MidCap Commitment Letter

You have advised MidCap Financial Trust, a Delaware statutory trust and/or one of its affiliates (collectively, “MidCap” and, together with funds managed, advised or sub-advised by MidCap, “we”, “us” and the “Lenders”) that Revlon Consumer Products Corporation, a Delaware corporation (as reorganized pursuant to the Plan, including in connection with a so-called “Bruno’s” transaction) (“RCPC”,  “you” or the “Borrower”) intends to obtain a senior secured asset-based revolving loan facility in an aggregate principal amount of $325,000,000 (the “ABL Credit Facility”).

Capitalized terms used but not defined in this commitment letter shall have the meanings assigned to them in the Summary of Principal Terms and Conditions attached to this letter as Exhibit A (including any annexes and schedules thereto, the “Term Sheet”) (this letter and the Term Sheet, collectively, this “Commitment Letter”).  Any references to a particular Section shall be a reference to the indicated Section of this letter unless specifically indicated otherwise. Unless otherwise specified, a reference to this Commitment Letter shall include each of the attached exhibits.

Each Lender is pleased to advise you of its several, but not joint, commitment (the “Commitment”) to provide the percentage of the aggregate principal amount of the ABL Credit Facility set forth opposite its name in the table below, or such lesser amount as RCPC and the Lenders may mutually agree, in each case, upon the terms and subject only to the satisfaction (or waiver by the Lenders) of the conditions set forth in the section entitled “Conditions Precedent to Closing” in Exhibit A (the “Conditions”).

It is agreed that (a) MidCap will act as lead arranger (the “Lead Arranger”) and bookrunner for the ABL Credit Facility and (b) MidCap Funding IV Trust will act as the administrative agent and  collateral agent for the ABL Credit Facility (the “Administrative Agent”), in each case upon the terms and subject to the conditions described in this Commitment Letter.

You agree that no other agents, co-agents, lead arrangers, bookrunners, managers, arrangers, commitment parties or other financial institutions will be appointed and no other titles will be awarded without the prior written approval of the Lead Arranger.

In the event that within 6 months after the date hereof you or any of your affiliates consummate the Transaction (any such transaction, an “Alternate Transaction”), in each case with the proceeds of debt financing (excluding the First Lien Exit Facilities as contemplated and defined under the Plan) for which we did not act in the roles specified for the ABL Credit Facility in the Commitment Letter and did not receive at least the percentage of compensatory economics applicable to us therein, you agree that unless we have (a) terminated the Commitment Letter prior to its stated date of termination, (b) declined or failed to reaffirm our willingness within three (3) Business Days following a written request, or breached our obligations, to provide the ABL Credit Facility on the terms and conditions set forth in the Commitment Letter, or otherwise declined to provide or fund the ABL Credit Facility on the terms and conditions of the Commitment Letter, or (c) been given an opportunity to provide, place, arrange or underwrite the relevant asset-based revolving facility for the Transaction on substantially the same terms and conditions as other lenders providing such Alternate Transaction and with titles at least commensurate with the titles provided to, and with not less than the allocated percentage of compensatory economics applicable to us as specified in this Commitment Letter and the Fee Letter (or such other terms and conditions and economics as are mutually agreed between you and us), and has turned down such opportunity, then you will pay to us an amount equal to 100% of the Upfront Fees (as defined in  the Fee Letter) that would have been payable to us as provided above as if the Closing Date and full funding under the ABL Credit Facility occurred immediately upon the consummation of the Transaction or such Alternate Transaction.

You hereby represent and warrant that (a) all written information concerning you and your subsidiaries, other than customary financial projections (such projections, the “Projections”), budgets, estimates, other forward-looking information and information of a general economic or industry-specific nature, that has been or will be made available to the Lead Arranger,  the Lenders or any potential Lender by you or any of your representatives (or on your or their behalf) in connection with the transactions contemplated hereby (the “Information”), is and will be, when furnished, true and correct in all materials respects and when taken as a whole, does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements were or are made (after giving effect to all supplements and updates thereto from time to time) and (b) the Projections and other forward-looking information, if any, that have been or will be made available to us by you have been or will be prepared by or on behalf of the Borrower in good faith based upon assumptions believed by you to be reasonable at the time made and at the time the related Projections and other forward-looking information are furnished (it being understood that such Projections and other forward-looking information are not to be viewed as facts and are subject to significant uncertainties and contingencies many of which are beyond your control, that no assurance can be given that any particular financial projections or projected results will be realized, that actual results may differ significantly from the projected results and that such differences may be material). You agree that from the date hereof if, at any time prior to the Closing Date, you become aware that any of the representations in the preceding sentence would be incorrect in any material respect if the Information or the Projections were being furnished, and such representations and warranties were being made, at such time, then you agree to promptly supplement the Information and/or the Projections so that the representations and warranties in this paragraph remain true and correct in all material respects under those circumstances. Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letter (as defined below), the accuracy of any such representation and warranty shall not constitute a condition precedent to the effectiveness of the commitments under the ABL Credit Facility on the Closing Date.

