SunOpta Inc.: Form 8-K - Filed by newsfilecorp.com

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): September 19, 2017

SUNOPTA INC.
(Exact name of registrant as specified in its charter)

Canada 001-34198 Not Applicable
(State or other jurisdiction of (Commission File Number) (IRS Employer Identification
incorporation)   No.)

2233 Argentia Drive, Suite 401
Mississauga, Ontario L5N 2X7, Canada
(Address of Principal Executive Offices)

(905) 821-9669
(Registrant's telephone number, including area code)

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

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

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

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

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



Item 1.01. Entry into a Material Definitive Agreement

New Asset Based Revolving Credit Facility

Overview

On September 19, 2017 (the “Effective Date”), SunOpta Inc. (the “Company”), SunOpta Foods Inc. (“SunOpta Foods”), The Organic Corporation B.V. (“TOC”) and certain other subsidiaries of the Company entered into an amendment (the “Amendment”) to the Company’s existing credit agreement dated February 11, 2016 with respect to the Company’s asset-based revolving credit facility (the “Existing Credit Agreement”), to, amongst other things, add an additional U.S. asset-based revolving credit subfacility of an aggregate principal amount of $15,000,000 (the “New U.S. Subfacility”).

SunOpta Foods and certain of its subsidiaries are the borrowers under the New U.S. Subfacility. Borrowings under the New U.S. Subfacility may be made in U.S. Dollars.

The proceeds of the New U.S. Subfacility will be used (i) to repay borrowings under the company’s existing U.S. asset-based revolving credit subfacility under the Existing Credit Agreement (the “Existing U.S. Subfacility”) and (ii) for working capital needs and general corporate purposes.

The New U.S. Subfacility was fully drawn on the Effective Date. Amortization payments on the aggregate principal amount of the New U.S. Subfacility are equal to $2,500,000 payable at the end of each fiscal quarter, commencing with the fiscal quarter ending March 31, 2019. Optional prepayment of borrowings under the New U.S. Subfacility are not permitted until the first anniversary of the Effective Date and are subject to certain availability conditions. Borrowings repaid under the New U.S. Subfacility may not be borrowed again.

Guarantee and Security

All obligations under the New U.S. Subfacility are unconditionally guaranteed by substantially the same guarantors as the Existing U.S. Subfacility (the “Guarantors”).

In addition, the New U.S. Subfacility is secured on substantially the same basis as the Existing U.S. Subfacility, which includes a first priority security interest in (x) substantially all of tangible and intangible assets of the Guarantors (subject to certain customary exceptions and qualifications) and (y) all the capital stock of, or other equity interests in, each Guarantor (other than the Company) and each Guarantors’ direct restricted subsidiaries (subject to certain customary exceptions and qualifications) (collectively, the “Collateral”).

Interest Rate and Fees

Borrowings under the New U.S. Subfacility will bear interest at a margin over a reference rate selected at the option of the relevant Borrower. The margin for the New U.S. Subfacility will be set quarterly based on average borrowing availability for the preceding fiscal quarter and will range from 2.00% to 2.50% with respect to base rate and prime rate borrowings and from 3.00% to 3.50% for eurocurrency rate and bankers’ acceptance rate borrowings. The initial margin for the New U.S. Subfacility is 2.50% with respect to base rate and prime rate borrowings and 3.50%% with respect to eurocurrency rate borrowings.

The foregoing description of the Amendment is included to provide you with information regarding its terms. It does not purport to be a complete description and is qualified in its entirety by reference to the full text of the Amendment, which is filed as Exhibit 10.1 hereto and incorporated herein by reference.

Certain Covenants and Events of Default

The New U.S. Subfacility is subject to substantially the same covenants and events of default as the Existing U.S. Subfacility.



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

The information set forth in Item 1.01 is incorporated by reference into this Item 2.03.

Item 9.01. Financial Statements and Exhibits.

(d)

Exhibits

The list of exhibits in the Exhibit Index hereto is incorporated herein by reference.


SIGNATURES

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

  SUNOPTA INC.
     
  By /s/ Robert McKeracher
     
    Robert McKeracher
    Vice President and Chief Financial Officer
     
  Date September 22, 2017


[EXHIBIT INDEX

Exhibit No. Description
Exhibit 10.1

Second Amendment and Joinder, dated September 19, 2017, to the Credit Agreement, dated as of February 11, 2016, among SunOpta Inc., SunOpta Foods Inc., The Organic Corporation B.V., the other borrowers and guarantors party thereto, the lenders party thereto, Bank of America, N.A., as U.S. Administrative Agent, Bank of America, N.A. (acting through its Canada Branch), as Canadian Administrative Agent, Bank of America, N.A. (acting through its London Branch), as Dutch Administrative Agent, and Bank of America, N.A., as Collateral Agent.



SunOpta Inc.: Exhibit 10.1 - Filed by newsfilecorp.com

Exhibit 10.1

Execution Copy

SECOND AMENDMENT AND JOINDER

SECOND AMENDMENT AND JOINDER, dated as of September 19, 2017 (this “Amendment and Joinder”), to the Credit Agreement, dated as of February 11, 2016 (as amended by the First Amendment dated October 7, 2016, the “Credit Agreement”), among SunOpta Inc. (the “Company” or “Canadi-an Parent Borrower”; as further defined in the Credit Agreement), SunOpta Foods Inc. (the “U.S. Parent Borrower”; as further defined in the Credit Agreement), The Organic Corporation B.V. (the “Dutch Parent Borrower”; as further defined in the Credit Agreement) and each of the other Borrowers and Guarantors party thereto from time to time, the Lenders party thereto from time to time, Bank of America, N.A., as Administrative Agent under the U.S. Subfacility (in such capacity, the “U.S. Administrative Agent”; as further defined in the Credit Agreement), and as a U.S. Issuing Bank and the U.S. Swingline Lender, Bank of America, N.A. (acting through its Canada Branch), as Administrative Agent under the Canadian Subfacility (in such capacity, the “Canadian Administrative Agent”; as further defined in the Credit Agreement), and as a Canadian Issuing Bank and the Canadian Swingline Lender, Bank of America, N.A. (acting through its London Branch), as Administrative Agent under the Dutch Subfacility (in such capacity, the “Dutch Administrative Agent”; as further defined in the Credit Agreement), and as a Dutch Issuing Bank and the Dutch Swingline Lender, and Bank of America, N.A, as Collateral Agent (in such capacity, the “Collateral Agent”; as further defined in the Credit Agreement).

R E C I T A L S

WHEREAS, pursuant to Section 2.15 of the Credit Agreement, the Company has the right to request Revolving Commitments under an Incremental FILO Facility, and the Company, the Administrative Agent and the applicable Increase Loan Lenders may effectuate such Incremental FILO Facility pursuant to an amendment and joinder agreement to the Credit Agreement;

WHEREAS, pursuant to Section 2.15 of the Credit Agreement, by notice to the Administrative Agent dated August 8, 2017, the Company has requested an Incremental FILO Facility as a subfa-cility with a separate borrowing base in an initial aggregate principal amount of $15,000,000 (such subfa-cility is referred to herein and in the Amended Credit Agreement (as defined below), as the “U.S. Tranche B Subfacility”, and the commitments to provide the loans thereunder are referred to herein and in the Amended Credit Agreement as the “U.S. Tranche B Revolving Commitments”);

WHEREAS, each financial institution identified on the signature pages hereto as a “U.S. Tranche B Revolving Lender” (each such financial institution, a “U.S. Tranche B Revolving Lender”) has agreed to (i) provide a portion of the U.S. Tranche B Subfacility, subject to the terms and conditions set forth herein and in the Amended Credit Agreement, (ii) become, if not already, a Lender for all purposes under the Amended Credit Agreement and (iii) the amendments to the Credit Agreement set forth herein necessary to effectuate the U.S. Tranche B Subfacility;

WHEREAS, the Company has requested that the Required Lenders consent to certain amendments to the Credit Agreement, and the Required Lenders hereby agree to such amendments, subject to the terms and conditions set forth herein;

NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:


Section 1.                  Capitalized Terms. Capitalized terms used in this Amendment and Joinder but not defined herein shall have the meanings assigned to them in the Credit Agreement.

Section 2.                  Amendment.

(a)                  The Credit Agreement is, hereby amended, as of the Second Amendment Effective Date (as defined below), to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Credit Agreement attached as Exhibit A hereto (the Credit Agreement as amended hereby, the “Amended Credit Agreement”).

(b)                  Schedule 2.01 to the Amended Credit Agreement shall be in the form attached as Exhibit B hereto.

(c)                  Exhibit B-1 to the Amended Credit Agreement shall be in the form attached as Exhibit C hereto.

(d)                  Exhibit B-7 to the Amended Credit Agreement shall be in the form attached as Exhibit D hereto.

(e)                  Exhibit D to the Amended Credit Agreement shall be in the form attached as Exhibit E hereto.

Section 3.                  Joinder. Subject to the terms and conditions set forth herein and in the Amended Credit Agreement, on the Second Amendment Effective Date each U.S. Tranche B Revolving Lender shall become (i) a “U.S. Tranche B Revolving Lender” and, to the extent not already, a “Lender” under and as defined in the Amended Credit Agreement, subject to all of the rights, obligations and conditions thereto under the Amended Credit Agreement and (ii) a holder of “U.S. Tranche B Revolving Commitments” under and as defined in the Amended Credit Agreement in the amount set forth and opposite to such U.S. Tranche B Revolving Lender’s name on Schedule 2.01 attached as Exhibit B to this Amendment and Joinder under the caption “U.S. Tranche B Revolving Commitments”.

Section 4.                  Representations and Warranties. Each Credit Party makes the following representations and warranties:

(a)                  no Default or Event of Default exists pursuant to the Credit Agreement as of the Second Amendment Effective Date, and immediately after giving effect to the incurrence of the U.S. Tranche B Subfacility; and

(b)                  ach of the representations and warranties made by any Credit Party set forth in Section 7 of the Credit Agreement, and in any Credit Document, are true and correct in all material respects (without duplication of any materiality standard set forth in any such representation or warranty) on and as of the Second Amendment Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties relate to an earlier date, in which event such representations and warranties were true in all material respects as of such earlier date (without duplication of any materiality standard set forth in any such representation or warranty).

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Section 5.                  Conditions to Effectiveness of this Amendment and Joinder. This Amendment and Joinder shall become effective on the date (such date, the “Second Amendment Effective Date”) that the following conditions have been satisfied:

(a)                  the U.S. Administrative Agent shall have received counterparts of this Amendment and Joinder executed by the Administrative Agents, the Borrowers, the U.S. Tranche B Revolving Lenders holding in aggregate $15,000,000 of U.S. Tranche B Revolving Commitments and the Required Lenders;

(b)                  the Company (or its designee) shall have paid, or caused to be paid, all reasonable documented out of pocket costs and expenses of the U.S. Administrative Agent in connection with the preparation, negotiation and execution of this Amendment and Joinder (including the fees and expenses of Cahill Gordon & Reindel LLP as counsel to the U.S. Administrative Agent) for which invoices have been presented to the Company at least two business days prior to the Second Amendment Effective Date;

(c)                  the Company (or its designee) shall have paid, or caused to be paid, all fees owed to Bank of America, N.A, as sole bookrunner and arranger of this Amendment and Joinder and to the U.S. Tranche B Revolving Lenders pursuant to that certain Engagement Letter dated Septem-ber 6, 2017 by and between the Company and Bank of America, N.A.;

(d)                  the Administrative Agent shall have received from Simpson Thacher & Bartlett LLP, U.S. counsel to the Credit Parties, an opinion addressed to the Administrative Agents, the Collateral Agent and each of the Lenders (including the U.S. Tranche B Revolving Lenders) party to the Amended Credit Agreement on the Second Amendment Effective Date and dated the Second Amendment Effective Date in form and substance reasonably satisfactory to the U.S. Administrative Agent;

(e)                  the Administrative Agent shall have received a Notice of Borrowing as required by Section 2.03(II) of the Credit Agreement;

(f)                  the Availability Conditions on the Second Amendment Effective Date shall be satisfied;

(g)                  no Default or Event of Default shall exist as of the Second Amendment Effective Date, or result from the funding of any U.S. Tranche B Revolving Loans on the Second Amendment Effective Date;

(h)                  each of the representations and warranties made by any Credit Party set forth in Section 7 of the Credit Agreement, and in any Credit Document, shall be true and correct in all material respects (without duplication of any materiality standard set forth in any such representation or warranty) on and as of the Second Amendment Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties relate to an earlier date, in which event such representations and warranties shall be true in all material respects as of such earlier date (without duplication of any materiality standard set forth in any such representation or warranty);

(i)                  the Administrative Agent shall have received a certificate, dated the Second Amendment Effective Date and signed on behalf of the Company (and not in any individual capacity) by a Responsible Officer of the Company, certifying on behalf of the Company that the conditions set forth in Sections 5(g) and 5(h) hereof have been satisfied;

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(j)                  the Administrative Agent shall have received a certificate from the Company and each U.S. Credit Party, dated the Second Amendment Effective Date, signed by a Responsible Officer of such Credit Party, and to the extent applicable attested to by the secretary or any assistant secretary of such Credit Party, in each case, on behalf of such Credit Party (and not in any individual capacity), certifying (i) that the copies of such Credit Party’s certificate or articles of incorporation and by-laws (or equivalent organizational documents) (x) as previously certified and delivered to the Administrative Agent, remain in full force and effect as of the Second Amendment Effective Date without modification or amendment since such original delivery or (y) as certified as of a recent date by the appropriate Governmental Authority of the jurisdiction of such Credit Party’s organization or formation and attached to such officer’s certificate, are true, correct, and complete and in full force and effect as of the Second Amendment Effective Date and (ii) that the copies of the Credit Parties’ resolutions approving and adopting this Amendment and Joinder, the transactions contemplated herein, and authorizing the execution and delivery thereof, as attached to such officer’s certificate, are true, correct, and complete copies and in full force and effect as of the Second Amendment Effective Date;

(k)                  the Administrative Agent shall have received good-standing certificates (or similar instrument, if applicable) and bring-down telegrams or facsimiles, with respect to entities incorporated or formed under the Requirements of Law of any jurisdiction for the Company and the U.S. Credit Parties which the Administrative Agent reasonably may have requested, certified by proper governmental authorities;

(l)                  the Company shall have delivered to the Administrative Agent a Borrowing Base Certificate (including the U.S. Tranche B Borrowing Base) for the month ended July 31, 2017, substantially in the form of Exhibit E hereto; and

(m)                  with respect to each Mortgaged Property located in the United States of America owned by a Credit Party as of the Second Amendment Effective Date, the U.S. Administrative Agent shall have received (i) a completed “life-of-loan” Federal Emergency Management Agency standard flood hazard determination (to the extent a Mortgaged Property is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to which flood insurance has been made available under the Flood Insurance Laws, together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and the applicable Credit Party relating thereto) and (ii) a copy of, or a certificate as to coverage under, and a declaration page relating to, the insurance policies required by Section 8.03 of the Credit Agreement and the applicable provisions of the Collateral and Guarantee Requirement, each of which shall satisfy the requirements set forth in Section 5.15 of the Credit Agreement.

Section 6.                  Post-Closing Obligations. Within 90 days after the Second Amendment Effective Date (which period may be extended in the reasonable discretion of the Administrative Agent upon the request of the Company), the Company or relevant Credit Party shall deliver to the Administrative Agent:

(i)                  EITHER:

(a)                  written confirmation (which confirmation may be provided in the form of an electronic mail acknowledgment in form and substance reasonably satisfactory to the Collateral Agent) from local counsel in the jurisdiction in which the Mortgaged Property is located substantially to the effect that: (x) the recording of the existing Mortgage is the only filing or recording necessary to give constructive notice to third parties of the lien created by such Mortgage as security for the Obligations, including the Obligations evidenced by the Credit Agreement, as amended pursuant to this Amendment and Joinder, for the benefit of the Secured Creditors; and (y) no other documents, instruments, filings, recordings, re-recordings, re-filings or other actions, including, without limitation, the payment of any mortgage recording taxes or similar taxes, are necessary or appropriate under applicable law in order to maintain the continued enforceability, validity or priority of the lien created by such Mortgage as security for the Obligations, including the Obligations evidenced by the Credit Agreement, as amended pursuant to this Amendment and Joinder, for the benefit of the Secured Creditors; OR

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(b)                  the following documents:

(i)                  with respect to each Mortgage encumbering a Mortgaged Property, an amendment thereof (a “Mortgage Amendment”) duly executed and acknowledged by Company or the relevant Credit Party, and in form for recording in the recording office where the Mortgage was recorded, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof under applicable law, in each case in form and substance reasonably satisfactory to the Collateral Agent;

(ii)                  with respect to each Mortgage Amendment, a date down endorsement to the existing title policy relating to the Mortgage encumbering the applicable Mortgaged Property (a “Title Policy Endorsement”) insuring that each Mortgage, as amended by such Mortgage Amendment is a valid and enforceable first priority lien on such Mortgaged Property in favor of the Collateral Agent for the benefit of the Secured Creditors free and clear of all defects, encumbrances and liens except for Permitted Liens and each such Title Policy Endorsement shall otherwise be in form and substance reasonably satisfactory to the Collateral Agent;

(iii)                  with respect to each Mortgage Amendment, customary legal opinions of local counsel for the Company or relevant Credit Party in the jurisdiction in which the applicable Mortgaged Property is located with respect to the enforceability of the Mortgage Amendment and other customary matters as reasonably requested by the Collateral Agent, and in the jurisdiction of formation of the Company or relevant Credit Party with respect to the due authorization, execution and delivery of such Mortgage Amendment, in each case in form and substance reasonably acceptable to the Collateral Agent; and

(iv)                  evidence acceptable to the Collateral Agent of payment by the Company or relevant Credit Party of all applicable title insurance premiums, search and examination charges, survey costs and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgage Amendments and issuance of the Title Policy Endorsements.

Notwithstanding anything herein to the contrary if the Company determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Creditors, then the Company may request that the Collateral Agent waive, and the Collateral Agent may consent to waive (which consent shall not be unreasonably withheld), the requirements of this Section.

Section 7.                  Counterparts. This Amendment and Joinder may be executed in any number of counterparts and by different parties hereto on separate counterparts (including by facsimile or other electronic transmission (i.e., a “pdf” or “tif”), each of which when so executed and delivered shall be deemed to be an original, but all of which shall together constitute one and the same instrument. A set of counterparts executed by all the parties hereto shall be lodged with the Company and the U.S. Administrative Agent.

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Section 8.                  Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial.

(a)                  THIS AMENDMENT AND JOINDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

(b)                  EACH PARTY TO THIS AMENDMENT AND JOINDER CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE COURT SITTING IN NEW YORK COUNTY OR THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, IN ANY DISPUTE, ACTION, LITIGATION OR OTHER PROCEEDING RELATING IN ANY WAY TO THIS AMENDMENT AND JOINDER, AND AGREES THAT ANY DISPUTE, ACTION, LITIGATION OR OTHER PROCEEDING SHALL BE BROUGHT BY IT SOLELY IN ANY SUCH COURT. EACH PARTY TO THIS AMENDMENT AND JOINDER IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL CLAIMS, OBJECTIONS AND DEFENSES THAT IT MAY HAVE REGARDING ANY SUCH COURT’S PERSONAL OR SUBJECT MATTER JURISDICTION, VENUE OR INCONVENIENT FORUM. EACH PARTY TO THIS AMENDMENT AND JOINDER IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 12.03 OF THE CREDIT AGREEMENT. A FINAL JUDGMENT IN ANY PROCEEDING OF ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR ANY OTHER MANNER PROVIDED BY APPLICABLE REQUIREMENT OF LAW.

     (i)                  EACH OF THE PARTIES TO THIS AMENDMENT AND JOINDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AMENDMENT AND JOINDER OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 9.                  Headings. The headings of the several Sections and subsections of this Amendment and Joinder are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Amendment and Joinder.

Section 10.                  Effect of this Amendment and Joinder. Except as expressly set forth herein, (i) this Amendment and Joinder shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders, the Administrative Agents or the Collateral Agent, in each case under the Credit Agreement or any other Credit Document, (ii) shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Credit Document and (iii) each and every term, condition, obligation, covenant and agreement contained in the Credit Agreement or any other Credit Document is hereby ratified and re-affirmed in all respects and shall continue in full force and effect. Each of the Credit Parties hereby consents to this Amendment and Joinder and confirms and reaffirms (i) that all obligations of such Credit Party under the Credit Documents to which such Credit Party is a party shall continue to apply to the Credit Agreement as amended hereby, (ii) its Guarantees of the Obligations, (iii) its pledges and grants of security interests and Liens on the Collateral to secure the Obligations pursuant to the Security Documents and (iv) such Guarantees, pledges and grants of security interests, as applicable, shall continue to be in full force and effect and shall continue to inure to the benefit of the Lenders and the other Secured Creditors. This Amendment and Joinder shall constitute (x) a Credit Document and (y) an Incremental Revolving Commitment Agreement, in each case, for purposes of the Credit Agreement. On and after the effectiveness of this Amendment and Joinder, each reference in any Credit Document to “the Credit Agreement” shall mean and be a reference to the Amended Credit Agreement and each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import shall mean and be a reference to the Amended Credit Agreement. The parties hereto acknowledge and agree that the amendment of the Credit Agreement pursuant to this Amendment and Joinder and all other Credit Documents amended and/or executed and delivered in connection herewith shall not constitute a novation of the Credit Agreement or of any other Credit Documents as in effect prior to the Second Amendment Effective Date.

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment and Joinder to be duly executed by their respective authorized officers as of the day and year first above written.

  SUNOPTA INC.
     
     
  By: /s/ Robert McKeracher
    Name: Robert McKeracher
    Title: Vice President and Chief Financial Officer
     
     
  SUNOPTA FOODS INC.
     
     
  By: /s/ Robert McKeracher
    Name: Robert McKeracher
    Title: Vice President
     
     
  SUNOPTA GRAINS AND FOODS INC.
     
     
  By: /s/ Robert McKeracher
    Name: Robert McKeracher
    Title: Vice President
     
     
  CITRUSOURCE, LLC
     
     
  By: /s/ Robert McKeracher
    Name: Robert McKeracher
    Title: Vice President
     
     
  SUNOPTA COMPANIES INC.
     
     
  By: /s/ Robert McKeracher
    Name: Robert McKeracher
    Title: Vice President
     
     
  SUNOPTA GLOBAL ORGANIC INGREDIENTS INC.
     
     
  By: /s/ Robert McKeracher
    Name: Robert McKeracher
    Title: Vice President

[Signature Page to Second Amendment and Joinder]



  TRADIN ORGANICS USA LLC.
     
     
  By: /s/ Robert McKeracher
    Name: Robert McKeracher
    Title: Vice President
     
     
  SUNOPTA INVESTMENTS LTD.
     
     
  By: /s/ Robert McKeracher
    Name: Robert McKeracher
    Title: Vice President
     
     
  SUNRISE HOLDINGS (DELAWARE), INC.
     
     
  By: /s/ Robert McKeracher
    Name: Robert McKeracher
    Title: Vice President
     
     
  SUNRISE GROWERS, INC.
     
     
  By: /s/ Robert McKeracher
    Name: Robert McKeracher
    Title: Vice President
     
     
  FARM CAPITAL INCORPORATED
     
     
  By: /s/ Robert McKeracher
    Name: Robert McKeracher
    Title: Vice President
     
     
  PACIFIC RIDGE FARMS, LLC
     
     
  By: /s/ Robert McKeracher
    Name: Robert McKeracher
    Title: Vice President

[Signature Page to Second Amendment and Joinder]



  COÖPERATIE SUNOPTA U.A.
     
     
  By: /s/ Bob Kouw
    Name: Bob Kouw
    Title: Authorized Signatory
     
     
  By: /s/ Gerard Versteegh
    Name: Gerard Versteegh
    Title: Authorized Signatory
     
     
  THE ORGANIC CORPORATION B.V.
     
     
  By: /s/ Bob Kouw
    Name: Bob Kouw
    Title: Authorized Signatory
     
     
  By: /s/ Gerard Versteegh
    Name: Gerard Versteegh
    Title: Authorized Signatory
     
     
  CROWN OF HOLLAND B.V.
     
     
  By: /s/ Bob Kouw
    Name: Bob Kouw
    Title: Authorized Signatory
     
     
  By: /s/ Gerard Versteegh
    Name: Gerard Versteegh
    Title: Authorized Signatory
     
     
  TRADIN ORGANIC AGRICULTURE B.V.
     
     
  By: /s/ Bob Kouw
    Name: Bob Kouw
    Title: Authorized Signatory
     
     
  By: /s/ Gerard Versteegh
    Name: Gerard Versteegh
    Title: Authorized Signatory

[Signature Page to Second Amendment and Joinder]



  TRABOCCA B.V.
     
     
  By: /s/ Bob Kouw
    Name: Bob Kouw
   

Title: Authorized Signatory 

     
     
  By: /s/ Gerard Versteegh
    Name: Gerard Versteegh
 

Title: Authorized Signatory  

     
     
  SUNOPTA FINANCING 2017 LLC
     
     
  By: /s/ Robert McKeracher
 

Name: Robert McKeracher  

    Title: Vice President
     
     
  SUNOPTA HOLDINGS LLC
     
     
  By: /s/ Robert McKeracher
 

Name: Robert McKeracher  

    Title: Vice President
     
     
  SUNOPTA FINANCING CANADA ULC
     
     
  By: /s/ Robert McKeracher
   

Name: Robert McKeracher 

    Title: Vice President

[Signature Page to Second Amendment and Joinder]



BANK OF AMERICA N.A., as U.S. Administrative Agent, Collateral Agent, U.S. Swingline Lender, U.S. Is- suing Bank and a U.S. Revolving Lender

 

 

 

By:

/s/ Steven Siravo

 

               

Name: Steven Siravo

 

               

Title: Senior Vice President

 

 

 

 

BANK OF AMERICA, N.A. (acting through its Canada branch), as Canadian Administrative Agent, Canadian Swingline Lender, Canadian Issuing Bank and a Canadi- an Revolving Lender

 

 

 

By:

/s/ Sylwia Durkiewicz

 

               

Name: Sylwia Durkiewicz

 

               

Title: Vice President

 

 

 

 

BANK OF AMERICA, N.A. (acting through its London branch), as Dutch Administrative Agent, Dutch Swingline Lender, Dutch Issuing Bank and a Dutch Revolving Lender

 

 

 

By:

/s/ Steven Siravo

 

 

Name:Steven Siravo

 

               

Title: Senior Vice President

[Signature Page to Second Amendment and Joinder]


[ADDITIONAL LENDER SIGNATURES OMITTED]

[Joinder Agreement Signature Page]

 

 

 

 

[Signature Page to Second Amendment and Joinder]


Exhibit A

Amended Credit Agreement

(See Attached)



Exhibit A to SunOpta ABL Second Amendment

CREDIT AGREEMENT
 
Originally Ddated as of February 11, 2016,
 
as amended by the First Amendment, dated as of October 7, 2016
 
and
 
as further amended by the Second Amendment, dated as of September 19, 2017
 
 
among
 
SUNOPTA INC.,
as Company and Canadian Parent Borrower,
 
SUNOPTA FOODS, INC.,
as U.S. Parent Borrower
 
THE ORGANIC CORPORATION B.V.,
as Dutch Parent Borrower
 
Certain of the Company’s subsidiaries from time to time party hereto as Borrowers and Guarantors,
 
VARIOUS LENDERS,
 
BANK OF AMERICA, N.A.,
as U.S. ADMINISTRATIVE AGENT, COLLATERAL AGENT and U.S. ISSUING BANK,
 
BANK OF AMERICA, N.A. (ACTING THROUGH ITS CANADA BRANCH),
as CANADIAN ADMINISTRATIVE AGENT and CANADIAN ISSUING BANK
 
BANK OF AMERICA, N.A. (ACTING THROUGH ITS LONDON BRANCH),
as DUTCH ADMINISTRATIVE AGENT and DUTCH ISSUING BANK
 
_______________________________________
 
 
RABOBANK NEDERLAND, CANADIAN BRANCH
and
BANK OF MONTREAL,
as CO-SYNDICATION AGENTS,
 
JPMORGAN CHASE BANK, N.A.
as DOCUMENTATION AGENT
 
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
RABOBANK NEDERLAND, CANADIAN BRANCH
and
BANK OF MONTREAL,
as JOINT LEAD ARRANGERS and JOINT BOOKRUNNERS
 



Page
 

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TABLE OF CONTENTS

      Page
       
SECTION 1   DEFINITIONS AND ACCOUNTING TERMS 1
       
1.01.      Defined Terms 1
1.02.      Terms Generally 8387
1.03.      Uniform Commercial Code and PPSA 8387
1.04.      Exchange Rates; Currency Equivalent 8388
1.05.      Interpretation (Quebec) 8488
1.06.      Currency Fluctuations 8489
1.07.      Interpretation (the Netherlands) 8589
1.08.      Additional Alternative Currencies 8690
1.09.      Change of Currency 8691
1.10.      Letter of Credit Amounts 8791
1.11.      Accounting Terms 8791
1.12.      Pro Forma and Other Calculations 8892
       
SECTION 2   AMOUNT AND TERMS OF CREDIT 8993
       
2.01.      Commitments 8993
2.02.      Loans 9094
2.03.      Borrowing Procedure 9296
2.04.      Evidence of Debt; Repayment of Loans 9398
2.05.      Fees 9499
2.06.      Interest on Loans 95100
2.07.      Termination and Reduction of Commitments 97102
2.08.      Interest Elections 98103
2.09.      Optional and Mandatory Prepayments of Loans 99105
2.10.      Payments Generally; Pro Rata Treatment; Sharing of Setoffs 102107
2.11.      Defaulting Lenders 103108
2.12.      Swingline Loans 105111
2.13.      Letters of Credit 107113
2.14.      Settlement Amongst Lenders 114119
2.15.      Revolving Commitment Increase 114120
2.16.      Borrower Representative 117122
2.17.      Overadvances 117122
2.18.      Protective Advances 118123
2.19.      Extensions of Revolving Loans and Revolving Commitments 118124
2.20.      Adjustment of Revolver Commitments 121126
2.21.      Subsidiary Borrowers 122127
2.22.      Reserves 123128
       
SECTION 3   YIELD PROTECTION, ILLEGALITY AND REPLACEMENT OF LENDERS 124129
       
3.01.      Increased Costs, Illegality, etc 124129
3.02.      Compensation 126131
3.03.      Change of Lending Office 126132
3.04.      Replacement of Lenders 126132



      Page
       
SECTION 4   TAXES 127133
       
4.01.      Net Payments 127133
4.02.      VAT 129135
       
SECTION 5   CONDITIONS PRECEDENT TO CREDIT EVENTS ON THE CLOSING DATE 131136
       
5.01.      Closing Date; Credit Documents 131136
5.02.      Officer’s Certificate 131136
5.03.      Opinions of Counsel 131136
5.04.      Corporate Documents; Proceedings, etc 131137
5.05.      Solvency Certificate 131137
5.06.      Borrowing Base Certificate 132137
5.07.      Material Adverse Effect 132137
5.08.      Fees, etc 132137
5.09.      Security Agreements 132137
5.10.      Financial Statements 132138
5.11.      Patriot Act 133138
5.12.      Insurance 133138
5.13.      Repayment of Obligations of Existing Credit Agreements 133138
5.14.      Field Examinations and Appraisals 133138
5.15.      Mortgaged Properties 133138
5.16.      Intercreditor Agreement 133139
5.17.      Minimum Total Excess Availability 133139
       
SECTION 6   CONDITIONS PRECEDENT TO ALL CREDIT EVENTS 134139
       
6.01.      Notice of Borrowing 134139
6.02.      Availability 134139
6.03.      No Default 134139
6.04.      Representations and Warranties 134139
       
SECTION 7   REPRESENTATIONS AND WARRANTIES 134140
       
7.01.      Organizational Status 134140
7.02.      Power and Authority 135140
7.03.      No Violation 135140
7.04.      Approvals 135140
7.05.      Financial Statements; Financial Condition; Projections 135141
7.06.      Litigation 136141
7.07.      True and Complete Disclosure 136141
7.08.      Use of Proceeds; Margin Regulations 136141
7.09.      Tax Returns and Payments 136142
7.10.      ERISA 137142
7.11.      The Security Documents 137142
7.12.      Title to Real Estate 138143
7.13.      Subsidiaries 138143
7.14.      Compliance with Statutes; Sanctions; Patriot Act; Anti-Corruption Laws 138143
7.15.      Investment Company Act 139144
7.16.      Environmental Matters 139144

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      Page
       
7.17.      Labor Relations 139144
7.18.      Intellectual Property 139145
7.19.      Centre of Main Interests 139145
7.20.      Borrowing Base Certificate 140145
7.21.      Dutch Works Council Act 140145
7.22.      Canadian Pension Plans 140145
       
SECTION 8   AFFIRMATIVE COVENANTS 140145
       
8.01.      Information Covenants 140145
8.02.      Books, Records and Inspections 143148
8.03.      Maintenance of Property; Insurance 144150
8.04.      Existence; Franchises 145151
8.05.      Compliance with Statutes, etc 146151
8.06.      Compliance with Environmental Laws 146151
8.07.      ERISA 146152
8.08.      Payment of Taxes 146152
8.09.      Use of Proceeds 147152
8.10.      Additional Security; Further Assurances; etc 147152
8.11.      Post-Closing Actions 148154
8.12.      Dutch Works Council Act 149155
8.13.      Certain Additional Account Security Actions and Additional Inventory Security Actions 150155
8.14.      Designation of Unrestricted Subsidiaries 150155
8.15.      Collateral Monitoring and Reporting 150156
       
SECTION 9   NEGATIVE COVENANTS 154159
       
9.01.      Liens 154159
9.02.      Asset Sales 159164
9.03.      Restricted Payments and Restricted Junior Debt Payments 160165
9.04.      Indebtedness 163168
9.05.      Investments 167173
9.06.      Transactions with Affiliates 171176
9.07.      Modifications of Debt Documents, Certificate of Incorporation, By-Laws and Certain Other Agreements, etc 173178
9.08.      Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries 173178
9.09.      Business; Fiscal Year 175180
9.10.      Negative Pledges 175181
9.11.      Merger, Consolidation or Sale of All or Substantially All Assets 177183
9.12.      Financial Covenant 179185
9.13.      Canadian Pension Plans 180185
       
SECTION 10   EVENTS OF DEFAULT 180185
       
10.01.      Payments 180185
10.02.      Representations, etc 180185
10.03.      Covenants 180185
10.04.      Default Under Other Agreements 180185
10.05.      Bankruptcy, etc 181186

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      Page
       
10.06.      ERISA; Dutch Works Council Act 181186
10.07.      Credit Documents 181187
10.08.      Guarantees 182187
10.09.      Judgments 182187
10.10.      Change of Control 182187
10.11.      Application of Funds 182188
       
SECTION 11   THE ADMINISTRATIVE AGENT 184189
       
11.01.      Appointment and Authorization 184189
11.02.      Delegation of Duties 185190
11.03.      Liability of Agents 185190
11.04.      Reliance by the Agents 185191
11.05.      Notice of Default 186191
11.06.      Credit Decision; Disclosure of Information by the Agents 186191
11.07.      Indemnification of the Agents 187192
11.08.      Administrative Agent and Collateral Agent in Its Individual Capacity 187192
11.09.      Successor Administrative Agents 187193
11.10.      Administrative Agent May File Proofs of Claim 188194
11.11.      Collateral and Guarantee Matters 189194
11.12.      Bank Product Providers 189194
11.13.      The Collateral Agent 189195
11.14.      Withholding Taxes 189195
11.15.      Quebec Representative 190195
11.16.      Appointment of Collateral Agent as security trustee for UK Security Agreements 190196
11.17.      Authorization to Take Action Regarding Dutch Pledges 193199
       
SECTION 12    MISCELLANEOUS 194199
       
12.01.      Payment of Expenses, etc 194199
12.02.      Right of Setoff 195200
12.03.      Notices 195200
12.04.      Benefit of Agreement; Assignments; Participations, etc 196201
12.05.      No Waiver; Remedies Cumulative 198203
12.06.      [Reserved] 198203
12.07.      GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL 198203
12.08.      Counterparts 198204
12.09.      Headings Descriptive 199204
12.10.      Amendment or Waiver; etc 199204
12.11.      Survival 202207
12.12.      Domicile of Loans 202207
12.13.      Release of Collateral or Guarantors 202208
12.14.      Confidentiality 203209
12.15.      USA Patriot Act Notice 204210
12.16.      Waiver of Sovereign Immunity 204210
12.17.      Canadian Anti-Money Laundering Legislation 204210
12.18.      Absence of Fiduciary Relationship 205211
12.19.      Electronic Signatures 205211

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      Page
       
12.20.      Judgment Currency 205211
12.21.      Dutch Credit Party Representation 206211
12.22.      Acknowledgement and Consent to Bail-In of EEA Financial Institutions 206211
       
SECTION 13   CREDIT PARTY GUARANTEE 206212
       
13.01.      The Guarantee 206212
13.02.      Bankruptcy 207212
13.03.      Nature of Liability 207213
13.04.      Independent Obligation 207213
13.05.      Authorization 208213
13.06.      Reliance 208214
13.07.      Subordination 209214
13.08.      Waiver 209215
13.09.      Maximum Liability 209215
13.10.      Payments 210215
13.11.      [Reserved] 210215
13.12.      Information 210216
13.13.      Severability 210216
13.14.      Canadian Severability 210216

SCHEDULE 1.01A Unrestricted Subsidiaries
SCHEDULE 1.01B Existing Letters of Credit
SCHEDULE 1.01C Immaterial Subsidiaries
SCHEDULE 1.01D Canadian and U.S. Fixed Asset Amount Depreciation Schedule
SCHEDULE 2.011 Commitments
SCHEDULE 5.15 Closing Date Mortgaged Property
SCHEDULE 7.13 Subsidiaries
SCHEDULE 8.15(d) Deposit Accounts
SCHEDULE 9.01(viii) Existing Liens
SCHEDULE 9.02(xx) Disposition of Specified Assets
SCHEDULE 9.04(iv) Existing Indebtedness
SCHEDULE 9.05(viii) Existing Investments
SCHEDULE 12.03 Notices
   
   
EXHIBIT A-1 Form of Notice of Borrowing
EXHIBIT A-2 Form of Notice of Conversion/Continuation
EXHIBIT B-1 Form of U.S. Tranche A Revolving Note
EXHIBIT B-2 Form of Canadian Revolving Note
EXHIBIT B-3 Form of Dutch Revolving Note
EXHIBIT B-4 Form of U.S. Swingline Note
EXHIBIT B-5 Form of Canadian Swingline Note
EXHIBIT B-6 Form of Dutch Swingline Note
EXHIBIT B-7 Form of U.S. Tranche B Revolving Note
EXHIBIT C Form of U.S. Tax Compliance Certificate
EXHIBIT D Form of Borrowing Base Certificate
EXHIBIT E Form of Joinder Agreement

______________________________________
1
Schedules (other than Schedule 2.01) and Exhibits (other than Exhibits B-1, B-7 and D) are not being amended.

-v-



EXHIBIT F Form of Solvency Certificate
EXHIBIT G Form of Compliance Certificate
EXHIBIT H Form of Assignment and Assumption Agreement
EXHIBIT I Form of Assignment Notice
EXHIBIT J Form of Borrower Designation Request and Assumption Agreement
EXHIBIT K Form of Borrower Designation Notice
EXHIBIT L Form of Subordinated Intercompany Note

-vi-


THIS CREDIT AGREEMENT, originally dated as of February 11, 2016, (as amended by the First Amendment, dated as of October 7, 2016 and as further amended by the Second Amendment, dated as of September 19, 2017), among SUNOPTA INC. (the “Company” or “Canadian Parent Borrower”; as hereinafter further defined), SUNOPTA FOODS, INC. (the “U.S. Parent Borrower”; as hereinafter further defined), THE ORGANIC CORPORATION B.V. (the “Dutch Parent Borrower”; as hereinafter further defined) and each of the other Borrowers (as hereinafter defined) and Guarantors (as hereinafter defined) party hereto from time to time, the Lenders party hereto from time to time, BANK OF AMERICA, N.A., as Administrative Agent under the U.S. Subfacilityies (as hereinafter defined) (in such capacity, the “U.S. Administrative Agent”; as hereinafter further defined), and as a U.S. Issuing Bank and the U.S. Swingline Lender, BANK OF AMERICA, N.A. (ACTING THROUGH ITS CANADA BRANCH), as Administrative Agent under the Canadian Subfacility (in such capacity, the “Canadian Administrative Agent”; as hereinafter further defined), and as a Canadian Issuing Bank and the Canadian Swingline Lender, BANK OF AMERICA, N.A. (ACTING THROUGH ITS LONDON BRANCH), as Administrative Agent under the Dutch Subfacility (in such capacity, the “Dutch Administrative Agent”; as hereinafter further defined), and as a Dutch Issuing Bank and the Dutch Swingline Lender, and BANK OF AMERICA, N.A, as Collateral Agent (in such capacity, the “Collateral Agent”; as hereinafter further defined). All capitalized terms used herein and defined in Section 1.01 are used herein as therein defined.

