or the failure of any party thereto to perform its obligations thereunder, would reasonably be expected to have a Material Adverse Effect, (iv) which constitutes a Material License Agreement or (v) any Qualified Securitization Financing Documentation.

“ Material Indebtedness ” shall mean any (i) Indebtedness (other than Loans, Letters of Credit and the Closing Date Subordinated Convertible Note) of any one or more of the Borrower or any Subsidiary in an aggregate principal amount exceeding $25,000,000 and (ii) the Hudson Notes.

“ Material License Agreements ” shall mean license agreements, (i) the termination or suspension of which, or the failure of any party thereto to perform its obligations thereunder, would reasonably be expected to have a Material Adverse Effect or (ii) pursuant to which the Borrower and its Subsidiaries has received revenue, in excess of $50,000,000 in any Test Period.

“ Material Subsidiary ” shall mean any Subsidiary other than Immaterial Subsidiaries.

“ Maturity Date ” shall mean (a) with respect to the Revolving Facility, the Revolving Facility Maturity Date and (b) with respect to the Term Loans, the Term Loan Maturity Date.

“ Maximum Revolver Amount ” shall mean, as of any date of determination, the lesser of:

(A)       the Revolving Facility Aggregate Commitment as of such date, and

(B)       the Borrowing Base as of such date (based upon the most recent Borrowing Base Certificate delivered by Borrower to Revolving Agent).

“ Maximum Swingline Amount ” has the meaning assigned in Section 2.4(a) .

“ Minimum Retained Amounts ” shall mean payments from Securitization Providers, Credit Support Providers and Account Debtors (x) that constitute Securitization Assets (including Permitted Securitization Cash Collateral) and (y) amounts necessary to maintain minimum account balances, current operations and debt service in respect of a Qualified Securitization Financing; provided that amounts described in this clause (y) (other than those amounts pending onward payment to third parties) shall not at any one time exceed $2,000,000 for a period of more than 3 Business Days.

“ Moody’s ” shall mean Moody’s Investors Service, Inc.

“ Mortgaged Properties ” shall mean each real property encumbered by a Mortgage pursuant to Section 5.11 .

“ Mortgages ” shall mean the mortgages, debentures, hypothecs, deeds of trust, deeds to secure debt, assignments of leases and rents, and other security documents delivered pursuant to Section 5.11 , as amended, restated, amended and restated, supplemented or otherwise modified from time to time, with respect to Mortgaged Properties, each in form and substance reasonably satisfactory to the Administrative Agent.

“ Multiemployer Plan ” shall mean a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA to which the Borrower or any Subsidiary or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding six plan years made or accrued an obligation to make contributions.

“ Net Income ” shall mean, 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 Orderly Liquidation Percentage " shall mean, as of any date, the percentage of value of Eligible Inventory that is estimated to be recoverable in an orderly liquidation of such Eligible Inventory as evidenced by an appraisal satisfactory to the Collateral Agent in its Permitted Discretion.

“Net Proceeds ” shall mean:

(a)       100% of the proceeds in the form of cash and Cash Equivalents actually received by the Borrower or any Subsidiary (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise and including casualty insurance settlements and condemnation awards, but only as and when received) from any Takings or Casualty Event or any sale, transfer or other Disposition or Asset Sale pursuant to Section 6.05 (a)(iii), (h), (j) (solely to the extent relating to a non-ordinary course one- time payment in respect of a sale of an individual license or cross-license) , (l), (o) , (r) , or (s) (including any sale and leaseback of assets and any mortgage or lease of real property) net of the sum of (i) any fees and/or out-of-pocket expenses (including, without limitation, attorneys’ fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, required debt payments and required payments of other obligations relating to the applicable asset (other than pursuant hereto), other customary expenses and brokerage, consultant and other fees actually incurred in connection therewith), (ii) the principal amount of any Indebtedness that is required to be repaid in connection with such Asset Sale, Disposition, or Takings or Casualty Event (other than Indebtedness under the Loan Documents) and is secured by a lien on such asset permitted pursuant to Section 6.02 on a basis senior to the lien on such assets securing the Collateral, together with any applicable premiums, penalties, interest and/or breakage costs, (iii) Taxes paid or payable as a result thereof or reasonably estimated to be payable in connection therewith by the Borrower or such Subsidiary and attributable to such Asset Sale, Disposition or Takings or Casualty Event, (including, where the proceeds are realized by a Subsidiary of the Borrower, any incremental foreign, state and/or local income taxes would be imposed as a result of distributing the proceeds in question from any Subsidiary to the Borrower) and (iv) any reserve for adjustment in respect of (1) the sale price of such asset or assets established in accordance with GAAP and (2) any liabilities associated with such asset or assets and retained by the Borrower or any of its Subsidiaries after such Asset Sale or Disposition thereof, including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction, and it being understood that “Net Proceeds” shall include, without limitation, any cash or Cash Equivalents (x) received upon the Disposition of any non-cash consideration received by the Borrower or any Subsidiary in respect of any such Asset Sale, Disposition or Takings or Casualty Event and (y) upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in clause (iv) above or, if such liabilities have not been satisfied in cash and such reserve has not been reversed within 180 days after any such Asset Sale or Disposition, the amount of such reserve; provided , that, if no Event of Default exists, the Borrower or any Subsidiary may deliver a certificate of a Responsible Officer of the Borrower to the Administrative Agent promptly after receipt of any such proceeds, but in no event to exceed 5 Business Days after any Loan Party’s or a Subsidiary’s receipt of any such proceeds, setting forth such Loan Party’s or such Subsidiary’s intention to use, or to commit to use, any portion of such proceeds, to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in the business of the Borrower or any Subsidiaries or to make investments in Permitted Business Acquisitions or Investments permitted by Section 6.04 , in each case, if such certificate shall have been delivered, within twelve months of such receipt, such portion of such proceeds shall not constitute Net Proceeds except to the extent not so used (or committed to be used) within such twelve-month period (and if subject to a binding contract for reinvestment within such twelve-month period, an additional six months after such initial twelve month period), provided , that (x) no proceeds realized in a single transaction or series of related transactions shall constitute Net Proceeds unless such proceeds shall exceed $2,500,000 and (y) no proceeds shall constitute Net Proceeds in any fiscal year until the aggregate amount of all such proceeds in such fiscal year shall exceed $7,500,000 (and in such case, only the amount of such proceeds in excess of such threshold amounts described in clauses (x) and (y) of this proviso shall be constitute Net Proceeds); provided that the amounts that shall not constitute Net Proceeds solely pursuant to the foregoing clauses (x) and (y) shall not in the aggregate exceed $15,000,000; provided , still further , that pending such reinvestment, such proceeds may be applied to temporarily reduce outstanding Revolving Loans;

(b)       100% of the proceeds in the form of cash and Cash Equivalents from the incurrence, issuance or sale by the Borrower or any of its Subsidiaries of any Indebtedness, debt like securities (other than Excluded Indebtedness) or Equity Interests (other than Excluded Contributions) of the Borrower and its Subsidiaries, in each case, net of all taxes (including, where the proceeds are realized by a Subsidiary of the Borrower, any incremental foreign, state and/or local income taxes would be imposed as a result of distributing the proceeds in question from any Subsidiary to the Borrower) paid or payable as a result thereof or reasonably estimated to be payable in connection therewith and fees and/or out-of-pocket expenses (including, without limitation, attorneys’ fees, accountants’ fees, investment banking fees, underwriting discounts, commissions and other customary costs, fees and expenses), in each case incurred in connection with such equity issuance, or, as the context may require, incurrence, borrowing or issuance of Indebtedness;

(c)       100% of the proceeds in form of cash and Cash Equivalents and from the receipt by the Borrower or any of its Subsidiaries of extraordinary and nonrecurring receipts, including without limitation, corporate tax refunds, net of all taxes (including, where the proceeds are realized by a Subsidiary of the Borrower, any incremental foreign, state and/or local income taxes would be imposed as a result of distributing the proceeds in question from any Subsidiary to the Borrower) paid or payable as a result thereof or reasonably estimated to be payable in connection therewith and fees and/or out-of-pocket expenses (including, without limitation, attorneys’ fees, accountants’ fees, commissions and other customary costs, fees and expenses), in each case incurred in connection with such extraordinary and nonrecurring receipt; provided that no proceeds realized in a transaction or receipt shall constitute Net Proceeds unless such proceeds exceed $5,000,000 (and in such case, only the amount of such proceeds in excess of such threshold amounts shall be constitute Net Proceeds); provided that the amounts that shall not constitute Net Proceeds solely pursuant to the foregoing proviso shall not in the aggregate exceed $10,000,000; and