In arranging the ABL Credit Facility, the Lead Arranger will be entitled to use, and to  rely on the representations and warranties in the preceding paragraph relating to, any information  furnished to us by or on behalf of the Borrower and its affiliates without responsibility for  independent verification thereof.

As consideration for the commitments and agreements of the Lenders hereunder, you agree to pay or cause to be paid the fees set forth in this Commitment Letter and the fees described in that certain Fee Letter dated as of the date hereof between you and MidCap (as amended, amended and restated, supplemented or otherwise modified, the “Fee Letter”) on the terms and subject to the conditions expressly set forth therein. The terms of the Fee Letter are an integral part of the commitment of each of the Lenders and the other obligations of the Lenders hereunder, and their respective agreement to perform the services described herein, and constitute part of this Commitment Letter for all purposes hereof. Each of the fees described in the Fee Letter shall be nonrefundable when paid.

The Commitment of the Lenders to fund their respective commitments in respect of the ABL Credit Facility on the Closing Date is subject solely to satisfaction (or waiver by the Lenders) of the Conditions.  Notwithstanding anything to the contrary in this Commitment Letter, the definitive documentation for the ABL Credit Facility (the “Facility Documentation”) or any other letter agreement or other undertaking concerning the financing of the Transaction (as defined in Exhibit A hereto), the only conditions to the Commitment hereunder shall be the Conditions and there are no other conditions (implied or otherwise) to the initial effectiveness of the commitments under the ABL Credit Facility on the Closing Date.  Upon satisfaction (or waiver) of the Conditions, the initial effectiveness of the commitments under the ABL Credit Facility on the Closing Date shall occur.

To induce the Lenders to enter into this Commitment Letter, you agree to indemnify and hold harmless each Lender, its affiliates, and each Lender’s and such affiliate’s respective officers, directors, employees, agents, controlling persons, attorneys, consultants, advisors and other representatives of each of the foregoing (each, an “Indemnified Person”), from and against any and all losses, claims (including, without limitation, shareholder actions), damages, liabilities and expenses that may be incurred by or asserted or awarded against any Indemnified Person (including, without limitation, in connection with or relating to any investigation, litigation or proceeding or the preparation of a defense in connection therewith), in each case, arising out of, resulting from or in connection with or by reason of this Commitment Letter (including the Term Sheet), the Fee Letter, the Transaction or the transactions contemplated hereby or thereby, the Facility Documentation, the ABL Credit Facility or any use of the proceeds thereof (any of the foregoing, a “Proceeding”), regardless of whether any Indemnified person is a party thereto and whether or not such Proceeding is brought by you, your equity holders, affiliates, creditors, an Indemnified Person or any other person, or an Indemnified Person is otherwise a party thereto and whether or not the Transaction is consummated.  You further agree upon demand to reimburse each such Indemnified Person for any reasonable and documented out-of-pocket legal expenses of one firm of counsel for all such Indemnified Persons, taken as a whole (and, solely in the case of an actual or potential conflict of interest where the Indemnified Person affected by such conflict informs you of such conflict and thereafter retains its own counsel with your prior consent (not to be unreasonably withheld or delayed), one additional counsel to each group of similarly affected Indemnified Persons taken as a whole and, if reasonably necessary, (x) of one regulatory or specialty counsel with respect to any material regulatory and/or other specialty areas and (y) of one local counsel in each relevant jurisdiction to all such persons, taken as a whole and, solely in the case of any such actual or potential conflict of interest, one additional counsel of the applicable type to each set of similarly affected Indemnified Persons) and other reasonable and documented out-of-pocket fees and expenses, in each case, incurred in connection with investigating or defending any Proceeding.  Notwithstanding the foregoing, the foregoing indemnity will not, as to any Indemnified Person, apply to  losses, claims, damages, liabilities or related expenses to the extent that they are found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from (i) the gross negligence, willful misconduct, bad faith or fraud of such Indemnified Person or any of such Indemnified Persons’ controlled affiliates or any of its or their respective officers, directors, employees, agents, advisors or other representative (collectively, such Indemnified Person’s “Related Persons”); (ii) a material breach of the obligations of such Indemnified Person under this Commitment Letter (including the Term Sheet); or (iii) any claim, actions, suits, inquiries, litigation, investigation or proceeding that does not involve an act or omission of you or any of your affiliates and that is brought by an Indemnified Person against any other Indemnified Person (other than any claim, actions, suits, inquiries, litigation, investigation or proceeding against any financial institution in its capacity or in fulfilling its role as an administrative agent, or other agent or Lead Arranger under the ABL Credit Facility).