W I T N E S S E T H:

WHEREAS, (a) the Borrowers have requested that the Lenders extend credit in the form of Revolving Loans in an aggregate principal amount at any time outstanding not to exceed $350,000,000365,000,000, consisting of (i) a U.S. Tranche A Subfacility in an initial aggregate principal amount of $260,000,000245,000,000 (the “U.S. Tranche A Subfacility”), (ii) a U.S. Tranche B Subfacility in an initial aggregate principal amount of $15,000,000 (the “U.S. Tranche B Subfacility”), (iii) a Canadian Subfacility in an initial aggregate principal amount of $15,000,000 (the “Canadian Subfacility”) and (iiiiv) a Dutch Subfacility in an initial aggregate principal amount of $75,000,00090,000,000 (the “Dutch Subfacility” and, together with the U.S. Tranche A Subfacility, the and Canadianthe Canadian Subfacility, the “Ex-FILO Subfacilities” and the Ex-FILO Subfacilities together with the U.S. Tranche B Subfacility, the “Subfacilities”), (b) the Borrowers have requested that the Issuing Banks issue Letters of Credit in an aggregate Stated Amount at any time outstanding not to exceed (i) $50,000,000 under the U.S. Tranche A Subfacility, (ii) $15,000,000 under the Canadian Subfacility and (iii) $20,000,000 under the Dutch Subfacility and (c) the Borrowers have requested the Swingline Lenders to extend credit in the form of Swingline Loans in an aggregate principal amount at any time outstanding not to exceed (i) $30,000,000 under the U.S. Tranche A Subfacility, (ii) $3,000,000 under the Canadian Subfacility and (iii) $10,000,000 under the Dutch Subfacility.

NOW THEREFORE, the Lenders are willing to extend such credit to the Borrowers, the Swingline Lenders are willing to make Swingline Loans to the Borrowers and the Issuing Banks are willing to issue Letters of Credit for the account of the Borrowers on the terms and subject to the conditions set forth herein.

Section 1      Definitions and Accounting Terms.

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

Account Debtor” shall mean any Person who may become obligated to another Person under, with respect to, or on account of, an Account.


Account Debtor Approved Countries” shall mean the United States, Canada, the Netherlands, Germany, France, Italy, Belgium, Luxembourg, Denmark, Ireland, United Kingdom, Spain, Portugal, Austria, Finland, Sweden, Switzerland, Norway, Hong Kong, Singapore, Australia, New Zealand and Japan.

Accounts” shall mean all “accounts,” as such term is defined in the UCC (or, with respect to any Canadian Credit Party, as defined in the PPSA), or, with respect to any Dutch Credit Party, all vorderingen (as used in the Dutch Civil Code), in any such case in which any Person now or hereafter has rights, including all rights to payment for goods sold or leased or for services rendered.

ACH” shall mean automated clearing house transfers.

Acquired Entity or Business” shall mean either (x) the assets constituting a business, division or product line of any Person not already a Subsidiary of the Company or (y) the Equity Interests of any Person, which Person shall, as a result of the respective acquisition, become a Restricted Subsidiary of the Company (or shall be merged, consolidated or amalgamated with and/or into the Company or a Restricted Subsidiary of the Company).

Additional Account Security Actions” shall mean (i) with respect to any Accounts originated by any Borrower that are owed from Account Debtors located in the United Kingdom, such originating Borrower shall have duly authorized, executed and delivered an Assignment of Receivables governed by English law and covering all receivables owed by Account Debtors located in the United Kingdom (or, if, on or prior to the date of such Additional Account Security Action, the Administrative Agent reasonably determines that, as a result of a change in any law that occurs after the Closing Date or for any other reason, the execution and delivery of such Assignment of Receivables, when taken together with the actions required by the Collateral and Guarantee Requirement, would not be sufficient to provide a valid and enforceable first priority (and perfected or equivalent) security interest in such Accounts, such originating Borrower shall have duly authorized, executed and delivered such documentation, and taken such other collateral security and perfection actions, deemed reasonably necessary by the Administrative Agent, when taken together with the actions required by the Collateral and Guarantee Requirement, to provide a valid and enforceable first priority (and perfected or equivalent) security interest in all Accounts originated by such Borrower that are owed from Account Debtors located in the United Kingdom (including any filings, notifications, registrations or other documentation deemed reasonably necessary by the Administrative Agent)), (ii) with respect to any Accounts originated by any Borrower that are owed from Account Debtors located in Germany, such originating Borrower shall have duly authorized, executed and delivered a Security Assignment of Receivables governed by German law covering all receivables owed by Account Debtors located in Germany (or, if on or prior to the date of such Additional Account Security Action, the Administrative Agent reasonably determines that, as a result of a change in any law that occurs after the Closing Date or for any other reason, the execution and delivery of such Security Assignment of Receivables, when taken together with the actions required by the Collateral and Guarantee Requirement, would not be sufficient to provide a valid and enforceable first priority (and perfected or equivalent) security interest in such Accounts, such originating Borrower shall have duly authorized, executed and delivered such documentation, and taken such other collateral security and perfection actions, deemed reasonably necessary by the Administrative Agent, when taken together with the actions required by the Collateral and Guarantee Requirement, to provide a valid and enforceable first priority (and perfected or equivalent) security interest in all Accounts originated by such Borrower that are owed from Account Debtors located in Germany (including any filings, notifications, registrations or other documentation deemed reasonably necessary by the Administrative Agent)), (iii) with respect to any Accounts originated by any Borrower that are owed from Account Debtors located in France, such originating Borrower shall have duly authorized, executed and delivered a Pledge Over Receivables governed by French law, covering all receivables owed by Account Debtors located in France (or, if on or prior to the date of such Additional Account Security Action, the Administrative Agent reasonably determines that, as a result of a change in any law that occurs after the Closing Date or for any other reason, the execution and delivery of such Pledge Over Receivables, when taken together with the actions required by the Collateral and Guarantee Requirement, would not be sufficient to provide a valid and enforceable first priority (and perfected or equivalent) security interest in such Accounts, such originating Borrower shall have duly authorized, executed and delivered such documentation, and taken such other collateral security and perfection actions, deemed reasonably necessary by the Administrative Agent, when taken together with the actions required by the Collateral and Guarantee Requirement, to provide a valid and enforceable first priority (and perfected or equivalent) security interest in all Accounts originated by such Borrower that are owed from Account Debtors located in France (including any filings, notifications, registrations or other documentation deemed reasonably necessary by the Administrative Agent)) and (iv) with respect to any Accounts originated by any Borrower that are owed from Account Debtors located in any Account Debtor Approved Country (other than the United States, Canada, the Netherlands, the United Kingdom, Germany or France), such originating Borrower shall have duly authorized, executed and delivered such documentation, and taken such other collateral security and perfection actions, deemed reasonably necessary by the Administrative Agent, when taken together with the actions required by the Collateral and Guarantee Requirement, to provide a valid and enforceable first priority (and perfected or equivalent) security interest in all Accounts originated by such Borrower that are owed from Account Debtors located in such jurisdiction (including any filings, notifications, registrations or other documentation deemed reasonably necessary by the Administrative Agent); provided that no Credit Party shall be required to cause its legal counsel to delivery an opinion with respect to any document executed and delivered in connection with any Additional Account Security Action at the time of execution and delivery of such document or at any time thereafter.


Additional Inventory Security Actions” shall mean (i) with respect to any Inventory that is located in the United Kingdom and owned by a Dutch Borrower, all Dutch Borrowers owning Inventory located in the United Kingdom shall have duly authorized, executed and delivered a Floating Charge Over Inventory governed by English law and taken all actions required thereunder or under applicable law to perfect the lien created thereunder (or, if on or prior to the date of such Additional Inventory Security Action, the Administrative Agent reasonably determines that, as a result of a change in any law that occurs after the Closing Date or for any other reason, the execution and delivery of such Floating Charge Over Inventory, when taken together with the actions required by the Collateral and Guarantee Requirement, would not be sufficient to provide a valid and enforceable first priority (and perfected or equivalent) security interest in such Inventory, all Dutch Borrowers owning Inventory located in the United Kingdom shall have duly authorized, executed and delivered such documentation, and taken such other collateral security and perfection actions, deemed reasonably necessary by the Administrative Agent, when taken together with the actions required by the Collateral and Guarantee Requirement, to provide a valid and enforceable first priority (and perfected or equivalent) security interest in such Inventory (including any filings, notifications, registrations or other documentation deemed reasonably necessary by the Administrative Agent)), (ii) with respect to any Inventory that is located in Germany and owned by a Dutch Borrower, all Dutch Borrowers owning Inventory located in Germany shall have duly authorized, executed and delivered a Security Transfer Agreement governed by German Law that covers the location at which such Inventory resides and taken all actions required thereunder or under applicable law to perfect the lien created thereunder (or, if on or prior to the date of such Additional Inventory Security Action, the Administrative Agent reasonably determines that, as a result of a change in any law that occurs after the Closing Date or for any other reason, the execution and delivery of such Security Transfer Agreement, when taken together with the actions required by the Collateral and Guarantee Requirement, would not be sufficient to provide a valid and enforceable first priority (and perfected or equivalent) security interest in such Inventory, all Dutch Borrowers owning Inventory located in Germany shall have duly authorized, executed and delivered such documentation, and taken such other collateral security and perfection actions, deemed reasonably necessary by the Administrative Agent, when taken together with the actions required by the Collateral and Guarantee Requirement, to provide a valid and enforceable first priority (and perfected or equivalent) security interest in such Inventory (including any filings, notifications, registrations or other documentation deemed reasonably necessary by the Administrative Agent)) and (iii) with respect to any Inventory that is located in France and owned by a Dutch Borrower, all Dutch Borrowers owning Inventory located in France shall have duly authorized, executed and delivered a Pledge Over Inventory governed by French law and taken all actions required thereunder or under applicable law to perfect the lien created thereunder (or, if on or prior to the date of such Additional Inventory Security Action, the Administrative Agent reasonably determines that, as a result of a change in any law that occurs after the Closing Date or for any other reason, the execution and delivery of such Pledge Over Inventory, when taken together with the actions required by the Collateral and Guarantee Requirement, would not be sufficient to provide a valid and enforceable first priority (and perfected or equivalent) security interest in such Inventory, all Dutch Borrowers owning Inventory located in France shall have duly authorized, executed and delivered such documentation, and taken such other collateral security and perfection actions, deemed reasonably necessary by the Administrative Agent, when taken together with the actions required by the Collateral and Guarantee Requirement, to provide a valid and enforceable first priority (and perfected or equivalent) security interest in such Inventory (including any filings, notifications, registrations or other documentation deemed reasonably necessary by the Administrative Agent)); provided that no Credit Party shall be required to cause its legal counsel to delivery an opinion with respect to any document executed and delivered in connection with any Additional Inventory Security Action at the time of execution and delivery of such document or at any time thereafter; (for the avoidance of any doubt, if any additional Person owning Inventory located in the United Kingdom, France or Germany becomes a Dutch Borrower under this Agreement at any time, after the date, if any, when the Additional Inventory Security Actions have been satisfied in such jurisdiction, the Additional Inventory Security Actions shall be deemed no longer satisfied with respect to such jurisdiction until the date, if ever, upon which each such additional Dutch Borrower has satisfied the applicable requirements of this definition in such jurisdiction).


Additional Lenders” shall have the meaning provided in Section 2.15(b).

Additional Mortgages” shall have the meaning provided in Section 8.10(f).

Adjustment Date” shall mean the first day of each of April, July, October and January, as applicable.

Administrative Agent” shall mean the U.S. Administrative Agent, the Canadian Administrative Agent and/or the Dutch Administrative Agent, as the context may require, and shall include any successor to any such Administrative Agent appointed pursuant to Section 11.09; provided that in each instance in this Agreement or any other Credit Document that provides for an Administrative Agent to exercise its discretion (including the establishment or modification of Reserves or the exercise of Permitted Discretion) or provides for an Administrative Agent to provide any consent, determination or other judgment with regard to any action or inaction under this Agreement or any other Credit Document, the referenced, “Administrative Agent” shall mean the U.S. Administrative Agent.

Affiliate” of any specified Person shall mean, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise; provided, however, that neither the Administrative Agent nor any Lender (nor any Affiliate thereof) shall be considered an Affiliate of the Company or any Subsidiary thereof as a result of this Agreement, the extensions of credit hereunder or its actions in connection therewith.


Affiliate Transaction” shall have the meaning provided in Section 9.06.

Agent-Related Persons” shall mean the Administrative Agents, the Collateral Agent, their respective Affiliates and the officers, directors, employees, agents and attorneys-in-fact of the Administrative Agents, the Collateral Agent and their respective Affiliates.

Agents” shall mean the Administrative Agents and the Collateral Agent.

Agreement” shall mean this Credit Agreement.

Agreement Currency” shall have the meaning provided in Section 12.20.

Alternative Currency” shall mean Canadian Dollars, Euros, Sterling, Swiss Francs and any other currency (other than Dollars) that is approved in accordance with Section 1.08.

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

AML Legislation” shall have the meaning provided in Section 12.17.

Amort Cap” shall have the meaning provided in the definition of the term “Amortization Reserve”.

Amortization Reserve” shall mean any Reserve established or modified by the Administrative Agent in its Permitted Discretion in accordance with the provisions of Section 2.22 in the event that any Junior Debt instrument has an amortization schedule that requires annual principal payments exceeding 5.0% of the total principal amount of such Junior Debt (the “Amort Cap”) prior to the date that is 91 days after the Maturity Date, (it being understood that such Reserve shall be established with respect to amortization payments in excess of the Amort Cap against the assets included in the Borrowing Base on the date that is 91 days prior to each scheduled date of such Junior Debt amortization payments).

Anti-Terrorism Laws” shall mean any Requirement of Law relating to terrorism or money laundering, including the PATRIOT Act, the Criminal Code R.S.C. 1985, c. c-46, as amended, AML Legislation, the United Nations Act, R.S.C. 1985 c. u-2, as amended, Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism and the United Nations al-Qaida and Taliban Regulations promulgated under the United Nations Act, the PCMLTFA, the Canadian Sanction Laws and DMLTFPA.


Applicable Margin” shall mean the per annum percentage set forth below, as determined by the Average Availability as of the most recent Adjustment Date:

        U.S. Tranche A
      U.S. Tranche A Revolving Eurocurrency
      Revolving Base Rate Rate Loans, B/A
    Average Availability Loans, Canadian Base Equivalent Loans and
    (percentage of Line Rate Loans and Canadian European Base Rate
  Level Cap) Prime Loans Loans
  I > 67% 0.25% 1.25%
  II > 33% < 67% 0.50% 1.50%
  III < 33% 0.75% 1.75%

Until completion of the first full fiscal quarter after the Closing Date, the Applicable Margin shall be determined as if Level II were applicable. Thereafter, the Applicable Margin shall be subject to increase or decrease on each Adjustment Date based on Average Availability, as determined by the Administrative Agent’s system of record, and each such increase or decrease in the Applicable Margin shall be effective on the Adjustment Date occurring immediately after the last day of the fiscal quarter most recently ended. If (i) the Borrowers fail to deliver any Borrowing Base Certificate on or before the date required for delivery thereof or (ii) any Event of Default is continuing, then the Applicable Margin shall be determined as if Level III were applicable, from the first day of the calendar month following the date such Borrowing Base Certificate was required to be delivered or from the date such Event of Default occurred, as applicable, until two Business Days after the date of delivery of such Borrowing Base Certificate or when such Event of Default is no longer continuing. Notwithstanding the foregoing, the Applicable Margin for any U.S. Base Rate Loans or Eurocurrency Loans which is a U.S. Tranche B Revolving Loan shall be the Applicable Margin as determined in this definition plus 1.75%.

Appraisal” shall mean an appraisal, prepared on a basis reasonably satisfactory to the Administrative Agent (and, in the case of any appraisal of Real Property located in the United States, the U.S. Tranche A Revolving Lenders and in the case of any appraisal of Real Property located in Canada, the Canadian Revolving Lenders; provided that any such Lenders shall be deemed satisfied with such appraisals if no objection is made within ten (10) Business Days of delivery to such Lender), setting forth the Net Orderly Liquidation Value percentage of any Inventory or Equipment, or the Fair Market Value of any Real Property (as the case may be), which appraisal shall be prepared in accordance with this Agreement by an appraiser selected by the Administrative Agent in its reasonable discretion.

Approved Fund” shall mean any Person (other than a natural Person) engaged in making and holding revolving commitments of the type and under credit facilities similar to the credit facilities contemplated by this Agreement (including in one or more of the jurisdictions of organization of the Borrowers) in its ordinary course of business and consistent with its past practices that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

Asset Sale” shall mean (a) the sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions (including by way of a Sale-Leaseback Transaction), of property or assets of the Company or any of the Restricted Subsidiaries (each referred to in this definition as a “disposition”) or (b) the issuance or sale of Equity Interests of any Restricted Subsidiary (other than any issuance or sale of Preferred Stock of Restricted Subsidiaries issued in compliance withnot prohibited by Section 9.04 hereof), whether in a single transaction or a series of related transactions, in each case other than:


 (i)          any disposition of Investment Cash Equivalents or Investment Grade Securities or surplus, damaged, obsolete or worn-out assets in the ordinary course of business (including the abandonment or other disposition of intellectual property that is, in the reasonable judgment of the Company, no longer economically practicable or commercially reasonable to maintain or useful in any material respect, taken as a whole, in the conduct of the business of the Company and the Restricted Subsidiaries taken as a whole) or any disposition of inventory, services, accounts receivable, notes receivable or goods (or other assets) in the ordinary course of business or any disposition of Collateral or the discount or forgiveness of accounts receivable or the conversion of accounts receivable to notes receivable in the ordinary course of business in connection with the collection or compromise thereof, but in any event excluding Eligible Fee-Owned Real Estate and Eligible Equipment (to the extent any such Real Property or Equipment is at such time included in the Borrowing Base as Eligible Fee-Owned Real Estate and Eligible Equipment);

 (ii)          the disposition of all or substantially all of the assets of the Company in a manner permitted pursuant to Section 9.11 hereof or any disposition that constitutes a Change of Control pursuant to this Agreement;

 (iii)          the making of any Restricted Payment that is permitted to be made, and is made, under Section 9.03 hereof, including the making of any Permitted Investments;

 (iv)         any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of related transactions with an aggregate Fair Market Value of less than $5,000,000;

 (v)          any disposition of property or assets (including by way of liquidation or dissolution) or issuance or sale of securities by a Restricted Subsidiary of the Company to the Company or by the Company or a Restricted Subsidiary of the Company to another Restricted Subsidiary of the Company, provided that, with respect to any disposition of property or assets or issuance or sale of securities by a Credit Party to a Restricted Subsidiary of the Company that is not a Credit Party (1) the portion (if any) of any such sale, disposition or contribution of property made for less than Fair Market Value and (2) any noncash consideration received in exchange for any such sale, disposition or contribution of property, shall in each case constitute an Investment in such Restricted Subsidiary that must be permitted by Section 9.05;

 (vi)         any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;

 (vii)        foreclosures, condemnation, casualty, expropriation, forced disposition or any similar action with respect to assets or the granting of Liens not prohibited by this Agreement;

 (viii)       any financing transaction with respect to property (other than Real Property or Equipment that is at such time included in the Borrowing Base as Eligible Fee-Owned Real Estate and Eligible Equipment) built or acquired by the Company or any Restricted Subsidiary after the Closing Date, including Sale-Leaseback Transactions;

 (ix)         the sale, transfer or other disposition or unwinding of any Hedging Obligations;

 (x)          the abandonment of intellectual property rights in the ordinary course of business, which in the reasonable good faith determination of the Company are not material to the conduct of the business of the Company and the Restricted Subsidiaries taken as a whole;


 (xi)          the issuance by a Restricted Subsidiary of Preferred Stock or Disqualified Stock that is permitted by Section 9.04 hereof;

 (xii)         the granting of any option or other right to purchase, lease or otherwise acquire delinquent accounts receivable in the ordinary course of business;

 (xiii)        the lease, assignment, sub-lease, license or sub-license of any real or personal property in the ordinary course of business;

 (xiv)        any surrender or waiver of contract rights or settlement, release, recovery on or surrender of contract, tort or other claims in the ordinary course of business;

 (xv)         the licensing and sub-licensing of intellectual property or other general intangibles in the ordinary course of business or consistent with past practice;

 (xvi)        the granting of Liens not prohibited by Section 9.01 hereof;

 (xvii)       sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;

 (xviii)      the issuance of directors’ qualifying shares and shares issued to foreign nationals as required by applicable Requirement of Law;

 (xix)         transfers of property subject to Casualty Events upon receipt of the net cash proceeds of such Casualty Event; provided that any Investment Cash Equivalents received by the Company or any of the Restricted Subsidiaries in respect of such Casualty Event shall be deemed to be net cash proceeds of an Asset Sale, and such net cash proceeds shall be applied in accordance with Section 9.02 hereof; and

 (xx)          the Opta Minerals Disposition and the disposition of other assets specifically identified by the Company on Schedule 9.02(xx).

Assignment and Assumption Agreement” shall mean an Assignment and Assumption Agreement substantially in the form of Exhibit H (appropriately completed) or such other form as shall be reasonably acceptable to the Administrative Agent.

Availability Conditions” shall mean and be deemed satisfied only if:

 (a)          the Dollar Equivalent of each Lender’s U.S. Tranche A Revolving Exposure does not exceed such Lender’s U.S. Tranche A Revolving Commitment;

 (b)      each Lender’s U.S. Tranche B Revolving Exposure does not exceed such Lender’s U.S. Tranche B Revolving Commitment (for the avoidance of doubt, the U.S. Tranche B Revolving Loans shall only be made on the Second Amendment Effective Date, subject to the satisfaction of the conditions set forth in Section 5 of the Second Amendment and no U.S. Tranche B Revolving Loans shall be made after the Second Amendment Effective Date);

 (bc)        the Dollar Equivalent of each Lender’s Canadian Revolving Exposure does not exceed such Lender’s Canadian Revolving Commitment;


 (cd)          the Dollar Equivalent of each Lender’s Dutch Revolving Exposure does not exceed such Lender’s Dutch Revolving Commitment;

 (de)          the aggregate U.S. Tranche A Revolving Exposure does not exceed the U.S. Tranche A Borrowing Base then in effect;

 (f)         the aggregate U.S. Tranche B Revolving Exposure does not exceed the U.S. Tranche B Borrowing Base then in effect;

(eg) the aggregate Canadian Revolving Exposure does not exceed the Canadian Borrowing Base then in effect; and

 (fh)           the aggregate Dutch Revolving Exposure does not exceed the Dutch Borrowing Base then in effect.

Available Equity Amount Basket” shall mean, at any time (the “Available Equity Amount Reference Time”), a cumulative amount equal to (without duplication in the case of clauses (a) through (c)) (a) the net cash proceeds received from any new public or private issuances of Equity Interests of the Company (or any Restricted Subsidiary (in each case, other than Disqualified Stock) to the extent such proceeds are contributed to the Company or such Restricted Subsidiary as Qualified Equity Interests within the 30 days immediately preceding the Available Equity Amount Reference Time, plus (b) the amount of all capital contributions to the Company or any Restricted Subsidiary made in Investment Cash Equivalents (other than Disqualified Stock) and made within the 30 days immediately preceding the Available Equity Amount Reference Time, plus (c) the net cash proceeds received by the Company or any Restricted Subsidiary from Indebtedness and Disqualified Stock issuances that have been incurred after the Closing Date and which have been exchanged or converted into Qualified Equity Interests within the 30 days immediately preceding the Available Equity Amount Reference Time, minus (d) the sum, without duplication, and, without taking into account the proposed portion of the Available Equity Amount Basket calculated above to be used at the applicable Available Equity Amount Reference Time, of:

 (i)          the aggregate amount of any Investments made by the Borrower or any Restricted Subsidiary using the Available Equity Amount Basket after the Closing Date and prior to the Available Equity Amount Reference Time; and

 (ii)         the aggregate amount of any Restricted Payments and Restricted Junior Debt Prepayments made by the Borrower using the Available Equity Amount Basket after the Closing Date and prior to the Available Equity Amount Reference Time.

Available Equity Amount Reference Time” shall have the meaning provided in the definition of the term “Available Equity Amount Basket”.

Average Availability” shall mean, at any Adjustment Date, the average daily Total Excess Availability for the fiscal quarter period immediately preceding such Adjustment Date.

Average Usage” shall mean, at any Adjustment Date, the average daily aggregate Revolving Exposure for the applicable Subfacility (excluding any Revolving Exposure resulting from any outstanding Swingline Loans) for the fiscal quarter period immediately preceding such Adjustment Date divided by the Revolving Commitments in respect of such Subfacility at such time.


B/A Equivalent Loan” shall mean a Canadian Revolving Loan (other than a Canadian Prime Loan), or portion thereof, funded in Canadian Dollars and bearing interest calculated by reference to the Canadian B/A Rate.

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 Requirement of Law for such EEA Member Country.

BANA” shall mean Bank of America, N.A. and its permitted successors and permitted assigns.

Bank of Canada Overnight Rate” shall mean the Bank of Canada overnight rate, which is the rate of interest charged by the Bank of Canada on one-day loans to financial institutions, for such day.

Bank Product” shall mean any of the following products, services or facilities extended to any Borrower or any of Company’s Restricted Subsidiaries: (a) Cash Management Services; (b) products under Hedging Agreements; (c) commercial credit card and merchant card services; and (d) other banking products or services as may be requested by any Borrower, other than Letters of Credit.

Bank Product Debt” shall mean Indebtedness and other obligations (including Hedging Obligations and Cash Management Obligations) of a Borrower or any of Company’s Restricted Subsidiaries relating to Bank Products.

Bankruptcy Code” shall have the meaning provided in Section 10.05.

Base Rate Loans” shall mean Canadian Base Rate Loans, U.S. Base Rate Loans and/or European Base Rate Loans, as the context may require.

BIA” shall mean the Bankruptcy and Insolvency Act (Canada), as amended.

Board of Directors” shall mean, with respect to any Person, (i) in the case of any corporation, the board of directors of such Person, (ii) in the case of any limited liability company, the board of managers of such Person, (iii) in the case of any partnership, the Board of Directors of the general partner of such Person and (iv) in any other case, the functional equivalent of the foregoing.

Borrower Designation Notice” shall have the meaning provided in Section 2.21(a).

Borrower Designation Request and Assumption Agreement” shall have the meaning provided in Section 2.21(a).

Borrowers” shall mean the U.S. Borrowers, the Canadian Borrowers and the Dutch Borrowers, as the context requires.

Borrowing” shall mean the borrowing of the same Type and Class of Revolving Loan by the Borrowers from all the Lenders having Commitments on a given date (or resulting from a conversion or conversions on such date), having in the case of Eurocurrency Rate Loans, the same Interest Period and in the case of B/A Equivalent Loans, the same Contract Period; provided that U.S. Base Rate Loans, European Base Rate Loans, Canadian Base Rate and Canadian Prime Loans incurred pursuant to Section 3.01(b) shall be considered part of the related Borrowing of Eurocurrency Rate Loans or B/A Equivalent Loans, as applicable.


Borrowing Base” shall mean (a) with respect to the U.S. Tranche A Revolving Commitment, the U.S. Tranche A Borrowing Base, (b) with respect to the U.S. Tranche B Revolving Commitment, the U.S. Tranche B Borrowing Base, (c) with respect to the Canadian Revolving Commitment, the Canadian Borrowing Base, (cd) with respect to the Dutch Revolving Commitment, the Dutch Borrowing Base and (de) the sum of the U.S. Tranche A Borrowing Base, the U.S. Tranche B Borrowing Base, the Canadian Borrowing Base and the Dutch Borrowing Base, as the context may require. The Borrowing Base or any component thereof at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 8.15(a).

Borrowing Base Cash Equivalents” shall mean:

 (a)          Dollars, Canadian Dollars, Euro, Pounds Sterling or yen;

 (b)          securities issued or directly and fully and unconditionally guaranteed or insured by the U.S. government or Canada any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 12 months or less from the date of acquisition;

 (c)          certificates of deposit, time deposits and Eurodollar time deposits with maturities of 12 months or less from the date of acquisition, demand deposits, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any domestic or foreign commercial bank having capital and surplus of not less than $250,000,000 in the case of U.S. banks and $100,000,000 million (or the U.S. dollar equivalent as of the date of determination) in the case of non-U.S. banks;

 (d)          investments in fully collateralized repurchase agreements with a term of not more than 30 days for underlying securities of the types described in clauses (b) and (c) entered into with any financial institution or recognized securities dealer meeting the qualifications specified in clause (c) above; and

 (e)          commercial paper (i) maturing not more than 270 days after the date of purchase and (ii) issued by a corporation (other than a Credit Party or any Affiliate of a Credit Party) with a rating, at the time as of which any determination thereof is to be made, of “P-1” or higher by Moody’s or “A-1” or higher by S&P (or equivalent rating in the case of Borrowing Base Cash Equivalents held by a Foreign Subsidiary of the Company) .

Borrowing Base Certificate” shall mean a certificate of a Responsible Officer of the Company in substantially in the form of Exhibit D or such other form as shall be reasonably acceptable to the Administrative Agent.

Borrowing Base Reallocation Notice” shall have the meaning provided in the definition of the term “Canadian Borrowing Base”.

Borrowing Minimum” shall mean (a) in the case of a Borrowing denominated in Dollars, $1,000,000, (b) in the case of a Borrowing denominated in Canadian Dollars, C$1,000,000, (c) in the case of a Borrowing denominated in Euro, €1,000,000, (d) in the case of a Borrowing denominated in Sterling, £1,000,000, (e) in the case of a Borrowing denominated in Swiss Francs, 1,000,000 Fr. and (f) in the case of a Borrowing denominated in any other Alternative Currency, such amount as may be agreed by the applicable Administrative Agent and the Company.


Borrowing Multiple” shall mean (a) in the case of a Borrowing denominated in Dollars, $500,000, (b) in the case of a Borrowing denominated in Canadian Dollars, C$500,000, (c) in the case of a Borrowing denominated in Euro, €500,000, (d) in the case of a Borrowing denominated in Sterling, £500,000, (e) in the case of a Borrowing denominated in Swiss Francs, 500,000 Fr. and (f) in the case of a Borrowing denominated in any other Alternative Currency, such amount as may be agreed by the applicable Administrative Agent and the Company.

Business Day” shall mean (i) for all purposes other than as covered by clause (ii) below, any day except Saturday, Sunday and any day which shall be in New York City, Chicago, Toronto, Ontario, Canada, London, England or Amsterdam, the Netherlands a legal holiday or a day on which banking institutions are authorized or required by Requirement of Law or other government action to close and (ii) with respect to all notices and determinations in connection with, and payments of principal and interest on, Eurocurrency Rate Loans, any day which is a Business Day described in clause (i) above and which is also a day for trading by and between banks in the New York or London interbank Eurodollar market.

Canadian Administrative Agent” shall have the meaning provided in the preamble hereto and any successor thereto appointed pursuant to Section 11.09.

Canadian B/A Rate” shall mean, for any day, the rate of interest per annum equal to the average rate applicable to Canadian Dollar bankers’ acceptances having an identical or comparable term as the proposed B/A Equivalent Loan displayed and identified as such on the display referred to as the “CDOR Page” (or any display substituted therefor) of Reuters Monitor Money Rates Service as at approximately 10:00 a.m. Local Time on such day (or, if such day is not a Business Day, as of 10:00 a.m. Local Time on the immediately preceding Business Day); provided that if such rate does not appear on the CDOR Page at such time on such date, the rate for such date will be the average of the annual discount rate (rounded upward to the nearest whole multiple of 1/100 of 1%) as of 10:00 a.m. Local Time on such day at which two or more Canadian chartered banks listed on Schedule 1 of the Bank Act (Canada), as selected by the Canadian Administrative Agent is then offering to purchase Canadian Dollar bankers’ acceptances accepted by it having such specified term (or a term as closely as possible comparable to such specified term); and if the Canadian B/A Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.

Canadian Base Rate” shall mean, for any day, the per annum rate of interest equal to the greatest of (a) the rate of interest in effect for such day or so designated from time to time by BANA(acting through its Canada branch) as its “base rate” for commercial loans made by it in Dollars, such rate being a reference rate and not necessarily representing the lowest or best rate being charged to any customer; (b) the Federal Funds Rate for such day, plus 0.50% per annum; or (c) the Eurocurrency Rate for a one-month interest period as determined on such day, plus 1.00% . Any change in such rate announced by BANA (acting through its Canada branch) shall take effect at the opening of business on the day specified in the public announcement thereof.

Canadian Base Rate Loan” shall mean a Canadian Revolving Loan denominated in U.S. Dollars that bears interest based on the Canadian Base Rate.

Canadian Blocked Persons” shall have the meaning provided in the definition of the term “Eligible Account Debtor”.


Canadian Borrower” shall mean the Canadian Parent Borrower and each Canadian Subsidiary of the Company that executes a counterpart hereto and to any other applicable Credit Document to become a Borrower, whether on the Closing Date or after the Closing Date in accordance with Section 2.21.

Canadian Borrowing Base” shall mean, at the time of any determination, an amount equal to the sum of the Dollar Equivalent, without duplication, of

 (a)          (I) 85% of the aggregate Outstanding Balance of Eligible Canadian Accounts of the Canadian Borrowers (other than Eligible Insured and Letter of Credit Backed Accounts) at such time plus (II) 90% of the aggregate Outstanding Balance of Eligible Insured and Letter of Credit Backed Accounts of the Canadian Borrowers at such time; plus

 (b)          the lesser of (i) the lesser of 70% of the Cost or Fair Market Value of Eligible Canadian Inventory at such time and (ii) 85% of the Net Orderly Liquidation Value of Eligible Canadian Inventory at such time; plus

 (c)            the lesser of (x) 75% of the appraised Fair Market Value of Eligible Canadian Real Estate (the “Canadian Real Estate Component”), plus 85% of the appraised Net Orderly Liquidation Value of the Eligible Canadian Equipment (the “Canadian Equipment Component”), and (y) $50,000,000 (taken together with amounts included in the U.S. Tranche A Borrowing Base pursuant to clause  (c)          thereof) (the “Canadian Fixed Asset Amount”); provided that, commencing with the Borrowing Base calculation delivered for June 30, 2016: (i) the Canadian Real Estate Component shall be reduced quarterly based on a 15-year straight-line depreciation schedule, (ii) the Canadian Equipment Component shall be reduced quarterly based on a 7-year straight-line depreciation schedule and (iii) the Canadian Fixed Asset Amount shall be reduced quarterly pursuant to the depreciation schedule set forth as Schedule 1.01D hereto; provided, further, that, if a Fixed Asset Reappraisal Event occurs and the Company chooses to have the Canadian Borrowing Base calculated based on the updated information set forth in the relevant Appraisals (and including only (i) the Eligible Equipment so appraised and (ii) and Eligible Fee-Owned Real Estate so appraised and subject to the environmental assessments referred to in Section 8.02(d)), then, commencing with the Borrowing Base calculation delivered immediately after the date of such Fixed Asset Reappraisal Event until such time as a further additional Appraisal and environmental assessment is completed, if ever, on the applicable assets, the amortization of the Canadian Real Estate Component and the Canadian Equipment Component shall be reset so that (i) the Canadian Real Estate Component shall be reduced quarterly based on a 15-year straight-line depreciation schedule commencing with the first full fiscal quarter to occur after the date of any such Fixed Asset Reappraisal Event and the Canadian Equipment Component shall be reduced quarterly based on a 7-year straight-line depreciation schedule commencing with the first full fiscal quarter to occur after the date of any such Fixed Asset Reappraisal Event and (ii) the Canadian Fixed Asset Amount shall be reduced pursuant to an updated depreciation schedule commencing with the first full fiscal quarter to occur after the date of any such Fixed Asset Reappraisal Event of the type set forth as Schedule 1.01D, which will reflect the then current mix of Eligible Canadian Real Estate and Eligible Canadian Equipment; plus

 (d)          100% of the unrestricted Borrowing Base Cash Equivalents of the Canadian Borrowers (to the extent held in segregated Deposit Accounts in Canada maintained with BANA or any other Lender reasonably satisfactory to the Administrative Agent and, in each case, subject to Deposit Account Control Agreements in favor of the Collateral Agent) so long as, if such segregated Deposit Accounts are maintained with Lenders other than BANA, the Canadian Administrative Agent receives daily reports of the cash balances under such segregated Deposit Accounts reasonably acceptable to the Administrative Agent; plus


 (e)          if requested by the Company to the Administrative Agent as noted in the then current Borrowing Base Certificate (any such included request, a “Borrowing Base Reallocation Notice”), a portion of the positive amount, if any, by which the Dutch Borrowing Base and/or the U.S. Tranche A Borrowing Base exceed the total Dutch Revolving Exposure and/or U.S. Tranche A Revolving Exposure of all Lenders on the date of such request, may be reallocated to the Canadian Borrowing Base; provided that a Borrowing Base Reallocation Notice may only be delivered once in any calendar month, and shall set forth the requested reallocation of available Borrowing Base among Subfacilities, and which reallocation shall become effective upon confirmation by the Administrative Agent that such reallocation would not cause the Revolving Exposure under any Subfacility to exceed the Borrowing Base for the applicable Subfacility, and which reallocation shall remain effective thereafter until such time, if any, as a new Borrowing Base Reallocation Notice is received and has become effective; minus

 (f)          the portion of the Canadian Borrowing Base, if any, that is reallocated to the U.S. Tranche A Borrowing Base and/or the Dutch Borrowing Base pursuant to clause (e) of the definition of the term “U.S. Tranche A Borrowing Base” and/or clause (c) of the definition of the term “Dutch Borrowing Base,” respectively; minus

 (g)          any Reserves established or modified from time to time by the Administrative Agent in the exercise of its Permitted Discretion in accordance with the provisions of Section 2.22;

The Canadian Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 8.15(a), adjusted as necessary (pending the delivery of a new Borrowing Base Certificate) to reflect the impact of any Significant Asset Sale or the acquisition of any assets in a Permitted Acquisition or similar Investment (or any event or circumstance which, pursuant to the eligibility rules set forth in the definitions of Eligible Account, Eligible Equipment, Eligible Inventory, Eligible Insured and Letter of Credit Backed Accounts or Eligible Fee-Owned Real Estate, renders any such Account, Equipment, Inventory or Real Property eligible or ineligible for inclusion in the Canadian Borrowing Base after delivery of the most recent Borrowing Base Certificate). The Administrative Agent shall have the right (but no obligation) to review the computations in any Borrowing Base Certificate and if such computations have not been calculated in accordance with the terms of this Agreement, the Administrative Agent shall have the right, in consultation with the Company, to correct any such errors in such manner as it shall reasonably determine and the Administrative Agent will notify the Company in writing promptly after making any such correction.

Canadian Collateral” shall mean all the “Collateral” (or equivalent term) as defined in each Canadian Security Agreement and all other property (whether real, personal or otherwise) with respect to which any security interests have been granted (or purported to be granted) by any Canadian Credit Parties pursuant to any Canadian Security Document.

Canadian Collection Account” shall have the meaning provided in Section 8.15(c)(iii).

Canadian Credit Party” shall mean the Canadian Borrowers and each Canadian Subsidiary Guarantor.


Canadian Dilution Reserve” shall mean, at any date, (i) the amount (stated in percentage terms) by which the consolidated Dilution Ratio of Eligible Canadian Accounts exceeds five percent (5%) multiplied by (ii) the Eligible Canadian Accounts on such date.

Canadian Dollars” and “C$” shall mean the lawful currency of Canada.

Canadian Dominion Account” shall have the meaning provided in Section 8.15(c)(i).

Canadian Employee Benefits Legislation” shall mean the Pension Benefits Act (Ontario) and any regulations promulgated thereunder, and any Canadian federal, provincial or local counterparts or equivalents.

Canadian Equipment Component” shall have the meaning provided in the definition of the term “Canadian Borrowing Base”.

Canadian Fixed Asset Amount” shall have the meaning provided in the definition of the term “Canadian Borrowing Base”.

Canadian Issuing Bank” shall mean, as the context may require, (a) BANA (acting through its Canada branch) or any Affiliates or branches of BANA with respect to Canadian Letters of Credit issued by it; (b) any other Lender that may become an Issuing Bank pursuant to Sections 2.13(i) and 2.13(k), with respect to Canadian Letters of Credit issued by such Lender; (c) with respect to any Existing Letter of Credit set forth on Part A of Schedule 1.01B, the Lender which is the issuer of such Existing Letter of Credit; or (d) collectively, all of the foregoing.

Canadian LC Credit Extension” shall mean, with respect to any Canadian Letter of Credit, the issuance, amendment or renewal thereof or extension of the expiry date thereof, or the increase of the Stated Amount thereof.

Canadian LC Disbursement” shall mean a payment or disbursement made by a Canadian Issuing Bank pursuant to a Canadian Letter of Credit.

Canadian LC Documents” shall mean all documents, instruments and agreements delivered by a Canadian Borrower or any other Person to a Canadian Issuing Bank or the Administrative Agent in connection with any Canadian Letter of Credit.

Canadian LC Exposure” shall mean at any time the sum of (a) the aggregate undrawn Stated Amount of all outstanding Canadian Letters of Credit at such time plus (b) the aggregate principal amount of all Canadian LC Disbursements that have not yet been reimbursed at such time. The Canadian LC Exposure of any Revolving Lender at any time shall mean its Pro Rata Percentage of the aggregate Canadian LC Exposure at such time.

Canadian LC Obligations” shall mean the sum (without duplication) of (a) all amounts owing by the Canadian Borrowers in respect of any Canadian LC Disbursements (including any bankers’ acceptances or other payment obligations arising therefrom) and (b) the Stated Amount of all outstanding Canadian Letters of Credit.