(d)        100% of the proceeds in the form of cash and Cash Equivalents payable to (and actually received by) the Borrower pursuant to the Acquisition Agreement (excluding (x) payments with respect to working capital adjustments and (y) indemnity payments owing to third parties, but including any amounts paid with respect to the failure to obtain consents to the transfer of Intellectual Property in connection with the Transactions), net of all taxes and fees and/or out-of-pocket expenses (including, without limitation, attorneys’ fees, accountants’ fees, commissions and other customary costs, fees and expenses).

provided that in the case of the events described in clauses (a) , (b) and (c) above, if the amount of any estimated Taxes or other liabilities exceeds the amount of Taxes actually required to be paid (after taking into account any available tax credits or deductions and any tax sharing arrangements) in cash and Cash Equivalents in connection with such events, the aggregate amount of such excess shall constitute Net Proceeds with respect to such event; provided , further that in the case of clauses (a) , (b) and (c) above, if a portion of the Net Proceeds would otherwise be attributable to another person other than a Loan Party or a Wholly-Owned Subsidiary thereof, the Net Proceeds for purposes of Section 2.11 of this Agreement shall exclude the pro rata portion of the Net Proceeds thereof attributable to or associated with the Equity Interests in such person not held, directly or indirectly, by a Loan Party and not available for distribution to or for the account of a Loan Party or its Wholly-Owned Subsidiaries as a result of a prohibition under (i) applicable Law or (ii) the applicable Organizational Documents of such person by the Indebtedness documents of such person or another contractual obligation existing as of the date hereof or at the time such asset or Investment is acquired (provided that such restriction is not created in contemplation of the avoidance of the requirements of Section 2.11(b) hereof).

Notwithstanding anything to the contrary contained herein, (i) no cash, Cash Equivalents or any other amounts received in respect of the sale of inventory or the sale of accounts receivables pursuant to any Permitted Credit Support Arrangement shall constitute “Net Proceeds” or Securitization Financings, (ii) to the extent any Net Proceeds are received by and person other than the Borrower or a Subsidiary of the Borrower, no payment shall be required until such Net Proceeds are received by the Borrower or a Subsidiary of the Borrower and (iii) no cash, Cash Equivalents or any other amounts received by the Borrower or any Subsidiary of the Borrower as a result of or in connection with cancelled, discontinued, non-renewed or otherwise terminated license agreements (which, for the avoidance of doubt, shall instead constitute Consolidated Net Income in respect of the definition of the term “EBITDA” in connection with the calculation of “Excess Cash Flow”.

For purposes of calculating the amount of Net Proceeds, fees, commissions and other costs and expenses payable to the Borrower or any Affiliate of either of them shall be disregarded.

“ Net Receivables Financing Profit ” shall mean, for any period, with respect to the Borrower and its Subsidiaries on a consolidated basis, and with respect to the Securitization Subsidiaries in respect of the Securitization Financings, the EBITDA of the Borrower and Subsidiaries for such period, minus, without duplication, the amount of Charges in respect of all Securitization Financings in each case to the extent that such Charges were excluded in Consolidated Net Income or were added back in calculating EBITDA with respect to the Borrower and its Subsidiaries.

Notwithstanding the foregoing, Net Receivables Financing Profit for the four fiscal period ended September 30, 2018 shall be $217,000,000 and for purposes of determining Net Receivables Financing Profit for any Test Period that includes the quarterly periods ending December 31, 2017, March 31, 2018, June 30, 2018 and September 30, 2018, Net Receivables Financing Profit for such quarterly periods shall be $56,500,000, $42,500,000, $19,500,000 and $98,500,000, respectively.

“ NFIP ” shall have the meaning assigned to such term in Section 5.11(c) .

“ Non-Consenting Lender ” shall have the meaning assigned to such term in Section 2.19(c) .