You also agree to reimburse the Lenders from time to time, upon the earlier to occur of (i) the Closing Date and (ii) the date of termination or expiration of the commitments under this Commitment Letter (and thereafter, if applicable, on demand), for all reasonable and documented out-of-pocket costs and expenses incurred by the Lenders in connection with the ABL Credit Facility, the Transaction and the preparation, negotiation, execution and delivery of this Commitment Letter, the Fee Letter and the Facility Documentation, including, without limitation, all reasonable and documented out-of-pocket expenses (including due diligence expenses and travel expenses and reasonable fees, disbursements and other charges of Proskauer Rose LLP as counsel to MidCap, and, if necessary, a single firm of local counsel to the Lenders in each appropriate jurisdiction and of such other counsel retained with your prior written consent (such consent not to be unreasonably withheld or delayed) or retained in connection with enforcement of this Commitment Letter) (collectively, the “Expenses”), regardless of whether any of the transactions contemplated hereby is consummated. You shall also agree to reimburse the Lenders from time to time for all reasonable and documented out-of-pocket costs and expenses incurred by the Lenders in connection with the enforcement of any of their rights and remedies hereunder.

The provisions of the immediately preceding two paragraphs shall remain in full force and effect regardless of whether definitive financing documentation for the ABL Credit Facility shall be executed and delivered and notwithstanding the termination of this Commitment Letter or the undertakings of the Administrative Agent and the Lenders hereunder; provided that if the ABL Credit Facility closes and the Facility Documentation is executed and delivered, the provisions in the immediately preceding two paragraphs shall be superseded in each case, to the extent covered by the applicable provisions contained in the Facility Documentation upon execution thereof and thereafter shall have no further force and effect.

You agree that, without our prior written consent (which consent shall not be unreasonably withheld or delayed), neither you nor any of your subsidiaries shall effect any settlement, compromise or consent to the entry of any judgment of any pending or threatened claims, actions or proceedings in respect of which indemnification could be sought under this Commitment Letter by such Indemnified Person (whether or not we or any other Indemnified Person is an actual or potential party to such claim, action or proceeding), unless such settlement, compromise or consent: (i) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability or claims that are the subject matter of such proceedings and (ii) does not include any statement as to or any admission of fault, culpability, wrongdoing or a failure to act by or on behalf of any Indemnified Person.

Notwithstanding any other provision of this Commitment Letter, in no event shall any party hereto be liable for any indirect, special, punitive or consequential damages in connection with this Commitment Letter, the Transaction or with respect to any activities related to the ABL Credit Facility (including the use of proceeds thereunder), including the preparation of this Commitment Letter and the Facility Documentation; provided that nothing contained in this paragraph shall limit your indemnity and reimbursement obligations for such damages awarded to third parties to the extent set forth in this Section 7.

You acknowledge that the Lenders and their respective affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which you may have conflicting interests regarding the transactions described in this Commitment Letter or otherwise.  None of the Lenders or their affiliates will use confidential information obtained from you by virtue of the transactions contemplated by this Commitment Letter or their other relationships with you in connection with the performance by them or their affiliates of services for other persons.  None of the Lenders or their affiliates will furnish any such information to other persons, except to the extent permitted below by Section 9.  You also acknowledge that none of the Lenders nor any of their affiliates has any obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained by them from other persons.