Canadian LC Sublimit” shall mean $15,000,000.


Canadian Letter of Credit” shall mean any letters of credit issued or to be issued by the Canadian Issuing Bank under the Canadian Subfacility requested by a Canadian Borrower, if any, pursuant to Section 2.13.

Canadian Line Cap” shall mean, at any time, an amount that is equal to the lesser of (a) the Canadian Revolving Commitments and (b) the Canadian Borrowing Base.

Canadian Parent Borrower” shall have the meaning provided in the recitals hereto and shall include, any successor thereto permitted under Section 9.11.

Canadian Pension Plan” shall mean each pension, supplementary pension, retirement savings or other retirement income plan or arrangement of any kind, registered or non-registered, established, maintained or contributed to by the Company or another Canadian Credit Party for its or any of its current or previous Affiliates’ Canadian employees or former employees and includes for greater certainty “target benefit” and “multi- employer pension plans” as defined in the Pension Benefits Act (Ontario) and all Ontario Pension Plans but shall not include the Canada Pension Plan (CPP) as maintained by the government of Canada or the Quebec Pension Plan (QPP) as maintained by the government of Quebec or similar plan maintained by any other province in Canada.

Canadian Prime Loan” shall mean a Canadian Revolving Loan to the Canadian Borrowers denominated in Canadian Dollars which bears interest at a rate based upon the Canadian Prime Rate.

Canadian Prime Rate” shall mean, on any date, the per annum rate of interest equal to the greatest of (a) the rate of interest in effect for such day or so designated from time to time by BANA (acting through its Canada branch) as its “prime rate” for commercial loans made by it in Canada in Canadian Dollars, such rate being a reference rate and not necessarily representing the lowest or best rate being charged to any customer; (b) the Bank of Canada Overnight Rate for such day, plus 0.50%; or (c) the Canadian B/A Rate for a one month interest period as determined on such day plus 1.00% . Any change in such rate announced by BANA (acting through its Canada branch) shall take effect at the opening of business on the day specified in the public announcement thereof.

Canadian Priority Payables” shall mean, at any time, with respect to the Canadian Borrowing Base:

 (a)          the amount due on or prior to the date as of which the Canadian Borrowing Base is to be determined and remaining unpaid at the time of determination by any Canadian Borrower (or any other Person for which any Canadian Borrower has joint and several liability), for which each Canadian Borrower has an obligation to remit to a Governmental Authority or other Person pursuant to any applicable Requirement of Law, in respect of (i) pension fund obligations including wind-up deficiencies on any wind-up or termination of any Ontario Pension Plan and employee and employer pension plan contributions (including “normal cost,” “special payments” and any other payments in respect of any funding deficiency or shortfall), (ii) employment insurance, (iii) goods and services taxes, sales taxes, employee income taxes, excise tax and other taxes payable or to be remitted or withheld, (iv) workers’ compensation, (v) wages, salaries, commission or compensation, including vacation pay, and (vi) other like charges and demands; in each case in respect of which any Governmental Authority or other Person may claim a security interest, hypothecation, prior claim, trust or other claim or Lien ranking or capable of ranking in priority to or equal in priority with one or more of the Liens granted pursuant to the Security Documents (a “Priority Lien”); and


 (b)          the aggregate amount due on or prior to the date as of which the Canadian Borrowing Base is to be determined and remaining unpaid at the time of determination of any other liabilities of the Canadian Borrowers (or any other Person for which the Canadian Borrowers have joint and several liability) (i) in respect of which a trust has been or may be imposed on Collateral of any Canadian Borrower to provide for payment or (ii) which are secured by a security interest, hypothecation, prior claim, pledge, charge, right, or claim or other Lien on any Collateral of any Canadian Borrower, in each case pursuant to any applicable Requirement of Law and which trust, security interest, hypothecation, prior claim, pledge, charge, right, claim or other Lien ranks or is capable of ranking in priority to or equal in priority with one or more of the Liens granted in the Security Documents.

Canadian Priority Payables Reserve” shall mean, on any date of determination for the Canadian Borrowing Base, a reserve established from time to time by the Administrative Agent in its Permitted Discretion in an amount up to, but not in excess of, the amount of Canadian Priority Payables set forth on the most recent Borrowing Base Certificate (as the same may be reduced or increased by the next succeeding Borrowing Base Certificate) delivered to the Administrative Agent pursuant to Section 8.15(a).

Canadian Protective Advances” shall have the meaning provided in Section 2.18.

Canadian Real Estate Component” shall have the meaning provided in the definition of the term “Canadian Borrowing Base”.

Canadian Restricted Subsidiary” shall mean any Canadian Subsidiary that is a Restricted Subsidiary.

Canadian Revolving Borrowing” shall mean a Borrowing comprised of Canadian Revolving Loans.

Canadian Revolving Commitment” shall mean, with respect to each Canadian Revolving Lender, the commitment, if any, of such Lender to make Canadian Revolving Loans hereunder up to the amount set forth and opposite such Lender’s name on Schedule 2.01 under the caption “Canadian Revolving Commitment,” or in the Assignment and Assumption Agreement pursuant to which such Lender assumed its Canadian Revolving Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.07, (b) reduced or increased from time to time pursuant to Section 2.20 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 12.04. The aggregate amount of the Canadian Revolving Lenders’ Canadian Revolving Commitments on the ClosingSecond Amendment Effective Date is $15,000,000.

Canadian Revolving Exposure” shall mean, with respect to any Canadian Revolving Lender at any time, the aggregate principal amount at such time of all outstanding Canadian Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s Canadian LC Exposure, plus the aggregate amount of such Lender’s Canadian Swingline Exposure.

Canadian Revolving Lender” shall mean any Lender under the Canadian Subfacility. Each Canadian Revolving Lender (or any Affiliate or branch of any such Lender that is acting on behalf of such Lender) that is not resident in Canada or is deemed not to be resident in Canada for purposes of the ITA, shall be a financial institution that deals at arm’s length with the Canadian Borrowers for purposes of the ITA.


Canadian Revolving Loans” shall mean advances made to or at the instructions of a Canadian Borrower pursuant to Section 2.01(ii) hereof under the Canadian Subfacility.

Canadian Revolving Note” shall mean each revolving note substantially in the form of Exhibit B-2 hereto.

Canadian Sanction Laws” shall mean the Special Economic Measures Act of Canada and similar Requirements of Law of Canada in respect to sanctioned persons.

Canadian Security Agreements” shall mean, each of (i) the Canadian Security Agreement dated as of the Closing Date, by and between the Collateral Agent and each of the Canadian Credit Parties and (ii) the Deed of Hypothec governed by the laws of the province of Quebec, dated on or after the Closing Date, by and between the Collateral Agent and Tradin Organics USA LLC (the “Quebec Hypothec”).

Canadian Security Documents” shall mean each Canadian Security Agreement and, after the execution and delivery thereof, each Mortgage executed and delivered by any Canadian Credit Party with respect to any Real Property of such Canadian Credit Party and each other document executed and delivered by any Canadian Credit Party pursuant to which a Lien is granted (or purported to be granted) in favor of the Collateral Agent to secure the Obligations, and each document, if any, executed and delivered by any Canadian Credit Party pursuant to the Additional Account Security Actions.

Canadian Subfacility” shall have the meaning provided in the recitals hereto.

Canadian Subsidiary” shall mean any Subsidiary of the Company organized now or hereinafter under the laws of Canada or a province or territory thereof.

Canadian Subsidiary Guarantor” shall mean each Canadian Restricted Subsidiary (other than the Canadian Borrowers) in existence on the Closing Date (other than any Excluded Subsidiary), as well as each Canadian Restricted Subsidiary established, created or acquired after the Closing Date which becomes a party to this Agreement as a Guarantor in accordance with the Collateral and Guarantee Requirement.

Canadian Swingline Commitment” shall mean the commitment of the Canadian Swingline Lender to make loans under the Canadian Subfacility pursuant to Section 2.12, as the same may be reduced from time to time pursuant to Section 2.07.

Canadian Swingline Exposure” shall mean, at any time, the aggregate principal amount at such time of all outstanding Canadian Swingline Loans. The Canadian Swingline Exposure of any Canadian Revolving Lender at any time shall equal its Pro Rata Percentage of the aggregate Canadian Swingline Exposure at such time.

Canadian Swingline Lender” shall mean BANA (acting through its Canada branch) and its permitted successors and permitted assigns.

Canadian Swingline Loan” shall mean any Loan made by the Canadian Swingline Lender pursuant to Section 2.12.

Canadian Swingline Note” shall mean each swingline note substantially in the form of Exhibit B-5 hereto.


Capital Expenditures” shall mean, for any period, the aggregate of, without duplication, (a) all expenditures (whether paid in cash or accrued as liabilities) by the Company and its Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as additions during such period to property, plant or equipment reflected in the consolidated balance sheet of the Company and its Restricted Subsidiaries, (b) all Capitalized Software Expenditures and Capitalized Research and Development Costs during such period and (c) all fixed asset additions financed through Capitalized Lease Obligations incurred by the Company and its Restricted Subsidiaries and recorded on the balance sheet in accordance with GAAP during such period; provided that the term “Capital Expenditures” shall not include, without duplication:

 (i)          expenditures made in connection with the replacement, substitution, restoration or repair of assets to the extent financed from insurance proceeds or compensation awards paid on account of a Casualty Event,

 (ii)         the purchase price of equipment that is purchased simultaneously with the trade in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time,

 (iii)        the purchase of property, plant or equipment to the extent financed with the proceeds of Asset Sales or other dispositions outside the ordinary course of business,

 (iv)        rental expenses of the Company and its Restricted Subsidiaries under operating leases for real or personal property (including in connection with Sale-Leaseback Transactions),

 (v)         expenditures that are accounted for as capital expenditures by the Company or any Restricted Subsidiary and that actually are paid for, or reimbursed, by a Person other than the Company or any Restricted Subsidiary and for which neither the Company nor any Restricted Subsidiary has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such Person or any other Person (whether before, during or after such period, it being understood, however, that only the amount of expenditures actually provided or incurred by the Company or any Restricted Subsidiary in such period and not the amount required to be provided or incurred in any future period shall constitute “Capital Expenditures” in the applicable period),

 (vi)        the book value of any asset owned by the Company or any Restricted Subsidiary 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 (x) any expenditure necessary in order to permit such asset to be reused shall be included as a Capital Expenditure during the period in which such expenditure actually is made and (y) such book value shall have been included in Capital Expenditures when such asset was originally acquired,

 (vii)       any expenditures made as payments of the consideration for a Permitted Acquisition (or Investments similar to those made for a Permitted Acquisition) and any amounts recorded pursuant to purchase accounting required under GAAP pertaining to Permitted Acquisitions (or Investments similar to those made for a Permitted Acquisition),

 (viii)      any capitalized interest expense and internal costs reflected as additions to property, plant or equipment in the consolidated balance sheet of the Company and its Restricted Subsidiaries or capitalized as Capitalized Software Expenditures and Capitalized Research and Development Costs for such period, or


 (ix)          any non-cash compensation or other non-cash costs reflected as additions to property, plant and equipment, Capitalized Software Expenditures and Capitalized Research and Development Costs in the consolidated balance sheet of the Company and its Restricted Subsidiaries.

Capital Stock” shall mean:

 (a)          in the case of a corporation, corporate stock;

 (b)          in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 (c)          in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

 (d)          any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

Capitalized Lease Obligation” shall mean, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP; provided, however, that any obligations relating to a lease that was accounted for by the Company as an operating lease as of the Closing Date and any similar lease entered into after the Closing Date shall be accounted for as an operating lease and not a Capitalized Lease Obligation for all purposes under this Agreement.

Capitalized Research and Development Costs” shall mean, for any period, all research and development costs that are, or are required to be, in accordance with GAAP, reflected as capitalized costs on the consolidated balance sheet of the Company and its Restricted Subsidiaries.

Capitalized Software Expenditures” shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by the Company and its Restricted Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of the Company and the Restricted Subsidiaries.

Cash Collateralize” shall mean to pledge and deposit with or deliver to the applicable Administrative Agent for deposit into the LC Collateral Account, for the benefit of the applicable Administrative Agent, the applicable Issuing Banks and/or the applicable Swingline Lenders (as applicable) and the Lenders under the applicable Ex-FILO Subfacility, cash as collateral for the LC Exposure, Obligations in respect of Swingline Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), in each case under the applicable Ex-FILO Subfacility, in accordance with Section 2.13(j). “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 Period” shall mean (a) each period beginning on a date when Total Excess Availability shall have been less than the greater of (i) 10% of the Line Cap and (ii) $20,000,000, in either case for five consecutive Business Days, and ending on such date as Total Excess Availability shall have been at least equal to the greater of (i) 10% of the Line Cap and (ii) $20,000,000 for a period of 30 consecutive calendar days or (b) upon the occurrence of an Event of Default, the period that such Event of Default shall be continuing.

Cash Management Agreement” shall mean any agreement entered into from time to time by the Company or any of the Company’s Restricted Subsidiaries in connection with cash management services for collections, other Cash Management Services and for operating, payroll and trust accounts of such Person, including automatic clearing house services, controlled disbursement services, electronic funds transfer services, information reporting services, lockbox services, stop payment services and wire transfer services.

Cash Management Bank” shall mean any Lender, any Agent or any Affiliate of the foregoing at the time it provides any Cash Management Services or any Person that shall have become a Lender, an Agent or an Affiliate of a Lender or an Agent at any time after it has provided any Cash Management Services (including if such Cash Management Services were provided on the Closing Date, the Closing Date).

Cash Management Obligations” shall mean obligations owed by the Company or any Restricted Subsidiary to any Cash Management Bank in respect of Cash Management Services.

Cash Management Services” shall mean (a) commercial credit cards, merchant card services, purchase or debit cards, including non-card e-payables services, (b) treasury management services (including controlled disbursement, overdraft ACH fund transfer services, return items and interstate depository network services) and (c) any other demand deposit or operating account relationships or other cash management services, including any Cash Management Agreements.

Casualty Event” shall mean any event that gives rise to the receipt by the Company or any Restricted Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.

CCAA” shall mean the Companies’ Creditors Arrangement Act (Canada), as amended.

CDOR” shall have the meaning provided in the definition of the term “Eurocurrency Rate”.

CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as the same has been amended and may hereafter be amended from time to time, 42 U.S.C. § 9601 et seq.

CFC” shall mean a “controlled foreign corporation” within the meaning of Section 957 of the Code that is a direct or indirect Subsidiary of the U.S. Parent Borrower.

Change of Control” shall mean the occurrence of any of the following after the Closing Date:

 (a)          the sale, lease, transfer, conveyance or other disposition, in one or a series of related transactions (other than by merger, consolidation or amalgamation), of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person other than a Credit Party;


 (b)          the Company becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), in a single transaction or in a related series of transactions, by way of merger, amalgamation, consolidation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) of more than 50% of the total voting power of the Voting Stock of the Company; or

(c)           the Company ceasing to own 100% of the total voting power of the Voting Stock of the U.S. Parent Borrower; or

 (cd)        either the U.S. Parent Borrower or the Dutch Parent Borrower ceasing to be a Wholly-Owned Subsidiary of the Company.

Notwithstanding the preceding, a conversion of the Company or any of the Restricted Subsidiaries from a limited partnership, corporation, limited liability company or other form of entity to a limited partnership, corporation, limited liability company or other form of entity or an exchange of all of the outstanding Equity Interests in one form of entity for Equity Interests for another form of entity shall not constitute a Change of Control, so long as following such conversion or exchange the “persons” (as that term is used in Section 13(d)(3) of the Exchange Act) who beneficially owned the Capital Stock of the Company immediately prior to such transactions continue to beneficially own in the aggregate more than 50% of the Voting Stock of such entity and no “person,” beneficially owns more than 50% of the Voting Stock of such entity.

Class” (a) when used with respect to Lenders, shall refer to whether such Lender has a Loan, Protective Advances or Commitment with respect to the U.S. Tranche A Subfacility, the U.S. Tranche B Subfacility, the Canadian Subfacility, the Dutch Subfacility or an Incremental FILO Facility, as applicable, (b) when used with respect to Commitments, refers to whether such Commitments are U.S. Tranche A Revolving Commitments, U.S. Tranche B Revolving Commitments, Canadian Revolving Commitments, Dutch Revolving Commitments, Extended Revolving Commitments under a particular Subfacility or Commitments under any Incremental FILO Facility and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Loans under the U.S. Tranche A Subfacility, Loans under the U.S. Tranche B Subfacility, Loans under the Canadian Subfacility, Loans under the Dutch Subfacility, Extended Revolving Loans under a particular Subfacility, Loans under an Incremental FILO Facility or Protective Advances under the U.S. Tranche A Subfacility, U.S. Tranche B Subfacility, the Canadian Subfacility or the Dutch Subfacility.

Closing Date” shall mean February 11, 2016.

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

Collateral” shall mean (i) the “Collateral” as defined in the Security Agreements, (ii) all the “Collateral” or “Pledged Assets” (or similar term) as defined in any other Security Documents, (iii) Mortgaged Property and (iv) any other assets pledged or in which a Lien is granted (or purported to be granted), in each case, pursuant to any Security Document or is required to be granted in accordance with the Collateral and Guarantee Requirement.

Collateral Access Agreement” shall mean any landlord waiver, bailee letter or other agreement, in form and substance reasonably satisfactory to the Administrative Agent, between the Collateral Agent and any third party (including any landlord, bailee, consignee, customs broker or other similar Person) in possession of any Collateral or any landlord for any Real Property of any Borrower where any Collateral is located.


Collateral Agent” shall mean BANA, as collateral agent, and shall include any permitted successors and permitted assigns.

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

 (a)          the Collateral Agent shall have received each Security Document required to be delivered on the Closing Date pursuant to Section 5.09 or, after the Closing Date, pursuant to Section 8.10 or Section 8.11 at such time required by such section to be delivered in each case, duly executed by each Credit Party thereto;

 (b)          all Obligations shall have been unconditionally guaranteed (the “Guarantees”) by (i) each Wholly-Owned Restricted Subsidiary of the Company that is a Domestic Subsidiary, a Canadian Subsidiary, or a Dutch Subsidiary (other than in any such case, any such Subsidiary that is (x) a Borrower or (y) an Excluded Subsidiary) and (ii) each Borrower (provided that no Borrower shall provide a Guarantee with respect to its own Obligations);

 (c)          the Obligations and the Guarantees shall have been secured pursuant to the Security Agreements by a security interest in (i) all the Equity Interests of the Borrowers (other than Equity Interests of the Company and any non-Voting Stock of the U.S. Parent Borrower that is not held directly by a Credit Party) and (ii) all Equity Interests (other than Excluded Assets) held directly by any Borrower or any Subsidiary Guarantor in any Subsidiary (and, in each case, the Collateral Agent shall have received certificates or other instruments representing all such Equity Interests (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank, if applicable);

 (d)          except to the extent otherwise provided hereunder or under any Security Document, the Obligations and the Guarantees shall have been secured by a perfected security interest in, and pledges on, substantially all tangible and intangible assets of the Borrowers and each Subsidiary Guarantor (including, without limitation, accounts receivable, inventory, equipment, investment property, Intellectual Property, other general intangibles, owned (but not leased) real property and proceeds of the foregoing), in each case, with the priority required by the relevant Security Documents required by the Collateral and Guarantee Requirement and any such security interests in the Collateral shall be subject to the terms of the Intercreditor Agreement, to the extent applicable; provided that security interests in Real Property shall be limited to the Mortgaged Properties;

 (e)          none of the Collateral shall be subject to any Liens other than Liens permitted by Section 9.01;

 (f)          the Collateral Agent shall have received (i) counterparts of a Mortgage with respect to each Material Real Property required to be delivered pursuant to Section 5.15 (if applicable), Section 8.10 and Section 8.11 duly executed and delivered by the record owner of such property and (ii) such other Related Real Estate Documents with respect to each Material Real Property required to be delivered pursuant to Section 5.15 (if applicable), Section 8.03, Section 8.10 and Section 8.11; provided that, for Real Property that is designated as located in a Special Flood Hazard Area, if after use of commercially reasonable efforts, the applicable Credit Party is unable to obtain evidence of flood insurance that is reasonably acceptable to the Administrative Agent or the U.S. Revolving Lenders required to be delivered pursuant to Section 5.15, Section 8.03(b), Section 8.10 and Section 8.11, then no Mortgage or Related Real Estate Documents shall be required to be delivered with respect to such Real Property for which the evidence of flood insurance was not acceptable to the Administrative Agent or the U.S. Revolving Lenders; and


 (g)          (i) except with respect to intercompany Indebtedness, if any, if Indebtedness for borrowed money in a principal amount in excess of $2,500,000 (individually) is owing to any Credit Party and such Indebtedness is evidenced by a promissory note, the Collateral Agent shall have received such promissory note, together with undated instruments of transfer with respect thereto endorsed in blank and (ii) with respect to intercompany Indebtedness, all Indebtedness of the Company and each of its Restricted Subsidiaries that is owing to any Credit Party (or Person required to become a Credit Party) shall be evidenced by the Subordinated Intercompany Note, and the Collateral Agent shall have received such Subordinated Intercompany Note duly executed by the Company, each such Restricted Subsidiary and each such other Credit Party, together with undated instruments of transfer with respect thereto endorsed in blank;

The foregoing definition shall not require the creation or perfection of pledges of, or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as the Administrative Agent and the Company agree in writing that the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Secured Creditors therefrom.

The Administrative Agent and the Collateral Agent may grant extensions of time for the provision or perfection of security interests in, or the obtaining of title insurance and surveys with respect to, particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Credit Parties on such date) where the Administrative Agent reasonably determines, in consultation with the Company, that provision or perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Security Documents.


Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Credit Document to the contrary (but without limiting (x) any requirement to take any Additional Account Security Action set forth in the definition of the term “Eligible Accounts” solely for the purpose of determining the eligibility of Accounts originated by any Credit Party that are owed from Account Debtors located in any Account Debtor Approved Country (other than the United States, Canada or the Netherlands) for inclusion in the applicable Borrowing Base or (y) any requirement to take any Additional Inventory Security Action set forth in the definition of the term “Eligible Inventory” solely for the purpose of determining the eligibility of any Inventory owned by a Dutch Credit Party and located in the United Kingdom, France or Germany for inclusion in the Dutch Borrowing Base), (a) with respect to leases of Real Property entered into by any Credit Party, such Credit Party shall not be required to take any action with respect to creation or perfection of security interests with respect to such leases (including requirements to deliver landlord lien waivers, estoppels and collateral access letters without limiting the provisions set forth in the definition of the term “Eligible Inventory”), (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 Administrative Agent, the Collateral Agent and the Company, (c) the Collateral and Guarantee Requirement shall not apply to any of the following assets: (i) any fee-owned Real Property that is not a Material Real Property and any leasehold interests in Real Property, (ii) any governmental licenses or state or local franchises, charters or authorizations, to the extent a security interest in any such licenses, franchise, charter or authorization would be prohibited or restricted thereby (including any legally effective prohibition or restriction) after giving effect to the applicable anti-assignment clauses of the UCC, PPSA and other applicable Requirements of Law in the Netherlands, other than the proceeds and products thereof the assignment of which is expressly deemed effective under the UCC, PPSA or any similar applicable Requirements of Law in the Netherlands notwithstanding such prohibition, (iii) motor vehicles, aircraft, aircraft engines and other assets and personal property subject to certificates of title to the extent a Lien thereon cannot be perfected by the filing of a UCC or PPSA financing statement or equivalent filing under other similar Requirements of Law in the Netherlands, (iv) letter of credit rights (except to the extent perfection can be accomplished through the filing of UCC-1, PPSA or RDPRM financing statements or equivalent filing under other similar the Requirements of Law in the Netherlands), (v) commercial tort claims with an individual value of less than $2,500,000, (vi) assets and personal property for which a pledge thereof or a security interest therein is prohibited by applicable Requirements of Law (including any legally effective requirement to obtain the consent of any Governmental Authority) after giving effect to the applicable anti-assignment clauses of the UCC, PPSA and other applicable Requirements of Law in the Netherlands, other than the proceeds and products thereof the assignment of which is expressly deemed effective under the UCC, PPSA or any similar applicable Requirements of Law in the Netherlands notwithstanding such prohibition, (vii) any “margin stock” and Equity Interests of any Person (other than any direct Wholly Owned Restricted Subsidiary of any Borrower or any Subsidiary Guarantor) to the extent, and for so long as, the pledge of such Equity Interests would be prohibited by the terms of any applicable joint venture agreement or shareholders’ agreement applicable to such Person, after giving effect to the applicable anti-assignment clauses of the UCC, PPSA and other applicable Requirements of Law, (viii) Equity Interests of any Unrestricted Subsidiary (including Equity Interests of Opta Minerals Inc.) and Equity Interests of Coöperatie SunOpta U.A., (ix) any Equity Interests of any CFC or FSHCO directly owned by any U.S. Credit Party that are voting Capital Stock of such CFC or FSHCO in excess of 65% of the outstanding Equity Interests that are voting Capital Stock of such CFC or FSHCO (including for the avoidance of doubt, any instrument treated as Capital Stock for U.S. federal income tax purposes), (x) assets and personal property to the extent a security interest in such assets or personal property would result in material adverse tax consequences as reasonably determined by the Company in consultation with the Administrative Agent and notified in writing by the Company to the Administrative Agent, (xi) any intent-to-use trademark application prior to the filing of a “Statement of Use” with respect thereto, (xii) any Contractual Requirement, license or permit to which a Credit Party or any of their property (including personal property) is subject, and any property subject to a purchase money security interest, capital lease or similar arrangement with any Person if, to the extent, and for so long as, the grant of a Lien thereon to secure the Obligations constitutes a breach of, a violation of, or a default under, or invalidation of, or creates a right of termination in favor of any party (other than any Borrower or Guarantor) to, such Contractual Requirement, license, permit, purchase money arrangement, capital lease or similar arrangement (but only to the extent any of the foregoing is not rendered ineffective by, or is otherwise unenforceable under, the UCC, PPSA or any similar applicable Requirement of Law in the Netherlands), (xiii) any Deposit Accounts described in clause (i) or (ii) of the definition of the term “Excluded Accounts” and (xiv) any property or assets acquired after the Closing Date (including any property acquired through any acquisition, consolidation, amalgamation or merger of a Person, but excluding any assets or property included in the Borrowing Base), if at the time of such acquisition, the granting of a security interest therein or a pledge thereof is prohibited by any Contractual Requirement to the extent and for so long as such Contractual Requirement prohibits such security interest or pledge (the assets excluded pursuant to this clause (c) and pursuant to the second preceding paragraph of this definition, collectively, the “Excluded Assets”; provided that notwithstanding anything herein to the contrary, Excluded Assets shall not include any proceeds, replacements or substitutions of Collateral (unless such proceeds, replacements or substitutions otherwise constitute Excluded Assets), (d) control agreements shall not be required with respect to any Deposit Accounts, securities accounts, futures accounts or commodities accounts except to the extent set forth in Section 8.15, (e) share certificates of Immaterial Subsidiaries shall not be required to be delivered, (f) pledges over shares of Immaterial Subsidiaries owned by the Dutch Credit Parties shall not be required to be delivered, (g) promissory notes evidencing Indebtedness for borrowed money in a principal amount less than or equal to $2,500,000 (individually) owing to any Credit Party shall not be required to be delivered and (h) no actions shall be required to be taken outside the United States, Canada and the Netherlands to (i) create a security interest in assets titled or located outside of the United States, Canada and the Netherlands or (ii) perfect or make enforceable any security interest in any such assets, other than actions required to be taken in the United Kingdom pursuant to Section 8.15 to create and perfect or make enforceable any security interest in the Dutch Collection Account or the Dutch Dominion Account.


Collection Accounts” shall mean, collectively, the U.S. Collection Accounts, the Canadian Collection Accounts and the Dutch Collection Accounts.

Commitment” shall mean, with respect to any Lender, such Lender’s Revolving Commitment, LC Commitment or Swingline Commitment, or any Extended Revolving Commitment.

Commitment Adjustment Date” shall have the meaning provided in Section 2.20(a).

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.

Company” shall have the meaning provided in the preamble hereto and shall include, if applicable, any Successor Company.

Compliance Certificate” shall mean a certificate of the Responsible Officer of the Company substantially in the form of Exhibit G hereto or such other form as may be reasonably satisfactory to the Administrative Agent.

Consolidated Cash Interest Expense” shall mean “Consolidated Interest Expense,” but calculated excluding (i) any non-cash interest or deferred financing costs, (ii) any amortization or write-down of deferred financing fees, debt issuance costs including original issue discount, discounted liabilities, commissions, fees and expenses, (iii) any expensing of bridge, commitment and other financing fees, (iv) penalties and interest related to Taxes, but including any cash costs otherwise excluded by the definition thereof and (v) any capitalized interest or payment in kind interest.

Consolidated Depreciation and Amortization Expense” shall mean with respect to any Person for any period, the total amount of depreciation and amortization expense of such Person, including the amortization of intangible assets, deferred financing costs and fees, debt issuance costs, commissions, fees and expenses of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.

Consolidated EBITDA” shall mean, with respect to any Person for any period, the Consolidated Net Income of such Person for such period

 (1)          increased (without duplication) by the following, in each case (other than clause (m)) to the extent deducted (and not added back) in determining Consolidated Net Income for such period:

(a)          provision for taxes based on income or profits or capital, including, without limitation, federal, state, provincial, franchise, excise and similar taxes and foreign withholding taxes (including any future taxes or other levies which replace or are intended to be in lieu of such taxes and any penalties and interest related to such taxes or arising from tax examinations) and the net tax expense associated with any adjustments made pursuant to clauses (1) through (17) of the definition of the term “Consolidated Net Income”; plus


(b)          Indenture Fixed Charges of such Person for such period (including (w) net losses on Hedging Agreements or other derivative instruments entered into for the purpose of hedging interest rate risk, net of interest income and gains with respect to such obligations, (x) bank fees and other financing fees, (y) costs of surety bonds in connection with financing activities and (z) amounts excluded from Consolidated Interest Expense as set forth in clauses (1)(v) through (z) in the definition thereof); plus

(c)          Consolidated Depreciation and Amortization Expense of such Person for such period; plus

(d)          the amount of any restructuring charges, accruals or reserves, equity-based or non-cash compensation charges or expenses including any such charges or expenses arising from grants of stock appreciation or similar rights, stock options, restricted stock or other rights, retention charges (including charges or expenses in respect of incentive plans), start-up or initial costs for any project or new production line, division or new line of business or other business optimization expenses or reserves including, without limitation, costs or reserves associated with improvements to IT and accounting functions, integration and facilities opening costs or any one-time costs incurred in connection with acquisitions and Investments and costs related to the closure and/or consolidation of facilities; provided that the aggregate amount added pursuant to this clause (d), when taken together with the aggregate amounts added pursuant to clause (m) below, for any Test Period shall not exceed an amount equal to 20.0% of Consolidated EBITDA for such Test Period prior to giving effect to any adjustments pursuant to this clause (d) and clause (m) below; plus

(e)          any other non-cash charges (including (i) any write-offs or write-downs, (ii) losses on sales, disposals or abandonment of, or any improvement charges or asset write off related to, intangible assets, long-lived assets and investments in debt and equity securities and (iii) all losses from investments) (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, (A) the Company may elect not to add back such non-cash charge in the current period and (B) to the extent the Company elects to add back such non-cash charge, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period); plus

(f)          the amount of any non-controlling or minority interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any non-Wholly Owned Subsidiary; plus

(g)          any costs or expense incurred by the Company or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of the Company or net cash proceeds of an issuance of Equity Interest of the Company (other than Disqualified Stock); plus


(h)          cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to clause (2) below for any previous period and not added back; plus

(i)          any net loss from disposed, abandoned or discontinued operations; plus

(j)          any (i) salary, benefit and other direct savings resulting from workforce reductions by such Person implemented or reasonably expected to be implemented within the 12 months following such period, (ii) severance or relocation costs or expenses of such Person during such period and (iii) costs and expenses incurred after the Closing Date related to employment of terminated employees incurred by such Person during such period; plus

(k)          any proceeds from business interruption, casualty or liability insurance received by such Person during such period, to the extent the associated losses arising out of the event that resulted in the payment of such business interruption insurance proceeds were included in computing Consolidated Net Income; plus

(l)          to the extent actually reimbursed (and not otherwise included in arriving at Consolidated Net Income), expenses incurred to the extent covered by indemnification provisions in any agreement in connection with any acquisition or merger involving the Company or any of its Subsidiaries; plus

(m)          the amount of net cost savings and synergies projected by the Company in good faith to be realized as a result of specified actions taken or with respect to which substantial steps have been taken (in the good faith determination of the Company) and which are expected to be realized within 12 months of the date thereof in connection with the Transactions, future acquisitions and cost saving, restructuring and other similar initiatives (which cost savings shall be added to Consolidated EBITDA until fully realized and calculated on a pro forma basis as though such cost savings had been realized during such period from such actions); provided that such cost savings are reasonably identifiable and factually supportable; provided that the aggregate amount added back pursuant to this clause (m), when taken together with the aggregate amounts added pursuant to clause (d) above, for any Test Period shall not exceed an amount equal to 20.0% of Consolidated EBITDA for such Test Period prior to giving effect to any adjustments pursuant to this clause (m) and clause (d) above;

 (2)          decreased (without duplication) by the following, in each case to the extent included in determining Consolidated Net Income for such period:

(a)          non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period; plus

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

(c)          any net income from disposed or discontinued operations.


Consolidated Fixed Charge Coverage Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated EBITDA for the Test Period most recently completed on or prior to such date of determination minus the sum of (i) the aggregate amount of all Capital Expenditures made by the Company and its Restricted Subsidiaries during such Test Period (other than Capital Expenditures to the extent financed with net cash proceeds received by the Company or any of its Restricted Subsidiaries from issuances of Equity Interests, net cash proceeds received by the Company or any of its Restricted Subsidiaries from dispositions or Casualty Events, or net cash proceeds received by the Company or any of its Restricted Subsidiaries from the incurrence of long-term Indebtedness, but including Capital Expenditures to the extent financed with proceeds of Loans) plus (ii) the amount of all cash payments made during such Test Period made by Company and its Restricted Subsidiaries in respect of income taxes (net of cash income tax refunds received during such Test Period) (excluding such cash payments related to asset sales not in the ordinary course of business) to (b) Consolidated Fixed Charges for such Test Period.

Consolidated Fixed Charges” shall mean, as of any date of determination, the sum determined on a consolidated basis of (a) Consolidated Cash Interest Expense of the Company and its Restricted Subsidiaries for the Test Period most recently completed on or prior to such date of determination plus (b) the scheduled principal payments made during such Test Period on all Indebtedness for borrowed money and Capital Lease Obligations of the Company and its Restricted Subsidiaries (other than payments by the Company or any of its Restricted Subsidiaries to the Company or to any other Restricted Subsidiary) due and payable in cash during such Test Period plus (c) the aggregate amount of all regularly scheduled Restricted Payments paid in cash by the Company with respect to its Equity Interests during such Test Period and (except solely for purposes of calculating the Consolidated Fixed Charge Coverage Ratio in connection with Section 9.119.12) all other Restricted Payments made in cash during such period in reliance on Section 9.03(b)(ix), Section 9.03(b)(x) to the extent such Restricted Payments are made in reliance of clause (c) of the definition of the “Available Equity Amount Basket” or Section 9.03(b)(xi).

Consolidated Interest Expense” shall mean, with respect to any Person for any period, without duplication, the sum of:

 (1)          consolidated interest expense in respect of Indebtedness of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest charges (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP), (d) the interest component of Capitalized Lease Obligations, (e) net payments, if any, made (less net payments, if any, received), pursuant to interest rate Hedging Agreements with respect to Indebtedness, and excluding (v) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting in connection with any acquisition, (w) penalties and interest relating to taxes, (x) any “additional interest” or “liquidated damages” with respect to other securities for failure to timely comply with registration rights obligations, (y) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses and discounted liabilities and (z) any accretion of accrued interest on discounted liabilities); plus

 (2)          consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less

 (3)          interest income of such Person and its Restricted Subsidiaries for such period.


For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.

Consolidated Net Income” shall mean, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided that, without duplication,

 (1)          any net after-tax effect of extraordinary, non-recurring or unusual gains, losses or charges (including all fees and expenses relating thereto and including relating to any multi-year strategic initiatives), including, without limitation, expenses incurred in connection with the Transactions, any expenses relating to severance, relocation costs, integration costs, transition costs, preopening, opening, consolidation and closing costs for facilities, one-time compensation costs, signing, retention and completion bonuses, costs incurred in connection with any strategic initiatives, costs incurred in connection with acquisitions, other business optimization expenses (including costs and expenses relating to business optimization programs and new systems design, retention charges, system establishment costs and implementation costs) and operating expenses attributable to the implementation of cost-savings initiatives, restructuring and duplicative running costs and curtailments or modifications to pension and post-retirement employee benefit plans shall be excluded;

 (2)          the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies during such period shall be excluded;

 (3)          any net after-tax effect of gains or losses (less all fees, expenses and charges relating thereto) attributable to asset dispositions or abandonments (including any disposal of abandoned or discontinued operations) or the sale or other disposition of any Capital Stock of any Person other than in the ordinary course of business as determined in good faith by the Company shall be excluded;

 (4)          the Net Income for such period of any Person that is an Unrestricted Subsidiary or any Person that is not a Subsidiary or that is accounted for by the equity method of accounting shall be excluded; provided that Consolidated Net Income of the Company shall be increased by the amount of dividends or distributions or other payments that are actually paid in Investment Cash Equivalents (or to the extent converted into Investment Cash Equivalents) to the Company or a Restricted Subsidiary thereof in respect of such period and the net losses of any such Person shall only be included to the extent funded with cash from the Company or any Restricted Subsidiary;

 (5)          effects of adjustments (including the effects of such adjustments pushed down to the Company and the Restricted Subsidiaries) in the inventory (including any impact of changes to inventory valuation policy methods, including changes in capitalization of variances), property and equipment, software, goodwill, other intangible assets, in-process research and development, deferred revenue, debt line items and other noncash charges in such Person’s consolidated financial statements pursuant to GAAP resulting from the application of recapitalization accounting or, if applicable, purchase accounting in relation to any consummated acquisition or joint venture investment or the amortization or write-off or write-down of any amounts thereof, net of taxes, shall be excluded;


 (6)          any net after-tax effect of income (loss) from the early extinguishment or conversion of (a) Indebtedness, (b) Hedging Obligations or (c) other derivative instruments shall be excluded;

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

 (8)          any non-cash compensation charge or expense, including any such charge or expense arising from the grants of stock appreciation or similar rights, stock options, restricted stock, profit interests or other rights or equity or equity-based incentive programs (“equity incentives”) shall be excluded and any cash charges associated with the equity incentives or other long-term incentive compensation plans, rollover, acceleration, or payout of Equity Interests by management, other employees or business partners of the Company, shall be excluded;

 (9)          any fees, expenses or charges incurred during such period, or any amortization thereof for such period, in connection with any acquisition, recapitalization, Investment, asset sale, disposition, incurrence or repayment of Indebtedness (including such fees, expenses or charges related to any Indebtedness, the offering and issuance of the Second Lien Notes and other securities and the syndication and incurrence of any debt facilities or other financing arrangements (including, without limitation, commercial paper facilities or indentures) providing for revolving credit loans, term loans, letters of credit or other long term indebtedness), issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument (including any amendment or other modification of this Agreement, the Second Lien Loan Agreement or the Second Lien Notes Indenture) and including, in each case, any such transaction consummated on or prior to the Closing Date and any such transaction undertaken but not completed, and any charges or non-recurring merger costs incurred during such period as a result of any such transaction, in each case whether or not successful or consummated (including, for the avoidance of doubt the effects of expensing all transaction related expenses in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic No. 805, Business Combinations), shall be excluded;

 (10)        accruals and reserves that are established or adjusted twelve months after the closing of any acquisition that are so required to be established as a result of such acquisition in accordance with GAAP or changes as a result of modifications of accounting policies shall be excluded;

 (11)        any expenses, charges or losses to the extent covered by insurance or indemnity and actually reimbursed, or, so long as such Person has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount is in fact reimbursed within 365 days of the date of the insurable or indemnifiable event (net of any amount so added back in any prior period to the extent not so reimbursed within the applicable 365-day period), shall be excluded;

 (12)        any noncash compensation expense resulting from the application of Accounting Standards Codification Topic No. 718, Compensation—Stock Compensation, shall be excluded;


 (13)          any net unrealized gain or loss (after any offset) resulting in such period from Hedging Obligations and the application of FASB Accounting Standards Codification 815 shall be excluded;

 (14)          any net unrealized gain or loss (after any offset) resulting in such period from currency translation and transaction gains or losses including those related to currency remeasurements of Indebtedness (including any net loss or gain resulting from Hedging Obligations for currency exchange risk) and any other monetary assets and liabilities and any other foreign currency translation gains and losses, to the extent such gain or losses are non-cash items, shall be excluded;

 (15)          any adjustments resulting for the application of Accounting Standards Codification Topic No. 460, Guaranty, or any comparable regulation, shall be excluded;

 (16)          effects of adjustments to accruals and reserves during a prior period relating to any change in the methodology of calculating reserves for returns, rebates and other chargebacks, shall be excluded; and

 (17)          earn-out and contingent consideration obligations (including to the extent accounted for as bonuses or otherwise) and adjustments thereof and purchase price adjustments, shall be excluded.