“ Non-Defaulting Lender ” shall mean each Lender other than a Defaulting Lender.

“ Note ” shall have the meaning assigned to such term in Section 2.09(e) .

“ NYUCC ” shall mean Article 9 of the UCC as in effect in New York.

“ Obligations ” shall mean (i) the unpaid principal of and interest (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any proceeding under any Debtor Relief Law, relating to the Borrower or any other Loan Party, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) and premium (if any) on all Loans made pursuant to the Credit Agreement, (ii) all reimbursement obligations (if any) and interest thereon (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any preceding under any Debt Relief Law, relating to the Borrower or any other Loan Party, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) with respect to any Letter of Credit issued pursuant to this Agreement and (iii) all guarantee obligations, fees, expenses and all other obligations owed by a Loan Party to an Agent, the Lenders or any other Secured Party, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document or the Letters of Credit, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including, without limitation, all fees, charges and disbursements of counsel to the Lead Arrangers, the Agents or any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise. Notwithstanding the foregoing, Obligations of any Guarantor shall in no event include any Excluded Swap Obligations of such Guarantor.

“ OFAC ” shall mean the Office of Foreign Asset Control of the Department of the Treasury of the United States of America.

“ Organizational Documents ” shall mean, collectively, with respect to any Person, (i) in the case of any corporation, the certificate of incorporation or articles of incorporation and by-laws (or similar constitutive documents) of such Person, (ii) in the case of any limited liability company, the certificate or articles of formation or organization and operating agreement or memorandum and articles of association (or similar constitutive documents) of such Person, (iii) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar constitutive documents) of such Person (and, where applicable, the equity holders or shareholders registry of such Person), (iv) in the case of any general partnership, the partnership agreement (or similar constitutive document) of such Person, (v) in any other case, the functional equivalent of the foregoing, and (vi) any shareholder, voting trust or similar agreement between or among any holders of Equity Interests of such Person.

“ Other Connection Taxes ” shall mean, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

“ Other Taxes ” shall mean all present or future stamp , court or documentary , intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery , performance, enforcement or registration of, from the receipt or perfection of a security interest under , or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19(b) .

“ Overadvance ” shall mean, as of any date of determination, that the Revolving Facility Exposure is greater than the Maximum Revolver Amount.

“ Owned Material Real Property ” shall mean any real property set forth on Schedule 3.18 with a fair market value of at least $5,000,000 owned in fee by a Loan Party.

“ Participant ” shall have the meaning assigned to such term in Section 9.04(c) .

“ Participant Register ” shall have the meaning specified in Section 9.04(c) .

“ PATRIOT Act ” shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

“ Payment in Full ” or “ Paid in Full ” shall mean (a) the termination of all Commitments, (b) the cancellation or expiration of each Letter of Credit (except to the extent cash collateralized or backstopped, in each case, in a manner agreed to by the Borrower and the applicable Issuing Bank or as to which other arrangements satisfactory to the applicable Issuing Bank shall have been made) and (c) the payment in full in cash of all Loans and other amounts owing to any Lender or any Agent in respect of the Obligations (other than contingent or indemnification obligations not then due).

“ Payment or Reduction Event ” shall have the meaning specified in Section 2.12(e) .

“ PBGC ” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.

“ Perfection Certificate ” shall mean the Perfection Certificate with respect to the Borrower and the Loan Parties, in a form reasonably satisfactory to the Administrative Agent.