The Lenders or their respective affiliates may, in the ordinary course of business, co-invest with, make direct investments in, and invest or co-invest client monies in or with funds or other investment vehicles managed by other parties, and such funds or other investment vehicles may trade or make investments in securities of the Borrower or other companies which may be the subject of the arrangements contemplated by this Commitment Letter or engage in commodities trading with any thereof.

The Lenders and their respective affiliates may have economic interests that conflict with those of the Borrower.  You agree that the Lenders will act under this Commitment Letter as an independent contractor.  Consequently, nothing in this Commitment Letter will be deemed to create an advisory, fiduciary or agency relationship between the Lenders and you, your  equity holders or your affiliates.  You acknowledge and agree that: (i) the transactions contemplated by this Commitment Letter are arm’s-length commercial transactions between the Lenders and their affiliates, on the one hand, and you, on the other; (ii) in connection therewith and with the process leading to such transaction the Lenders and their applicable affiliates (as the case may be) are acting solely as a principal and not as agents or fiduciaries of you, your management, stockholders, creditors, affiliates or any other person; (iii) the Lenders and their applicable affiliates (as the case may be) have not assumed an advisory or fiduciary responsibility or any other obligation in favor of you or your affiliates with respect to the transactions contemplated by this Commitment Letter or the process leading thereto (irrespective of whether the Lenders or any of their respective affiliates have advised or are currently advising you on other matters) except the obligations expressly set forth in this Commitment Letter; and (iv) you have consulted your own legal and financial advisors to the extent you deemed appropriate.  You further acknowledge and agree that neither we nor any of our affiliates are advising you as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction and you are responsible for making your own independent judgment with respect to the transactions contemplated hereby and the process leading thereto.  You agree that you will not claim that the Lenders or their applicable affiliates, as the case may be, have rendered advisory services in connection with the services provided pursuant to this Commitment Letter, or owe a fiduciary or similar duty to you or your affiliates, in connection with the Transaction or the process leading thereto.  To the fullest extent permitted by law, you waive any claims you may have against us or our affiliates (in our capacities as the Lenders hereunder) for breach of fiduciary duty or alleged breach of fiduciary duty arising out of this Commitment Letter.  You further agree that we and our affiliates shall have no liability (whether direct or indirect) to you in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of you, including your stockholders, employees or creditors.

In addition, you acknowledge that the rights and obligations that you and your affiliates may have in respect of and to us or our respective affiliates under any credit facility or any other agreement are separate from the rights and obligations of you and your affiliates under this Commitment Letter and will not be affected by our services under this Commitment Letter.  You acknowledge that we or our affiliates may currently or in the future participate in other debt or equity transactions on behalf of, or render financial advisory services to, you or your subsidiaries or affiliates or other companies.  You also agree: (i) that we may render services under this Commitment Letter notwithstanding any actual or potential conflict of interest presented by the foregoing; and (ii) you waive any conflict of interest claims relating to the relationship between us and you in connection with the exercise by us or any of our affiliates of any of our or their rights and duties under any credit or other agreement.  The terms of this paragraph shall survive the expiration or termination of this Commitment Letter for any reason whatsoever.

The Lenders and their respective affiliates will use all non-public information provided to them or such affiliates by or on behalf of you hereunder or in connection with the Transaction solely for the purpose of providing the services which are the subject of this Commitment Letter or other services to you and shall treat confidentially all such information and shall not publish, disclose or otherwise divulge such information.  Notwithstanding the foregoing, nothing in this Commitment Letter shall prevent the Lenders and their respective affiliates from disclosing any such information:

(a) pursuant to the order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law, regulation or compulsory legal process based on the advice of counsel (in which case the Lenders agree (except with respect to any audit or examination conducted by bank accountants or any governmental or regulatory authority exercising examination or regulatory authority), to the extent practicable and not prohibited by applicable law, to inform you promptly thereof prior to disclosure and provide you with a copy of any such proposed disclosure);

(b) upon the request or demand of any regulatory authority having jurisdiction over the Lenders or any of their affiliates (in which case the Lenders agree, to the extent practicable and not prohibited by applicable law, to inform you promptly thereof prior to disclosure and provide you with a copy of any such proposed disclosure (except with respect to any audit or examination conducted by bank accountants or any governmental or regulatory authority exercising examination or regulatory authority);