In addition, to the extent not already included in the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include the amount of proceeds received from business interruption insurance and reimbursements of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any acquisition, Investment or any sale, conveyance, transfer or other disposition of assets permitted under this Agreement.

Consolidated Secured Leverage Ratio” shall mean, as of any date of determination, the ratio of (a) all Indebtedness of the Company and the Restricted Subsidiaries that is secured by a Lien on any assets of the Company and the Restricted Subsidiaries as of the last day of the Test Period most recently completed on or prior to such date of determination minus Investment Cash Equivalents (in each case, free and clear of all Liens, other than Permitted Liens) included on the consolidated balance sheet of the Company as of the end of such Test Period to (b) Consolidated EBITDA of the Company and the Restricted Subsidiaries for such Test Period, in each case (i) with such pro forma adjustments to Investment Cash Equivalents and Consolidated EBITDA and (ii) giving pro forma effect to the incurrence of any Indebtedness that is incurred at the time of or in connection with the event giving rise to the measurement of the Consolidated Secured Leverage Ratio.

Consolidated Total Assets” shall mean, as at any date of determination, the total assets of the Company and the Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP, as shown on the most recent balance sheet of the Company or such other Person as of the last day of the Test Period most recently completed on or prior to such date of determination.

Contingent Obligation” shall mean, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent: (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor; (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; or (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.


Contract Period” shall mean the term of any B/A Equivalent Loan which shall be of one, two, three or six months, as selected by the applicable Canadian Borrower in accordance with Section 2.03 or Section 2.08, (i) initially, commencing on the date of such B/A Equivalent Loan and (ii) thereafter, commencing on the day on which the immediately preceding Contract Period expires; provided that (a) if a Contract Period would otherwise expire on a day that is not a Business Day, such Contract Period shall expire on the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Contract Period shall expire on the immediately preceding Business Day; (b) any Contract Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Contract Period) shall, subject to clause (c) of this definition, end on the last Business Day of a calendar month; and (c) no Contract Period with respect to any portion of a B/A Equivalent Loan shall extend beyond the Maturity Date.

Contractual Obligation” shall mean an obligation under any Contractual Requirement.

Contractual Requirement” shall have the meaning provided in Section 7.03.

Corrective Extension Amendment” shall have the meaning provided in Section 2.19(e).

Cost” shall mean, with respect to any Inventory or Equipment, the cost of purchase of such Inventory or Equipment determined according to accounting policies used in the preparation of the Company’s Section 8.01 Financials and valued on a first in, first out basis.

Co-Syndication Agents” shall mean Rabobank Nederland, Canadian Branch and Bank of Montreal, in their respective capacities as co-syndication agents, as applicable, under this Agreement.

Credit Documents” shall mean this Agreement and, after the execution and delivery thereof pursuant to the terms of this Agreement, each Note, each Security Document, any intercreditor agreement contemplated by this Agreement (including the Intercreditor Agreement), each Incremental Revolving Commitment Agreement and each Extension Agreement.

Credit Event” shall mean the making of any Loan, including any Swingline Loan.

Credit Extension” shall mean, as the context may require, (i) a Credit Event or (ii) a LC Credit Extension; provided that “Credit Extensions” shall not include conversions and continuations of outstanding Loans.

Credit Parties” shall mean the U.S. Credit Parties, the Canadian Credit Parties and the Dutch Credit Parties, as the context requires.

Credit Party Guarantee” shall mean the guarantee of each Credit Party pursuant to Section 13.


CRR” shall mean (a) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and (b) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms.

Data Protection Directive” shall mean Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

Debtor Relief Laws” shall mean the Bankruptcy Code of the United States, BIA, CCAA and WURA and any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States, Canada, the Netherlands or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

Default” shall mean any event, act or condition which with notice or lapse of time, or both, would constitute an Event of Default.

Defaulting Lender” shall mean any Lender that (a) has failed to comply with its funding obligations hereunder, and such failure is not cured within two Business Days; (b) has notified the Administrative Agent or any Borrower that such Lender does not intend to comply with its funding obligations hereunder or under any other credit facility, or has made a public statement to that effect; (c) has failed, within three Business Days following request by the Administrative Agent or any Borrower, to confirm in a manner reasonably satisfactory to the Administrative Agent and Company that such Lender will comply with its funding obligations hereunder; or (d) has, or has a direct or indirect parent company that has, (i) become the subject of an insolvency proceeding, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state, provincial, federal or foreign regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided, however, that a Lender shall not be a Defaulting Lender solely by virtue of a Governmental Authority’s ownership of an Equity Interest in such Lender or parent company unless the ownership provides immunity for such Lender from jurisdiction of courts within the United States or from enforcement of judgments or writs of attachment on its assets, or permits such Lender or Governmental Authority to repudiate or otherwise to reject such Lender’s agreements.

Deposit Account Control Agreement” shall mean a Deposit Account blocked control agreement to be executed by each institution maintaining a Deposit Account (other than an Excluded Account) for a Borrower or any other Credit Party, in each case as required by, and in accordance with the terms of, Section 8.15 and in form and substance reasonably satisfactory to the Administrative Agent.

Designated Jurisdiction” shall mean any country or territory to the extent that such country or territory itself is the subject of comprehensive country- or territory-wide Sanctions.

Designated Non-Cash Consideration” shall mean the Fair Market Value, as set forth in an officer’s certificate of a Responsible Officer, of non-cash consideration received by the Company or any of the Restricted Subsidiaries in connection with an Asset Sale, less the amount of Investment Cash Equivalents received in connection with a subsequent sale, redemption or repurchase of or collection or payment on such Designated Non-Cash Consideration; provided that such disposition is in compliance with Section 9.02.


Designated Preferred Stock” shall mean Preferred Stock of the Company or any direct or indirect parent company thereof (in each case other than Disqualified Stock) that is issued for cash (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Company or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an officer’s certificate executed by Responsible Officer of the Company or the applicable parent company thereof, as the case may be, on the issuance date thereof.

Dilution Factors” shall mean, without duplication, with respect to any period, the aggregate amount of all bad debt write-downs, discounts, credits, returns, rebates, and other dilutive items.

Dilution Ratio” shall mean, at any date, as to the Accounts owned by any Person, the amount (expressed as a percentage) that is the result of dividing (a) the Dollar Equivalent of the applicable Dilution Factors for the twelve most recently ended fiscal months with respect to such Person’s Accounts, by (b) the Dollar Equivalent of such Person’s total gross sales with respect to their Accounts for the twelve most recently ended fiscal months.

Dilution Reserve” shall mean, (i) in the case of the Canadian Borrowing Base, the Canadian Dilution Reserve, (ii) in the case of the U.S. Tranche A Borrowing Base and the U.S. Tranche B Borrowing Base, the U.S. Dilution Reserve and (iii) in the case of the Dutch Borrowing Base, the Dutch Dilution Reserve.

Disqualified Stock” shall mean, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is puttable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely as a result of a change of control or asset sale) pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely as a result of a change of control or asset sale), in whole or in part, in each case prior to the date 91 days after the earlier of the Maturity Date or the date the Obligations are paid in full; provided, that if such Capital Stock is issued to any plan for the benefit of employees of the Company or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Company or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations; provided, further, that any Capital Stock held by any future, current or former employee, director, officer, manager or consultant of the Company, any of its Subsidiaries, or any other entity in which the Company or a Restricted Subsidiary has an Investment and is designated in good faith as an “affiliate” by the board of directors of the Company (or the compensation committee thereof), in each case pursuant to any stock subscription or shareholders’ agreement, management equity plan or stock option plan or any other management or employee benefit plan or agreement shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Company or its Subsidiaries or in order to satisfy applicable statutory or regulatory obligations.

Distribution Conditions” shall mean, with respect to any Restricted Payment or Restricted Junior Debt Prepayment, the following:

(i)           as of the date of any such Restricted Payment or Restricted Junior Debt Prepayment, and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing,

 (ii)          as of the date of any such Restricted Payment, and after giving effect thereto, the Total Excess Availability on such date, and during the immediately preceding 30 consecutive day period (assuming such Restricted Payment occurred on the first day of such 30 consecutive day period) shall have been not less than the greater of (x) 15.0 % of the Line Cap and (y) $30,000,000,


 (iii)          as of the date of any such Restricted Payment or Restricted Junior Debt Prepayment, and after giving effect thereto, the Total Excess Availability on such date, and during the immediately preceding 30 consecutive day period (assuming such Restricted Payment or Restricted Junior Debt Prepayment occurred on the first day of such 30 consecutive day period) shall have been not less than the greater of (x) 15.0 % of the Line Cap and (y) either (I) $30,000,000, or, if any U.S. Tranche B Revolving Loans remain outstanding as of the date of such Restricted Junior Debt Prepayment (II) $35,000,000,

(iv)           the Consolidated Fixed Charge Coverage Ratio, calculated on a pro forma basis for such Restricted Payment shall be no less than 1.0 to 1.0; provided that this clause (iv) shall not apply if, as of the date of any such Restricted Payment, and after giving effect thereto, the Total Excess Availability on such date, and during the immediately preceding 30 consecutive day period (assuming such Restricted Payment occurred on the first day of such 30 consecutive day period) shall have been not less than the greater of (x) 20.0% of the Line Cap and (y) $40,000,000,

 (iiiv)          the Consolidated Fixed Charge Coverage Ratio, calculated on a pro forma basis for such Restricted Payment or Restricted Junior Debt Prepayment, as the case may be, shall be no less than 1.0 to 1.0; provided that this clause (iiiv) shall not apply if, as of the date of any such Restricted Payment or Restricted Junior Debt Prepayment, and after giving effect thereto, the Total Excess Availability on such date, and during the immediately preceding 30 consecutive day period (assuming such Restricted Payment or Restricted Junior Debt Prepayment occurred on the first day of such 30 consecutive day period) shall have been not less than the greater of (x) 20.0% of the Line Cap and (y) either (I) $40,000,000 or, if any U.S. Tranche B Revolving Loans remain outstanding as of the date of such Restricted Junior Debt Prepayment, (II) $45,000,000, and

 (ivvi)          for any Restricted Payment and/or Restricted Junior Debt Prepayment exceeding $15,000,000 in the aggregate, the Administrative Agent shall have received a certificate of a Responsible Officer of the Company certifying as to compliance with the preceding clauses (other than with respect to the portion of any 30 consecutive day period prior to the date of such Restricted Payment and/or Restricted Junior Debt Prepayment that has not occurred as of the date such certificate is delivered) and demonstrating (in reasonable detail) the calculations required thereby, in form and substance reasonably satisfactory to the Administrative Agent, not less than two (2) Business Days prior to the date of such Restricted Payment and/or Restricted Junior Debt Prepayment (or such shorter period as may be agreed upon in writing by the Administrative Agent).

DMLTFPA” shall mean the Dutch Money Laundering and Terrorism Financing Prevention Act (Wet ter voorkoming van witwassen en financieren van terrorisme).

Documentation Agent” shall mean JPMorgan Chase Bank, N.A., in its capacity as documentation agent under this Agreement.

Dodd-Frank and Basel III” shall have the meaning provided in Section 3.01(d).

Dollar Equivalent” shall mean, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any other currency, the equivalent amount thereof in Dollars as determined at such time on the basis of the Spot Rate for the purchase of Dollars with such currency at such time.


Domestic Restricted Subsidiary” shall mean any Domestic Subsidiary that is a Restricted Subsidiary.

Domestic Subsidiary” shall mean any Subsidiary of the Company organized under the laws of the United States, any state thereof or the District of Columbia.

Dominion Account” shall have the meaning provided in Section 8.15(c)(i).

Dutch Administrative Agent” shall have the meaning provided in the preamble hereto and any successor thereto appointed pursuant to Section 11.09.

Dutch Borrowers” shall mean the Dutch Parent Borrower and each Dutch Subsidiary of the Company that executes a counterpart hereto and to any other applicable Credit Document to become a Borrower, whether on the Closing Date or after the Closing Date in accordance with Section 2.21.

Dutch Borrowing Base” shall mean, at the time of any determination, an amount equal to the sum of the Dollar Equivalent, without duplication, of

 (a)          (I) 85% of the aggregate Outstanding Balance of Eligible Dutch Accounts of the Dutch Borrowers (other than Eligible Insured and Letter of Credit Backed Accounts) at such time plus (II) 90% of the aggregate Outstanding Balance of Eligible Insured and Letter of Credit Backed Accounts of the Dutch Borrowers at such time; plus

 (b)          the lesser of (i) 70% of the lesser of the Cost or Fair Market Value of Eligible Dutch Inventory at such time and (ii) 85% of the Net Orderly Liquidation Value of Eligible Dutch Inventory at such time; plus

 (c)          if a Borrowing Base Reallocation Notice is delivered by the Company, a portion of the positive amount, if any, by which the Canadian Borrowing Base and the/or U.S. Tranche A Borrowing Base exceed the total Canadian Revolving Exposure and/or U.S. Tranche A Revolving Exposure of all Lenders on the date of such delivery, may be reallocated to the Dutch Borrowing Base (subject to the North American Minimum Requirement); provided that a Borrowing Base Reallocation Notice may only be delivered once in any calendar month, and shall set forth the requested reallocation of available Borrowing Base among Subfacilities, and which reallocation shall become effective upon confirmation by the Administrative Agent that such reallocation would not cause the Revolving Exposure under any Subfacility to exceed the Borrowing Base for the applicable Subfacility, and which reallocation shall remain effective thereafter until such time, if any, as a new Borrowing Base Reallocation Notice is received and has become effective; minus

 (d)          the portion of the Dutch Borrowing Base, if any, that is reallocated to the Canadian Borrowing Base, and/or the U.S. Tranche A Borrowing Base pursuant to clause (e) of each of the definitions of Canadian Borrowing Base and U.S. Tranche A Borrowing Base; minus

 (e)          any Reserves established or modified from time to time by the Administrative Agent in with the exercise of its Permitted Discretion in accordance with the provisions of Section 2.22;


The Dutch Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 8.15(a), adjusted as necessary (pending the delivery of a new Borrowing Base Certificate) to reflect the impact of any Significant Asset Sale or the acquisition of any assets in a Permitted Acquisition or similar Investment (or any event or circumstance which, pursuant to the eligibility rules set forth in the definitions of Eligible Account, Eligible Inventory or Eligible Insured and Letter of Credit Backed Accounts, renders any such Account or Inventory eligible or ineligible for inclusion in the Dutch Borrowing Base after delivery of the most recent Borrowing Base Certificate). The Administrative Agent shall have the right (but no obligation) to review the computations in any Borrowing Base Certificate and if such computations have not been calculated in accordance with the terms of this Agreement, the Administrative Agent shall have the right, in consultation with the Company, to correct any such errors in such manner as it shall reasonably determine and the Administrative Agent will notify the Company in writing promptly after making any such correction.

Dutch Collateral” shall mean all the “Collateral” (or equivalent term) as defined in each Dutch Security Agreement and all other property (whether real, personal or otherwise) with respect to which any security interests have been granted (or purported to be granted) by any Dutch Credit Parties pursuant to any Dutch Security Document.

Dutch Collection Account” shall have the meaning provided in Section 8.15(c)(iv) .

Dutch Credit Party” shall mean the Dutch Borrowers and each Dutch Subsidiary Guarantor.

Dutch Dilution Reserve” shall mean, at any date, (i) the amount by which the consolidated Dilution Ratio of Eligible Dutch Accounts exceeds five percent (5%) multiplied by (ii) the Eligible Dutch Accounts on such date.

Dutch Dominion Account” shall have the meaning provided in Section 8.15(c)(i).

Dutch Issuing Bank” shall mean, as the context may require, (a) BANA (acting through its London branch) or any Affiliates or branches of BANA with respect to Dutch Letters of Credit issued by it; (b) any other Lender that may become an Issuing Bank pursuant to Sections 2.13(i) and 2.13(k), with respect to Dutch Letters of Credit issued by such Lender; (c) with respect to any Existing Letter of Credit set forth on Part B of Schedule 1.01B, the Lender which is the issuer of such Existing Letter of Credit; or (d) collectively, all of the foregoing.

Dutch Labour Standards Acts” shall mean, collectively, (i) the Dutch Minimum Wage and Minimum Holiday Allowance Act (Wet minimumloon en minimumvakantiebijslag), (ii) the Dutch Equal Treatment Act (Algemene wet gelijke behandeling), (iii) the Dutch Working Hours Act (Arbeidstijdenwet) and (iv) the Dutch Working Conditions Act (Arbeidsomstandighedenwet).

Dutch LC Credit Extension” shall mean, with respect to any Dutch Letter of Credit, the issuance, amendment or renewal thereof or extension of the expiry date thereof, or the increase of the Stated Amount thereof.

Dutch LC Disbursement” shall mean a payment or disbursement made by the Dutch Issuing Bank pursuant to a Dutch Letter of Credit.

Dutch LC Documents” shall mean all documents, instruments and agreements delivered by a Dutch Borrower or any other Person to a Dutch Issuing Bank or the Administrative Agent in connection with any Dutch Letter of Credit.


Dutch LC Exposure” shall mean at any time the sum of (a) the aggregate undrawn Stated Amount of all outstanding Dutch Letters of Credit at such time plus (b) the aggregate principal amount of all Dutch LC Disbursements that have not yet been reimbursed at such time. The Dutch LC Exposure of any Revolving Lender at any time shall mean its Pro Rata Percentage of the aggregate Dutch LC Exposure at such time.

Dutch LC Obligations” shall mean the sum (without duplication) of (a) all amounts owing by the Dutch Borrowers in respect of any Dutch LC Disbursements (including any bankers’ acceptances or other payment obligations arising therefrom) and (b) the Stated Amount of all outstanding Dutch Letters of Credit.

Dutch LC Sublimit” shall mean $20,000,000.

Dutch Letter of Credit” shall mean any letters of credit issued or to be issued by the Dutch Issuing Bank under the Dutch Subfacility requested by a Dutch Borrower pursuant to Section 2.13.

Dutch Line Cap” shall mean, at any time, an amount that is equal to the lesser of (a) the Dutch Revolving Commitments and (b) the Dutch Borrowing Base.

Dutch Parent Borrower” shall have the meaning provided in the recitals hereto and shall include any successor thereto permitted under Section 9.11.

Dutch Parent Borrower Disposition” shall have the meaning provided in Section 2.07(c).

Dutch Pension Plan” shall mean the pension plan applicable to each Dutch Credit Party.

Dutch Pension Regulations” shall mean the Dutch pension act (pensioenwet).

Dutch Pledges Over Shares” shall have the meaning provided to such term in Section 5.09.

Dutch Protective Advance” shall have the meaning provided in Section 2.18.

Dutch Restricted Subsidiary” shall mean any Dutch Subsidiary that is a Restricted Subsidiary.

Dutch Revolving Borrowing” shall mean a Borrowing comprised of Dutch Revolving Loans.

Dutch Revolving Commitment” shall mean, with respect to each Dutch Revolving Lender, the commitment, if any, of such Lender to make Dutch Revolving Loans hereunder up to the amount set forth and opposite such Lender’s name on Schedule 2.01 under the caption “Dutch Revolving Commitment,” or in the Assignment and Assumption Agreement pursuant to which such Lender assumed its Dutch Revolving Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.07, (b) reduced or increased from time to time pursuant to Section 2.20 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 12.04. The aggregate amount of the Dutch Revolving Lenders’ Dutch Revolving Commitments on the ClosingSecond Amendment Effective Date is $75,000,00090,000,000.

Dutch Revolving Exposure” shall mean, with respect to any Dutch Revolving Lender at any time, the aggregate principal amount at such time of all outstanding Dutch Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s Dutch LC Exposure, plus the aggregate amount of such Lender’s Dutch Swingline Exposure.


Dutch Revolving Lender” shall mean any Lender under the Dutch Subfacility.

Dutch Revolving Loans” shall mean advances made to or at the instructions of a Dutch Borrower pursuant to Section 2.01(iii) hereof under the Dutch Subfacility.

Dutch Revolving Note” shall mean each revolving note substantially in the form of Exhibit B-3 hereto.

Dutch Security Agreements” shall mean (i) the Deed of Pledge Over Shares in Crown of Holland B.V. and Tradin Organic Agriculture B.V., dated as of the Closing Date, by and between the Collateral Agent and each of the Dutch Credit Parties party thereto,(ii) the Deed of Pledge Over Shares in The Organic Corporation B.V., by and between the Collateral Agent and each of the Dutch Credit Parties party thereto, (iii) the Deed of Pledge Over 65% of the Shares in Trabocca B.V., dated as of the Closing Date, by and between the Collateral Agent and each of the Dutch Credit Parties party thereto, (iv) the Deed of Omnibus Pledge, dated as of the Closing Date, by and between the Collateral Agent and each of the Dutch Credit Parties, and (v) Deed of Pledge Over Bank Accounts dated as of the Closing Date, by and between the Collateral Agent and each of the Dutch Credit Parties party thereto, which in each case shall be governed by the laws of the Netherlands.

Dutch Security Documents” shall mean the Dutch Security Agreements, and, after the execution and delivery thereof, each other document executed and delivered by any Dutch Credit Party pursuant to which a Lien is granted (or purported to be granted) in favor of the Collateral Agent to secure the Obligations, each document, if any, executed and delivered by any Dutch Credit Party pursuant to the Additional Inventory Security Actions and each document, if any, executed and delivered by any Dutch Credit Party pursuant to the Additional Account Security Actions.

Dutch Subfacility” shall have the meaning provided in the recitals hereto.

Dutch Subsidiary” shall mean any Subsidiary of the Company incorporated now or hereinafter under the laws of The Netherlands.

Dutch Subsidiary Guarantor” shall mean each Dutch Restricted Subsidiary (other than the Dutch Borrowers) in existence on the Closing Date (other than any Excluded Subsidiary), as well as each Dutch Restricted Subsidiary established, created or acquired after the Closing Date which becomes a party to this Agreement as a Guarantor in accordance with the requirements of the Collateral and Guarantee Requirement.

Dutch Swingline Commitment” shall mean the commitment of the Dutch Swingline Lender to make loans under the Dutch Subfacility pursuant to Section 2.12, as the same may be reduced from time to time pursuant to Section 2.07.

Dutch Swingline Exposure” shall mean, at any time, the aggregate principal amount at such time of all outstanding Dutch Swingline Loans. The Dutch Swingline Exposure of any Dutch Revolving Lender at any time shall equal its Pro Rata Percentage of the aggregate Dutch Swingline Exposure at such time.

Dutch Swingline Lender” shall mean BANA (acting through its London branch), its permitted successors and permitted assigns.

Dutch Swingline Loan” shall mean any Loan made by the Dutch Swingline Lender pursuant to Section 2.12.


Dutch Swingline Note” shall mean each swingline note substantially in the form of Exhibit B-6 hereto.

Dutch Works Council Act” shall mean the Netherlands Works Council Act (Wet op de ondernemingsraden).

Dutch Works Council Act Event” shall mean any breach of any of the obligations of any Dutch Credit Party arising from, pursuant to or in relation to the provisions of the Dutch Works Council Act.

EEA Financial Institution” shall mean (i) any credit institution or investment firm established in any EEA Member Country that is subject to the supervision of an EEA Resolution Authority, (ii) any Person established in an EEA Member Country that is a parent of an institution described in clause (i) of this definition, or (iii) any financial institution established in an EEA Member Country that is a subsidiary of an institution described in clauses (i) or (ii) 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 Governmental Authority of any EEA Member Country having responsibility for the resolution of any EEA Financial Institution.

Electronic Platform” shall have the meaning provided in the definition of the term “Spot Rate”.

Eligible Account” shall mean, at any time, an Account created by a Borrower in the ordinary course of its business, that arise out of its sale of goods (other than promotional products not held for sale) or rendition of services:

 (a)          that is subject to a perfected (or the equivalent) first priority Lien, in accordance with the Collateral and Guarantee Requirement only, in favor of the Collateral Agent for the benefit of the Secured Creditors pursuant to the relevant Security Documents;

 (b)          that is not subject to any Lien other than (i) a Lien in favor of the Collateral Agent for the benefit of the Secured Creditors pursuant to the relevant Security Documents, and (ii) a Lien (if any) permitted by Section 9.01 which Permitted Lien shall rank junior in priority to the Lien in favor of the Collateral Agent for the benefit of the Secured Creditors pursuant to the relevant Security Documents;

 (c)          that (i) is evidenced by an invoice or other documentation reasonably satisfactory to the Administrative Agent (or in a form required by any Account Debtor so long as such form is reasonably satisfactory to the Administrative Agent), and which has been sent to the Account Debtor (which may include electronic transmission) and (ii) does not represent a progress billing, sale on a bill-and-hold, guaranteed sale, sale-and-return, sale on approval, consignment, cash-on-delivery or any other repurchase or return basis;

 (d)          the Account Debtor of which is an Eligible Account Debtor and is not an Affiliate of any Borrower;

 (e)          that is not owing from an Account Debtor that is an agency, department or instrumentality of the federal government of the United States, any government of any state thereof, of the federal government of Canada, or the government of any province, territory or subdivision thereof or, to the extent applicable and subject to Requirement of Law having similar effect to the Assignment of Claims Act of 1940 or the Financial Administration Act (Canada), that is an agency, department or instrumentality of the government of any country other than the United States or Canada unless (A) the applicable Borrower shall have satisfied the requirements of (x) the Assignment of Claims Act of 1940 in the case of Accounts owing from any agency, department or instrumentality of the federal government of the United States, (y) the Financial Administration Act (Canada) in the case of Accounts owing from an agency, department or instrumentality of the federal government of Canada or (z) if applicable, any similar state, provincial, territorial, or subdivision legislation or any similar foreign legislation, in the case of Accounts owing from any other applicable government agency, department or instrumentality; and, in each such case, the Administrative Agent is satisfied as to the absence of setoffs, counterclaims and other defenses on the part of such Account Debtor;


 (f)          that is not subject to any late payment for longer than 60 days according to its original terms of sale or 90 days after the date of the original invoice therefor;

 (g)         that is not the obligation of an Account Debtor (other than an individual) of which 50% or more of the Dollar Equivalent amount of all Accounts owing by such Account Debtor are, based on the most recent Borrowing Base Certificate, ineligible under the criteria set forth in clause (f) above;

 (h)         that is not subject to any deduction, offset, counterclaim, defense or dispute (other than (i) sales discounts given in the ordinary course of the applicable Borrower’s business and reflected in the amount of such Account as set forth in the invoice or other supporting material therefor or (ii) an offset or counterclaim of a nature specifically addressed in the determination of the applicable Borrowing Base); provided, however, that if an Account satisfies all of the requirements of an Eligible Account other than this clause (h), such Account shall be an Eligible Account, but only to the extent of the amount of such Account that exceeds any such deduction, offset, counterclaim, defense or dispute or other conditions; provided that, if the Administrative Agent in its Permitted Discretion has established an appropriate Reserve and determines to include such Account as an Eligible Account or such Account Debtor has entered into an agreement reasonably acceptable to the Administrative Agent to waive such rights, such Account shall be included as an Eligible Account.

 (i)          that is denominated and payable only in Dollars, Canadian Dollars, Euros, Pounds Sterling or Swiss Francs;

 (j)          such Account is not a true and correct statement of bona fide indebtedness incurred in the amount of the Account for merchandise sold to or services rendered and accepted by the applicable Account Debtor;

 (k)         that, together with the contract evidencing such Account, does not contravene in any material respect any Requirement of Law applicable thereto (including, without limitation, Requirement of Law relating to usury, consumer protection, truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy) in a manner that would affect the enforceability of such Account and with respect to which none of the Borrowers or the Account Debtor is in violation of any such Requirement of Law in any material respect in a manner that would affect the enforceability of such Account;

 (l)          that arises under a contract which restricts in a legally enforceable manner the ability of the Administrative Agent, Collateral Agent or Lenders to exercise their rights under the Credit Documents, including, without limitation, their right to review the related invoice or the payment terms of such contract;


 (m)          in the case of an Account originated by a Canadian Borrower, the Account Debtor of which has a billing address in Canada and that was not issued for an amount in excess of the Fair Market Value of the merchandise or services provided by the Canadian Borrower to which the Account relates;

 (n)          that, when aggregated with all other Accounts of the same Account Debtor, is not in excess of 15.0% of all Eligible Accounts (but the portion of the Accounts not in excess of such concentration limit shall not be deemed ineligible due to this clause (n));

 (o)          that, during any Cash Dominion Period, and solely with respect to Account Debtors in Account Debtor Approved Countries other than (x) the United States, the Netherlands, and Canada and (y) such other Account Debtor Approved Countries in which the Additional Account Security Actions have been satisfied with respect thereto, does not, when taken together with the Accounts originated by applicable Borrowers owed by Account Debtors in all such jurisdictions, comprise more than 33% of all Eligible Accounts included in the Borrowing Base for any particular Subfacility (it being understood the portion of such Accounts not in excess of such limit shall not be deemed ineligible due to this clause (o));

 (p)          that Accounts are not subject to, or included or expected to be included, as part of an accounts receivable factoring program or supply chain financing program; and

 (q)          (i) the Account Debtor obligated upon such Account has not notified any Borrower or the Administrative Agent that it has suspended business, or made a general assignment for the benefit of creditors or has failed to pay its debts generally as they come due, and (ii) no petition is filed by or against the Account Debtor obligated upon such Account under any Debtor Relief Law.

With respect to any Accounts eligible for inclusion in the Borrowing Base (as reasonably determined by the Company in consultation with the Administrative Agent) that are acquired by a Borrower (other than from another Borrower, but including any Accounts of any Person that has become a Borrower) after the Closing Date in a Permitted Acquisition or similar Investment, such acquired Accounts may be included in the applicable Borrowing Base from and after the acquisition thereof without the Administrative Agent having completed a Field Examination with respect thereto, so long as (i) all acquired Accounts included in the applicable Borrowing Base for which an Appraisal and/or Field Examination, as applicable, with respect thereto has not been completed by the Administrative Agent does not represent more than 10% of the applicable Borrowing Base (when taken together with any Inventory included in the Borrowing Base pursuant to the last paragraph of the definition of the term “Eligible Inventory”) and (ii) the Collateral and Guarantee Requirement shall be satisfied with respect to the applicable Borrower or Guarantor or such Accounts. With respect to any Accounts of the type eligible for inclusion in the Borrowing Base that are acquired by a Borrower (other than from another Borrower, but including any Accounts of any Person that has become a Borrower) after the Closing Date in a Permitted Acquisition or similar Investment and not otherwise included in the Borrowing Base by virtue of the provisions of the preceding sentence, such acquired Accounts shall be included in the applicable Borrowing Base only after completion of a Field Examination with respect thereto by the Administrative Agent, unless the Administrative Agent shall have determined in its discretion that no such due diligence investigation with regard to such Accounts is required.


Eligible Account Debtor” shall mean an Account Debtor that:

 (i)          has a billing address in an Account Debtor Approved Country;

 (ii)         is not a Person with respect to which the European Union, the United States, Canada, the Netherlands or any other Account Debtor Approved Country shall have imposed Sanctions;

 (iii)        is not a Person (A) that is listed in the annex to, or otherwise subject to the provisions of, the Executive Order, (B) that is owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order, (C) with which a Lender or a Borrower is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law, AML Legislation, PCMLTFA or DMLTFPA, (D) that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order, or (E) that is named as a “specifically designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website or any replacement website or other replacement official publication of such list or any similar lists published in the European Union, Canada (that include “designated persons”, “politically exposed foreign person” or “terrorist group” as described in Anti-Terrorism Laws of Canada, collectively, “Canadian Blocked Persons”) or any other Account Debtor Approved Country; and

 (iv)        is not a Person (A) whose property or interest in property is otherwise blocked or subject to blocking pursuant to Section 1 of the Executive Order or any other Anti-Terrorism Law, or (B) that engages in any dealings or transactions prohibited by Section 2 of the Executive Order or any other Anti-Terrorism Law, AML Legislation, PCMLTFA or DMLTFPA.

Eligible Assignee” shall mean a Person that is (a) a Lender, Affiliate of a Lender or Approved Fund; (b) an assignee approved by the Company which shall be deemed given if no objection is made within fifteen Business Days after written notice of the proposed assignment is received by the Company from the Administrative Agent), the Administrative Agent, the applicable Swingline Lender and the applicable Issuing Bank (which approval shall not be unreasonably withheld or delayed); or (c) during an Event of Default by the Company or any other Borrower under Section 10.01 or 10.05, any Person acceptable to the Administrative Agent, the applicable Swingline Lender and the applicable Issuing Bank in (which approval shall not be unreasonably withheld or delayed); provided that no Person who is not a Non-Public Lender shall be an Eligible Assignee.

Eligible Canadian Accounts” shall mean the Eligible Accounts owned by the Canadian Borrowers.

Eligible Canadian Equipment” shall mean the Eligible Equipment owned by the Canadian Borrowers.

Eligible Canadian Inventory” shall mean the Eligible Inventory owned by the Canadian Borrowers.

Eligible Canadian Real Estate” shall mean the Eligible Fee-Owned Real Estate owned by the Canadian Borrowers.

Eligible Dutch Accounts” shall mean the Eligible Accounts owned by the Dutch Borrowers.


Eligible Dutch Inventory” shall mean the Eligible Inventory owned by the Dutch Borrowers.

Eligible Equipment” shall mean, at any time, the Equipment of the Borrowers, but excluding any Equipment:

 (a)          that is not subject to a perfected (or equivalent) first priority Lien, in accordance with the Collateral and Guarantee Requirement only, in favor of the Collateral Agent for the benefit of the Secured Creditors pursuant to the relevant Security Documents;

 (b)          that is subject to any Lien other than (i) a Lien in favor of the Collateral Agent for the benefit of the Secured Creditors pursuant to the relevant Security Documents and (ii) a Lien (if any) permitted by Section 9.01 which Permitted Lien shall rank junior in priority to the Lien in favor of the Collateral Agent for the benefit of the Secured Creditors pursuant to the relevant Security Documents;

 (c)          that is determined, based on the applicable Borrowers’ historical practices and procedures, in each case, which are reasonably acceptable to the Administrative Agent (it being understood that the Borrowers’ historical practices and procedures, as of the Closing Date, are reasonably acceptable to the Administrative Agent), to be obsolete, damaged or defective or is not in good order and repair and used or useable in the ordinary course of the applicable Borrower’s business;

 (d)          that does not conform in any material respect to all applicable standards imposed by any Governmental Authority, including the Fair Labor Standards Act of 1938 and the Employment Standards Act (Ontario) that would affect the ability of the Collateral Agent to sell such Equipment;

 (e)          in which any Person other than such Borrower or any other applicable Borrower shall (i) have any direct or indirect ownership, interest or title (including any retention of title right) to such Equipment, other than in respect of the interest of any carrier of Equipment in transit or (ii) be indicated on any purchase order or invoice with respect to such Equipment as having or purporting to have an interest therein;

 (f)           that is not located in the United States or Canada;

 (g)          that (i) is located in any location leased by an applicable Borrower unless the Administrative Agent has given its prior written consent thereto or unless (A) the lessor has delivered to the Administrative Agent a Collateral Access Agreement or such other documentation as the Administrative Agent may reasonably require in its Permitted Discretion or the Administrative Agent or its counsel may deem reasonably necessary in the jurisdiction of such Equipment’s location or (B) a Rent Reserve with respect to such location has been established by the Administrative Agent in its Permitted Discretion; or (ii) is located at an owned location subject to a mortgage or other security interest in favor of a creditor (other than any such mortgage or other security interest that constitutes a Permitted Lien), or is located in any third party warehouse or other storage facility or is in the possession of a bailee unless (A) such mortgagee, warehouseman or bailee has delivered to the Administrative Agent a Collateral Access Agreement or such other documentation as the Administrative Agent may reasonably require in its Permitted Discretion or the Administrative Agent or its counsel may reasonably deem necessary in the jurisdiction of such Equipment’s location or (B) a Rent Reserve with respect to such location has been established by the Administrative Agent in its Permitted Discretion;


 (h)         which is located at an outside repair facility (unless payables in respect thereof are reserved);

 (i)          that constitutes “fixtures” unless located on Real Property owned by Borrower and on which a mortgage (or similar security interest) has been given in favor of the Collateral Agent for the benefit of the Secured Creditors;

 (j)          for which reclamation rights have been called in by the seller;

 (j)          that is not covered by casualty insurance as and to the extent required by the terms of this Agreement; and

 (k)          that is otherwise designated by the Company as “ineligible” by written notice to the Administrative Agent or in any Borrowing Base Certificate delivered to the Administrative Agent.

Eligible Fee-Owned Real Estate” shall mean Real Property that (i) is owned by a U.S. Borrower or a Canadian Borrower in fee title in the United States or Canada, (ii) is at all times subject to the Collateral Agent’s duly perfected, first-priority security interest (subject only to Liens permitted by Section 9.01) pursuant to Mortgages and other Related Real Estate Documents in form and substance reasonably satisfactory to the Administrative Agent and any other Lender whose consent is required hereunder (it being understood that no Real Property owned as of the Closing Date shall constitute Eligible Fee-Owned Real Estate until the requirements of Section 8.11 have been met with respect to such Real Property) and not subject to any other Lien except a Permitted Lien, (iii) conforms in all material respects to the representations and warranties relating to such Real Property set forth in this Agreement and the Security Documents, (iv) solely with respect to Real Property owned by a U.S. Borrower or a Canadian Borrower on the Closing Date, as set forth on Schedule 5.15 (it being agreed that (x) the Real Property set forth on Schedule 5.15 shall be deemed to have been appraised by a third-party appraiser reasonably satisfactory to the Administrative Agent not more than three months prior to the Closing Date and (y) the Appraisals with respect to the Real Property set forth on Schedule 5.15 shall be deemed to have been prepared on a basis reasonably satisfactory to the Administrative Agent and any other Lender whose consent is required hereunder) and (v) solely with respect to Real Property owned by any U.S. Borrower or Canadian Borrower that is not set forth on Schedule 5.15, (x) has been appraised by a third-party appraiser reasonably satisfactory to the Administrative Agent and (y) for which the Appraisals with respect thereto shall have been prepared on a basis reasonably satisfactory to the Administrative Agent and any other Lender whose consent is required hereunder; provided that Eligible Fee-Owned Real Estate shall exclude any Real Property that is otherwise designated by the Company as “ineligible” by written notice to the Administrative Agent or in any Borrowing Base Certificate delivered to the Administrative Agent.

Eligible Insured and Letter of Credit Backed Account” shall mean an Account created by a Borrower in the ordinary course of its business, that is either (i) fully insured (to the extent provided for therein) by credit insurance reasonably satisfactory to the Administrative Agent or (ii) secured by a letter of credit reasonably acceptable to the Administrative Agent which, upon the request of the Administrative Agent during a Cash Dominion Period, has been assigned to the Collateral Agent in a manner reasonably satisfactory to the Administrative Agent, and otherwise qualifies as an “Eligible Account” hereunder, but for the failure of the Account Debtor to be located in an Account Debtor Approved Country.

Eligible In-Transit Inventory” shall mean Inventory owned by a Borrower that would meet all of the criteria of “Eligible Inventory” if it were not in transit from any location to a location of such Borrower within the Inventory Approved Countries. Without limiting the foregoing, no Inventory shall be Eligible In-Transit Inventory unless (a) except as otherwise agreed by the Administrative Agent, such Inventory is either (i) subject to a negotiable document of title and such document of title shows the Administrative Agent (or, with the consent of the Administrative Agent, the applicable Credit Party) as consignee, and the Administrative Agent has control over such document of title which evidences ownership of the subject Inventory (including by the delivery of customs broker agreements in a form and substance reasonably acceptable to the Administrative Agent) or (ii) for Inventory in transit to a location within the United States or Canada only, subject to a non-negotiable document of title, and such document of title shows the Administrative Agent as consignee, which document is in possession of the Administrative Agent or such other Person (including any Borrower) as the Administrative Agent shall approve; (b) such Inventory is insured in accordance with the provisions of this Agreement and the other Credit Documents, including, if applicable, marine cargo insurance; (c) such Inventory has been identified to the applicable sales contract and title has passed to the applicable Borrower; (d) such Inventory is not sold by a vendor that has a right to reclaim, divert shipment of, repossess, stop delivery, claim any reservation of title or otherwise assert Lien rights against the Inventory or with respect to which any Borrower is in default of any obligations; (e) such Inventory is subject to customary purchase orders and other sale documentation consistent with such Borrower’s ordinary course of dealing; and (f) such Inventory is shipped by a common carrier that is not affiliated with the vendor and has not been acquired from a Person (i) that is listed in the annex to, or otherwise subject to the provisions of, the Executive Order, (ii) that is owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order, (iii) with which a Lender or a Borrower is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law, AML Legislation, PCMLTFA or DMLTFPA, (iv) that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order, (v) that is a Canadian Blocked Persons or (vi) that is named as a “specifically designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website or any replacement website or other replacement official publication of such list or any similar lists published in the European Union. The aggregate Eligible In-Transit Inventory shall not exceed $25,000,000 at any time. The Administrative Agent, in its Permitted Discretion, shall have the ability to establish Reserves for landing costs if such Eligible In-Transit Inventory is coming from a jurisdiction outside the Inventory Approved Countries.