“ Permitted Business Acquisition ” shall mean any Acquisition if (a) such Acquisition was not preceded by, or effected pursuant to, an unsolicited or hostile offer by the acquirer or an Affiliate of the acquirer; (b) such Acquisition is of a Similar Business, (c) such Acquisition results in a net positive change to Net Receivables Financing Profit on a Pro Forma Basis, (d) immediately after giving effect thereto: (i) no Event of Default shall have occurred and be continuing or would result therefrom; (ii) all transactions related thereto shall be consummated in accordance with applicable laws; (iii)(A) after giving effect to such Acquisition, calculated as of the last day of the most recently ended and Reported fiscal quarter (1) the Consolidated Total Leverage Ratio shall not exceed the lesser of (x) the Consolidated Total Leverage Ratio as of the Closing Date and (y) the 0.50x above the Consolidated Total Leverage Ratio immediately prior to giving effect to such “Permitted Business Acquisition”; (2) the Consolidated First Lien Leverage Ratio shall not exceed the lesser of (x) Consolidated First Lien Leverage Ratio as of the Closing Date and (y) 0.50x above the Consolidated First Lien Leverage Ratio immediately prior to giving effect to such “Permitted Business Acquisition” and the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer of the Borrower to such effect and (B) any acquired or newly formed Subsidiary shall not be liable for any Indebtedness (except for Indebtedness permitted by Section 6.01 ); and (e) the aggregate amount of Acquisition Consideration in respect of Permitted Business Acquisitions shall not exceed $150,000,000, provided that the aggregate amount of Acquisition Consideration that may take the form of Earn Out Obligations for Permitted Business Acquisitions occurring after the Closing Date shall not exceed $10,000,000 in any fiscal year and in no event shall exceed $50,000,000 in the aggregate after the Closing Date; (f) to the extent required by Section 5.11 , the Collateral and Guarantee Requirement will be satisfied with respect to such acquired person and the Equity Interests of such acquired person; (g) provided that the aggregate amount of Investments made in “Permitted Business Acquisitions” in persons that do not become Loan Parties shall not exceed $12,500,000; and (h) for any Acquisition with an Acquisition Consideration greater than $50,000,000 , the Borrower shall provide the Administrative Agent with (X) a quality of earnings report (prepared by a “Big Four” accounting firm or other nationally recognized accounting firm reasonably acceptable to the Administrative Agent), (Y) projections and financials and (Z) such other documents and information as the Administrative Agent may reasonably request.

"Permitted Credit Support Arrangement ” shall mean (I) the sale by a Loan Party or its Subsidiaries of Receivables to (i) The CIT Group/Commercial Services, Inc. (the “ Initial US CIT Service ”) pursuant to (A)  (1) that certain Deferred-Purchase Factoring Agreement by and between the Initial CIT Servicer and Differential Brands Group Inc., American Marketing Enterprises Inc.; Briefly Stated, Inc.; F&T Apparel LLC; GBG-BCBG LLC; GBG Accessories Group LLC; GBG Beauty LLC; GBG Denim USA LLC; GBG Jewelry Inc.; GBG Socks LLC; GBG West LLC; KHQ Investments LLC; Rossetti Handbags and Accessories, Ltd. and VZI Investment Corp. (collectively, the “ Differential Companies ”) dated on or about the date of the date of this Agreement; (2) that certain Deferred Purchase Export Factoring Agreement by and between the Initial CIT Servicer and the Differential Companies; (3) that certain Second Amended and Restated Deferred Purchase Factoring by and between Robert Graham Designs, LLC, Hudson Clothing, LLC and DFBG Swims LLC dated on or about the date of the date of this Agreement and (ii) the sale of Receivables under the Canadian Sales Factoring Agreement by and between CIT Financial (Canada) ULC (the “ Initial Canadian CIT Servicer ” and together with the Initial US CIT Servicer, the “ Initial CIT Servicers ” and each, an “ Initial CIT Servicer ”) and GBG Denim Canada ULC, dated December 24, 2015, as amended by that certain amendment dated on or about the date of this Agreement or (B) any other deferred purchase price factoring agreement/credit servicing and insurance arrangement entered into between a Loan Party and the Initial CIT Servicer, substantially in the form of one of the agreements described in clause (A); as each such agreement in (A) and (B) may be amended, restated, amended and restated, supplemented or otherwise modified from time to time (collectively, the “Permitted CIT Agreements ” and each, a “ Permitted CIT Agreement ”) and (ii) the factor or servicer under any other similar deferred purchase price factoring agreement/credit servicing and insurance arrangement entered into after the date hereof by any Loan Party or any Subsidiary for the factoring of Receivables, in form and substance reasonably satisfactory to the Administrative Agent (it being understood that any agreement substantially in the form of a Permitted CIT Agreement shall be deemed to be reasonably satisfactory to the Administrative Agent), as the same may be amended, amended and restated, restated, supplemented or otherwise modified from time to time.