(c) to the extent that such information becomes publicly available other than by reason of improper disclosure by the Lenders or any of their affiliates or any related parties thereto in violation of any confidentiality obligations set forth in this paragraph;

(d) to the extent that such information is received by the Lenders from a third party that is not, to the Lenders’ knowledge, (i) in such third party’s possession illegally or (ii) subject to confidentiality obligations owing to you or any of your affiliates or related parties;

(e) to the extent that such information is independently developed by the Lenders;

(f) to each Lender’s affiliates and to their respective officers, directors, members, employees, legal counsel, accountants, independent auditors, professionals and other experts or agents (collectively, the “Representatives”) who need to know such information in connection with the Transaction and who are informed of the confidential nature of such information and are or have been advised of their obligation to keep information of this type confidential (provided that the Lender shall direct compliance by its affiliates and Representatives with the provisions of this paragraph);

(g) for purposes of establishing any appropriate defense or in connection with the exercise of any rights or remedies (in which case we shall promptly notify you in advance, to the extent not prohibited by applicable law);

(h)          to prospective Lenders, participants or assignees of obligations under the ABL Credit Facility (for the avoidance of doubt, excluding any Disqualified Lenders (to be defined in a manner consistent with the Documentation Principles)), in each case who agree to be bound by the terms of this paragraph (or language substantially similar to this paragraph), to service providers to the Lenders in connection with the administration and management of the ABL Credit Facility and to market data collectors and similar service providers to the lending industries; or

(i) to the extent you shall have consented to such disclosure in writing.

The Lenders’ and their affiliates’, if any, obligations under this paragraph shall terminate automatically and be superseded by the confidentiality provisions in the Facility Documentation upon the execution and delivery thereof and, in the event that Facility Documentation have not theretofore been executed and delivered, shall expire on the date occurring 12 months after the date hereof.

We hereby notify you that pursuant to the requirements of the U.S.A. PATRIOT ACT (Title III of Pub. L. 107 56 (signed into law October 26, 2001)) (the “Patriot Act”) and the requirements of 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), we and each of the Lenders may be required to obtain, verify and record information that identifies you or beneficial owner, which information may include your or your beneficial owner’s name and address and other information that will allow us and each of the Lenders to identify you or your beneficial owner in accordance with the Patriot Act and the Beneficial Ownership Regulation. This notice is given in accordance with the requirements of the Patriot Act and the Beneficial Ownership Regulation and is effective for us and each of the Lenders.

This Commitment Letter and the commitments hereunder shall not be assignable by any party hereto without the prior written consent of each other party hereto (such consent not to be unreasonably withheld, conditioned or delayed) (and any attempted assignment without such consent shall be null and void); provided that you may assign your rights and obligations hereunder in connection with a so-called “Bruno’s” transaction in accordance with the Plan. Notwithstanding the foregoing, each Lender may assign its commitment and agreements hereunder, in whole or in part, to any of its affiliated entities, it being understood that, in each case, such Lender will not be relieved of its commitment to fund its commitment in respect of the ABL Credit Facility on the Closing Date in accordance with the terms hereof. This Commitment Letter and the commitments hereunder are, and are intended to be, solely for the benefit of the parties to this Commitment Letter (and Indemnified Persons to the extent set forth in Section 7) and do not, and are not intended to, confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and Indemnified Persons to the extent expressly set forth herein).  This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by the Lenders and you.  This Commitment Letter may be executed in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one agreement.  Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission or other electronic transmission (e.g., a “pdf” or “tiff”) shall be effective as delivery of a manually executed counterpart hereof.  This Commitment Letter (including the exhibits hereto) and the Fee Letter (i) are the only agreements  that have been entered into among the parties hereto with respect to the ABL Credit Facility and (ii) supersede all prior understandings, whether written or oral, among us with respect to the ABL Credit Facility and set forth the entire understanding of the parties hereto with respect thereto.  THIS COMMITMENT LETTER, AND ALL CLAIMS OR CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) THAT MAY BE BASED UPON, ARISE OUT OF OR RELATE IN ANY WAY TO THIS COMMITMENT LETTER, OR THE NEGOTIATION, EXECUTION OR PERFORMANCE OF THIS COMMITMENT LETTER OR THE TRANSACTION CONTEMPLATED HEREBY, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

The parties hereto agree that this Commitment Letter is a binding and enforceable agreement with respect to the subject matter contained herein, including an agreement to negotiate in good faith the Facility Documentation by the Lenders in a manner consistent with this Commitment Letter.

EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE) BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS COMMITMENT LETTER, THE FEE LETTER, THE FACILITY DOCUMENTATION, THE TRANSACTION CONTEMPLATED  HEREBY OR THEREBY OR THE PERFORMANCE OF SERVICES HEREUNDER.

Each of the parties to this Commitment Letter irrevocably and unconditionally: (a) submits, for itself and its property, to the exclusive jurisdiction of the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) or, if Bankruptcy Court jurisdiction is not available, any New York State court or  to the fullest extent permitted under applicable law, federal court sitting in the Borough of Manhattan in The City of New York (collectively, the “Chosen Courts”) in any action or proceeding arising out of or relating to this Commitment Letter or the transactions contemplated hereby or the performance of the obligations hereunder, or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such action or proceeding shall be brought, heard and determined in  the Chosen Courts; (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter or the transactions contemplated hereby in the Chosen Courts; (c) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in the Chosen Courts; and (d) agrees that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  Each of the parties to this Commitment Letter agrees that service of process, summons, notice or document by registered mail addressed to you or us at the addresses set forth above shall be effective service of process for any suit, action or proceeding brought in any such court.

To the fullest extent permitted by law, the Borrower will make all payments under this Commitment Letter and the Fee Letter regardless of any defense or counterclaim, including, without limitation, any defense or counterclaim based on any law, rule or policy which is now or hereafter promulgated by any governmental authority or regulatory body and which may adversely affect the Borrower’s obligation to make, or the right of the Lenders to receive, such payments.

The indemnification, compensation, reimbursement, jurisdiction, governing law, venue, waiver of jury trial, absence of fiduciary relationships and confidentiality provisions (subject to the provisions of Section 9 hereof) contained herein and in the Fee Letter shall remain in full force and effect regardless of whether the Facility Documentation shall be executed and delivered and notwithstanding the termination or expiration of this Commitment Letter or the Lenders’ commitments hereunder.  Your obligations under this Commitment Letter and the Fee Letter (other than with respect to compensation, the syndication of the ABL Credit Facility and confidentiality, which shall be subject to the last sentence of Section 9) shall automatically terminate, however, and be superseded by the provisions of the Facility Documentation to the extent covered thereby upon the initial effectiveness thereunder on the Closing Date, and you shall automatically be released from all liability in connection therewith at such time. You may terminate this Commitment Letter and/or the Lenders’ commitments, with respect to the ABL Credit Facility (or portion thereof) at any time subject to the provisions of the preceding sentence, Section 3, and the last sentence of Section 9.

Section headings used in this Commitment Letter are for convenience of reference only and are not to affect the construction of, or to be taken into consideration in interpreting, this Commitment Letter. If the foregoing correctly sets forth our agreement, please indicate your acceptance of the terms of this Commitment Letter by returning to us, executed counterparts hereof and of the Fee Letter not later than 11:59 p.m., New York City time, on April 24, 2023 (such date of acceptance, the “Acceptance Date”). The Lenders’ commitments hereunder, and our agreements to perform the services described herein, will expire automatically and without further action or notice and without further obligation to you at such time in the event that we have not received such executed counterparts in accordance with the immediately preceding sentence.  If you do so execute and deliver to us this Commitment Letter, we agree to hold our commitment available for you until the earlier of the (x) Termination Date or (y) the date which is 45 days after the Acceptance Date, or such later date as agreed to by each of the Lenders in their sole and absolute discretion (the “Expiration Date”).  On the Expiration Date, this Commitment Letter and the commitments hereunder shall automatically terminate unless we shall, in our discretion, agree to an extension in writing. “Termination Date” means the date on which you terminate this Commitment Letter and the Commitment hereunder in full.

Terms used but not defined herein have the meanings given to them in (i) the Commitment Letter to which this Term Sheet is attached or, if not defined therein, (ii) the Amendment No. 8 Amended ABL Credit Agreement (as defined below).