Eligible Inventory shall mean, at any time, Eligible In-Transit Inventory and Inventory of the Borrowers, but excluding any Inventory:

 (a)          that is not subject to a perfected (or the equivalent) first priority Lien (in accordance with (x) the Collateral and Guarantee Requirement, in the case of any Inventory located in the United States, Canada or the Netherlands and (y) the Additional Inventory Security Actions, in the case of any Inventory located in France, Germany or the United Kingdom) in favor of the Collateral Agent for the benefit of the Secured Creditors pursuant to the relevant Security Documents;

 (b)          that is subject to any Lien other than (i) a Lien in favor of the Collateral Agent for the benefit of the Secured Creditors pursuant to the relevant Security Documents, and (ii) a Lien (if any) permitted by Section 9.01 which Permitted Lien shall rank junior in priority to the Lien in favor of the Collateral Agent for the benefit of the Secured Creditors pursuant to the relevant Security Documents;

 (c)          that is determined, based on the applicable Borrowers’ historical practices and procedures, in each case, which are reasonably acceptable to the Administrative Agent (it being understood that the Borrowers’ historical practices and procedures, as of the Closing Date, are reasonably satisfactory to the Administrative Agent), to be slow moving, obsolete, unmerchantable, damaged, “seconds”, defective, used, unfit for sale, or unacceptable due to age, type, category or quantity;


 (d)          that does not conform in any material respect to all applicable standards imposed by any Governmental Authority having regulatory authority over such Inventory or its use or sale, including the Fair Labor Standards Act of 1938, Employment Standards Act (Ontario) and the Dutch Labour Standards Acts, which non-conformity would affect the ability of the applicable Borrowers to sell such Inventory;

 (e)           in which any Person other than such Borrower or any other applicable Borrower shall (i) have any direct or indirect ownership, interest or title (including any retention of title right) to such Inventory, other than in respect of the interest of any carrier of Inventory in transit or (ii) be indicated on any purchase order or invoice with respect to such Inventory as having or purporting to have an interest therein;

 (f)           except with respect to Eligible In-Transit Inventory, that is not located in an Inventory Approved Country, or is in transit (other than between locations in or between Inventory Approved Countries, controlled by the applicable Borrowers, to the extent included in current perpetual Inventory reports of any such Borrower);

 (g)          except with respect to Eligible In-Transit Inventory, that, unless in transit between locations in or between Inventory Approved Countries, controlled by the applicable Borrowers, and included in current perpetual Inventory reports of any such Borrower, (i) is located in any location leased by an applicable Borrower unless the Administrative Agent has given its prior written consent thereto or unless (A) the lessor has delivered to the Administrative Agent a Collateral Access Agreement or such other documentation as the Administrative Agent may reasonably require in its Permitted Discretion or the Administrative Agent or its counsel may deem reasonably necessary in the jurisdiction of such Inventory’s location or (B) a Rent Reserve with respect to such location has been established by the Administrative Agent in its Permitted Discretion; (ii) is located at an owned location subject to a mortgage or other security interest in favor of a creditor (other than any such mortgage or other security interest that constitutes a Permitted Lien), or is located in any third party warehouse or other storage facility or is in the possession of a bailee unless (A) such mortgagee, warehouseman or bailee has delivered to the Administrative Agent a Collateral Access Agreement and such other documentation as the Administrative Agent may reasonably require in its Permitted Discretion or the Administrative Agent or its counsel may deem reasonably necessary in the jurisdiction of such Inventory’s location or (B) a Rent Reserve has been established by the Administrative Agent in its Permitted Discretion; or (iii) is located in any location where the aggregate Eligible Inventory is less than $100,000;

 (h)          except with respect to Eligible In-Transit Inventory consigned to the Administrative Agent (or another Person permitted by the terms of the definition of “Eligible InTransit Inventory” with the Administrative Agent’s consent), that is the subject of a consignment;

 (i)           Inventory that is subject to any licensing, patent, royalty, trademark, trade name or copyright agreement with any third party from which the Company or any of its Subsidiaries has received notice of a dispute in respect of any such agreement;

 (j)           that is not reflected in a current Inventory report of such Borrower;

(k)           for which reclamation rights have been called in by the seller;


 (l)          that consists of samples, promotional materials, labels, packaging materials or similar supplies used in a Borrower’s business;

 (m)        that is not covered by casualty insurance as and to the extent required by the terms of this Agreement;

 (n)         that consists of Hazardous Materials or goods that can be transported or sold only with licenses that are not readily available;

 (o)         in which any portion of the Cost of such Inventory is attributable to intercompany profit between any such Borrower and any of its Affiliates (but only to the extent of such portion); or

 (p)         that has been sold but not yet delivered, or as to which a Borrower has accepted a deposit, or which, in the case of Inventory owned by the Dutch Borrowers, has been sold or constructively delivered to Account Debtors.

With respect to any Inventory eligible for inclusion in the Borrowing Base (as reasonably determined by the Company in consultation with the Administrative Agent) that are acquired by a Borrower (other than from another Borrower, but including any Inventory of any Person that has become a Borrower) after the Closing Date in a Permitted Acquisition or similar Investment, such acquired Inventory may be included in the applicable Borrowing Base from and after the acquisition thereof without the Administrative Agent having completed an Appraisal with respect thereto, so long as (i) all acquired Inventory included in the applicable Borrowing Base for which an Appraisal, as applicable, with respect thereto has not been completed by the Administrative Agent does not represent more than 10% of the applicable Borrowing Base (when taken together with any Accounts included in the Borrowing Base pursuant to the last paragraph of the definition of the term “Eligible Accounts”), (ii) the Collateral and Guarantee Requirement shall have been satisfied with respect to the applicable Borrower or Guarantor and (iii) (x) in the case of any Inventory located in the United States, Canada, or the Netherlands, the Collateral and Guarantee Requirement shall have been satisfied with respect to such Inventory or (y) in the case of any Inventory located in the United Kingdom, Germany or France, the Additional Inventory Security Actions shall have been satisfied with respect to such Inventory. With respect to any Inventory of the type eligible for inclusion in the Borrowing Base that are acquired by a Borrower (other than from another Borrower, but including any Inventory of any Person that has become a Borrower) after the Closing Date in a Permitted Acquisition or similar Investment and not otherwise included in the Borrowing Base by virtue of the provisions of the preceding sentence, such acquired Inventory shall be included in the applicable Borrowing Base only after completion of an Appraisal with respect thereto by the Administrative Agent, unless the Administrative Agent shall have determined in its discretion that no such due diligence investigation with respect to such Inventory is required.

Eligible U.S. Accounts” shall mean the Eligible Accounts owned by the U.S. Borrowers.

Eligible U.S. Equipment” shall mean the Eligible Equipment owned by the U.S. Borrowers.

Eligible U.S. Inventory” shall mean the Eligible Inventory owned by the U.S. Borrowers.

Eligible U.S. Real Estate” shall mean the Eligible Fee-Owned Real Estate owned by the U.S. Borrowers.

English Control Agreement” shall mean any Deposit Account Control Agreement governed by English law over the Dutch Dominion Account and the Dutch Collection Account to be entered into among the Dutch Credit Parties party thereto and the Collateral Agent, for the benefit of the Secured Creditors and the account bank maintaining the account.


Environment” shall mean ambient air, indoor air, surface water, groundwater, drinking water, land surface and sub-surface strata, sediments and natural resources such as wetlands, flora and fauna.

Environmental Claims” shall mean any and all administrative, regulatory or judicial actions, suits, demands, demand letters, directives, claims and/or notices of noncompliance or violation, relating to any Environmental Law or, any permit issued, or any approval given, under any such Environmental Law, including, without limitation, (a) by governmental or regulatory authorities for enforcement investigation, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law, and (b) by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief arising out of or relating to an alleged injury or threat of injury to human health or the Environment due to any Release or threat of Release of any Hazardous Materials.

Environmental Law” shall mean any applicable federal, state, provincial, foreign, municipal, local or foreign Requirement of Law, which, for the avoidance of doubt, shall include any ordinance, code and rule of common law, including any judicial or administrative order, consent decree or judgment relating to pollution or protection of the Environment, occupational safety or of human health as affected by exposure to Hazardous Materials, including those relating to the manufacture, generation, handling, transport, storage, treatment, Release or threat of Release of Hazardous Materials.

Environmental Liability” shall mean any liability, loss, damage, claims and expense arising under or relating to any Environmental Law including those arising from or relating to: (a) compliance or non-compliance with any Environmental Law or permit, license or approval issued thereunder, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threat of Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

Equity Interests” shall mean Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.

ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and, unless the context indicates otherwise, the regulations promulgated and rulings issued thereunder. Section references to ERISA are to ERISA as in effect at the date of this Agreement and any successor Section thereof.

ERISA Affiliate” shall mean each trade or business (whether or not incorporated) which together with any Credit Party would be deemed to be a “single employer” within the meaning of Section 414(b) or (c) of the Code and, solely with respect to Section 412 of the Code, within the meaning of Sections 414(b), (c), (m) or (o) of the Code.

ERISA Event” shall mean (a) any “reportable event,” as defined in Section 4043 of ERISA or the regulations issued thereunder, but excluding any event for which the 30-day notice period is waived with respect to a Plan, (b) any failure to make a required contribution to any Plan or Multiemployer Plan that would result in the imposition of a Lien or other encumbrance or the failure to satisfy the minimum funding standards set forth in Sections 412 or 430 of the Code or Section 302 or 303 of ERISA with respect to a Plan, (c) the incurrence by the Company, a Restricted Subsidiary, or an ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan or with respect to the withdrawal or partial withdrawal (including under Section 4062(e) of ERISA) of any of the Company, a Restricted Subsidiary, or an ERISA Affiliate from any Plan or Multiemployer Plan, (d) the receipt by the Company, a Restricted Subsidiary, or an ERISA Affiliate from the PBGC or a plan administrator of any notice of intent to terminate any Plan or Multiemployer Plan or to appoint a trustee to administer any Plan, (e) a determination that a Multiemployer Plan is insolvent, within the meaning of Title IV of ERISA, (f) the occurrence of any non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA or Section 4975 of the Code) with respect to which the Company or any Restricted Subsidiary could reasonably be expected to have liability, (g) the occurrence of any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of any Plan or the appointment of a trustee to administer any Plan, (h) the filing of any request for or receipt of a minimum funding waiver under Section 412(c) of the Code with respect to any Plan or Multiemployer Plan, (i) a determination that any Plan is in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code) or (j) the receipt by the Company, a Restricted Subsidiary or any ERISA Affiliate of any notice that a Multiemployer Plan is, or is expected to be, in endangered or critical status under Section 305 of ERISA.


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

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

Eurocurrency Rate” shall mean with respect to any Credit Extension:

 (i)          denominated in a LIBOR Quoted Currency, the rate per annum (rounded up to the nearest 1/100th of 1%) equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor rate which rate is approved by the applicable Administrative Agent, as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the applicable Administrative Agent from time to time) at approximately 11:00 a.m., Local Time, two Business Days prior to the commencement of any Interest Period (or, in the case of any Credit Extension denominated in Pounds Sterling, approximately 11:00 a.m., Local Time, on the first day of any Interest Period), for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period;

 (ii)         denominated in Canadian Dollars, the rate per annum equal to the Canadian Dealer Offered Rate (“CDOR”), or a comparable or successor rate which rate is approved by the applicable Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the applicable Administrative Agent from time to time) at or about 10:00 a.m. (Local Time) on the Rate Determination Date with a term equivalent to such Interest Period; and

 (iii)        denominated in any other Non-LIBOR Quoted Currency, the rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the applicable Administrative Agent and the Lenders pursuant to Section 1.08(a);

provided that, to the extent a comparable or successor rate is approved by the applicable Administrative Agent in connection with any rate set forth in this definition, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the applicable Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the applicable Administrative Agent; and if the Eurocurrency Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.


Eurocurrency Rate Loan” shall mean Loans that bears interest at a rate based on clause (a) of the definition of the term “Eurocurrency Rate.” Eurocurrency Rate Loans may be denominated in Dollars or in an Alternative Currency.

European Base Rate” shall mean, with respect to Euros, Pounds Sterling, Swiss Francs and Dollars, funded outside the United States, the Eurocurrency Rate for a one--month period on such date, plus 1.00%, provided that, to the extent a comparable or successor rate is approved by the applicable Administrative Agent in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the applicable Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the applicable Administrative Agent. Any change in such rate shall take effect at the opening of business on the day of such change.

European Base Rate Loan” shall mean a floating rate borrowing under the Dutch Subfacility that bears interest based on the European Base Rate.

Event of Default” shall have the meaning provided in Section 11.

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

Excluded Account” shall mean a Deposit Account (i) which is used for the purposes of making payroll and withholding tax payments related thereto and other employee wage and benefit payments and accrued and unpaid employee compensation (including salaries, wages, bonuses, benefits and expense reimbursements), (ii) which is used for the sole purpose of paying or remitting taxes, including sales taxes, (iii) which is used solely as an escrow account or as a fiduciary or trust account, (iv) the aggregate average daily balance in which (in each case determined for the most recently completed calendar month) does not at any time exceed $1,000,000 in the aggregate for all such Deposit Accounts or (v) containing solely the proceeds of borrowings or issuances of Indebtedness, including Borrowings of Loans hereunder.

Excluded Assets” shall have the meaning provided in the definition of the term “Collateral and Guarantee Requirement.”

Excluded Subsidiary” shall mean (a) each Immaterial Subsidiary, (b) each 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 8.10 (for so long as such Subsidiary remains a non-Wholly-Owned Subsidiary), (c) each Subsidiary (i) that is prohibited by any applicable Requirement of Law or Contractual Requirement (with respect to any such Contractual Requirement, only to the extent existing on the Closing Date or on the date such Person becomes a Subsidiary of the Company and not entered into in contemplation thereof) from guaranteeing the Obligations (and for so long as such restriction or any replacement or renewal thereof is in effect), (ii) that would require consent, approval, license or authorization to provide a Guarantee of the Obligations from a Governmental Authority (unless such consent, approval, license or authorization has been received) or for which the provision of such Guarantee would result in material adverse tax consequences to the Company or one or more of its Subsidiaries (as reasonably determined by the Company in consultation with the Administrative Agent) or (iii) that is a CFC (or a Subsidiary of a CFC) or FSHCO, (d) any other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent and the Borrower, as agreed in writing, the cost or other consequences of providing a Guarantee of the Obligations would be excessive in view of the benefits to be obtained by the Lenders therefrom, (e) each Unrestricted Subsidiary, (f) any Restricted Subsidiary acquired pursuant to a Permitted Acquisition or other Investment permitted hereunder and financed with secured Indebtedness permitted to be incurred pursuant to Section 9.04, and each Restricted Subsidiary acquired in such Permitted Acquisition or other Investment permitted hereunder that guarantees such secured Indebtedness, in each case, to the extent that, and for so long as, the documentation relating to such secured Indebtedness to which such Subsidiary is a party prohibits such Subsidiary from guaranteeing the Obligations and such prohibition was not created in contemplation of such Permitted Acquisition or other Investment permitted hereunder and (g) any special purpose entity (including any not-for-profit entity).


Excluded Swap Obligation” shall mean, with respect to any Guarantor, (a) any Swap Obligation if, and to the extent that, all or a portion of the guarantee of such Guarantor pursuant to the Guarantee of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guarantee pursuant to the Guarantee thereof) is or becomes illegal or unlawful under the Commodity Exchange Act or any rule, regulation, or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) (i) by virtue of such Guarantor’s failure to constitute an “eligible contract participant,” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving pro forma effect to any applicable keep well, support, or other agreement for the benefit of such Guarantor and any and all applicable guarantees of such Guarantor’s Swap Obligations by other Credit Parties), at the time the guarantee of (or grant of such security interest by, as applicable) such Guarantor becomes or would become effective with respect to such Swap Obligation or (ii) in the case of a Swap Obligation that is subject to a clearing requirement pursuant to section 2(h) of the Commodity Exchange Act, because such Guarantor is a “financial entity,” as defined in section 2(h)(7)(C) of the Commodity Exchange Act, at the time the guarantee of (or grant of such security interest by, as applicable) such Guarantor becomes or would become effective with respect to such Swap Obligation or (b) any other Swap Obligation designated as an “Excluded Swap Obligation” of such Guarantor as specified in any agreement between the relevant Credit Parties and counterparties to such Swap Obligations. If a Swap Obligation arises under a master agreement governing more than one Swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to the Swap for which such guarantee or security interest is or becomes excluded in accordance with the first sentence of this definition.

Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender, or any other recipient of any payment to be made by or on account of any obligation of any Credit Party under any Credit Document, (a) income Taxes imposed on (or measured by) its net income and franchise (and similar) Taxes imposed on it in lieu of net income Taxes by a jurisdiction (or any political subdivision thereof) as a result of (i) such recipient being organized or having its principal office or applicable lending office in such jurisdiction or (ii) any other present or former connection between such recipient and such jurisdiction (other than a connection arising from such Administrative Agent, Lender or other 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 Credit Document, or sold or assigned an interest in any Loan or Credit Document), (b) any branch profits Taxes under Section 884(a) of the Code, or any similar Tax, imposed by any jurisdiction described in clause (a) above, (c) solely with respect to the U.S. Subfacilityies, in the case of a Lender (other than an assignee pursuant to a request by the Company under Section 3.04), any U.S. federal withholding Tax that is imposed on amounts payable to such Lender pursuant to a Requirement of Law in effect at the time such Lender becomes a party to this Agreement (or designates a new lending office), except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the time of designation of a new lending office (or assignment), to receive additional amounts from a Credit Party with respect to such U.S. federal withholding Tax pursuant to Section 4.01, (d) any Tax that is attributable to such recipient’s failure to comply with Section 4.01(b) or Section 4.01(c) (in each case, subject to Section 4.01(d)), (e) any withholding Taxes imposed under FATCA, (f) U.S. federal backup withholding Taxes imposed pursuant to Code Section 3406, (g) solely with respect to the Canadian Subfacility, any Canadian Taxes imposed as a result of such recipient not dealing at arm’s length (within the meaning of the ITA) with a Canadian Credit Party, (h) solely with respect to the Canadian Subfacility, any Canadian Taxes imposed as a result of such recipient being a “specified shareholder” (within the meaning of subsection 18(5) of the ITA) of a Canadian Credit Party or not dealing at arm’s length with such a specified shareholder of a Canadian Credit Party and (i) any Taxes imposed pursuant to Article 17(3) of the 1969 Dutch Corporate Income Tax Act (Wet op de vennootschapsbelasting) on an Administrative Agent or a Lender as a result of such Administrative Agent or Lender having an interest, directly or indirectly, of 5.0% or more in a Dutch Borrower.


Executive Order” shall mean Executive Order No. 13224 on Terrorist Financing effective September 24, 2001.

“Ex-FILO Average Usage” shall mean, at any Adjustment Date, the average daily aggregate Revolving Exposure for the applicable Subfacility (without giving effect to the U.S. Tranche B Revolving Exposure and excluding any Revolving Exposure resulting from any outstanding Swingline Loans) for the fiscal quarter period immediately preceding such Adjustment Date divided by the Ex-FILO Revolving Commitments in respect of such Subfacility at such time.

“Ex-FILO Revolving Commitment” shall mean the Canadian Revolving Commitment, the U.S. Tranche A Revolving Commitment, and/or the Dutch Revolving Commitment, as the context may require, but shall not include the U.S. Tranche B Revolving Commitment.

“Ex-FILO Revolving Exposure” shall mean the Canadian Revolving Exposure, the U.S. Tranche A Revolving Exposure and/or the Dutch Revolving Exposure, as the context may require, but shall not include the U.S. Tranche B Revolving Exposure.

“Ex-FILO Revolving Lenders” shall mean a Lender with an Ex-FILO Revolving Commitment.

“Ex-FILO Revolving Loans” shall mean Canadian Revolving Loans, U.S. Tranche A Revolving Loans, Dutch Revolving Loans, Protective Advances and/or Overadvance Loans, as the context may require, but shall not include the U.S. Tranche B Revolving Loans.

“Ex-FILO Subfacilities” shall have the meaning provided in the recitals.

“Ex-FILO Unused Line Fee” shall have the meaning provided in Section 2.05(a)(I).

“Ex-FILO Unused Line Fee Rate” shall mean, for any day, (i) initially, a percentage per annum equal to 0.30% and (ii) following the end of the first full quarter after the Closing Date, a percentage per annum determined by reference to the following grid based on the Ex-FILO Average Usage under the applicable Ex-FILO Subfacility as of the most recent Adjustment Date:

Ex-FILO Average Usage Unused Line Fee Rate
< 25% 0.30%
25% 0.25%

Existing Credit Agreements” shall mean the (i) the Amendment and Restatement Agreement, dated October 14, 2014, relating to a €92,500,000 Multipurpose Facilities Agreement, originally dated September 25, 2012, among The Organic Corporation B.V., Tradin Organic Agriculture B.V., SunOpta Foods Europe B.V., Tradin Organics USA Inc. and Trabocca B.V., as borrowers, and ING Bank N.V., Cooperative Centrale Raiffeissen-Boerenleenbank B.A. and Deutsche Bank AG, Amsterdam Branch, as lenders and (ii) the Seventh Amended and Restated Credit Agreement, dated as of July 27, 2012, among SunOpta Inc. and SunOpta Foods Inc., as borrowers, certain affiliates of the borrowers, the Bank of Montreal, as administrative agent and the lenders from time to time party thereto, in each case, as amended, restated or otherwise modified from time to time prior to the Closing Date.


“Existing Indebtedness” shall have the meaning provided in Section 9.04(iv).

Existing Letters of Credit” shall mean those Letters of Credit set forth on Schedule 1.01B.

Existing Indebtedness” shall have the meaning provided in Section 9.04(iv) .

Existing Revolving Class” shall have the meaning provided in Section 2.19(a).

Existing Revolving Commitment” shall have the meaning provided in Section 2.19(a).

Existing Revolving Loans” shall have the meaning provided in Section 2.19(a) .

Extended Revolving Commitments” shall have the meaning provided in Section 2.19(a).

Extended Revolving Loans” shall have the meaning provided in Section 2.19(a).

Extending Lender” shall have the meaning provided in Section 2.19(b).

Extension Amendment” shall have the meaning provided in Section 2.19(c).

Extension Date” shall have the meaning provided in Section 2.19(d).

Extension Election” shall have the meaning provided in Section 2.19(b).

Extension Request” shall have the meaning provided in Section 2.19(a).

Fair Market Value” shall mean, with respect to any asset or liability, the fair market value of such asset or liability as determined by the Company in good faith.

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 thereunder or official interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above), and any intergovernmental agreements (or related legislation or official administrative rules or practices) implementing the foregoing.

FCCR Test Amountshall have the meaning provided in the definition of the term “Financial Covenant Triggering Event”.

FCPA” shall have the meaning provided in Section 7.14(c).

Federal Funds Rate” shall mean (a) the weighted average of interest rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on the applicable Business Day (or on the preceding Business Day, if the applicable day is not a Business Day), as published by the Federal Reserve Bank of New York on the next Business Day; or (b) if no such rate is published on the next Business Day, the average rate (rounded up, if necessary, to the nearest 1/8 of 1%) charged to the Administrative Agent on the applicable day on such transactions, as determined by the Administrative Agent; provided if the Federal Funds Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.


“Fees” shall mean all amounts payable pursuant to or referred to in Section 2.05.

Field Examination” shall mean field audits and examinations prepared on a basis reasonably satisfactory to the Administrative Agent, setting forth the value of Accounts, which audits and examinations shall be prepared in accordance with this Agreement by an examiner selected by the Administrative Agent in its reasonable discretion.

“FILO Prepayment Conditions” shall mean, with respect to (x) any optional prepayment of U.S. Tranche B Revolving Loans after the one year anniversary of the Second Amendment Effective Date pursuant to Section 2.09(a) and (y) any termination or reduction of U.S. Tranche B Revolving Commitments after the one year anniversary of the Second Amendment Effective Date pursuant to Section 2.07(b)(iv),as of the date of any such optional prepayment of U.S. Tranche B Revolving Loans or termination/reduction of U.S. Tranche B Revolving Commitments, and after giving effect thereto, the following:

          (i)      no Event of Default shall exist or have occurred and be continuing, and

          (ii)     the Total Excess Availability on such date, and during the immediately preceding 30 consecutive day period (assuming such optional prepayment of U.S. Tranche B Revolving Loans or termination/reduction of U.S. Tranche B Revolving Commitments occurred on the first day of such 30 consecutive day period) shall have been not less than the greater of (x) 20.0% of the Line Cap and (y) $40,000,000.

“FILO Reserve Shortfall” shall mean the amount by which the outstanding principal amount of U.S. Tranche B Revolving Loans exceed the U.S. Tranche B Borrowing Base.

Financial Covenant Triggering Event” shall mean, at any time, that Total Excess Availability is less than the greater of (a) $20,000,000 and (b) 10.0% of the Line Cap, as of such date (such greater of amount, the “FCCR Test Amount”). Upon the occurrence of any Financial Covenant Triggering Event, such Financial Covenant Triggering Event shall be deemed to be continuing notwithstanding that Total Excess Availability may thereafter exceed the FCCR Test Amount unless and until Total Excess Availability exceeds such FCCR Test Amount for thirty (30) consecutive days, in which event a Financial Covenant Triggering Event shall no longer be deemed to be continuing.

FeesFirst Amendment” shall mean all amounts payable pursuant to or referred to in Section 2.05the First Amendment, dated as of October 7, 2016, to this Agreement.

“First Amendment Effective Date” shall have the meaning provided in the First Amendment.

First Lien Claimholders” shall have the meaning provided in the Intercreditor Agreement.

First Lien Collateral Agent” shall have the meaning provided in the Intercreditor Agreement.

Fixed Asset Reappraisal Event” shall have the meaning provided in Section 8.02(d).


Flood Insurance Laws” shall mean, collectively, (i) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.

Foreign Pension Plan” shall mean any plan, fund (including, without limitation, any superannuation fund) or other similar program established or maintained outside the United States, Canada or the Netherlands by the Company or any one or more of the Restricted Subsidiaries primarily for the benefit of employees of the Company or such Restricted Subsidiaries residing outside the United States, Canada or the Netherlands, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA, the Canadian Employee Benefits Legislation or the Dutch Pension Regulations.

Foreign Subsidiaries” shall mean each Subsidiary of the Company that is not a Domestic Subsidiary.

Fronting Exposure” shall mean a Defaulting Lender’s Pro Rata Percentage under the applicable Subfacility or Subfacilities of LC Exposure or Swingline Exposure, as applicable, except to the extent allocated to other Lenders under Section 2.11.

Fronting Fee” shall have the meaning provided in Section 2.05(c).

FSHCO” shall mean any Domestic Subsidiary that is a direct or indirect Subsidiary of the U.S. Parent Borrower and has no material assets other than the Capital Stock (including, for the avoidance of doubt, any instrument treated as Capital Stock for U.S. federal income tax purposes) of one or more Foreign Subsidiaries that are CFCs.

GAAP” shall mean (i) generally accepted accounting principles in the United States of America which are in effect from time to time or (ii) if elected by the Company by written notice to the Administrative Agent in connection with the delivery of financial statements and information, the accounting standards and interpretations (“IFRS”) adopted by the International Accounting Standard Board, as in effect from time to time on or after the date on which the Company is making such election; provided, that (a) any such election once made shall be irrevocable and (b) from and after such election, all ratios, computations and other determinations based on GAAP contained in this Agreement shall be computed in conformity with IFRS.

Governmental Approvals” shall mean all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and required reports to, all Governmental Authorities.

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

Guaranteed Creditors” shall mean the Secured Creditors.


Guaranteed Party” shall mean with respect to any Credit Party, any other Credit Party.

Guarantees” shall have the meaning provided in the definition of the term “Collateral and Guarantee Requirement” and, for the avoidance of doubt, shall include the Credit Party Guarantee and any additional guarantee entered into pursuant to Section 8.10.

Guarantor” shall mean each Borrower (other than with respect to its own Obligations) and each Subsidiary Guarantor.

Hazardous Materials” shall mean (a) any petroleum or petroleum products, radioactive materials, asbestos that is or could become friable, urea formaldehyde foam insulation, polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of the terms “hazardous substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous substances,” “restricted hazardous waste,” “toxic substances,” or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance which is regulated, or which would reasonably be expected to give rise to liability under any Environmental Law.

Hedge Reserve” shall mean the aggregate amount of reserves established or modified by the Administrative Agent from time to time in its Permitted Discretion and in accordance with the provisions of Section 2.22 in respect of Secured Reserved Hedges.

Hedging Agreement” shall mean any agreement with respect to any interest rate swap, interest rate cap, interest rate collar, commodity swap, commodity cap, commodity collar, commodity option, foreign exchange, currency swap or similar agreement (including equity derivative agreements) providing for the transfer, modification or mitigation of interest rate, currency, commodity risks or equity risks either generally or under specific contingencies.

Hedging Obligations” shall mean respect to any Person, the obligations of such Person under any Hedging Agreement.

Historical Financial Statements” shall mean (a) audited consolidated balance sheets of the Company and its consolidated Subsidiaries as at the end of, and related audited consolidated statements of operations, comprehensive earnings (loss), shareholders’ equity and cash flows of the Company and its consolidated Subsidiaries for, the fiscal years ended December 29, 2012, December 28, 2013 and January 3, 2015 and (b) an unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries as at the end of, and related unaudited consolidated statements of operations and cash flows of the Company and its subsidiaries for the nine month period ended October 3, 2015.

HMT” shall have the meaning provided in the definition of the term “Sanctions”.

Immaterial Subsidiary” shall mean, at any date of determination, any Restricted Subsidiary of the Company now existing or hereafter acquired or formed (a) whose total assets (when combined with the assets of such Restricted Subsidiary’s Subsidiaries, after eliminating intercompany obligations) at the last day of the Test Period most recently ended on or prior to such determination date were an amount equal to or less than 5% of the Consolidated Total Assets of the Company and its Restricted Subsidiaries at such date and (b) whose gross revenues (when combined with the revenues of such Restricted Subsidiary’s Subsidiaries, after eliminating intercompany obligations) for such Test Period were an amount equal to or less than 5% of the consolidated gross revenues of the Company and its Restricted Subsidiaries for such Test Period, in each case determined in accordance with GAAP. Schedule 1.01C sets forth each Restricted Subsidiary that is an Immaterial Subsidiary that has not executed this Agreement as a Guarantor on and as of the Closing Date.


Increase Date” shall have the meaning provided in Section 2.15(b).

Increase Loan Lender” shall have the meaning provided in Section 2.15(b).

Incremental FILO Facility” shall have the meaning provided in Section 2.15(a).

Incremental Revolving Commitment Agreement” shall have the meaning provided in Section 2.15(d).

Incur” or “incur” shall mean create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to any Indebtedness. The term “Incurrence” or “incurrence” when used as a noun shall have a correlative meaning.

Indebtedness” shall mean, with respect to any Person, without duplication:

 (a)          any indebtedness (including principal and premium) of such Person, whether or not contingent:

(i)          in respect of borrowed money;

(ii)         evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’ acceptances (or, without duplication, reimbursement agreements in respect thereof);

(iii)        representing the balance deferred and unpaid of the purchase price of any property (including Capitalized Lease Obligations) due more than twelve months after such property is acquired, except (x) any such balance that constitutes an obligation in respect of a commercial letter of credit, a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business and (y) any earn-out obligations until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and is not paid after becoming due and payable; or

(iv)        representing the net obligations under any Hedging Agreement;

if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP;

 (b)          to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the obligations of the type referred to in clause (a) of a third Person (whether or not such items would appear upon the balance sheet of such obligor or guarantor), other than by endorsement of negotiable instruments for collection in the ordinary course of business; and

 (c)          to the extent not otherwise included, the obligations of the type referred to in clause (a) of a third Person secured by a Lien on any asset owned by such first Person, whether or not such Indebtedness is assumed by such first Person, but limited to the Fair Market Value of the assets subject to such Lien;

provided that notwithstanding the foregoing, Indebtedness shall (A) include the Indebtedness of any partnership in which such Person is a general partner, except to the extent such Indebtedness is expressly non-recourse to such Person and only to the extent such Indebtedness would be included in the calculation of the aggregate principal amount of indebtedness of such Person determined in accordance with GAAP and (B) be deemed not to include (i) Contingent Obligations incurred in the ordinary course of business and (ii) obligations under or in respect of any operating lease or Sale-Leaseback Transactions (except any resulting Capitalized Lease Obligations); provided, further, that Indebtedness shall be calculated without giving effect to the effects of Financial Accounting Standards Board Accounting Standards Codification Topic No. 815 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Agreement as a result of accounting for any embedded derivatives created by the terms of such Indebtedness.


Indemnified Liabilities” shall have the meaning provided in Section 12.01(a).

Indemnified Person” shall have the meaning provided in Section 12.01(a) .

Indemnified Taxes” shall mean all Taxes other than (i) Excluded Taxes and (ii) Other Taxes.

Indenture Fixed Charges” shall mean with respect to any Person for any period, the sum of, without duplication:

 (a)          Consolidated Interest Expense of such Person for such period;

 (b)          all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred Stock during such period; and

 (c)          all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Disqualified Stock during such period.

Independent Financial Advisor” shall mean an accounting, appraisal, investment banking firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing that is, in the good faith judgment of the Company, qualified to perform the task for which it has been engaged.

Intellectual Property” shall mean all worldwide rights in and to (i) patents, (ii) trademarks, service marks, trade names, trade dress, trade styles, domain names and other identifiers of source or goodwill, (iii) copyrights and works subject to copyright law, (iv) computer software, data and databases, (v) industrial designs and other protections for designs, (vi) inventions, discoveries, trade secrets, knowhow and other proprietary or confidential information, and (vii) issuances, registrations or applications for any of the foregoing.

Intercreditor Agreement” shall mean the Amended and Restated Intercreditor Agreement, dated as of February 11October 20, 2016, among BANA, in its capacity as agent for the First Lien Claimholders, U.S. Bank of Montreal, a Canadian chartered bankNational Association, in its capacity as collateral agent for the Second Lien Claimholders and each additional First Lien Collateral Agent and each additional Second Lien Collateral Agent from time to time party thereto.

Interest Period” shall mean, as to any Borrowing of a Eurocurrency Rate Loan, 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 one, two, three or six month months thereafter, as the Relevant Borrower may elect, or the date any Borrowing of a Eurocurrency Rate Loan is converted to a Borrowing of a U.S. Base Rate Loan, European Base Rate Loan or Canadian Base Rate Loan in accordance with Section 2.08 or repaid or prepaid in accordance with Section 2.07 or Section 2.09; provided 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.


Inventory” shall mean all “inventory,” as such term is defined in the UCC (or with respect to any Canadian Credit Party, the PPSA) or with respect to Inventory owned by any Dutch Credit Party, all raw materials, work in progress and finished goods legally and beneficially owned, in any such case, wherever located, in which any Person now or hereafter has rights.

Inventory Approved Countries” shall mean (a) the United States, Canada, and the Netherlands and (b) solely to the extent the applicable Additional Inventory Security Actions have been completed for such jurisdictions, and with respect to the Dutch Borrowing Base only, the United Kingdom, France and/or Germany. For the avoidance of doubt, such list of Inventory Approved Countries shall not be construed to expand the list of approved jurisdictions of Borrowers who own Eligible Inventory beyond the United States, Canada and the Netherlands.

Investment and Junior Debt Incurrence Conditions” shall mean with respect to (x) any acquisition or other Investment or (y) any Incurrence of Junior Debt that satisfies the Junior Debt Conditions, the following:

 (iiii)          as of the date of any such acquisition, other Investment or Incurrence of Junior Debt, and after giving pro forma effect thereto, no Event of Default shall exist or have occurred and be continuing, and

 (iiiv)         as of the date of any such acquisition, other Investment or Incurrence of Junior Debt, and after giving pro forma effect thereto, the Total Excess Availability on such date, and during the immediately preceding 30 consecutive day period (assuming such acquisition, other Investment or Incurrence of Junior Debt occurred on the first day of such 30 consecutive day period) shall have been not less than the greater of (x) 12.5% of the Line Cap and (y) $25,000,000, and

 (iiiv)         the Consolidated Fixed Charge Coverage Ratio, calculated on a pro forma basis for such acquisition, other Investment or Incurrence of Junior Debt shall be no less than 1.0 to 1.0; provided that this clause (iii) shall not apply if, as of the date of any such acquisition, other Investment or Incurrence of Junior Debt, and after giving effect thereto, the Total Excess Availability on such date, and during the immediately preceding 30 consecutive day period (assuming such acquisition, other Investment or Incurrence of Junior Debt occurred on the first day of such 30 consecutive day period) shall have been not less than the greater of (x) 17.5% of the Line Cap and (y) $35,000,000.

Investment Cash Equivalents” shall mean:

 (a)          (i) Dollars, Canadian Dollars, Euro, Pounds Sterling, yen or any national currency of any participating member state of the European Union or (ii) such local currencies held by a Foreign Subsidiary from time to time in the ordinary course of business;

 (b)          securities issued or directly and fully and unconditionally guaranteed or insured by the U.S. government or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 24 months or less from the date of acquisition;


 (c)          certificates of deposit, time deposits and eurodollar time deposits with maturities of 24 months or less from the date of acquisition, demand deposits, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any domestic or foreign commercial bank having capital and surplus of not less than $250,000,000 in the case of U.S. banks and $100,000,000 million (or the U.S. dollar equivalent as of the date of determination) in the case of non-U.S. banks;

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

 (e)          commercial paper and variable or fixed rate notes rated at least “P-2” by Moody’s or at least “A-2” by S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency) and in each case maturing within 24 months after the date of creation thereof and Indebtedness or Preferred Stock issued by Persons with a rating of “A” or higher from S&P or “A-2” or higher from Moody’s with maturities of 24 months or less from the date of acquisition;

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

 (g)          readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having an Investment Grade Rating from either Moody’s or S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency) with maturities of 24 months or less from the date of acquisition;

 (h)          readily marketable direct obligations issued by any foreign government or any political subdivision or public instrumentality thereof, in each case having an Investment Grade Rating from either Moody’s or S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency) with maturities of 24 months or less from the date of acquisition;

 (i)           Investments with average maturities of 24 months or less from the date of acquisition in money market funds rated “AAA-” (or the equivalent thereof) or better by S&P or “Aaa3” (or the equivalent thereof) or better by Moody’s (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency);

 (j)           securities with maturities of 12 months or less from the date of acquisition backed by standby letters of credit issued by any financial institution or recognized securities dealer meeting the qualifications specified in clause (3) above; and

 (k)          investment funds investing at least 90% of their assets in securities of the types described in clauses (a) through (j) above.

In the case of Investments made by a Foreign Subsidiary (or temporarily held by the Company or the Restricted Subsidiaries as part of their cash management arrangements with a Foreign Subsidiary in the ordinary course of business or consistent with past practice) in a country outside the United States, Cash Equivalents shall also include (a) investments of the type and maturity described in clauses (a) through (g) and clauses (i), (j) and (k) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (b) other short-term investments utilized by Foreign Subsidiaries that are Restricted Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (a) through (k) and in this paragraph.


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

For the avoidance of doubt, any items identified as Cash Equivalents under this definition will be deemed to be Cash Equivalents for all purposes under this Agreement regardless of the treatment of such items under GAAP.

Investment Grade Rating” shall mean a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or if the applicable securities are not then rated by Moody’s or S&P, an equivalent rating by any other Rating Agency.

Investment Grade Securities” shall mean:

 (a)          securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Investment Cash Equivalents);

 (b)          debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Company and its Subsidiaries;

 (c)          investments in any fund that invests exclusively in investments of the type described in clauses (a) and (b) which fund may also hold immaterial amounts of cash pending investment or distribution; and

 (d)          corresponding instruments in countries other than the United States customarily utilized for high quality investments.

Investments” shall mean, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade credit, advances to customers and distributors, commission, travel and similar advances to employees, directors, officers, managers, distributors and consultants, in each case made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of the Company in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property. For purposes of Section 8.14, “Investments” shall include (a) the portion (proportionate to the Company’s Equity Interest in such Subsidiary) of the Fair Market Value of the net assets of a Subsidiary of the Company at the time that such Subsidiary is designated an Unrestricted Subsidiary and (b) any property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer. The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in Investment Cash Equivalents by the Company or a Restricted Subsidiary in respect of such Investment.


Issuing Bank” shall mean the Canadian Issuing Bank, the U.S. Issuing Bank and/or the Dutch Issuing Bank, as the context requires.

ITA” shall mean the Income Tax Act (Canada), as amended, and any successor thereto, and any regulations promulgated thereunder.

Joint Lead Arrangers” shall mean Merrill Lynch, Pierce, Fenner & Smith Incorporated, Rabobank Nederland, Canadian Branch and Bank of Montreal, in their respective capacities as joint lead arrangers and joint bookrunners, as applicable, under this Agreement.

Judgment Currency” shall have the meaning provided in Section 12.20. “Junior Debt” shall have the meaning provided in Section 9.04(ii).

Junior Debt Conditions” shall have the meaning provided in Section 9.04(ii).

Latest Maturity Date” shall mean, at any date of determination, the latest maturity date applicable to any Loan or Commitment under any Subfacility hereunder as of such date of determination.

LC Collateral Account” shall mean a collateral account in the form of a deposit account established and maintained by the applicable Administrative Agent for the benefit of the applicable Issuing Banks, in accordance with the provisions of Section 2.13(n).

LC Commitment” shall mean the commitment of the Issuing Banks to issue Letters of Credit pursuant to Section 2.13.

