Common use of FILO Facility Clause in Contracts

FILO Facility. (a) Notwithstanding anything to the contrary contained in this Agreement, at any time after the Closing Date, the Company may request a separate “first-in, last out” credit facility provided by lenders holding “first-in, last out” commitments (the “FILO Lenders”) that are subject to a separate “first-in, last out” incremental borrowing base (collectively, the “FILO Credit Facility”); provided that the FILO Credit Facility (A) shall constitute Obligations for all purposes under the Loan Documents (including for the purposes of being secured by the Collateral and being guaranteed by the Loan Parties) so long as the obligations in respect of the FILO Credit Facility are subordinate to the other Obligations (other than any Cash Management Services, Banking Services Obligations and Swap Obligations that constitute Secured Obligations) under Section 2.18(b); (B) shall be on terms and conditions as determined by the Company, MLPFS and the FILO Lenders, subject to the approval of the Administrative Agent (it being understood that (x) such terms and conditions may include, without limitation, FILO Credit Facility-specific borrowing base, advance rate (including seasonal or fluctuating advance rates), eligibility criteria, availability reserves (including reserves implemented against the Borrowing Base with respect to obligations owing to the FILO Lenders), representations, warranties, covenants and Events of Default, interest rates, fees, final maturity date, amortization, mandatory and voluntary prepayment and commitment termination provision as to the FILO Credit Facility and Full Cash Dominion Period, post-Event of Default and enforcement “waterfall” provisions (including modifications to Section 2.18(b) which are not inconsistent with subclause (A) of the first proviso above) and amendment and waiver provisions (including modifications to Section 9.02 (b) to provide for customary or market provisions in favor of the FILO Lenders, which may include voting rights in favor of the FILO Lenders relating to modifications of the Borrowing Base that would affect the FILO Lenders) in respect of or relating to the FILO Credit Facility and other customary or market terms and conditions for asset-based “first in, last out” credit facilities of this nature; provided, however, that, (i) subject to amortization or mandatory FILO Credit Facility reduction terms and conditions, the stated maturity date of the FILO Credit Facility shall not be earlier than the then Latest Maturity Date and (ii) the advance rates in respect of the incremental borrowing base under FILO Credit Facility shall not exceed 7.5% on any class of assets eligible for inclusion therein; and (y) the arrangement of the FILO Credit Facility, and any upfront, underwriting, arrangement or similar fees in respect of the FILO Credit Facility shall be agreed to by Company, MLPFS and the FILO Lenders); (C) shall be subject to closing conditions as may be determined by the Administrative Agent and the Collateral Agent (or any of their respective Affiliates), the FILO Lenders and the Company; (D) shall be subject to the condition precedent that no Event of Default shall have occurred and be continuing immediately before or after giving effect thereto; (E) (x) the aggregate amount of the FILO commitments under the FILO Credit Facility shall not exceed $250,000,000 and (y) (i) the aggregate amount of the FILO commitments under the FILO Credit Facility, plus (ii) the Aggregate Commitments (including Incremental Commitments provided pursuant to Section 2.22), shall not exceed, at any time outstanding, $3,500,000,000 and (F) all documentation in respect of the FILO Credit Facility shall be consistent with the foregoing and in form and substance reasonably satisfactory to the Administrative Agent and the FILO Credit Facility and the FILO Credit Facility Amendment shall have been approved by the Administrative Agent; and provided, further, that no Lender shall be obligated to participate in the FILO Credit Facility. Any FILO Lender participating in the FILO Credit Facility which is not then a Lender (or an Affiliate of such Lender or an Approved Fund with respect to such Lender) shall be subject to the prior approval of the Administrative Agent and the Borrower Representative (such consent not to be unreasonably withheld or delayed).