“Consolidated EBITDA”:  of any Person for any period, shall mean the Consolidated Net Income of such Person and its Restricted Subsidiaries for such period plus, without duplication and, if applicable, to the extent deducted in calculating such Consolidated Net Income for such period, the sum of:

(a)         provisions for taxes based on income (or similar taxes in lieu of income taxes), profits, capital (or equivalents), including federal, foreign, state, local, franchise, excise and similar taxes and foreign withholding taxes paid or accrued during such period (including penalties and interest related to taxes or arising from tax examinations);

(b)          Consolidated Net Interest Expense and, to the extent not reflected in such Consolidated Net Interest Expense, any net losses on hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk or foreign exchange rate risk, amortization or write-off of debt discount and debt issuance costs and commissions, premiums, discounts and other fees and charges associated with Indebtedness (including commitment, letter of credit and administrative fees and charges with respect to the Facility, the Term Loan Agreement);

(c)        depreciation and amortization expense and impairment charges (including deferred financing fees, original issue discount, amortization of convertible notes and other convertible debt instruments, capitalized software expenditures, amortization of intangibles (including goodwill), organization costs and amortization of unrecognized prior service costs, and actuarial losses related to pensions, and other post-employment benefits);

(d)          subject to the Shared EBITDA Cap, all management, monitoring, consulting and advisory fees, and due diligence expense and other transaction fees and expenses and related expenses paid (or any accruals related to such fees or related expenses) (including by means of a dividend) during such period;

(e)          subject to the Shared EBITDA Cap, any extraordinary, unusual or non-recurring charges (including post-emergence ECIP and employee retention programs solely for the balance of calendar year 2023, expenses or losses (including (x) losses on the books of such Person in respect of  sales of assets outside of the ordinary course of business that do not have a negative impact on cash flows for such period, (y) restructuring and integration costs or reserves, including any retention and severance costs, costs associated with office and facility openings, closings and consolidations, relocation costs, contract termination costs, future lease commitments, excess pension charges and other non-recurring business optimization expenses and legal and settlement costs, and (z) any expenses in connection with the Transactions²);

(f)         any other non-cash expenses or losses (other than the accrual of expenses in the ordinary course) including non-cash stock compensation expense, but excluding any such items (i) in respect of which cash was paid in a prior period or will be paid in a future period or (ii) which represent the reversal in such period of any accrual of, or reserve for, anticipated cash charges in any prior period where such accrual or reserve is no longer required, all as determined on a consolidated basis;

(h)          accruals and reserves that are established or adjusted within twelve months after the Closing Date and that are so required to be established or adjusted in accordance with GAAP or as a result of adoption or modification of accounting policies;

(i)          subject to the Shared EBITDA Cap, all costs and expenses incurred in defending, settling and compromising any pending or threatened litigation claim, action or legal dispute in such period;

(j)           subject to the Shared EBITDA Cap, charges, losses, lost profits, expenses or write-offs to the extent indemnified or insured by a third party, including expenses covered by indemnification provisions in any Qualified Contract or any agreement in connection with the Transactions, a Permitted Acquisition or any other acquisition or Investment permitted by Section 7.7, in each case, to the extent that coverage has not been denied (other than any such denial that is being contested by the Borrower and/or its Restricted Subsidiaries in good faith) and so long as such amounts are actually reimbursed to such Person and its Restricted Subsidiaries in cash within six months after the related amount is first added to Consolidated EBITDA pursuant to this clause (j) (and to the extent not so reimbursed within six months, such amount not reimbursed shall be deducted from Consolidated EBITDA during the next measurement period); it being understood that such amount may subsequently be included in Consolidated EBITDA in a measurement period to the extent of amounts actually reimbursed;

(k)          any fees, expenses and other transaction costs (whether or not such transactions were consummated) set forth on a Schedule to the ABL credit agreement, which are incurred through the Closing Date in connection with fresh start accounting, the Chapter 11 Cases, the Transactions, the Restructuring Plan and the transactions contemplated thereby;

(l)          net realized losses relating to mark-to-market of amounts denominated in foreign currencies resulting from the application of FASB ASC 830 (including net realized losses from exchange rate fluctuations on intercompany balances and balance sheet items, net of realized gains from related Hedge Agreements);(i) any net realized loss resulting from fair value accounting required by FASB ASC 815 (including as a result of the mark-to-market of obligations of Hedge Agreements and other derivative instruments), (ii) any net realized loss resulting in such period from currency translation losses related to currency re-measurements of Indebtedness and (iii) the amount of loss resulting in such period from a sale of receivables, payment intangibles and related assets in connection with a receivables financing;