LC Credit Extension” shall mean any Canadian LC Credit Extension, U.S. LC Credit Extension or Dutch LC Credit Extension.

LC Disbursement” shall mean any Canadian LC Disbursement, U.S. LC Disbursement or Dutch LC Disbursement.

LC Documents” shall mean the Canadian LC Documents, the U.S. LC Documents and the Dutch LC Documents.

LC Exposure” shall mean, collectively, the Canadian LC Exposure, the U.S. LC Exposure and the Dutch LC Exposure.

LC Obligations” shall mean the Canadian LC Obligations, the U.S. LC Obligations and/or the Dutch LC Obligations.

LC Participation Fee” shall have the meaning provided in Section 2.05(c)(i) .

LC Request” shall mean a request by a Borrower in accordance with the terms of Section 2.13(b) in form and substance reasonably satisfactory to the applicable Issuing Bank.

LC Sublimit” shall mean the aggregate Canadian LC Sublimit, Dutch LC Sublimit and U.S. LC Sublimit.


Lender” shall mean each financial institution listed on Schedule 2.01, as well as any Person that becomes a “Lender” hereunder pursuant to Section 2.15, 3.04 or 12.04.

Lender Loss Sharing Agreement” shall mean the Lender Loss Sharing Agreement entered into by each Lender as of the Closing Date and each other Lender becoming party to this Agreement via an Assignment and Assumption Agreement or otherwise after the Closing Date, in form and substance reasonably acceptable to the Administrative Agent.

Letter of Credit” shall mean any Canadian Letter of Credit, U.S. Letter of Credit and Dutch Letter of Credit.

Letter of Credit Expiration Date” shall mean the fifth Business Day prior to the Maturity Date.

LIBOR” shall have the meaning provided in the definition of the term “Eurocurrency Rate”.

LIBOR Quoted Currency” shall mean each of the following currencies: Dollars; Euros; Pounds Sterling; and Swiss Franc; in each case as long as there is a published LIBOR rate with respect thereto.

Lien” shall mean with respect to any asset, any mortgage, lien (statutory or otherwise), pledge, hypothecation, charge, security interest, preference, priority or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable Requirement of Law, including any conditional sale or other title retention agreement, any lease in the nature thereof, or any other agreement to give a security interest in and any filing of or agreement to give any financing statement under the UCC (or equivalent statutes, including the PPSA) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.

Line Cap” shall mean an amount that is equal to the lesser of (a) the then applicable Revolving Commitments plus the U.S. Tranche B Revolving Loans then outstanding and (b) the then applicable Borrowing Base(s).

Loans” shall mean advances made to or at the instructions of a Borrower pursuant to Section 2 hereof and may constitute Revolving Loans or Swingline Loans.

Local Time” shall mean, (i) with respect to the U.S. Subfacilityies, Chicago time, (ii) with respect to the Canadian Subfacility, Toronto time and (iii) with respect to the Dutch Subfacility, London time.

Margin Stock” shall have the meaning provided in Regulation U.

Material Adverse Effect” shall mean any circumstance or condition affecting the business or financial condition of the Company and its Restricted Subsidiaries taken as a whole that would, individually or in the aggregate, reasonably be expected to materially adversely affect, (x) the ability of the Company and the other Credit Parties, taken as a whole, to perform their obligations under the Credit Documents or (y) the rights and remedies of the Administrative Agents, the Collateral Agent, Issuing Lenders or the Lenders under the Credit Documents.

Material Real Property” shall mean all Real Property (including fixtures thereon) owned in fee by a U.S. Credit Party or Canadian Credit Party that either (A) has a Fair Market Value of no less than $5,000,000, determined on the Closing Date with respect to properties owned by them on the Closing Date, or on the date of acquisition for properties acquired thereafter or, with respect to any properties under construction or improvement, on the date of substantial completion thereof, or (B) constitutes Eligible Fee-Owned Real Estate.


Material Subsidiary” shall mean each Restricted Subsidiary of the Company that is not an Immaterial Subsidiary. For the avoidance of doubt, all Credit Parties (other than the Company) shall be deemed to constitute “Material Subsidiaries”.

Maturity Date” shall mean the date that is 5 years after the Closing Date.

Moody’s” shall mean Moody’s Investors Service, Inc., or any successor thereto.

Mortgage” shall mean a mortgage, debenture, leasehold mortgage, deed of trust, deed of immovable hypothec, leasehold deed of trust, deed to secure debt, leasehold deed to secure debt or similar security instrument in form and substance reasonably satisfactory to the Administrative Agent, in favor of the Collateral Agent for the benefit of the Secured Creditors.

Mortgaged Property” shall mean Real Property (including any fixtures thereon) owned by a U.S. Credit Party or Canadian Credit Party that is subject to a Mortgage.

Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA and subject to Title IV of ERISA with respect to which a Credit Party has, or may have, any obligation or liability, including on account of an ERISA Affiliate.

NAIC” shall mean the National Association of Insurance Commissioners.

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 Value” shall mean, as of any date of determination, with respect to any Inventory or Equipment, the “net orderly liquidation value” of such Inventory or Equipment, expected to be realized at an orderly, negotiated sale of such Inventory or Equipment and determined from the most recent Appraisal of the Borrowers’ Inventory or Equipment received by the Administrative Agent, less the amount estimated by the appraiser for marshaling, reconditioning, carrying, sales expenses, operating expenses, administration expenses and commissions designated to maximize the resale value of such Inventory and assuming that the time required to dispose of such Inventory is customary with respect to such Inventory and expressed as a percentage of the Cost of such Inventory or Equipment.

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

Non-LIBOR Quoted Currency” shall mean any currency other than a LIBOR Quoted Currency.

Non-Public Lender” shall mean any person/entity which does not belong to the "public" within the meaning of CRR.

North American Minimum Requirement” shall mean that at no time shall (a) the sum of the Canadian Borrowing Base plus the U.S. Tranche A Borrowing Base comprise less than 60.0% of the total Borrowing Base (without giving effect to the U.S. Tranche B. Borrowing Base); and (b) the sum of the Canadian Revolving Commitment plus the U.S. Tranche A Revolving Commitment comprise less than 60.0% of the total Ex-FILO Revolving Commitment.

Note” shall mean each Revolving Note or Swingline Note, as applicable.


Notice of Borrowing” shall mean a notice substantially in the form of Exhibit A-1 hereto.

Notice of Conversion/Continuation” shall mean a notice substantially in the form of Exhibit A-2 hereto or such other form as may be agreed by the applicable Administrative Agent and the Company.

Notice Office” shall mean (i) with respect to the U.S. Subfacilityies , Bank of America, N.A., 20975 Swenson Drive, Suite 200, Waukesha, WI 53186; Attention: Erin Cordes (email: erin.cordes@baml.com, with a copy to Todd Wellentin (todd.wellentin@baml.com), (ii) with respect to the Canadian Subfacility, Bank of America, N.A., Canada Branch, 181 Bay Street, Suite 400, Toronto, ON, M5J 2V8, Attention: Teresa Tsui (email: teresa.tsui@baml.com) with a copy to Todd Wellentin (todd.wellentin@baml.com) and (iii) with respect to the Dutch Subfacility, Bank of America N.A., London Branch, 26 Elmfield Road, Bromley, BR1 1WA; Attention: Michelle Stanley (email: michelle.a.stanley@baml.com) with a copy to Todd Wellentin (todd.wellentin@baml.com); or such other offices or persons as the applicable Administrative Agent may hereafter designate in writing as such to the other parties hereto.

Obligations” shall mean (x) all now existing or hereafter arising debts, obligations, covenants, and duties of payment or performance of every kind, matured or unmatured, direct or contingent, owing, arising, due, or payable to any Lender, Agent or Indemnified Person by any Credit Party, now existing or hereafter incurred under, or arising out or in connection with, this Agreement or any other Credit Document, including, without limitation, all obligations to repay principal or interest (including interest accruing after the commencement of any proceedings under any applicable Debtor Relief Laws in any jurisdiction, regardless of whether allowed or allowable in such proceeding, including, for the avoidance of doubt, any such interest which, but for the automatic stay under Section 362(a) of the Bankruptcy Code or a stay under any proceedings under any applicable Debtor Relief Laws in any jurisdiction would become due) on the Loans, and to pay interest, fees, costs, charges, expenses, professional fees, all sums chargeable to the Borrowers or any other Credit Party or for which any Borrower or any other Credit Party is liable as indemnitor under the Credit Documents, whether or not evidenced by any note or other instrument (including, indemnities, fees, interest and other amounts accruing after the commencement of any proceedings under any applicable Debtor Relief Laws in any jurisdiction, regardless of whether allowed or allowable in such proceeding), whether or not evidenced by any note or other instrument, now existing or hereafter incurred under, arising out of or in connection with, this Agreement and each other Credit Document to which any Credit Party is a party and the due compliance by the Credit Parties with all the terms, conditions and agreements contained in this Agreement and in each such other Credit Document and (y) all Secured Bank Product Obligations and the due performance and compliance with all terms, conditions and agreements contained therein; provided, however, that for purposes of the Credit Party Guarantee and each other guarantee agreement or other instrument or document executed and delivered pursuant to this Agreement, the term “Obligations” shall not, as to any Guarantor, include any Excluded Swap Obligations of such Guarantor. Notwithstanding anything to the contrary contained above, (x) at the option of the Company, obligations of any Credit Party under any Secured Bank Product Obligations shall be secured and guaranteed pursuant to the Credit Documents only to the extent that, and for so long as, the other Obligations are so secured and guaranteed and (y) any release of Collateral or Guarantors effected in the manner permitted by this Agreement shall not require the consent of holders of obligations under Secured Bank Product Obligations.

OFAC” shall mean the Office of Foreign Assets Control of the United States Department of the Treasury.

Ontario Pension Plan” shall mean a “registered pension plan,” as defined in subsection 248(1) of the ITA, which contains a “defined benefit provision,” as defined in subsection 147.1(1) of the ITA, and which is registered under the Pension Benefits Act (Ontario), but excluding any plan that provides only a “target benefit” or any “multi-employer pension plan,” both as defined in the Pension Benefits Act (Ontario), where employer contributions to such target benefit or multi-employer pension plan are determined solely by reference to a participation agreement, collective agreement, or other agreement negotiated with the bargaining agent or other representative of the employees participating in such plan and the employer has no liability for or obligation to fund any funding deficiency under such plan upon termination of the plan in whole or in part or upon the withdrawal of an employer from such plan.


Opta Minerals Disposition” shall mean the direct or indirect sale, transfer or other disposition of all or any part of the Capital Stock or assets of Opta Minerals Inc.

Other Taxes” shall mean any and all present or future stamp, court or documentary, intangible, recording, filing or property Taxes or similar Taxes arising from any payment made under, from the execution, delivery, registration, performance or enforcement of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Credit Document; provided, however, that Other Taxes shall not include any Excluded Taxes.

Outstanding Amount” shall mean (i) with respect to Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Loans occurring on such date; (ii) with respect to Swingline Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Swingline Loans occurring on such date; and (iii) with respect to any LC Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of such LC Obligations on such date after giving effect to any LC Credit Extension occurring on such date and any other changes in the aggregate amount of the LC Obligations as of such date, including as a result of any reimbursements by the Relevant Borrower of Unreimbursed Amounts.

Outstanding Balance” of any Account at any time shall mean the Dollar Equivalent of the then outstanding face amount thereof.

Overadvance” shall have the meaning provided in Section 2.17.

Overadvance Loan” shall mean a (i) U.S. Base Rate Loan made when an Overadvance exists or is caused by the funding thereof under the U.S. Tranche A Subfacility, (ii) a Canadian Prime Loan and/or Canadian Base Rate Loan when an Overadvance exists or is caused by the funding thereof under the Canadian Subfacility or (iii) a European Base Rate Loan when an Overadvance exists or is caused by the funding thereof under the Dutch Subfacility.

Parallel Debt” shall have the meaning provided in the Dutch Security Agreements.

Parent Company” shall mean any direct or indirect parent company of the Company.

Participant” shall have the meaning provided in Section 12.04(f).

Patriot Act” shall have the meaning provided in Section 12.15.

Payment in Full Date” shall mean the date on which all Obligations (other than (i) any Secured Bank Product Obligations and (ii) any contingent indemnification obligations or other contingent obligations not then due and payable) have been paid in full, all Commitments have terminated or expired and no Letter of Credit is outstanding (other than any Letter of Credit that is (x) Cash Collateralized by Cash Collateral held in the LC Collateral Account, in the name of the applicable Administrative Agent and for the benefit of the applicable Issuing Bank, in an amount equal to 103.0% of the LC Exposure with respect to such Letter of Credit or (y) backstopped on terms reasonably satisfactory to the applicable Issuing Bank).


Payment Office” shall mean (i) with respect to the U.S. Subfacilityies the office of the Administrative Agent located at Bank of America, N.A., 20975 Swenson Drive, Suite 200, Waukesha, WI 53186 , Attention: Erin Cordes, (ii) with respect to the Canadian Subfacility, the office of the Administrative Agent located at Bank of America, N.A., Canada Branch, 181 Bay Street, Suite 400, Toronto, ON, M5J 2V8, Attention: Teresa Tsui and (iii) with respect to the Dutch Subfacility, the office of the Administrative Agent located at Bank of America N.A., 26 Elmfield Road, Bromley, BR1 1WA, Attention: Michelle Stanley; or, in each case, such other office as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.

PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.

PCMLTFA” shall mean Proceeds of Crime (Money Laundering) and Terrorist Financing Act of Canada.

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

Perfection Certificate” shall mean the Perfection Certificate substantially in the form approved by the Collateral Agent, as the same may be supplemented from time to time pursuant to Section 8.01(c).

Permitted Acquisition” shall mean the acquisition by the Company or any Restricted Subsidiary of an Acquired Entity or Business; provided that (i) the board of directors (or similar governing body) of the Person to be so acquired, or the board of directors of the Person that owns the assets to be so acquired, as the case may be, either (x) shall have approved such acquisition or (y) shall not have indicated publicly its opposition to the consummation of such acquisition (which opposition has not been publicly withdrawn), (ii) if such acquisition involves the acquisition of Equity Interests of a Person that upon such acquisition would become a Subsidiary, such acquisition shall result in the issuer of such Equity Interests becoming a Restricted Subsidiary and, to the extent required by Section 8.10, a Guarantor, (iii) to the extent required by the Collateral and Guarantee Requirement, such acquisition shall result in the Collateral Agent, for the benefit of the Secured Creditors, being granted a security interest in any Capital Stock or any assets so acquired, (iv) both immediately prior to and after giving pro forma effect to such acquisition, no Event of Default under either Section 10.01 or Section 10.05 shall have occurred and be continuing and (v) immediately after giving pro forma effect to such acquisition, the Company and its Restricted Subsidiaries shall be in compliance with Section 9.09.

Permitted Acquisition Consideration” shall mean, in connection with any Permitted Acquisition or other acquisition, the aggregate amount (as valued at the Fair Market Value of such Permitted Acquisition at the time such Permitted Acquisition is made) of, without duplication: (a) the purchase consideration paid or payable for such Permitted Acquisition, whether payable at or prior to the consummation of such Permitted 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 including any and all payments representing the purchase price and any assumptions of Indebtedness and/or Contingent Obligations, “earn-outs” and other agreements to make any payment the amount of which is, or the terms of payment of which are, in any respect subject to or contingent upon the revenues, income, cash flow or profits (or the like) of any Person or business and (b) the aggregate amount of Indebtedness Incurred in connection with such Permitted Acquisition; provided in each case, that any such future payment that is subject to a contingency shall be considered Permitted Acquisition Consideration only to the extent of the reserve, if any, required under GAAP (as determined at the time of the consummation of such Permitted Acquisition) to be established in respect thereof by the Company or its Restricted Subsidiaries.


Permitted Asset Swap” shall mean the substantially concurrent purchase and sale or exchange of Related Business Assets constituting Real Property or Equipment or a combination of Related Business Assets constituting Real Property or Equipment and Investment Cash Equivalents between the Company or any of the Restricted Subsidiaries and another Person; provided that any Investment Cash Equivalents received must be applied in accordance with Section 9.02 hereof; provided, further, that the assets received are pledged as Collateral to the extent required by the Collateral and Guarantee Requirement.

Permitted Discretion” shall mean the Administrative Agent’s reasonable credit judgment (from the perspective of an asset-based Lender) in establishing Reserves exercised in good faith in accordance with customary business practices for similar asset based lending facilities, based upon its consideration of any factor that it reasonably believes (i) could adversely affect the quantity, quality, mix or value of Collateral included in the applicable Borrowing Base (including any applicable Requirements of Law that may inhibit collection of a receivable), the enforceability or priority of the Collateral Agent’s Liens thereon, or the amount that the Administrative Agents, the Collateral Agent, the Lenders or the Issuing Banks could receive in liquidation of any Collateral included in the applicable Borrowing Base; (ii) that any collateral report or financial information delivered by any Borrower or Guarantor is incomplete, inaccurate or misleading; or (iii) could create a Default or Event of Default.

Permitted Encumbrances” shall mean, with respect to any Mortgaged Property, such exceptions to title as are set forth in the mortgage title insurance policy delivered with respect thereto, all of which exceptions must be reasonably acceptable to the Administrative Agent.

Permitted Investments” shall have the meaning provided in Section 9.05.

Permitted Liens” shall have the meaning provided in Section 9.01.

Person” shall mean any individual, partnership, joint venture, firm, corporation, association, limited liability company, unlimited liability company, trust or other enterprise or any government or political subdivision or any agency, department or instrumentality thereof.

Plan” shall mean any pension plan as defined in Section 3(2) of ERISA other than a Multiemployer Plan, which is subject to Section 412 of the Code or Title IV of ERISA and is maintained or contributed to by (or to which there is an obligation to contribute of) a Credit Party or with respect to which a Credit Party has, or may have, any liability, including, for greater certainty, liability arising from an ERISA Affiliate.

Pounds Sterling”, “Sterling” and “£” shall mean the lawful currency of the United Kingdom.

PPSA” shall mean the Personal Property Security Act (Ontario) and the regulations thereunder; provided, however, if validity, perfection and effect of perfection and non-perfection of the Collateral Agent’s Lien on any applicable Collateral are governed by the personal property security Requirements of Law of any Canadian jurisdiction other than Ontario, PPSA shall mean those personal property security Requirements of Law (including the Civil Code of Quebec) in such other jurisdiction for the purposes of the provisions hereof relating to such validity, perfection and effect of perfection and non-perfection and for the definitions related to such provisions, as from time to time in effect.


Preferred Stock” shall mean any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution, or winding up.

Prime Rate” shall mean the rate of interest announced by BANA from time to time as its prime rate. Such rate is set by BANA on the basis of various factors, including its costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such rate. Any change in such rate publicly announced by BANA shall take effect at the opening of business on the day specified in the announcement.

Priority Lien” shall have the meaning provided in the definition of the term “Canadian Priority Payables”.

Pro Rata Percentage” of any Lender at any time shall mean either (i) the percentage of the total Revolving Commitments represented by such Lender’s Revolving Commitment, (ii) the percentage of the total Canadian Revolving Commitments represented by such Lender’s Canadian Revolving Commitment, (iii) the percentage of the total U.S. Tranche A Revolving Commitments represented by such Lender’s U.S. Tranche A Revolving Commitment, (iv) the percentage of the total U.S. Tranche B Revolving Commitments represented by such Lender’s U.S. Tranche B Revolving Commitment or (ivv) the percentage of the total Dutch Revolving Commitments represented by such Lender’s Dutch Revolving Commitment, as applicable. The initial Pro Rata Percentages of each Lender under one or more Subfacilities are set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption Agreement pursuant to which such Lender becomes a party hereto, as applicable.

Projections” shall have the meaning provided in Section 5.10.

Protective Advance” shall have the meaning provided in Section 2.18.

Purchase Money Obligations” shall mean Indebtedness incurred to finance or refinance the acquisition or leasing by the Company or a Restricted Subsidiary of such asset, including additions and improvements or the installation, construction, improvement or restoration of such asset and whether acquired through the direct acquisition of such property or assets, or otherwise (including through the purchase of Capital Stock of any Person owning such property or assets); provided that any Lien arising in connection with any such Indebtedness shall be limited to the specified asset being financed or, in the case of real property or fixtures, including additions and improvements, the real property on which such asset is attached; provided further that such Indebtedness is incurred within 365 days after such acquisition or lease of, or the completion of construction of, such asset by the Company or Restricted Subsidiary.

Qualified Equity Interests” shall mean any Equity Interests that are not Disqualified Stock.

Quebec Hypothec” has the meaning provided to such term in clause (ii) of the definition of the term “Canadian Security Agreements”.

Rate Determination Date” shall mean two (2) Business Days prior to the commencement of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as reasonably determined by the applicable Administrative Agent; provided that, to the extent such market practice is not administratively feasible for the applicable Administrative Agent, such other day as otherwise reasonably determined by the applicable Administrative Agent).

Rating Agencies” shall mean Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on the applicable securities publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company which shall be substituted for Moody’s or S&P or both, as the case may be.


RDPRM” means Registre Des Droits Personneles et Réels Mobiliers de Quebec.

Real Property” of any Person shall mean, collectively, the right, title and interest of such Person (including any leasehold, mineral or other estate) in and to any and all land, improvements and fixtures owned, leased or operated by such Person, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership, lease or operation thereof.

Receivables Collection Reserve” shall mean a reserve in the amount reasonably anticipated by the Administrative Agent, in its Permitted Discretion, to be necessary to compensate the Administrative Agent for fees or other amounts payable to a Dutch administrator to collect amounts due on Eligible Accounts with Account Debtors located in Account Debtor Approved Countries with respect to which the Additional Account Security Actions have not been taken.

Recipient” shall have the meaning provided in Section 4.02(b).

Refinancing Indebtedness” shall have the meaning provided in Section 9.04.

Refunding Capital Stock” shall have the meaning provided in Section 9.03(b)(ii).

Regulation D” shall mean Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof establishing reserve requirements.

Regulation T” shall mean Regulation T of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.

Regulation U” shall mean Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.

Regulation X” shall mean Regulation X of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.

Related Business Assets” shall mean assets (other than Investment Cash Equivalents) used or useful in a Similar Business, provided that any assets received by the Company or a Restricted Subsidiary in exchange for assets transferred by the Company or a Restricted Subsidiary shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.

Related Real Estate Documents” shall mean (i) a Mortgage and, if applicable, fixture filings; (ii) a mortgagee title insurance policy (or unconditional commitment to issue such policy), insuring the Collateral Agent’s interest under the Mortgage, in a form and by an insurer reasonably acceptable to the Collateral Agent in an amount not to exceed the Fair Market Value of the Mortgaged Property under the Mortgage, which must be fully paid on such effective date; (iii) solely with respect to a Mortgage on Real Property located in the United States, a new ALTA survey or (b) an existing as-built survey of the Mortgaged Property (together with a no change affidavit) sufficient for the title company to remove the standard survey exceptions and issue the survey-related endorsements (to the extent such endorsements are available at commercially reasonable rates); (iv) solely with respect to a Mortgage on Real Property located in Canada, and only to the extent required by the applicable title company to remove the standard survey exceptions and issue the survey-related endorsements (to the extent such endorsements are available at commercially reasonable rates), either (a) an existing as-built survey of the Mortgaged Property (together with a no change affidavit), or (b) if insufficient, a new survey prepared by a qualified land surveyor; (v) solely with respect to a Mortgage on Real Property located in the United States, a life-of-loan flood hazard determination and, if the Mortgaged Property is located in a flood plain, an acknowledged notice to borrower and evidence of flood insurance in accordance with Section 8.03; (vi) a mortgage opinion, addressed to the Collateral Agent and the Secured Creditors covering the due authorization, execution, delivery and enforceability of the applicable Mortgage and such other customary matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request (if not covered by title insurance), and shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent; (vii) evidence reasonably satisfactory to the Administrative Agent that the applicable Credit Parties have delivered to the title company such standard and customary affidavits, certificates, information, instruments of indemnification (including so-called “gap” indemnification) and other documents as may be reasonable necessary to cause the title company to issue the title insurance policies as contemplated by clause (ii) above; and (viii) evidence reasonably satisfactory to the Administrative Agent of payment by the Company or other applicable Credit Party of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages, fixture filings and other real estate documents and the issuance of the title policies contemplated by clause (ii) above.


Release” shall mean disposing, discharging, injecting, spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying, pouring or seeping into, through or upon the Environment or within, from or into any building or other occupied structure or facility.

Relevant Borrower” shall mean, with respect to any Borrowing, the Borrower requesting such Borrowing or with respect to any Letter of Credit, the Borrower requesting the issuance of same.

Rent Reserve” shall mean with respect to any facility, warehouse, distribution center or depot where any Inventory or Equipment subject to Liens arising by operation of law is located and with respect to which no Collateral Access Agreement is in effect, a reserve equal to (a) in the case of any leased location, three months gross rent at such facility, warehouse, distribution center or depot and (b) in the case of any other such location, an amount reasonably determined by the Administrative Agent in its Permitted Discretion in accordance with the provisions of Section 2.22 in respect of the liabilities owed to the applicable bailee or warehouseman.

Replaced Lender” shall have the meaning provided in Section 3.04.

Replacement Lender” shall have the meaning provided in Section 3.04.

Required Lenders” shall mean Non-Defaulting Lenders holding more than 50% of the sum of the (i) total Outstanding Amount (with the aggregate amount of each Revolving Lender’s risk participation and funded participation in LC Obligations and Swingline Loans being deemed “held” by such Revolving Lender for purposes of this definition) and (ii) aggregate unused Commitments held by Non-Defaulting Lenders at such time as of any date of determination.

Required Reserve Notice” shall mean (a) so long as no Event of Default has occurred and is continuing, at least three Business Days’ advance notice to the Company, and (b) if an Event of Default has occurred and is continuing, one Business Days’ advance notice to the Company (or no advance notice to the Company, as may reasonably be determined to be appropriate by the Administrative Agent in its Permitted Discretion to protect the interests of the Lenders). Notwithstanding the preceding sentence, changes to the Reserves solely for purposes of (a) correcting mathematical or clerical errors or (b) imposing restrictions to account for the limitations on Account Debtors in certain Account Debtor Approved Countries upon any Cash Dominion Event, shall not be subject to such notice period.


Requirement of Law” shall mean, with respect to any Person, any statute, law, treaty, rule, regulation, order, decree, writ, official administrative pronouncement, injunction or determination of any arbitrator or court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

Reserves” shall mean, without duplication of any items that are otherwise addressed or excluded through eligibility criteria (including the Collateral and Guarantee Requirement, the Additional Account Security Actions and the Additional Inventory Security Actions), such reserves as the Administrative Agent from time to time establishes or modifies in its Permitted Discretion in accordance with the provisions of Section 2.22, including, without limitation, Dilution Reserves, Rent Reserves, Hedge Reserves, Amortization Reserves, the FILO Reserve Shortfall (in accordance with the last sentence of this definition) and with respect to the Canadian Borrowing Base, the Canadian Priority Payables Reserve and the Receivables Collection Reserve (solely during a Cash Dominion Period). If at any time prior to the U.S. Tranche B Maturity Date the aggregate principal amount of U.S. Tranche B Revolving Loans outstanding exceed the U.S. Tranche B Borrowing Base, then the Administrative Agent shall be entitled to establish a reserve against the U.S. Tranche A Borrowing Base in an amount equal to the FILO Reserve Shortfall; provided that, if after the establishment of such reserve, the U.S. Tranche B Borrowing Base exceeds the aggregate principal amount of U.S. Tranche B Revolving Loans outstanding at such time, then the Administrative Agent will remove such reserve.

Responsible Officer” shall mean, with respect to any Person, its chief executive officer, president, chief financial officer or any vice president, treasurer, chief accounting officer, controller or other officer of such Person having substantially the same authority and responsibility, or in relation to a Dutch Credit Party, its director or any other person validly authorized to represent that Dutch Credit Party and, as to any certificate (other than (i) the Borrowing Base Certificate and (ii) the solvency certificate), delivered on the Closing Date, any secretary or assistant secretary of such Person; provided that, with respect to compliance with financial covenants, and the certificate required to be delivered pursuant to clause (iv) of the definition of “Distribution Conditions”, “Responsible Officer” shall mean the chief executive office, chief financial officer, treasurer, chief accounting officer or controller of the Company, or any other officer of the Company having substantially the same authority and responsibility.

Restricted Investment” shall mean any Investment other than a Permitted Investment.

Restricted Junior Debt Prepayments” shall mean principal payments on, and redemptions, defeasances and other acquisitions or retirements for value of, any Junior Debt, in each case, prior to any scheduled repayment or sinking fund payment with respect thereto or maturity thereof, other than Junior Debt permitted under clauses (vii), (viii) or (ix) of Section 9.04.

Restricted Payment” shall have the meaning provided in Section 9.03(a).

Restricted Subsidiary” shall mean each Subsidiary other than any Unrestricted Subsidiary. Unless the context otherwise requires, “Restricted Subsidiaries” shall mean the Restricted Subsidiaries of the Company. The U.S. Credit Parties, the Canadian Credit Parties (other than the Company) and the Dutch Credit Parties shall at all times constitute Restricted Subsidiaries of the Company.


Returns” shall have the meaning provided in Section 7.09.

Revaluation Date” shall mean (a) with respect to any Ex-FILO Revolving Loan, each of the following: (i) each date of a Borrowing denominated in a currency other than Dollars, (ii) each date of a continuation of a Loan denominated in a currency other than Dollars pursuant to Section 2.08, and (iii) such additional dates as set forth in Section 1.06(a); and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit denominated in a currency other than Dollars, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof, (iii) each date of any payment by the Issuing Bank under any Letter of Credit denominated in a currency other than Dollars, (iv) in the case of all Existing Letters of Credit denominated in a currency other than Dollars, the Closing Date, and (v) such additional dates as set forth in Section 1.06(a) .

Revolving Availability Period” shall mean the period from and including the Closing Date to but excluding the earlier of the Maturity Date and the date of termination of the Ex-FILO Revolving Commitments.

Revolving Borrowing” shall mean a Canadian Revolving Borrowing, a Dutch Revolving Borrowing, a U.S. Tranche A Revolving Borrowing and/or a U.S. Tranche B Revolving Borrowing, as the context may require.

Revolving Commitment” shall mean the Canadian Revolving Commitment, the U.S. Tranche A Revolving Commitment, the U.S. Tranche B Revolving Commitment, and/or the Dutch Revolving Commitment, as the context may require. The aggregate amount of Revolving Commitments of the Lenders as of the Second Amendment Effective Date is $370,000,000.

Revolving Commitment Increase” shall have the meaning provided in Section 2.15(a).

Revolving Commitment Increase Notice” shall have the meaning provided in Section 2.15(b).

Revolving Exposure” shall mean the Canadian Revolving Exposure, the U.S. Tranche A Revolving Exposure, the U.S. Tranche B Revolving Exposure, and/or the Dutch Revolving Exposure, as the context may require.

Revolving Lender” shall mean a Lender with a Revolving Commitment.

Revolving Loans” shall mean Canadian Revolving Loans, U.S. Tranche A Revolving Loans, U.S. Tranche B Revolving Loans, Dutch Revolving Loans, Protective Advances and/or Overadvance Loans, as the context may require.

Revolving Note” shall mean the U.S. Tranche A Revolving Note, U.S. Tranche B Revolving Note, the Canadian Revolving Note and/or the Dutch Revolving Note.

S&P” shall mean Standard & Poor’s Ratings Services, a division of the McGraw Hill Company, Inc., and any successor owner of such division.

Sale-Leaseback Transaction” shall mean any arrangement providing for the leasing by the Company or any of the Restricted Subsidiaries of any real or tangible personal property, which property has been or is to be sold or transferred by the Company or such Restricted Subsidiary to a third Person in contemplation of such leasing.


Sanction(s)” shall mean any sanction administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or the federal government of Canada.

SEC” shall have the meaning provided in Section 8.01(g).

“Second Amendment” shall mean the Second Amendment and Joinder to the Credit Agreement dated as of September 19, 2017, among the Borrowers, U.S. Administrative Agent, the Canadian Administrative Agent and the Dutch Administrative Agent, Lenders constituting Required Lenders (as defined in this Agreement immediately prior to the Second Amendment Effective Date) and the U.S. Tranche B Revolving Lenders.

“Second Amendment Effective Date” shall mean the date upon which the conditions set forth in Section 5 of the Second Amendment are satisfied, which date is September 19, 2017.

Second Lien Claimholders” shall have the meaning provided in the Intercreditor Agreement.

Second Lien Collateral Agent” shall have the meaning provided in the Intercreditor Agreement.

Second Lien Loan Agreement” shall mean the Second Lien Loan Agreement, dated as of October 9, 2015, among the Company, the U.S. Parent Borrower, certain subsidiaries of the Company, the lending institutions from time to time parties thereto and Bank of Montreal, as administrative agent and collateral agent.

Second Lien Loans” shall mean the loans incurred pursuant to the Second Lien Loan Agreement.

Second Lien Notes” shall mean the second lien notes that may be issued pursuant to the Second Lien Notes Indenture.

Second Lien Notes Indenture” shall mean the form of Senior Secured Second Lien Notes Indenture, attached as Exhibit B to the Second Lien Loan Agreement, that will be entered into if dated October 20, 2016, by and among, the U.S. Parent Borrower exchanges the Second Lien Loans for Second Lien Notes or such other agreement as may govern any Refinancing Indebtedness in respect to the Second Lien Loans and related obligations under the Second Lien Loan Agreement and the related loan documents., the guarantors from time to time party thereto, and U.S. Bank National Association as trustee and notes collateral agent.

Section 8.01 Financials” shall mean the quarterly and annual financial statements required to be delivered pursuant to Sections 8.01(a) and (b).

Secured Bank Product Obligations” shall mean all obligations in respect of Bank Product Debt (including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code or a stay under any applicable Debtor Relief Laws in any jurisdiction would become due and including any interest, fees and other amounts accruing after the commencement of any proceeding under any applicable Debtor Relief Laws in any jurisdiction, whether or not such interest, fees and other amounts are allowed or allowable claims in such proceeding) owing to a Secured Bank Product Provider, up to the maximum amount (in the case of any Secured Bank Product Provider other than BANA and its Affiliates or branches) specified by such provider in writing to the Administrative Agent, which amount may be established or increased (by further written notice by the Company to the Administrative Agent from time to time) as long as no Default or Event of Default then exists.


Secured Bank Product Provider” shall mean each Cash Management Bank and each Secured Hedge Bank; provided that such provider who is not BANA delivers written notice to the Administrative Agent, in form and substance satisfactory to the Administrative Agent, (i) describing the Bank Product and setting forth the maximum amount to be secured by the Collateral and the methodology to be used in calculating such amount, and (ii) agreeing to be bound by Section 11.12; provided, further, that (x) in the case of any Bank Product in existence on the Closing Date that is provided by a Person (other than BANA) who is, as of the Closing Date, a Lender, an Agent, a Joint Lead Arranger or an Affiliate of a Person who is, as of the Closing Date, a Lender, an Agent or a Joint Lead Arranger, such written notice required by the immediately preceding proviso shall be delivered to the Administrative Agent on or prior to the Closing Date and (y) in the case of any Bank Product not in existence on the Closing Date that is provided by a Secured Hedge Bank or a Secured Cash Management Bank (other than the U.S. Administrative Agent at the time of the creation of the relevant Bank Product), such written notice required by the immediately preceding proviso shall be delivered to the Administrative Agent within 30 calendar days after the creation of the relevant Bank Product.

Secured Creditors” shall mean, collectively, the Administrative Agents, the Collateral Agent, the Lenders, the Issuing Banks and each Secured Bank Product Provider.

Secured Hedge Bank” shall mean any Person that is a counterparty to a Hedging Agreement with a Credit Party or one of its Restricted Subsidiaries, in its capacity as such, and that either (i) was a Lender, an Agent, a Joint Lead Arranger or an Affiliate of a Lender, an Agent, or a Joint Lead Arranger at the time it entered into such Hedging Agreement or (ii) becomes a Lender, an Agent or an Affiliate of a Lender or an Agent after it has entered into such Hedging Agreement.

Secured Reserved Hedge” shall mean any Secured Bank Product Obligations arising under a Hedging Agreement with a Secured Hedge Bank with respect to which the Company and the Secured Bank Product Provider thereof have notified the Administrative Agent of the intent to include such Secured Bank Product Obligations as permitted to be repaid under clause seventh of the default waterfall set forth in Section 10.11 and with respect to which the Administrative Agent in its Permitted Discretion in accordance with the provisions of Section 2.22 establishes a Hedge Reserve in respect thereof in an amount equal to the Swap Termination Value in respect thereof so long as no Overadvance would result from establishment of a Hedge Reserve for such amount and for all other Secured Reserved Hedges.

Secured Unreserved Hedge” shall mean any Secured Bank Product Obligations arising under a Hedging Agreement other than a Secured Reserved Hedge.

Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

Security Agreements” shall mean (i) the Canadian Security Agreements, (ii) the U.S. Security Agreement and (iii) the Dutch Security Agreements.

Security Document” shall mean and include each Canadian Security Document, each Dutch Security Document, each U.S. Security Document, the English Control Agreements, the charges or other similar security documents entered into in Inventory Approved Countries and/or Account Debtor Approved Countries, as the context may require, and, after the execution and delivery thereof, any other document pursuant to which a Lien is granted to a Collateral Agent to secure the Obligations.

Settlement Date” shall have the meaning provided in Section 2.14(a).


Significant Asset Sale” shall mean each Asset Sale (and any Casualty Event) with respect to Collateral resulting in net cash proceeds in excess of 10% of the Borrowing Base.

Similar Business” shall mean (a) any business engaged or proposed to be engaged in by the Company or any of the Restricted Subsidiaries on the Closing Date and any reasonable extension thereof and (b) any business or other activities that are reasonably similar, ancillary, incidental, complementary or related to, or a reasonable extension, development or expansion of, the businesses in which the Company and the Restricted Subsidiaries are engaged or proposed to be engaged on the Closing Date.

Solvent” shall mean, at the time of determination (a) each of the Fair Value and the Present Fair Saleable Value of the assets of a Person and its Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; (b) such Person and its Subsidiaries taken as a whole do not have Unreasonably Small Capital; and (c) such Person and its Subsidiaries taken as a whole can pay their Stated Liabilities and Identified Contingent Liabilities as they mature. Defined terms used in the foregoing definition shall have the meanings set forth in the solvency certificate delivered on the Closing Date pursuant to Section 5.05.

Specified Existing Revolving Commitment Class” shall have the meaning provided in Section 2.19(a).

Specified Payment” shall mean (a) any Restricted Payment, Restricted Junior Debt Prepayment or redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary that, in each case, is subject to the satisfaction of the Distribution Conditions or (b) any Investment (including a Permitted Acquisition) or incurrence of Indebtedness that, in each case, is subject to the satisfaction of the Investment and Junior Debt Incurrence Conditions.

Spot Rate” shall mean, on any day with respect to any currency, the exchange rate that is applicable to conversion of one currency into another currency, which is (a) the exchange rate reported by Bloomberg (or other commercially available source designated by the Administrative Agent) as of the end of the preceding Business Day in the financial market for the first currency; or (b) if such report is unavailable for any reason, the spot rate, as determined by the Administrative Agent and posted on a daily basis to the electronic loan platform maintained by the Administrative Agent and accessible by the parties hereto (the “Electronic Platform”), for the purchase of the first currency with the second currency as in effect during the preceding business day in the Administrative Agent's principal foreign exchange trading office for the first currency; provided that in the case of clause (b) only, if such exchange rate is not posted to the Electronic Platform on any day with respect to any currency, the Spot Rate on such day with respect to such currency shall be equal to the Spot Rate for such currency on the most recent preceding date on which a Spot Rate with respect to such currency was posted to the Electronic Platform.

Stated Amount” of any Letter of Credit shall mean, unless otherwise specified herein, the stated amount of such Letter of Credit in effect at such time.

Subfacilities” shall have the meaning provided in the recitals hereto.

Subordinated Intercompany Note” shall mean the Subordinated Intercompany Note, dated as of the Closing Date, substantially in the form of Exhibit L hereto, executed by the Company, each Restricted Subsidiary of the Company and each other Credit Party, together with any joinders thereto.

Subsidiary” shall mean, as to any Person, (i) any corporation, association, or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50.0% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof and (ii) any partnership, joint venture, limited liability company or similar entity of which (A) more than 50.0% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, and (B) such Person or any Restricted Subsidiary of such Person is a controlling general partner or otherwise controls such entity.


Subsidiary Guarantor” shall have the meaning provided in the definition of the term “Collateral and Guarantee Requirement”.

Successor Company” shall have the meaning provided in Section 9.11(a) .

Successor Person” shall have the meaning provided in Section 9.11(b).

Successor U.S. Parent Borrower” shall have the meaning provided in Section 9.11(a).

Supermajority Lenders” shall mean those Non-Defaulting Lenders which would constitute the Required Lenders under, and as defined in, this Agreement if the percentage “50%” contained therein were changed to “66-2/3%.”

“Supermajority Lenders” shall mean Non-Defaulting Lenders holding more than 66-2/3% of the sum of the (i) total Outstanding Amount under the Subfacilities (with the aggregate amount of each Revolving Lender’s risk participation and funded participation in LC Obligations and Swingline Loans being deemed “held” by such Revolving Lender for purposes of this definition) and (ii) aggregate unused Revolving Commitments held by Non-Defaulting Lenders at such time as of any date of determination.