FILO Facility. (a) Notwithstanding anything Subject to the contrary contained in this Agreement, at any time after the Closing DateSection 2.15(a), the Company may Lead Borrower (on behalf of the Domestic Borrowers) shall be permitted to request a separate Commitment Increase in the form of a “first-in, last last-out” credit term loan facility (denominated in Dollars) in favor of the Domestic Borrowers (the “FILO Facility”; the aggregate commitments thereunder, the “FILO Commitment”; and the term loans made thereunder, the “FILO Loans”); provided that, the interest rate margins, rate floors, upfront fees, related borrowing base, and other relevant terms and conditions (including modifications to the definitions of “Loan Cap” and “Total Outstandings” and Sections 2.05(f) and 8.03 in order to reflect the establishment of the FILO Facility), shall be agreed upon by lenders holding “first-inthe Lead Borrower, last out” commitments the Agent and the Lenders providing the FILO Facility (such Lenders, collectively, the “FILO Lenders”) that are subject (without the consent of any other Lender) pursuant to a separate “first-in, last out” incremental borrowing base an amendment to this Agreement to the extent (collectively, but only to the “FILO Credit Facility”); provided that extent) necessary to (i) reflect the FILO Credit Facility (A) shall constitute Obligations for all purposes under the Loan Documents (including for the purposes of being secured by the Collateral existence and being guaranteed by the Loan Parties) so long as the obligations in respect terms of the FILO Credit Facility are subordinate to the other Obligations (other than any Cash Management Services, Banking Services Obligations and Swap Obligations that constitute Secured Obligations) under Section 2.18(b); (B) shall be on terms and conditions as determined by the Company, MLPFS and the FILO Lenders, subject to the approval of the Administrative Agent (it being understood that (x) such terms and conditions may include, without limitation, FILO Credit Facility-specific borrowing base, advance rate (including seasonal or fluctuating advance rates), eligibility criteria, availability reserves (including reserves implemented against the Borrowing Base with respect to obligations owing to the FILO Lenders), representations, warranties, covenants and Events of Default, interest rates, fees, final maturity date, amortization, mandatory and voluntary prepayment and commitment termination provision as to the FILO Credit Facility and Full Cash Dominion Period, post-Event of Default and enforcement “waterfall” provisions (including modifications to Section 2.18(b) which are not inconsistent with subclause (A) of the first proviso above) and amendment and waiver provisions (including modifications to Section 9.02 (b) to provide for customary or market provisions in favor of the FILO Lenders, which may include voting rights in favor of the FILO Lenders relating to modifications of the Borrowing Base that would affect the FILO Lenders) in respect of or relating to the FILO Credit Facility and other customary or market terms and conditions for asset-based “first in, last out” credit facilities of this nature; provided, however, that, (i) subject to amortization or mandatory FILO Credit Facility reduction terms and conditions, the stated maturity date of the FILO Credit Facility shall not be earlier than the then Latest Maturity Date and (ii) effect such other amendments to this Agreement and the advance rates other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Agent and the Lead Borrower, to effect the provisions thereof; provided further that (a) the FILO Loans and the Obligations in respect thereof shall not be guaranteed by any Person who is not a Guarantor and shall not be secured by any assets that do not constitute Collateral, (b) all proceeds from the liquidation or other realization of the incremental borrowing base under Collateral or application of funds in accordance with Section 8.03 shall be applied, first to obligations owing under, or with respect to, the Revolving Loans and second to obligations owing under, or with respect to, the FILO Credit Facility Loans; (c) at any time that Revolving Loans (including Swing Line Loans) and/or Unreimbursed Amounts (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Agent) are outstanding the Borrowers shall not exceed 7.5% on any class of assets eligible for inclusion therein; and (y) the arrangement of prepay the FILO Credit FacilityLoans, and any upfront, underwriting, arrangement or similar fees in respect except for payment of the FILO Credit Facility shall be regularly scheduled amortization payments (as agreed to by Company, MLPFS and the FILO Lenders); (C) shall be subject to closing conditions as may be determined by the Administrative Agent and the Collateral Agent (or any of their respective Affiliates), the FILO Lenders and the CompanyAgent), unless RP Conditions are satisfied at such time (and the Lead Borrower has delivered the related Transaction Certificate to the Agent); (Dd) the Required Lenders (which shall include the FILO Lenders) shall be subject control exercise of remedies in respect of the Collateral; and (e) any FILO Facility shall not mature prior to, the maturity of the Revolving Credit Facility; provided however, that advance rates with respect to the condition precedent that no Event of Default shall have occurred and be continuing immediately before or after giving effect thereto; (E) (x) items included in the aggregate amount of the borrowing base for such FILO commitments under the FILO Credit Facility shall not exceed $250,000,000 and one hundred percent (y100%) (i) the aggregate amount of the FILO commitments under the FILO Credit FacilityAppraised Value of Eligible Inventory, plus one hundred percent (ii100%) the Aggregate Commitments (including Incremental Commitments provided pursuant to Section 2.22), shall not exceed, at any time outstanding, $3,500,000,000 and (F) all documentation in respect of the FILO Appraised Value of Eligible Trade Names, one hundred percent (100%) of Eligible Trade Receivables and one hundred percent (100%) of Eligible Credit Facility shall be consistent with the foregoing and in form and substance reasonably satisfactory to the Administrative Agent and the FILO Credit Facility and the FILO Credit Facility Amendment shall have been approved by the Administrative Agent; and provided, further, that no Lender shall be obligated to participate in the FILO Credit Facility. Any FILO Lender participating in the FILO Credit Facility which is not then a Lender (or an Affiliate of such Lender or an Approved Fund with respect to such Lender) shall be subject to the prior approval of the Administrative Agent and the Borrower Representative (such consent not to be unreasonably withheld or delayed)Card Receivables.