(A)       the amount of cash received in such period in respect of any non-cash income or gain in a prior period (to the extent such non-cash income or gain previously increased Consolidated Net Income in a prior period);

(B)          net realized gains relating to mark-to-market of amounts denominated in foreign currencies resulting from the application of FASB ASC 830 (including net realized gains from exchange rate fluctuations on intercompany balances and balance sheet items, net of realized losses from related Hedge Agreements);

(C)         (i) any net realized gain resulting from fair value accounting required by FASB ASC 815 (including as a result of the mark-to-market of obligations of Hedge Agreements and other derivative instruments), (ii) any net realized gain resulting in such period from currency translation gains related to currency re-measurements of Indebtedness and (iii) the amount of gain resulting in such period from a sale of receivables, payment intangibles and related assets in connection with a receivables financing; and

With respect to each joint venture or minority investee of the Borrower or any of its Restricted Subsidiaries, for purposes of calculating Consolidated EBITDA, the amount of EBITDA (calculated in accordance with this definition) attributable to such joint venture or minority investee, as applicable, that shall be counted for such purposes (without duplication of amounts already included in Consolidated Net Income) shall equal the product of (x) the Borrower’s or such Restricted Subsidiary’s direct and/or indirect percentage ownership of such joint venture or minority investee and (y) the EBITDA (calculated in accordance with this definition) of such joint venture or minority investee, in each case to the extent such Borrower or Subsidiary actually receives any such dividends, return of capital or similar distributions during such period and not in excess thereof.

Unless otherwise qualified, all references to “Consolidated EBITDA” in this Agreement shall refer to Consolidated EBITDA of the Borrower.

“Qualified Contract”: any new intellectual property license entered into by the Borrower or any of its Subsidiaries in respect of any brand so long as an officer of the Borrower has certified to the Administrative Agent that the revenue generated by such license in the next succeeding 12 months would reasonably be expected to exceed $40,000,000.

“Consolidated Operating Cash Flow”: as of any date of determination, the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period, minus the Unfinanced Capital Expenditures of the Borrower and its Restricted Subsidiaries during such Test Period.

“Financial Covenant Fixed Charge Coverage Ratio”: as of any date of determination, the ratio of (a) Consolidated Operating Cash Flow of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period to (b) Fixed Charges of the Borrower and its Restricted Subsidiaries for such Test Period.  In the event that the Borrower or any of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness or issues or redeems Disqualified Capital Stock subsequent to the commencement of the period for which the Financial Covenant Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Financial Covenant Fixed Charge Coverage Ratio is being calculated, then the Financial Covenant Fixed Charge Coverage Ratio will be calculated on a pro forma basis as if such incurrence, assumption, guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness or issuance or redemption of Disqualified Capital Stock, and the use of the proceeds therefrom, had occurred at the beginning of the Test Period.

“Fixed Charges”: for any Test Period, the sum of, without duplication, (a) Consolidated Net Interest Expense, (b) all dividend payments on any series of Disqualified Capital Stock of the Borrower paid, accrued or scheduled to be paid or accrued during the applicable Test Period, (c) regularly scheduled payments of principal on Indebtedness for borrowed money that were paid or payable (but without duplication) during such Test Period (excluding, for the avoidance of doubt, that attributable to Capital Lease Obligations) and (d) the aggregate amount of cash payments made in respect of Taxes during such Test Period.

“Unfinanced Capital Expenditures”: for any period, the amount equal to Capital Expenditures which are not financed by the incurrence of any Indebtedness (except to the extent funded with the proceeds of the Revolving Loans; it being understood and agreed that, to the extent any Capital Expenditures are financed with Revolving Loans, such Capital Expenditures shall be deemed Unfinanced Capital Expenditures).

Notwithstanding anything to the contrary in the Loan Documents:

(i)          For purposes of calculating Consolidated EBITDA for any Test Period that includes any of the fiscal quarters ending on the dates set forth in the table below, Consolidated EBITDA for such fiscal quarter shall be as set forth on such table (such amounts, the “Historical EBITDA Amounts”):

(ii)          For purposes of determining the amount of debt service for any Test Period that includes any of the fiscal quarters ending September 30, 2022, December 31, 2022, March 31, 2023 and June 30, 2023, such debt service shall be calculated on an annualized basis using only the period of time that has elapsed since the Closing Date.