“Supermajority Ex-FILO Lenders” shall mean Non-Defaulting Lenders holding more than 66-2/3% of the sum of the (i) total Outstanding Amount under the Ex-FILO Subfacilities (with the aggregate amount of each Ex-FILO Revolving Lender’s risk participation and funded participation in LC Obligations and Swingline Loans being deemed “held” by such Ex-FILO Revolving Lender for purposes of this definition) and (ii) aggregate unused Ex-FILO Revolving Commitments held by Non-Defaulting Lenders at such time as of any date of determination.

“Supermajority Tranche B Lenders” shall mean Non-Defaulting Lenders holding more than 66-2/3% of the sum of the (i) total Outstanding Amount under the U.S. Tranche B Subfacility and (ii) aggregate unused U.S. Tranche B Revolving Commitments held by Non-Defaulting Lenders at such time as of any date of determination.

Swap Obligation” shall mean any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

Swap Termination Value” shall mean, in respect of any one or more Hedging Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedging Agreements, (a) for any date on or after the date such Hedging Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedging Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which may include a Lender or any Affiliate of a Lender).


Swingline Commitment” shall mean the U.S. Swingline Commitment, the Dutch Swingline Commitment and/or the Canadian Swingline Commitment.

Swingline Exposure” shall mean, with respect to any Lender, at any time, such Lender’s Pro Rata Percentage under the applicable Subfacility or Subfacilities of the Swingline Loans outstanding at such time under such Subfacility or Subfacilities.

Swingline Lender” shall mean the U.S. Swingline Lender, the Dutch Swingline Lender and/or the Canadian Swingline Lender.

Swingline Loan” shall mean U.S. Swingline Loans, Dutch Swingline Loans and/or Canadian Swingline Loans.

Swingline Note” shall mean U.S. Swingline Notes, Dutch Swingline Notes and/or Canadian Swingline Notes.

Swiss Francs” or “Fr.” shall mean the lawful currency of Switzerland.

Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions, charges, fees, assessments, liabilities or withholdings imposed by any Governmental Authority, including any interest, penalties and additions to tax with respect thereto.

Test Period” shall mean each period of four consecutive fiscal quarters of the Company (in each case taken as one accounting period) for which financial statements have been (or were required to be) delivered pursuant to Section 8.01.

Threshold Amount” shall mean $20,000,000.

Total Excess Availability” shall mean, at any time, the amount equal to (i) the Line Cap at such time minus (ii) the sum of, without duplication (A) the Dollar Equivalent of the aggregate Revolving Loans and Swingline Loans then outstanding and (B) the Dollar Equivalent of the aggregate LC Exposure at such time.

Transaction” shall mean, collectively, (i) the execution, delivery and entering into of the Credit Documents and the incurrence of Loans on the Closing Date, (ii) the repayment of the “Obligations” under and as defined in the Existing Credit Agreements and (iii) the payment of all Transaction Costs.

Transaction Costs” shall mean the fees, premiums and expenses payable by the Company and its Subsidiaries in connection with the transactions described in clauses (i) through (ii) of the definition of the term “Transaction.”

Treasury Capital Stock” shall have the meaning provided in Section 9.03(b)(ii) .

Type” shall mean the type of Loan determined with regard to the interest option applicable thereto, i.e., whether a U.S. Base Rate Loan, Eurocurrency Rate Loan, Canadian Base Rate Loan, Canadian Prime Loan, European Base Rate Loan or B/A Equivalent Loan.


UCC” shall mean the Uniform Commercial Code in effect in the State of New York from time to time; provided, however, that, at any time, if by reason of mandatory provisions of any Requirement of Law, the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York governs, the term “UCC” shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions relating to such perfection or priority and for purposes of definitions relating to such provisions.

United States” and “U.S.” shall each mean the United States of America.

Unreimbursed Amount” shall have the meaning specified in Section 2.13(d).

Unrestricted Subsidiary” shall mean (i) each Subsidiary of the Company listed on Schedule 1.01A and (ii) any Subsidiary of the Company designated by the board of directors of the Company as an Unrestricted Subsidiary pursuant to Section 8.14 subsequent to the Closing Date; provided, however, that no Borrower shall be designated as an Unrestricted Subsidiary.

Unused Line Fee” shall have the meaning provided in Section 2.05(a).

Unused Line Fee Rate” shall mean, for any day, (i) initially, a percentage per annum equal to 0.30% and (ii) following the end of the first full fiscal quarter after the Closing Date, a percentage per annum determined by reference to the following grid based on the Average Usage under the applicable Subfacility as of the most recent Adjustment Date:

Average Usage Unused Line Fee Rate
< 25% 0.30%
25% 0.25%

U.S. Administrative Agent” shall have the meaning provided in the preamble hereto and any successor thereto appointed pursuant to Section 11.09.

U.S. Base Rate” at any time shall mean the highest of (i) the Prime Rate, (ii) the rate which is 1/2 of 1% in excess of the Federal Funds Rate and (iii) the Eurocurrency Rate for a Eurocurrency Rate Loan with a one-month interest period commencing on such day plus 1.00% . For purposes of this definition, the Eurocurrency Rate shall be determined using the Eurocurrency Rate as otherwise determined by the U.S. Administrative Agent in accordance with the definition of Eurocurrency Rate. Any change in the U.S. Base Rate due to a change in the Prime Rate, the Federal Funds Rate or such Eurocurrency Rate shall be effective as of the opening of business on the day of such change in the Prime Rate, the Federal Funds Rate or such Eurocurrency Rate, respectively.

U.S. Base Rate Loan” shall mean each Revolving Loan which is designated or deemed designated as a U.S. Base Rate Loan by the applicable U.S. Borrower at the time of the incurrence thereof or conversion thereto.

U.S. Borrowers” shall mean the U.S. Parent Borrower and each Domestic Subsidiary of the Company that executes a counterpart hereto and to any other applicable Credit Document to become a Borrower, whether on the Closing Date or after the Closing Date in accordance with Section 2.21.

“U.S. Collateral” shall mean all the “Collateral” (or equivalent term) as defined in the U.S. Security Agreement and all other property (whether real, personal or otherwise) with respect to which any security interests have been granted (or purported to be granted) by any U.S. Credit Parties pursuant to any U.S. Security Document.


“U.S. Collection Account” shall have the meaning provided in Section 8.15(c)(ii).

.“U.S. Collection Bank” shall have the meaning provided in Section 8.15(c)(ii).

“U.S. Credit Party” shall mean each U.S. Borrower and each U.S. Subsidiary Guarantor.

“U.S. Dilution Reserve” shall mean, at any date, (i) the amount by which the consolidated Dilution Ratio of Eligible U.S. Accounts exceeds five percent (5%) multiplied by (ii) the Eligible U.S. Accounts on such date.

“U.S. Dollars” or “Dollars” and the sign “$” shall each mean freely transferable lawful money (expressed in dollars) of the United States.

“U.S. Dominion Account” shall have the meaning provided in Section 8.15(c)(i).

“U.S. Equipment Component” shall have the meaning provided in the definition of the term “U.S. Tranche A Borrowing Base”.

“U.S. Fixed Asset Amount” shall have the meaning provided in the definition of the term “U.S. Tranche A Borrowing Base”.

“U.S. Issuing Bank” shall mean, as the context may require, (a) BANA or any Affiliate of BANA with respect to Letters of Credit issued by it; (b) any other Lender that may become an Issuing Bank pursuant to Sections 2.13(i) and 2.13(k), with respect to Letters of Credit issued by such Lender; (c) with respect to any Existing Letter of Credit set forth on Part C of Schedule 1.01B, the Lender which is the issuer of such Existing Letter of Credit or (d) collectively, all of the foregoing.

“U.S. LC Credit Extension” shall mean, with respect to any U.S. Letter of Credit, the issuance, amendment or renewal thereof or extension of the expiry date thereof, or the increase of the amount thereof.

“U.S. LC Disbursement” shall mean a payment or disbursement made by a U.S. Issuing Bank pursuant to a U.S. Letter of Credit.

“U.S. LC Documents” shall mean all documents, instruments and agreements delivered by a U.S. Borrower or any other Person to a U.S. Issuing Bank or the U.S. Administrative Agent in connection with any U.S. Letter of Credit.

“U.S. LC Exposure” shall mean at any time the sum of (a) the aggregate undrawn Stated Amount of all outstanding U.S. Letters of Credit at such time plus (b) the aggregate principal amount of all U.S. LC Disbursements that have not yet been reimbursed at such time. The U.S. LC Exposure of any Revolving Lender at any time shall mean its Pro Rata Percentage of the aggregate U.S. LC Exposure at such time.

“U.S. LC Obligations” shall mean the sum (without duplication) of (a) all amounts owing by the U.S. Borrower in respect of any U.S. LC Disbursements (including any payment obligations arising therefrom); and (b) the Stated Amount of all outstanding U.S. Letters of Credit.


“U.S. LC Sublimit” shall mean $50,000,000.

“U.S. Letter of Credit” shall mean any letters of credit issued or to be issued by a U.S. Issuing Bank under the U.S. Tranche A Subfacility for the account of the U.S. Borrowers pursuant to Section 2.13, whether such letter of credit was issued under the Existing Credit Agreement or this Agreement.

“U.S. Parent Borrower” shall have the meaning provided in the recitals hereto and shall include, if applicable, any Successor U.S. Parent Borrower.

“U.S. Revolving Lenders” shall mean the U.S. Tranche A Revolving Lenders and the U.S. Tranche B Revolving Lenders.

“U.S. Real Estate Component” shall have the meaning provided in the definition of the term “U.S. Tranche A Borrowing Base”.

“U.S. Security Documents” shall mean the U.S. Security Agreement and, after the execution and delivery thereof, each Mortgage executed and delivered by any U.S. Credit Party with respect to any Real Property of such U.S. Credit Party and each other document executed and delivered by any U.S. Credit Party pursuant to which a Lien is granted (or purported to be granted) in favor of the Collateral Agent to secure the Obligations, and each document, if any, executed and delivered by any U.S. Credit Party pursuant to the Additional Account Security Actions.

“U.S. Subfacilities” means collectively the U.S. Tranche A Subfacility and the U.S. Tranche B Subfacility.

“U.S. Subsidiary Guarantor” shall mean each Domestic Restricted Subsidiary (other than the U.S. Borrowers) in existence on the Closing Date (other than any Excluded Subsidiary), as well as each Domestic Restricted Subsidiary established, created or acquired after the Closing Date which becomes a party to this Agreement as a Guarantor in accordance with the Collateral and Guarantee Requirement.

“U.S. Swingline Commitment” shall mean the commitment of the U.S. Swingline Lender to make loans under the U.S. Tranche A Subfacility pursuant to Section 2.12, as the same may be reduced from time to time pursuant to Section 2.07.

“U.S. Swingline Exposure” shall mean, at any time, the aggregate principal amount at such time of all outstanding U.S. Swingline Loans. The U.S. Swingline Exposure of any U.S. Tranche A Revolving Lender at any time shall equal its Pro Rata Percentage of the aggregate U.S. Swingline Exposure at such time.

“U.S. Swingline Lender” shall mean BANA and its permitted successors and permitted assigns.

“U.S. Swingline Loan” shall mean any Loan made by the Swingline Lender under the U.S. Tranche A Subfacility for the account of the U.S. Borrowers pursuant to Section 2.12.

“U.S. Swingline Note” shall mean each swingline note substantially in the form of Exhibit B-4 hereto.

“U.S. Tax Compliance Certificate” shall have the meaning provided in Section 4.01(c).


U.S. Tranche A Borrowing Base” shall mean, at the time of any determination, an amount equal to the sum of the Dollar amount (for this purpose, using the Dollar Equivalent of amounts not denominated in Dollars), without duplication, of

 (a)          (I) 85% of the aggregate Outstanding Balance of Eligible U.S. Accounts (other than Eligible Insured and Letter of Credit Backed Accounts) at such time plus (II) 90% of the aggregate Outstanding Balance of Eligible Insured and Letter of Credit Backed Accounts of the U.S. Borrowers at such time; plus

 (b)          the lesser of (i) 70% of the lesser of the Cost or Fair Market Value of Eligible U.S. Inventory at such time and (ii) 85% of the Net Orderly Liquidation Value of Eligible U.S. Inventory at such time; plus

 (c)          the lesser of (x) 75% of the appraised Fair Market Value of Eligible U.S. Real Estate (the “U.S. Real Estate Component”), plus 85% of the appraised Net Orderly Liquidation Value of the Eligible U.S. Equipment (the “U.S. Equipment Component”), and (y) $50,000,000 (taken together with amounts included in the Canadian Borrowing Base pursuant to clause (c) thereof) (the “U.S. Fixed Asset Amount”); provided that, commencing with the Borrowing Base calculation delivered for June 30, 2016: (i) the U.S. Real Estate Component shall be reduced quarterly based on a 15-year straight-line depreciation schedule, (ii) the U.S. Equipment Component shall be reduced quarterly based on a 7-year straight-line depreciation schedule and (iii) the U.S. Fixed Asset Amount, shall be reduced quarterly pursuant to the depreciation schedule set forth as Schedule 1.01D hereto; provided, further, that, if a Fixed Asset Reappraisal Event occurs and the Company chooses to have the U.S. Tranche A Borrowing Base calculated based on the updated information set forth in the relevant Appraisals (and including only (i) the Eligible Equipment so appraised and (ii) Eligible Fee-Owned Real Estate so appraised and subject to the environmental assessments referred to in Section 8.02(d)), then, commencing with the Borrowing Base calculation delivered immediately after the date of such Fixed Asset Reappraisal Event until such time as a further additional Appraisal and environmental assessment is completed, if ever, on the applicable assets, the amortization of the U.S. Real Estate Component and the U.S. Equipment Component shall be reset so that (i) the U.S. Real Estate Component shall be reduced quarterly based on a 15-year straight-line depreciation schedule commencing with the first full fiscal quarter to occur after the date of any such Fixed Asset Reappraisal Event and the U.S. Equipment Component shall be reduced quarterly based on a 7-year straight-line depreciation schedule commencing with the first full fiscal quarter to occur after the date of any such Fixed Asset Reappraisal Event and (ii) the U.S. Fixed Asset Amount shall be reduced pursuant to an updated depreciation schedule commencing with the first full fiscal quarter to occur after the date of any such Fixed Asset Reappraisal Event of the type set forth as Schedule 1.01D, which will reflect the then current mix of Eligible U.S. Real Estate and Eligible U.S. Equipment; plus

 (d)          100% of the unrestricted Borrowing Base Cash Equivalents of the U.S. Borrowers (to the extent held in Deposit Accounts in the United States (x) maintained with BANA and (y) subject to Deposit Account Control Agreements in favor of the Collateral Agent); plus

 (e)          if a Borrowing Base Reallocation Notice is delivered by the Company, a portion of the positive amount, if any, by which the Canadian Borrowing Base and the Dutch Borrowing Base exceed the total Canadian Revolving Exposure and/or Dutch Revolving Exposure of all Lenders on the date of such delivery, may be reallocated to the U.S. Tranche A Borrowing Base; provided that a Borrowing Base Reallocation Notice may only be delivered once in any calendar month, and shall set forth the requested reallocation of available Borrowing Base among Subfacilities, and which reallocation shall become effective upon confirmation by the Administrative Agent that such reallocation would not cause the Revolving Exposure under any Subfacility to exceed the Borrowing Base for the applicable Subfacility, and which reallocation shall remain effective thereafter until such time, if any, as a new Borrowing Base Reallocation Notice is received and has become effective; minus


 (f)          the portion of the U.S. Tranche A Borrowing Base, if any, that is reallocated to the Canadian Borrowing Base and/or the Dutch Borrowing Base pursuant to clause (e) of the definition of the term “Canadian Borrowing Base” and/or clause (c) of the definition of the term “Dutch Borrowing Base,” respectively; minus

 (g)          anythe FILO Reserve Shortfall for such calculation period (if applicable) and any other Reserves (to the extent not deducted in calculating the U.S. Tranche B Borrowing Base) established or modified from time to time by the Administrative Agent in the exercise of its Permitted Discretion in accordance with Section 2.22;

The U.S. Tranche A Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 8.15(a), adjusted as necessary (pending the delivery of a new Borrowing Base Certificate) to reflect the impact of any Significant Asset Sale or the acquisition of any assets in a Permitted Acquisition or similar Investment (or any event or circumstance which, pursuant to the eligibility rules set forth in the definitions of Eligible Account, Eligible Equipment, Eligible Inventory, Eligible Insured and Letter of Credit Backed Accounts or Eligible Fee-Owned Real Estate, renders any such Account, Equipment, Inventory or Real Property eligible or ineligible for inclusion in the U.S. Tranche A Borrowing Base after delivery of the most recent Borrowing Base Certificate). The Administrative Agent shall have the right (but no obligation) to review the computations in any Borrowing Base Certificate and if such computations have not been calculated in accordance with the terms of this Agreement, the Administrative Agent shall have the right, in consultation with the Company, to correct any such errors in such manner as it shall reasonably determine and the Administrative Agent will notify the Company promptly in writing after making any such correction.

U.S. Collateral” shall mean all the “Collateral” (or equivalent term) as defined in the U.S. Security Agreement and all other property (whether real, personal or otherwise) with respect to which any security interests have been granted (or purported to be granted) by any U.S. Credit Parties pursuant to any U.S. Security Document.

U.S. Collection Account” shall have the meaning provided in Section 8.15(c)(ii).

U.S. Collection Bank” shall have the meaning provided in Section 8.15(c)(ii).

U.S. Credit Party” shall mean each U.S. Borrower and each U.S. Subsidiary Guarantor.

U.S. Dilution Reserve” shall mean, at any date, (i) the amount by which the consolidated Dilution Ratio of Eligible U.S. Accounts exceeds five percent (5%) multiplied by (ii) the Eligible U.S. Accounts on such date.

U.S. Dollars” or “Dollars” and the sign “$” shall each mean freely transferable lawful money (expressed in dollars) of the United States.

U.S. Dominion Account” shall have the meaning provided in Section 8.15(c)(i).


U.S. Equipment Component” shall have the meaning provided in the definition of the term “U.S. Borrowing Base”.

U.S. Fixed Asset Amount” shall have the meaning provided in the definition of the term “U.S. Borrowing Base”.

U.S. Issuing Bank” shall mean, as the context may require, (a) BANA or any Affiliate of BANA with respect to Letters of Credit issued by it; (b) any other Lender that may become an Issuing Bank pursuant to Sections 2.13(i) and 2.13(k), with respect to Letters of Credit issued by such Lender; (c) with respect to any Existing Letter of Credit set forth on Part C of Schedule 1.01B, the Lender which is the issuer of such Existing Letter of Credit or (d) collectively, all of the foregoing.

U.S. LC Credit Extension” shall mean, with respect to any U.S. Letter of Credit, the issuance, amendment or renewal thereof or extension of the expiry date thereof, or the increase of the amount thereof.

U.S. LC Disbursement” shall mean a payment or disbursement made by a U.S. Issuing Bank pursuant to a U.S. Letter of Credit.

U.S. LC Documents” shall mean all documents, instruments and agreements delivered by a U.S. Borrower or any other Person to a U.S. Issuing Bank or the U.S. Administrative Agent in connection with any U.S. Letter of Credit.

U.S. LC Exposure” shall mean at any time the sum of (a) the aggregate undrawn Stated Amount of all outstanding U.S. Letters of Credit at such time plus (b) the aggregate principal amount of all U.S. LC Disbursements that have not yet been reimbursed at such time. The U.S. LC Exposure of any Revolving Lender at any time shall mean its Pro Rata Percentage of the aggregate U.S. LC Exposure at such time.

U.S. LC Obligations” shall mean the sum (without duplication) of (a) all amounts owing by the U.S. Borrower in respect of any U.S. LC Disbursements (including any payment obligations arising therefrom); and (b) the Stated Amount of all outstanding U.S. Letters of Credit.

U.S. LC Sublimit” shall mean $50,000,000.

U.S. Letter of Credit” shall mean any letters of credit issued or to be issued by a U.S. Issuing Bank under the U.S. Subfacility for the account of the U.S. Borrowers pursuant to Section 2.13.

U.S. Tranche A Line Cap” shall mean, at any time, an amount that is equal to the lesser of (a) the U.S. Tranche A Revolving Commitments and (b) the U.S. Tranche A Borrowing Base.

U.S. Parent Borrower” shall have the meaning provided in the recitals hereto and shall include, if applicable, any Successor U.S. Parent Borrower.

U.S. Tranche A Protective Advance” shall have the meaning provided in Section 2.18.

U.S. Real Estate Component” shall have the meaning provided in the definition of the term “U.S. Borrowing Base”.

U.S. Tranche A Revolving Borrowing” shall mean a Borrowing comprised of U.S. Tranche A Revolving Loans.


U.S. Tranche A Revolving Commitment” shall mean, with respect to each U.S. Tranche A Revolving Lender, the commitment, if any, of such Lender to make U.S. Tranche A Revolving Loans hereunder up to the amount set forth and opposite such Lender’s name on Schedule 2.01 under the caption “U.S. Tranche A Revolving Commitment,” or in the Assignment and Assumption Agreement pursuant to which such Lender assumed its U.S. Tranche A Revolving Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.07, (b) reduced or increased from time to time pursuant to Section 2.20 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 12.04. The aggregate amount of the Lenders’ U.S. Tranche A Revolving Commitments on the ClosingSecond Amendment Effective Date is $260,000,000245,000,000.

U.S. Tranche A Revolving Exposure” shall mean, with respect to any U.S. Tranche A Revolving Lender at any time, the aggregate principal amount at such time of all outstanding U.S. Tranche A Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s U.S. LC Exposure, plus the aggregate amount at such of such Lender’s U.S. Swingline Exposure.

U.S. Tranche A Revolving Lender” shall mean any Lender under the U.S. Tranche A Subfacility.

U.S. Tranche A Revolving Loans” shall mean advances made to or at the request of a U.S. Borrower pursuant to Section 2.01(i) hereof under the U.S. Tranche A Subfacility.

U.S. Tranche A Revolving Note” shall mean each revolving note substantially in the form of Exhibit B-1 hereto.

U.S. Security Agreement” shall mean the U.S. Security Agreement, dated as of the Closing Date, by and between the Collateral Agent and each of the U.S. Credit Parties.

U.S. Security Documents” shall mean the U.S. Security Agreement and, after the execution and delivery thereof, each Mortgage executed and delivered by any U.S. Credit Party with respect to any Real Property of such U.S. Credit Party and each other document executed and delivered by any U.S. Credit Party pursuant to which a Lien is granted (or purported to be granted) in favor of the Collateral Agent to secure the Obligations, and each document, if any, executed and delivered by any U.S. Credit Party pursuant to the Additional Account Security Actions.

U.S. Tranche A Subfacility” shall have the meaning provided in the recitals hereto.

“U.S. Tranche B Borrowing Base” shall mean, at the time of any determination, an amount equal to the sum of the Dollar amount (for this purpose, using the Dollar Equivalent of amounts not denominated in Dollars), without duplication, of

 (a)      (I) 5% of the aggregate Outstanding Balance of Eligible U.S. Accounts (other than Eligible Insured and Letter of Credit Backed Accounts) at such time; plus

 (b)      10% of the Net Orderly Liquidation Value of Eligible U.S. Inventory at such time minus

 (c)      any Reserves (to the extent not deducted in calculating the U.S. Tranche A Borrowing Base) established or modified from time to time by the Administrative Agent in the exercise of its Permitted Discretion in accordance with Section 2.22.


U.S. Subsidiary Guarantor” shall mean each Domestic Restricted Subsidiary (other than the U.S. Borrowers) in existence on the Closing Date (other than any Excluded Subsidiary), as well as each Domestic Restricted Subsidiary established, created or acquired after the Closing Date which becomes a party to this Agreement as a Guarantor in accordance with the Collateral and Guarantee Requirement. The U.S. Tranche B Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 8.15(a), adjusted as necessary (pending the delivery of a new Borrowing Base Certificate) to reflect the impact of any Significant Asset Sale or the acquisition of any assets in a Permitted Acquisition or similar Investment (or any event or circumstance which, pursuant to the eligibility rules set forth in the definitions of Eligible Account, Eligible Inventory, or Eligible Insured and Letter of Credit Backed Accounts, renders any such Account or Inventory eligible or ineligible for inclusion in the U.S. Tranche B Borrowing Base after delivery of the most recent Borrowing Base Certificate). The Administrative Agent shall have the right (but no obligation) to review the computations in any Borrowing Base Certificate and if such computations have not been calculated in accordance with the terms of this Agreement, the Administrative Agent shall have the right, in consultation with the Company, to correct any such errors in such manner as it shall reasonably determine and the Administrative Agent will notify the Company promptly in writing after making any such correction.

U.S. Swingline CommitmentTranche B Line Cap” shall mean the commitment of the U.S. Swingline Lender to make loans under the U.S. Subfacility pursuant to Section 2.12, as the same may be reduced from time to time pursuant to Section 2.07, at any time, an amount that is equal to the lesser of (a) the U.S. Tranche B Revolving Commitments and (b) the U.S. Tranche B Borrowing Base.

“U.S. Tranche B Maturity Date” shall mean the date that is the earlier of (i) three (3) years after the Second Amendment Effective Date and (ii) the Payment in Full Date.

“U.S. Tranche B Revolving Borrowing” shall mean a Borrowing comprised of U.S. Tranche B Revolving Loans.

“U.S. Tranche B Revolving Commitment” shall mean, with respect to each U.S. Tranche B Revolving Lender, the commitment, if any, of such Lender to make U.S. Tranche B Revolving Loans hereunder up to the amount set forth and opposite such Lender’s name on Schedule 2.01 under the caption “U.S. Tranche B Revolving Commitment,” or in the Assignment and Assumption Agreement pursuant to which such Lender assumed its U.S. Tranche B Revolving Commitment, as applicable, as the same shall be terminated and permanently reduced to $0 on the Second Amendment Effective Date pursuant to Section 2.07. The aggregate amount of the Lenders’ U.S. Tranche B Revolving Commitments on the Second Amendment Effective Date is $15,000,000.

U.S. SwinglineTranche B Revolving Exposure” shall mean, with respect to any U.S. Tranche B Revolving Lender at any time, the aggregate principal amount at such time of all outstanding U.S. SwinglineTranche B Revolving Loans. The of such Lender.

U.S. Swingline Exposure of any U.S. Revolving Lender at any time shall equal its Pro Rata Percentage of the aggregate U.S. Swingline Exposure at such timeTranche B Revolving Lender” shall mean any Lender under the U.S. Tranche B Subfacility.

“U.S. Tranche B Revolving Loans” shall mean advances made to or at the request of a U.S. Borrower pursuant to Section 2.01(iv) hereof under the U.S. Tranche B Subfacility.


U.S. Swingline Lender” shall mean BANA and its permitted successors and permitted assigns.

U.S. Swingline Loan” shall mean any Loan made by the Swingline Lender pursuant to Section 2.12.

U.S. SwinglineTranche B Revolving Note” shall mean each swinglinerevolving note substantially in the form of Exhibit B-47 hereto.

U.S. Tax Compliance CertificateTranche B Subfacility” shall have the meaning provided in Section 4.01(c)the recitals hereto.

“U.S. Security Agreement” shall mean the U.S. Security Agreement, dated as of the Closing Date, by and between the Collateral Agent and each of the U.S. Credit Parties.

Voting Stock” of any Person as of any date shall mean the Capital Stock of such Person that is at the time entitled to vote generally in the election of the Board of Directors of such Person.

Weekly Reporting Event” shall mean the occurrence of a date when (a) Total Excess Availability shall have been less than the greater of (i) 15% of the Line Cap and (ii) $30,000,000, in either case at any time, until such date as (b) Total Excess Availability shall have been at least equal to the greater of (i) 15% of the Line Cap and (ii) $30,000,000 for a period of 30 consecutive calendar days.

Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing (i) the then outstanding principal amount of such Indebtedness into (ii) the product obtained by multiplying (x) the amount of each then remaining installment or other required scheduled payments of principal, including payment at final maturity, in respect thereof, by (y) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment.

Wholly-Owned Domestic Subsidiary” shall mean, as to any Person, any Wholly-Owned Subsidiary of such Person which is a Domestic Subsidiary of such person.

Wholly-Owned Foreign Subsidiary” shall mean, as to any Person, any Wholly-Owned Subsidiary of such Person which is a Foreign Subsidiary of such Person.

Wholly-Owned Restricted Subsidiary” shall mean, as to any Person, any Wholly-Owned Subsidiary of such Person which is a Restricted Subsidiary of such Person.

Wholly-Owned Subsidiary” shall mean, as to any Person, (i) any corporation 100% of whose Capital Stock is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any partnership, association, joint venture or other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such Person owns 100% of the Equity Interests at such time (other than, in the case of a Foreign Subsidiary with respect to preceding clauses (i) or (ii), director’s qualifying shares and/or other nominal amounts of shares required to be held by Persons other than the Company and any Restricted Subsidiary under applicable Requirements of Law).

Write-Down and Conversion Powers” shall mean, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.


WURA” shall mean the Winding-Up and Restructuring Act (Canada), as amended.

1.02.       Terms Generally. The definitions in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall”; and the words “asset” and “property” shall be construed as having the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. The words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision of this Agreement unless the context shall otherwise require. All references herein to Articles, Sections, paragraphs, clauses, subclauses, Exhibits and Schedules shall be deemed references to Articles, Sections, paragraphs, clauses and subclauses of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Unless otherwise expressly provided herein, (a) all references to documents, instruments, agreements (including the Credit Documents and organizational documents) and other Contractual Requirements shall be deemed to include all subsequent amendments, restatements, amendments and restatements, supplements and other modifications thereto, but only to the extent that such amendments, restatements, amendments and restatements, supplements and other modifications are not prohibited by any Credit Document and (b) references to any Requirement of Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Requirement of Law. Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight or standard, as applicable).

1.03.       Uniform Commercial Code and PPSA. As used herein, the following terms are defined in accordance with the UCC in effect in the State of New York (and with respect to any Canadian Credit Party, such definition or correlative terms (if existing) under the PPSA shall be defined in accordance with the PPSA) from time to time: “Chattel Paper,” “Contract,” “control,” “Deposit Account” (which shall specifically include any Account with a deposit function), “Document” (“document of title” as defined in the PPSA), “Equipment,” “General Intangibles (“intangibles” as defined in the PPSA),” “Location” and “Instrument.”

1.04.       Exchange Rates; Currency Equivalent.

(a)          The Administrative Agent or the Issuing Bank, as applicable, shall use the Spot Rates as of each Revaluation Date for the purpose of calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies for such purposes until the next Revaluation Date to occur. The Company shall report value and other Borrowing Base components to the Administrative Agent in the currency invoiced by the Credit Parties or shown in the Company’s financial records, and, shall deliver financial statements and calculate financial covenants in Dollars.

(b)          Wherever in this Agreement (in connection with a Borrowing, conversion, continuation or prepayment of a Revolving Loan or the issuance, amendment or extension of a Letter of Credit), an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing, Revolving Loan or Letter of Credit is denominated in an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the Issuing Bank, as the case may be, based on the then applicable Spot Rate.


(c)          The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of the term “Eurocurrency Rate” or with respect to any comparable or successor rate thereto.

1.05.       Interpretation (Quebec). For purposes of any Collateral located in the Province of Quebec or charged by any deed of hypothec (or any other Credit Document) and for all other purposes pursuant to which the interpretation or construction of a Credit Document may be subject to the Requirements of Law of the Province of Quebec or a court or tribunal exercising jurisdiction in the Province of Quebec, (a) “personal property” shall be deemed to include “movable property,” (b) “real property” shall be deemed to include “immovable property,” (c) “tangible property” shall be deemed to include “corporeal property,” (d) “intangible property” shall be deemed to include “incorporeal property,” (e) “security interest,” “mortgage” and “lien” shall be deemed to include a “hypothec,” “prior claim” and a “resolutory clause,” (f) all references to filing, registering or recording under the UCC or the PPSA shall be deemed to include publication under the Civil Code of Quebec, (g) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to an “opposable” or “set up” Liens as against third parties, (h) any “right of offset,” “right of setoff” or similar expression shall be deemed to include a “right of compensation,” (i) “goods” shall be deemed to include “corporeal movable property” other than Chattel Paper, documents of title, instruments, money and securities, (j) an “agent” shall be deemed to include a “mandatary,” (k) “construction liens” shall be deemed to include “legal hypothecs,” (l) “joint and several” shall be deemed to include “solidary,” (m) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault,” (n) “beneficial ownership” shall be deemed to include “ownership on behalf of another as mandatary,” (o) “easement” shall be deemed to include “servitude,” (p) “priority” shall be deemed to include “prior claim,” (q) “survey” shall be deemed to include “certificate of location and plan,” (r) “fee simple title” shall be deemed to include “absolute ownership” and (s) “ground lease” shall be deemed to include “emphyteutic lease.” The parties hereto confirm that it is their wish that this Agreement and any other document executed in connection with the transactions contemplated herein be drawn up in the English language only (except if another language is required under any applicable Requirement of Law) and that all other documents contemplated thereunder or relating thereto, including notices, may also be drawn up in the English language only. Les parties aux présentes confirment que c’est leur volonté que cette convention et les autres documents de crédit soient rédigés en langue anglaise seulement et que tous les documents, y compris tous avis, envisagés par cette convention et les autres documents peuvent être rédigés en langue anglaise seulement (sauf si une autre langue est requise en vertu d’une loi applicable).

1.06.       Currency Fluctuations.

(a)          If at any time following one or more fluctuations in the exchange rate of an Alternative Currency against the Dollar, (a) the Dollar Equivalent of Ex-FILO Revolving Exposure exceeds the Line Cap, or (b) the Dollar Equivalent any part of the Ex-FILO Revolving Exposure (including any Ex-FILO Subfacility) exceeds any other limit set forth herein for such Ex-FILO Revolving Exposure, the Company shall within three (3) Business Days of written notice of same from the Administrative Agent or, if an Event of Default has occurred and is continuing, within 1 Business Day after written notice of the same from the Administrative Agent (i) make the necessary payments or repayments to reduce such Ex-FILO Revolving Exposure to an amount necessary to eliminate such excess or (ii) maintain or cause to be maintained with the Administrative Agent deposits in an amount equal to or greater than the amount of such excess, such deposits to be maintained in such form and upon such terms as are reasonably acceptable to the Administrative Agent. Without in any way limiting the foregoing provisions, the Administrative Agent shall, weekly or more frequently in the Administrative Agent’s sole discretion, make the necessary Spot Rate calculations to determine whether any such excess exists on such date.


(b)          For purposes of any determination under Section 8, Section 9 (other than Section 9.12) or Section 10 or any determination under any other provision of this Agreement (other than as specifically set forth in Section 1.04 or Section 1.06(a)) requiring the use of a current exchange rate, all amounts Incurred or proposed to be Incurred in currencies other than Dollars shall be translated into Dollars at the Spot Rate then in effect on the date of such determination; provided, however, that (x) for purposes of determining compliance with Section 9 with respect to the amount of any Indebtedness, Lien, Investment, Asset Sale (or other disposition of property of assets permitted by this Agreement), Restricted Payment or Restricted Junior Debt Prepayment in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred solely as a result of changes in rates of exchange occurring after the time such Indebtedness, Lien or Investment is Incurred or Asset Sale (or other disposition of property of assets permitted by this Agreement), Restricted Payment or Restricted Junior Debt Prepayment is made, (y) for purposes of determining compliance with any Dollar-denominated restriction on the Incurrence of Indebtedness, if such Indebtedness is Incurred as Refinancing Indebtedness in respect of any Indebtedness denominated in a foreign currency, and such Incurrence of Refinancing Indebtedness would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency Spot Rate in effect on the date of the Incurrence of such Refinancing Indebtedness, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, except by an amount equal to the accrued interest and premium thereon plus other amounts paid and fees and expenses incurred in connection with such Incurrence of Refinancing Indebtedness plus an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder and (z) for the avoidance of doubt, the foregoing provisions of this Section 1.06(b) shall otherwise apply to such Sections, including with respect to determining whether any Indebtedness, Lien or Investment may be Incurred or any Asset Sale (or other disposition of property of assets permitted by this Agreement), Restricted Payment or Restricted Junior Debt Prepayment may be made at any time under such Sections. For purposes of Section 9.12, amounts in currencies other than Dollars shall be translated into Dollars at the applicable exchange rates used in preparing the most recently delivered Section 8.01 Financials.

1.07.       Interpretation (the Netherlands). For purposes of this Agreement, in case reference is made to a Dutch Credit Party and for all other purposes pursuant to which the interpretation or construction of a Credit Document may be subject to the Requirements of Law of the Netherlands, (a) a necessary action to authorise, where applicable, includes without limitation: (i) any action required to comply with the Dutch Works Council Act (Wet op de ondernemingsraden) and (ii) obtaining unconditional positive, conditional positive or neutral advice (advies) from each competent works council, which if conditional, contains conditions which, if complied with, are not reasonably likely to cause a breach with any terms of any of the Credit Documents; (b) a winding-up, administration or dissolution includes a Dutch entity being: (i) declared bankrupt (failliet verklaard) and (ii) dissolved (ontbonden); (c) a (provisional) moratorium includes (voorlopige) surseance van betaling and granted a (provisional) moratorium includes (voorlopige) surseance verleend; (d) a trustee in bankruptcy includes a curator; (e) an administrator includes a bewindvoerder; (f) a receiver or an administrative receiver does not include a curator or bewindvoerder; and (g) an attachment includes a beslag. In relation to a Dutch Deposit Account, control means a disclosed right of pledge (openbaar pandrecht) over such Deposit Account granted to the Collateral Agent and without the Collateral Agent as pledgee authorizing the relevant pledgor (pandgever) to collect payments as referred to in provision 3:246 subsection 4 of the Dutch Civil Code (Burgerlijk Wetboek).

1.08.       Additional Alternative Currencies.

(a)          The Company may from time to time request that Eurocurrency Rate Loans be made and/or Letters of Credit be issued in a currency other than those specifically listed in the definition of the term “Alternative Currency”; provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars. In the case of any such request with respect to the making of Eurocurrency Rate Loans, such request shall be subject to the approval of the Administrative Agent and the Lenders; and in the case of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the Administrative Agent and the Issuing Bank.


(b)          Any such request shall be made to the Administrative Agent not later than 11:00 a.m., Local Time, 20 Business Days prior to the date of the desired Credit Extension (or such other time or date as may be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of Credit, the Issuing Bank, in its or their sole discretion). In the case of any such request pertaining to Eurocurrency Rate Loans, the Administrative Agent shall promptly notify each Lender thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the Issuing Bank thereof. Each Lender (in the case of any such request pertaining to Eurocurrency Rate Loans) or the Issuing Bank (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m., Local Time, ten Business Days after receipt of such request whether it consents, in its sole discretion, to the making of Eurocurrency Rate Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.

(c)          Any failure by a Lender or the Issuing Bank, as the case may be, to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Lender or the Issuing Bank, as the case may be, to permit Eurocurrency Rate Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the Lenders consent to making Eurocurrency Rate Loans in such requested currency, the Administrative Agent shall so notify the Company and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Committed Borrowings of Eurocurrency Rate Loans; and if the Administrative Agent and the Issuing Bank consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify the Company and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.08, the Administrative Agent shall promptly so notify the Company.

1.09.       Change of Currency.

(a)          Each obligation of the Borrowers to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the Closing dDate hereof shall be redenominated into Euro at the time of such adoption. If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any Borrowing in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Borrowing, at the end of the then current Interest Period.

(b)          Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.

(c)          Each provision of this Agreement also shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in currency.


1.10.          Letter of Credit Amounts.

Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any LC Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

1.11.       Accounting Terms.

(a)          All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, applied in a manner consistent with that used in preparing the Historical Financial Statements, except as otherwise specifically prescribed herein; provided, however, that if the Company notifies the Administrative Agent that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Company that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.

(b)          Where reference is made to “the Company and its Restricted Subsidiaries, on a consolidated basis” or similar language, such consolidation shall not include any Subsidiaries of the Company other than Restricted Subsidiaries.

(c)          Notwithstanding any other provision contained herein, (i) all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under the Financial Accounting Standards Board’s Accounting Standards Codification No. 825—Financial Instruments, or any successor thereto (including pursuant to the Accounting Standards Codification), to value any Indebtedness of the Company or any Subsidiary at “fair value” as defined therein and (ii) all leases and obligations under any leases of any Person that are or would be characterized as operating leases and/or operating lease obligations in accordance with GAAP on January 1, 2016 (whether or not such operating leases and/or operating lease obligations were in effect on such date) shall continue to be accounted for as operating leases and/or operating lease obligations (and not as capital leases and/or Capitalized Lease Obligations) for purposes of this Agreement regardless of any change in GAAP following the date that would otherwise require such obligations to be recharacterized as capital leases and/or Capitalized Lease Obligations.

(d)          For the avoidance of doubt, notwithstanding any classification under GAAP of any Person or business in respect of which a definitive agreement for the disposition thereof has been entered into as discontinued operations, the Net Income of such Person or business shall not be excluded from the calculation of Net Income until such disposition shall have been consummated.


1.12.       Pro Forma and Other Calculations.

(a)          Notwithstanding anything to the contrary herein, financial ratios and tests (including measurements of Consolidated Total Assets or Consolidated EBITDA), including the Consolidated Fixed Charge Coverage Ratio and the Consolidated Secured Leverage Ratio shall be calculated in the manner prescribed by this Section 1.12. In addition, whenever a financial ratio or test is to be calculated on a pro forma basis or requires pro forma compliance, the reference to “Test Period” for purposes of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which Section 8.01 Financials have been delivered.

(b)          For purposes of calculating any financial ratio or test (including Consolidated Total Assets and Consolidated EBITDA), Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and discontinued operations (as determined in accordance with GAAP) that have been made by the Company or any of its Restricted Subsidiaries during the applicable Test Period or subsequent to such Test Period and on or prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and discontinued operations (and the change in any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the applicable Test Period (or, in the case of Consolidated Assets or Investment Cash Equivalents, on the last day of the applicable Test Period). If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Company or any of its Restricted Subsidiaries since the beginning of such period shall have made any Investment, acquisition, disposition, merger, amalgamation, consolidation or discontinued operation that would have required adjustment pursuant to this definition, then such financial ratio or test (including Consolidated Total Assets and Consolidated EBITDA) shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, merger, amalgamation, consolidation or discontinued operation had occurred at the beginning of the applicable Test Period.

(c)          Whenever pro forma effect is to be given to an Investment, acquisition, disposition, merger, amalgamation, consolidation or discontinued operation, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company (and may include, for the avoidance of doubt, cost savings and synergies resulting from such Investment, acquisition, merger, amalgamation or consolidation which is being given pro forma effect that have been or are expected to be realized; provided that any pro forma adjustments in respect of cost savings and synergies shall (a) be reasonably identifiable and factually supportable, (b) be limited to those which are expected to be realized within 12 months of the applicable date of such calculation and (c) not exceed, for any Test Period, an amount, when taken together with the aggregate amounts added pursuant to clauses (d) and (m) of the definition of the term “Consolidated EBITDA” for such Test Period, equal to 20% of Consolidated EBITDA for such Test Period prior to giving effect to any adjustments pursuant to this paragraph and clauses (d) and (m) of the definition of the term “Consolidated EBITDA” for such Test Period).

(d)          In the event that the Company or any of its Restricted Subsidiaries Incurs (including by assumption or guarantee) or refinances (including by redemption, repurchase, repayment, retirement or extinguishment) any Indebtedness (other than Indebtedness Incurred or refinanced under any revolving credit facility or line of credit unless such Indebtedness has been permanently repaid and not replaced), in each case included in the calculations of any financial ratio or test, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such Incurrence or refinancing of Indebtedness, in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period (except in the case of the Consolidated Fixed Charge Coverage Ratio, in which case such Incurrence or refinancing of Indebtedness will be given effect, as if the same had occurred on the first day of the applicable Test Period); provided that the foregoing shall not apply to any calculation of the Consolidated Fixed Charge Coverage Ratio pursuant to Section 9.12.


(e)          If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on date of the event for which the calculation of the Consolidated Fixed Charge Coverage Ratio is made had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness) and including for purposes of calculating the Consolidated Fixed Charge Coverage Ratio pursuant to Section 9.12 prior to the first anniversary of the Closing Date. Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a Responsible Officer of the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Company may designate.

Section 2      Amount and Terms of Credit.

2.01.          Commitments. Subject to the terms and conditions and relying upon the representations and warranties herein set forth, each Lender agrees, severally and not jointly, to make (i) under the U.S. Tranche A Subfacility, U.S. Tranche A Revolving Loans to the U.S. Borrowers, at any time and from time to time during the Revolving Availability Period, in an aggregate principal amount at any time outstanding that will not result in the Availability Conditions not being met; (ii) under the Canadian Subfacility, Canadian Revolving Loans to the Canadian Borrowers, at any time and from time to time during the Revolving Availability Period, in an aggregate principal amount at any time outstanding that will not result in the Availability Conditions not being met; or (iii) under the Dutch Subfacility, Dutch Revolving Loans to the Dutch Borrowers, at any time and from time to time during the Revolving Availability Period, in an aggregate principal amount at any time outstanding that will not result in the Availability Conditions not being met.; or (iv) under the U.S. Tranche B Subfacility, U.S. Tranche B Revolving Loans to the U.S. Borrowers, in a single drawing on the Second Amendment Effective Date, in an aggregate principal amount outstanding that will not result in the Availability Conditions not being met. Ex-FILO Revolving Loans will be available under each Ex-FILO Subfacility in Dollars and any Alternative Currency and U.S. Tranche B Revolving Loans will be available under the U.S. Tranche B Subfacility in Dollars. Within the limits set forth above and subject to the terms, conditions and limitations set forth herein, the Borrowers may borrow, pay or prepay and reborrow Revolving Loans under each applicable Subfacility. All U.S. Borrowers shall be jointly and severally liable as borrowers for all Borrowings under the U.S. Subfacilityies of each U.S. Borrower regardless of which U.S. Borrower received the proceeds thereof. All Canadian Borrowers shall be jointly and severally liable as borrowers for all Borrowings under the Canadian Subfacility of each Canadian Borrower regardless of which Canadian Borrower received the proceeds thereof. All Dutch Borrowers shall be jointly and severally liable as borrowers for all Borrowings under the Dutch Subfacility of each Dutch Borrower regardless of which Dutch Borrower received the proceeds thereof.


2.02.       Loans.

(a)          Each (i) U.S. Tranche A Revolving Loan (other than U.S. Swingline Loans) shall be made as part of a Borrowing consisting of U.S. Tranche A Revolving Loans made by the U.S. Tranche A Revolving Lenders in accordance with their Pro Rata Percentage under the U.S. Tranche A Subfacility of the applicable U.S. Tranche A Revolving Commitments, (ii) U.S. Tranche B Revolving Loan shall be made as part of a Borrowing consisting of U.S. Tranche B Revolving Loans made by the U.S. Tranche B Revolving Lenders in accordance with their Pro Rata Percentage under the U.S. Tranche B Subfacility of the U.S. Tranche B Revolving Commitments, (iii) Canadian Revolving Loan (other than Canadian Swingline Loans) shall be made as part of a Borrowing consisting of Canadian Revolving Loans made by the Canadian Revolving Lenders in accordance with their Pro Rata Percentage under the Canadian Subfacility of the Canadian Revolving Commitments, and (iiiiv) Dutch Revolving Loan (other than Dutch Swingline Loans) shall be made as part of a Borrowing consisting of Dutch Revolving Loans made by the Dutch Revolving Lenders in accordance with their Pro Rata Percentage under the Dutch Subfacility of the Dutch Revolving Commitments; provided that the failure of any Lender to make any Loan shall not in itself relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to make any Loan required to be made by such other Lender). Except for Loans deemed made pursuant to Section 2.02(f), Loans (other than Swingline Loans, Canadian Prime Loans and Base Rate Loans) comprising any Borrowing shall be in an aggregate principal amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum or (ii) equal to the remaining available balance of the applicable Revolving Commitments. Any Loan to a Dutch Borrower shall at all times be provided by a Lender that is a Non-Public Lender. The U.S. Tranche B Revolving Loans shall be fully funded in a single drawing on the Second Amendment Effective Date. The U.S. Tranche B Revolving Loans shall be repaid in accordance with Section 2.04(a)(II) and may be prepaid in accordance with Section 2.09(a). Once the U.S. Tranche B Revolving Loans have been funded on the Second Amendment Effective Date, they may not be reborrowed.

(b)          Subject to Section 3.01, (i) each Borrowing of U.S. Tranche A Revolving Loans or U.S. Tranche B Revolving Loans shall be made to U.S. Borrowers only and shall be made as either U.S. Base Rate Loans or Eurocurrency Rate Loans, (ii) each Borrowing of Canadian Revolving Loans shall be made to Canadian Borrowers only and shall be made as either B/A Equivalent Loans, Canadian Prime Rate Loans, Canadian Base Rate Loans or Eurocurrency Rate Loans, (iii) each Borrowing of Dutch Revolving Loans shall be made to Dutch Borrowers only and shall be made as either European Base Rate Loans or Eurocurrency Rate Loans, (iv) each Borrowing of Loans denominated in Dollars shall be comprised entirely of Base Rate Loans or Eurocurrency Rate Loans, (v) each Borrowing of Loans denominated in Canadian Dollars shall be comprised entirely of Canadian Prime Loans, B/A Equivalent Loans or Eurocurrency Rate Loans, (vi) each Borrowing of Ex-FILO Revolving Loans denominated in Euro, Pounds Sterling and Swiss Francs shall be comprised entirely of European Base Rate Loans or Eurocurrency Rate Loans and (vii) each Borrowing of Ex-FILO Revolving Loans denominated in other Alternative Currencies shall be comprised entirely of B/A Equivalent Loans, European Base Rate Loans or Eurocurrency Rate Loans, in each case as the Relevant Borrower may request pursuant to Section 2.03. Each applicable Lender may at its option make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to fund on such Lender’s behalf; provided that any exercise of such option shall not affect the obligation of the Borrowers to repay such Loan to each applicable Lender in accordance with the terms of this Agreement or cause the Borrowers to pay additional amounts pursuant to Section 3.01. Borrowings of more than one Type may be outstanding at the same time; provided, further, that the Borrowers shall not be entitled to request any Borrowing that, if made, would result in more than fifteentwenty Borrowings of Eurocurrency Rate Loans or ten Borrowings of B/A Equivalent Loans outstanding hereunder at any one time (which number of Borrowings of Eurocurrency Rate Loans and/or B/A Equivalent Loans may be increased or adjusted by agreement between the Company and the Administrative Agent in connection with any Revolving Commitment Increase or Extended Revolving Loans/Extended Revolving Commitments). For purposes of the foregoing, Borrowings having different Interest Periods or Contract Periods, regardless of whether they commence on the same date, shall be considered separate Borrowings.


(c)          Except with respect to Loans made pursuant to Section 2.02(f), each Lender shall make each Loan (other than Swingline Loans) to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds as the Administrative Agent may designate not later than 2:00 p.m., Local Time, and the Administrative Agent shall promptly credit the amounts so received to an account as directed by the Relevant Borrower in the applicable Notice of Borrowing maintained with the Administrative Agent or, if a Borrowing shall not occur on such date because any condition precedent herein specified shall not have been met or waived, return the amounts so received to the respective Lenders.

(d)          Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with paragraph (c) above, and the Administrative Agent may, in reliance upon such assumption, make available to the Relevant Borrower on such date a corresponding amount. If the Administrative Agent shall have so made funds available then, to the extent that such Lender shall not have made such portion available to the Administrative Agent, such Lender and the Relevant Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent at (i) in the case of a Borrower, as applicable, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such Lender, for the first such day, the Federal Funds Rate (for Dollars), the Bank of Canada Overnight Rate (for Canadian Dollars) or a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (for other Alternative Currencies), and for each day thereafter, the U.S. Base Rate (for Borrowings under thea U.S. Subfacility denominated in Dollars), the Canadian Base Rate (for Borrowings under the Canadian Subfacility denominated in Dollars), the Canadian Prime Rate (for Canadian Dollars) or the European Base Rate (for other Alternative Currencies).

(e)          Notwithstanding any other provision of this Agreement, no Borrower shall be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period or Contract Period requested with respect thereto would end after the Maturity Date or, with respect to U.S. Tranche B Revolving Borrowing, the U.S. Tranche B Maturity Date.

(f)          If an Issuing Bank shall not have received from the Relevant Borrower the payment required to be made by Section 2.13(e) within the time specified in such Section, such Issuing Bank will promptly notify the Administrative Agent of the LC Disbursement and the Administrative Agent will promptly notify each applicable Revolving Lender of such LC Disbursement and its Pro Rata Percentage thereof under the applicable Subfacility or Subfacilities. Each such Revolving Lender shall pay by wire transfer of immediately available funds to the Administrative Agent on such date (or, if such Revolving Lender shall have received such notice later than 12:00 (noon), Local Time, on any day, not later than 11:00 a.m., Local Time, on the immediately following Business Day), an amount equal to such Lender’s Pro Rata Percentage under the applicable Subfacility or Subfacilities of such LC Disbursement (it being understood that the Dollar Equivalent such amount shall be deemed to constitute a Base Rate Loan (for LC Disbursements denominated in Dollars or an Alternative Currency (other than Canadian Dollars)) or a Canadian Prime Loan (for LC Disbursements denominated in Canadian Dollars) of such Lender, and such payment shall be deemed to have reduced the applicable LC Exposure), and the Administrative Agent will promptly pay to such Issuing Bank amounts so received by it from the applicable Revolving Lenders. The Administrative Agent will promptly pay to the applicable Issuing Bank any amounts received by it from the applicable Borrower pursuant to Section 2.13(e) prior to the time that any Revolving Lender makes any payment pursuant to this paragraph (f); any such amounts received by the Administrative Agent thereafter will be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made such payments and to the applicable Issuing Bank, as their interests may appear. If any Revolving Lender shall not have made its Pro Rata Percentage under the applicable Subfacility or Subfacilities of such LC Disbursement available to the Administrative Agent as provided above, such Lender and the Relevant Borrower, as applicable, severally agree to pay interest on such amount, for each day from and including the date such amount is required to be paid in accordance with this paragraph (f) to but excluding the date such amount is paid, to the Administrative Agent for the account of the applicable Issuing Bank at (i) in the case of the Relevant Borrower, a rate per annum equal to the interest rate applicable to Revolving Loans pursuant to Section 2.06(a), and (ii) in the case of such Lender, for the first such day, the Federal Funds Rate (for Dollars), the Bank of Canada Overnight Rate (for Canadian Dollars) or a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (for other Alternative Currencies), and for each day thereafter, the U.S. Base Rate (for LC Disbursements under the U.S. Tranche A Subfacility denominated in Dollars), the Canadian Base Rate (for LC Disbursements under the Canadian Subfacility denominated in Dollars), the Canadian Prime Rate (for Canadian Dollars) or the European Base Rate (for other Alternative Currencies).


2.03.        Borrowing Procedure. (I) To request a Revolving Borrowing under the U.S. Tranche A Subfacility, Canadian Subfacility or Dutch Subfacility, the Relevant Borrower shall notify the Administrative Agent of such request by telecopy or electronic transmission (i) in the case of a Borrowing of Eurocurrency Rate Loans, not later than 12:00 p.m., Local Time (or with respect to the Dutch Subfacility, 11:00 a.m., Local Time), three Business Days before the date of the proposed Borrowing, (ii) in the case of a Borrowing of U.S. Base Rate Loans (other than Swingline Loans), not later than 12:00 p.m., Local Time, on the Business Day of the proposed Borrowing, (iii) in the case of a Borrowing of B/A Equivalent Loans, not later than 11:00 a.m., Local Time, three Business Days before the date of the proposed Borrowing, (iv) in the case of a Borrowing of Canadian Base Rate Loans (other than Canadian Swingline Loans), not later than 12:00 p.m., Local Time, on the Business Day of the proposed Borrowing, (v) in the case of a Borrowing of Canadian Prime Loans (other than Canadian Swingline Loans and Dutch Swingline Loans), not later than 12:00 p.m., Local Time, on the Business Day of the proposed Borrowing or (vi) in the case of a Borrowing of European Base Rate Loans (other than Dutch Swingline Loans), not later than 11:00 a.m., Local Time, on the day of the proposed Borrowing.

(II)     Subject to satisfaction of each of the conditions set forth in Section 5 of the Second Amendment, the U.S. Tranche B Revolving Loans shall be funded on the Second Amendment Effective Date. To request a Borrowing under the U.S. Tranche B Subfacility, the U.S. Borrowers shall notify the U.S. Administrative Agent of such request by telecopy or electronic transmission (i) in the case of a Borrowing of Eurocurrency Rate Loans, not later than 12:00 p.m., Local Time (or with respect to the Dutch Subfacility, 11:00 a.m., Local Time), three Business Days before the Second Amendment Effective Date, and (ii) in the case of a Borrowing of U.S. Base Rate Loans, not later than 12:00 p.m., Local Time, on the Second Amendment Effective Date.

(III)     Each such written Notice of Borrowing shall specify the following information in compliance with Section 2.02:

 (a)          the aggregate amount of such Borrowing (it being understood that the U.S. Tranche B Revolving Loans will be fully funded on the Second Amendment Effective Date);


 (b)          the date of such Borrowing (which shall be the Second Amendment Effective Date in the case of the U.S. Tranche B Revolving Loans), which shall be a Business Day;

 (c)          whether such Borrowing is to be a Borrowing of U.S. Base Rate Loans, a Borrowing of Eurocurrency Rate Loans, a Borrowing of Canadian Base Rate Loans, a Borrowing of Canadian Prime Loans, a Borrowing of B/A Equivalent Loans or a Borrowing of European Base Rate Loans;

 (d)          in the case of a Borrowing of Eurocurrency Rate Loans or B/A Equivalent Loans, the initial Interest Period or Contract Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period” or “Contract Period,” as applicable;

 (e)          the location and number of the account to which funds are to be disbursed;

 (f)           the Subfacility under which the Loans are to be borrowed;

 (g)          the currency of the Borrowing (which shall be U.S. Dollars in the case of the U.S. Tranche B Revolving Loans); and

 (h)          that the conditions set forth in Section 5 or Section 6, as applicable, are satisfied or waived as of the date of the notice.

(IV)         If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be a Borrowing of U.S. Base Rate Loans for U.S. Borrowers, of Canadian Prime Loans or Canadian Base Rate Loans, as applicable, for the Canadian Borrowers, and of European Base Rate Loans for Dutch Borrowers. If no Interest Period or Contract Period is specified with respect to any requested Borrowing of Eurocurrency Rate Loans or B/A Equivalent Loans, then the Relevant Borrower shall be deemed to have selected an Interest Period or Contract Period of one month’s duration. If no currency is specified, then the requested Borrowing shall be made in Dollars for U.S. Borrowers, Canadian Dollars for the Canadian Borrowers and Euro for Dutch Borrowers. Promptly following receipt of a Notice of Borrowing in accordance with this Section 2.03, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

2.04.       Evidence of Debt; Repayment of Loans.

(a)          (I) Each U.S. Borrower, jointly and severally, hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each U.S. Tranche A Revolving Lender, the then unpaid principal amount of each U.S. Tranche A Revolving Loan of such U.S. Tranche A Revolving Lender and (ii) to each U.S. Swingline Lender the then unpaid principal amount of each applicable Swingline Loan, in each case, on the Maturity Date. Each Canadian Borrower jointly and severally, hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Canadian Revolving Lender, the then unpaid principal amount of each Canadian Revolving Loan of such Canadian Revolving Lender and (ii) to the Canadian Swingline Lender the then unpaid principal amount of each applicable Canadian Swingline Loan, in each case, on the Maturity Date. Each Dutch Borrower, jointly and severally, hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Dutch Revolving Lender, the then unpaid principal amount of each Dutch Revolving Loan of such Dutch Revolving Lender, and (ii) to the Dutch Swingline Lender the then unpaid principal amount of each applicable Dutch Swingline Loan, in each case, on the Maturity Date.

(II)     Each U.S. Borrower, jointly and severally, hereby unconditionally promises to pay to the U.S. Administrative Agent for the ratable account of each U.S. Tranche B Revolving Lender, in quarterly installments on the dates set forth below, or if any such date is not a Business Day, on the immediately preceding Business Day, a principal amount in respect of the U.S. Tranche B Revolving Loans equal to the amount set forth in the below grid under the heading “Quarterly Amortization Payment” (ratably reduced by the amount of any voluntary prepayments of the outstanding U.S. Tranche B Revolving Loans consummated prior to any such date). For the avoidance of doubt, any U.S. Tranche B Revolving Loans that are repaid may not be reborrowed.



Amortization Date Quarterly Amortization Payment
March 31, 2019 $2,500,000.00
June 30, 2019 $2,500,000.00
September 30, 2019 $2,500,000.00
December 31, 2019 $2,500,000.00
March 31, 2020 $2,500,000.00
June 30, 2020 $2,500,000.00

(b)          Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrowers to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement. The Company shall be entitled to review records of such accounts with prior reasonable notice during normal business hours.

(c)          The Administrative Agent shall maintain accounts in which it will record (i) the amount of each Loan made hereunder, the Type thereof, the currency thereof and the Interest Period or Contract Period applicable thereto; (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrowers to each Lender hereunder; and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof. The Company shall be entitled to review records of such accounts with prior reasonable notice during normal business hours.

(d)          The entries made in the accounts maintained pursuant to paragraphs (b) and (c) above shall be prima facie evidence of the existence and amounts of the obligations therein recorded absent manifest error; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of the Borrowers to repay the Loans in accordance with their terms.

(e)          Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Relevant Borrowers shall promptly prepare, execute and deliver to such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) substantially in the form of Exhibit B-1, Exhibit B-2, Exhibit B-3, Exhibit B-4, Exhibit B-5 or, Exhibit B-6 or Exhibit B-7 as applicable.

2.05.       Fees.

(a)          Ex-FILO Unused Line Fee. With respect to each Ex-FILO Subfacility, the Borrowers thereunder shall, jointly and severally, pay to the applicable Administrative Agent, for the account of the Ex-FILO Revolving Lenders (other than any Defaulting Lender) under such Ex-FILO Subfacility, a fee in Dollars equal to the then applicable Ex-FILO Unused Line Fee Rate multiplied by the average daily amount by which the Ex-FILO Revolving Commitments (other than Ex-FILO Revolving Commitments of a Defaulting Lender) under such Ex-FILO Subfacility exceed such Ex-FILO Revolving Lender’s Pro Rata Percentage under the applicable Ex-FILO Subfacility of the sum of (i) the aggregate principal amount of Ex-FILO Revolving Loans (other than Swingline Loans) then outstanding under such Ex-FILO Subfacility and (ii) the aggregate Stated Amount of outstanding Letters of Credit available to be drawn under such Ex-FILO Subfacility during any fiscal quarter (such fee, the “Ex-FILO Unused Line Fee”). SuchWith respect to the Ex-FILO Unused Line Fee for each Ex-FILO Subfacility, such fee shall accrue commencing on the first day following the Closing Date until the last day of the Revolving Availability Period, and will be payable in arrears on each Adjustment Date and on the Maturity Date, commencing April 1, 2016. The Ex-FILO Unused Line Fee shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed.


(b)          Administrative Agent Fees. The Borrowers, jointly and severally, agree to pay to the Administrative Agent, for its own account, the fees payable in the amounts and at the times separately agreed upon between the Company and the Administrative Agent.

(c)          LC and Fronting Fees. The Borrowers, jointly and severally, agree to pay (i) to the Administrative Agent for the account of each applicable Revolving Lender a participation fee (the “LC Participation Fee”) in the applicable currencies of such Revolving Lender’s LC Exposure, which fee shall accrue at a rate equal to the Applicable Margin from time to time used to determine the interest rate on Eurocurrency Rate Loans pursuant to Section 2.06, on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Closing Date to but excluding the later of the date on which such Lender’s Ex-FILO Revolving Commitment terminates and the date on which such Lender ceases to have any LC Exposure and (ii) to each Issuing Bank a fronting fee (“Fronting Fee”) in the applicable currencies of such Issuing Bank’s LC Exposure, which shall accrue at the rate of 0.125% per annum (or such other amount as the Issuing Bank and the Relevant Borrower may agree) on the outstanding daily amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Closing Date to but excluding the later of the date of termination of the Ex-FILO Revolving Commitments and the date on which there ceases to be any LC Exposure, as well as each Issuing Bank’s standard and reasonable fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder as agreed among the Relevant Borrower and such Issuing Bank from time to time. LC Participation Fees and Fronting Fees accrued through and including the last day of March, June, September and December of each year shall be payable on each Adjustment Date and on the Maturity Date, commencing with April 1, 2016; provided that all such fees shall be payable on the date on which the Revolving Commitments terminate (other than the U.S. Tranche B Revolving Commitments) and any such fees accruing after the date on which the Ex-FILO Revolving Commitments terminate shall be payable on demand (including documentation reasonably supporting such request). Any other fees payable to the Issuing Banks pursuant to this paragraph shall be payable on demand (together with backup documentation supporting such reimbursement request). All LC Participation Fees and Fronting Fees shall be computed on the basis of a year of 360 days (or 365 days, in the case of such fees payable in respect of Letters of Credit denominated in Canadian Dollars outstanding under the Canadian Subfacility) and shall be payable for the actual number of days elapsed.

(d)          Subject to Section 2.10(a), all fees shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution, if and as appropriate, among the applicable Lenders (other than Defaulting Lenders), except that the Fronting Fees shall be paid directly to each Issuing Bank. Once paid, none of the fees shall be refundable under any circumstances.


2.06.       Interest on Loans.

(a)          Subject to the provisions of Section 2.06(g), the Loans comprising each Borrowing of U.S. Base Rate Loans, including each U.S. Swingline Loan, shall bear interest at a rate per annum equal to the U.S. Base Rate plus the Applicable Margin in effect from time to time.

(b)          Subject to the provisions of Section 2.06(g), the Loans comprising each Borrowing of Eurocurrency Rate Loans shall bear interest at a rate per annum equal to the Eurocurrency Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin in effect from time to time.

(c)          Subject to the provisions of Section 2.06(g), the Loans comprising each Borrowing of Canadian Base Rate Loans, including each Canadian Swingline Loan denominated in Dollars, shall bear interest at a rate per annum equal to the Canadian Base Rate plus the Applicable Margin in effect from time to time.

(d)          Subject to the provisions of Section 2.06(g), the Loans comprising each Borrowing of Canadian Prime Loans, including each Swingline Loan denominated in Canadian Dollars shall bear interest at a rate per annum equal to the Canadian Prime Rate plus the Applicable Margin in effect from time to time.

(e)          Subject to the provisions of Section 2.06(g), the Loans comprising each Borrowing of B/A Equivalent Loans shall bear interest at a rate per annum equal to the Canadian B/A Rate for the Contract Period in effect for such Borrowing plus the Applicable Margin in effect from time to time.

(f)          Subject to the provisions of Section 2.06(g), the Loans comprising each Borrowing of European Base Rate Loans, including each Dutch Swingline Loan denominated in Dollars, Sterling, Swiss Francs or Euros, shall bear interest at a rate per annum equal to the European Base Rate plus the Applicable Margin in effect from time to time.

(g)          Notwithstanding the foregoing, if an Event of Default under Section 10.01 or Section 10.05 shall have occurred and is continuing and any principal of or interest on any Loan or any fees or other amount payable by the Borrowers hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of, or interest on, any Loan, 2.00% plus the rate otherwise applicable to such Loan or (ii) in the case of any other amount, 2.00% plus the rate applicable to U.S. Base Rate Loans.

(h)          Accrued interest on (xw) each Base Rate Loan (other than a U.S. Tranche B Loan) and Canadian Prime Loan shall be payable in arrears on each Adjustment Date and on the Maturity Date commencing with April 1, 2016 and, (x) each U.S. Tranche B Loan that is a Base Rate Loans shall be payable in arrears on each Adjustment Date and on the U.S. Tranche B Maturity Date , (y) each Eurocurrency Rate Loan (other than a U.S. Tranche B Loan) and B/A Equivalent Loan shall be payable on the last day of each Interest Period or Contract Period, as applicable, and on the Maturity Date and (z) each U.S. Tranche B Loan that is a Eurocurrency Rate Loan shall be payable on the last day of each Interest Period or Contract Period, as applicable, and on the U.S. Tranche B Maturity Date; provided that, if any Interest Period or Contract Period, as applicable, exceeds three months, accrued interest shall be payable on the respective dates that fall every three months after the beginning of such Interest Period or Contract Period, and, (x) in the case of Ex-FILO Revolving Loans, shall be payable on the last day of the Revolving Availability Period or (y) in the case of U.S. Tranche B Revolving Loans, shall be payable on the U.S. Tranche B Maturity Date; provided that (i) interest accrued pursuant to clause (g) of this Section 2.06 shall be payable on demand and, absent demand, on each Adjustment Date and upon termination of the Revolving Commitments, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of a Base Rate Loan or Canadian Prime Loan prior to the end of the Revolving Availability Period or U.S. Tranche B Maturity Date, as applicable), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurocurrency Rate Loan or B/A Equivalent Loan prior to the end of the current Interest Period or Contract Period, as applicable, therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.


(i)          All interest and fees hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Canadian Prime Rate, Canadian Base Rate, European Base Rate Loans denominated in Pounds Sterling or Eurocurrency Rate Loans denominated in Pounds Sterling shall be computed on the basis of a year of 365 days, and in each case shall be payable for the actual number of days elapsed.

(j)          For purposes of the Interest Act (Canada), (i) whenever any interest or fee under this Agreement is calculated using a rate based on a year of 360 days or any other period of time that is less than a calendar year, the rate determined pursuant to such calculation, when expressed as an annual rate, is equivalent to (x) the applicable rate based on a year of 360 days or any other period, (y) multiplied by the actual number of days in the calendar year in which the period for which such interest is payable (or compounded) ends and (z) divided by 360, or such other period of time that is less than the calendar year, (ii) the principle of deemed reinvestment of interest does not apply to any interest calculation under this Agreement and (iii) the rates of interest stipulated in this Agreement are intended to be nominal rates and not effective rates or yields.

(k)          Notwithstanding anything to the contrary contained in this Agreement or in any other Credit Document, solely to the extent that a court of competent jurisdiction finally determines that the calculation or determination of interest or any fee payable by the Canadian Borrowers in respect of the Obligations of the Canadian Borrowers pursuant to this Agreement and the other Credit Documents shall be governed by or subject to the Requirements of Law of any jurisdiction of Canada or the federal Requirements of Law of Canada, in no event shall the aggregate “interest” (as defined in Section 347 of the Criminal Code, R.S.C. 1985, c. C-46, as the same shall be amended, replaced or re-enacted from time to time) payable by the Canadian Credit Parties to the Administrative Agent or any Lender under this Agreement or any other Credit Document exceed the effective annual rate of interest on the “credit advanced” (as defined in that section) under this Agreement or such other Credit Document lawfully permitted under that section and, if any payment, collection or demand pursuant to this Agreement or any other Credit Document in respect of “interest” (as defined in that section) is determined to be contrary to the provisions of that section, such payment, collection or demand shall be deemed to have been made by mutual mistake of the Administrative Agent, the applicable Lenders and the Canadian Credit Parties and the amount of such payment or collection shall be refunded by the Administrative Agent and such Lenders to the Canadian Borrowers. For the purposes of this Agreement and each other Credit Document to which any Canadian Borrowers are a party, the effective annual rate of interest payable by the Canadian Borrowers shall be determined in accordance with generally accepted actuarial practices and principles over the term of the Loans on the basis of annual compounding for the lawfully permitted rate of interest and, in the event of dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by and for the account of the Canadian Borrowers will be conclusive for the purpose of such determination in the absence of evidence to the contrary.

2.07.       Termination and Reduction of Commitments.

(a)          Except as otherwise provided in Section 2.19, the Canadian Revolving Commitments, the Dutch Revolving Commitments, the U.S. Tranche A Revolving Commitments, the Swingline Commitment, and the LC Commitment shall automatically terminate on the Maturity Date, and the U.S. Tranche B Revolving Commitments shall terminate and be automatically and permanently reduced to $0 upon the making of the U.S. Tranche B Revolving Loans on the Second Amendment Effective Date pursuant to Section 2.01(iv).


(b)          The Company may at any time terminate, or from time to time reduce, the Ex-FILO Revolving Commitments under any Ex-FILO Subfacility; provided that (i) any such reduction shall be in an amount that is an integral multiple of the Borrowing Multiple, (ii) the Ex-FILO Revolving Commitments under any Ex-FILO Subfacility shall not be terminated or reduced if, after giving effect to any concurrent prepayment of the Loans under such Ex-FILO Subfacility in accordance with Section 2.09, the Ex-FILO Revolving Exposures under such Ex-FILO Subfacility would exceed the Commitments under such Ex-FILO Subfacility, and (iii) the North American Minimum Requirement shall be met.

(c)          In the event that the Dutch Parent Borrower consolidates, amalgamates, merges with or into or winds up into, or sells, assigns, transfers, leases, conveys or otherwise disposes of all or substantially all of its properties or assets, in one or more related transactions, to any Person other than in accordance with clauses (i) through (v) of Section 9.11(b) (such transactions, the “Dutch Parent Borrower Disposition”), all of the Revolving Commitments under the Dutch Subfacility shall be terminated.

(d)          The Company shall notify the Administrative Agent of any election to terminate or reduce any Class of Ex-FILO Revolving Commitments under any Ex-FILO Subfacility under paragraph (b) or (c) of this Section 2.07 at least two Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof; it being understood that in the case of a Dutch Parent Borrower Disposition, the effective date of the termination of Revolving Commitments under the Dutch Subfacility shall be on or prior to the date the Dutch Parent Borrower Disposition is consummated. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Any effectuated termination or reduction of the Commitments shall be permanent. Each termination or reduction of the Commitments shall be made among the Lenders based on each Lender’s Pro Rata Percentage under the applicable Subfacility or Subfacilities within any Class of the Commitments; provided that, notwithstanding the foregoing, (1) the Company may allocate any termination or reduction of Commitments among Classes of Commitments at its direction, (2) the Company may allocate any termination or reduction of Commitments among Revolving Commitments and Extended Revolving Commitments at its direction (including, for the avoidance of doubt, to the Commitments with respect of any Class of Extended Revolving Commitments without any termination or reduction of the remaining Commitments with respect to the Existing Revolving Loan Commitments from which such Extended Revolving Commitments were converted or extended) and (3) in connection with the establishment on any date of any Extended Revolving Commitments pursuant to Section 2.19, the Existing Revolving Loan Commitments of any one or more Lenders providing any such Extended Revolving Commitments on such date shall be reduced in an amount equal to the amount of Existing Revolving Loan Commitments so extended on such date (or, if agreed by the Company and the Lenders providing such Extended Revolving Commitments, by any greater amount so long as (A) a proportionate reduction of the Existing Revolving Loan Commitments has been offered to each Lender to whom the applicable Extension Request has been made (which may be conditioned upon such Lender becoming an Extending Lender), and (B) the Company prepays the Existing Revolving Loans of such Class of Existing Revolving Loan Commitments owed to such Lenders providing such Extended Revolving Commitments to the extent necessary to ensure that, after giving pro forma effect to such repayment or reduction, the Existing Revolving Loans of such Class are held by the Lenders of such Class on a pro rata basis in accordance with their Existing Revolving Loan Commitments of such Class after giving pro forma effect to such reduction) (provided that (x) after giving pro forma effect to any such reduction and to the repayment of any Loans made on such date, the aggregate amount of the revolving credit exposure of any such Lender does not exceed the Existing Revolving Loan Commitment thereof (such revolving credit exposure and Existing Revolving Loan Commitment being determined in each case, for the avoidance of doubt, exclusive of such Lender’s Extended Revolving Commitment and any exposure in respect thereof) and (y) for the avoidance of doubt, any such repayment of Loans contemplated by the preceding clause shall be made in compliance with the requirements of Section 2.10(a) with respect to the ratable allocation of payments hereunder, with such allocation being determined after giving pro forma effect to any conversion or exchange pursuant to Section 2.19 of Existing Revolving Loan Commitments and Existing Revolving Loans into Extended Revolving Commitments and Extended Revolving Loans respectively, and prior to any reduction being made to the Commitment of any other Lender).


2.08.       Interest Elections.

(a)          Each Revolving Borrowing initially shall be of the Type specified in the applicable Notice of Borrowing and, in the case of a Borrowing of Eurocurrency Rate Loans or B/A Equivalent Loans, shall have an initial Interest Period or Contract Period as specified in such Notice of Borrowing. Thereafter, the Relevant Borrower may elect to convert such Borrowing, with respect to the applicable Subfacility, as applicable, to a different Type or to continue such Borrowing and, in the case of a Borrowing of Eurocurrency Rate Loans or B/A Equivalent Loans, may elect Interest Periods or Contract Periods, as applicable, therefor, all as provided in this Section 2.08. The Relevant Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. Notwithstanding anything to the contrary, the Borrowers shall not be entitled to request any conversion or continuation that, if made, would result in more than fifteentwenty Borrowings of Eurocurrency Rate Loans or ten Borrowings of B/A Equivalent Loans, outstanding hereunder at any one time (which number of Borrowings of Eurocurrency Rate Loans and/or B/A Equivalent Loans may be increased or adjusted by agreement between the Company and the Administrative Agent in connection with any Revolving Commitment Increase or Extended Revolving Loans/Extended Revolving Commitments). This Section 2.08 shall not apply to Swingline Loans, which may not be converted or continued.

(b)          To make an election pursuant to this Section 2.08, the Relevant Borrower shall notify the Administrative Agent of such election by electronic transmission by the time that a Notice of Borrowing would be required under Section 2.03 if such Borrower was requesting a Revolving Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such Notice of Conversion/Continuation shall be substantially in the form of Exhibit A-2, unless otherwise agreed to by the Administrative Agent and the relevant Borrower. Whenever a Canadian Borrower desires to convert or continue any Canadian Prime Loans as B/A Equivalent Loans, such Canadian Borrower shall give the Administrative Agent a Notice of Conversion/Continuation, no later than 1:00 p.m. (Local Time) at least three Business Days before the requested conversion or continuation date. Promptly after receiving any such notice, the Administrative Agent shall notify each Lender thereof. Each Notice of Conversion/Continuation shall specify the amount of Canadian Prime Loans to be converted or continued, the conversion or continuation date (which shall be a Business Day), and the duration of the Contract Period (which shall be deemed to be one month if not specified).

(c)          Each written Notice of Conversion/Continuation shall specify the following information in compliance with Section 2.02:

 (i)          the Borrowing to which such Notice of Conversion/Continuation applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);


 (ii)          the effective date of the election made pursuant to such Notice of Conversion/Continuation, which shall be a Business Day;

 (iii)         whether the resulting Borrowing is to be a Borrowing of U.S. Base Rate Loans, a Borrowing of Eurocurrency Rate Loans, a Borrowing of Canadian Base Rate Loans, a Borrowing of European Base Rate Loans, a Borrowing of Canadian Prime Loans or a Borrowing of B/A Equivalent Loans;

 (iv)         the currency of the resulting Borrowing; and

 (v)          if the resulting Borrowing is a Borrowing of Eurocurrency Rate Loans or B/A Equivalent Loans, the Interest Period or Contract Period, as applicable, to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period” or “Contract Period,” as applicable.

If any such Notice of Conversion/Continuation requests a Borrowing of Eurocurrency Rate Loans or B/A Equivalent Loans but does not specify an Interest Period or Contract Period, then the Relevant Borrower shall be deemed to have selected an Interest Period or Contract Period of one month’s duration. No Borrowing may be converted into or continued as a Borrowing denominated in a different currency, but instead must be prepaid in the original currency of such Borrowing and reborrowed in the other currency.

(d)          Promptly following receipt of a Notice of Conversion/Continuation, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

(e)          If a Notice of Conversion/Continuation with respect to a Borrowing of Eurocurrency Rate Loans denominated in Dollars is not timely delivered prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to a Borrowing of the applicable Base Rate Loans. If a Notice of Conversion/Continuation with respect to a Borrowing of B/A Equivalent Loans is not timely delivered prior to the end of the Contract Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Contract Period such Borrowing shall be converted to a Borrowing of Canadian Prime Loans. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Company, then, after the occurrence and during the continuance of such Event of Default (i) no outstanding Borrowing may be converted to or continued as a Borrowing of Eurocurrency Rate Loans or B/A Equivalent Loans and (ii) unless repaid, each Borrowing of Eurocurrency Rate Loans and B/A Equivalent Loans shall be converted to a Borrowing of the applicable Base Rate Loans or Canadian Prime Loans, respectively, at the end of the Interest Period or Contract Period applicable thereto.

2.09.       Optional and Mandatory Prepayments of Loans.

(a)          Optional Prepayments. Any Borrower shall have the right, at any time and from time to time to prepay, without premium or penalty, any Borrowing under any Subfacility, in whole or in part, subject to the requirements of this Section 2.09; provided that (i) each partial prepayment shall be in an amount that is an integral multiple of the Borrowing Multiple. and (ii) no Borrower may optionally prepay any U.S. Tranche B Revolving Borrowing pursuant to this Section 2.09(a) at any time prior to thefirst anniversary of the Second Amendment Effective Date and thereafter, the Company may optionally prepay any U.S. Tranche B Revolving Borrowing at any time so long as the FILO Prepayment Conditions are satisfied as of the date of such optional prepayment of U.S. Tranche B Revolving Borrowings. U.S. Tranche B Revolving Borrowings that are optionally prepaid may not be reborrowed.


(b)          Mandatory Prepayments.

(i)           In the event of the termination of all the Revolving Commitments under any Ex-FILO Subfacility, the Borrowers shall, on the date of such termination, repay or prepay all the outstanding EX-FILO Revolving Borrowings and all outstanding Swingline Loans and Cash Collateralize or backstop on terms reasonably satisfactory to each applicable Issuing Bank the LC Exposure in accordance with Section 2.13(j), in each case, in respect of such Ex-FILO Subfacility. In the event of a Dutch Parent Borrower Disposition (i) all Loans (including Swingline Loans) outstanding under the Dutch Subfacility immediately prior to the date of such Dutch Parent Borrower Disposition shall be prepaid and (ii) the Dutch LC Exposure under the Dutch Subfacility shall be Cash Collateralized or backstopped on terms reasonably satisfactory to each applicable Dutch Issuing Bank in accordance with Section 2.13(j).

(ii)          (I) In the event of any partial reduction of the Ex-FILO Revolving Commitments under any Ex- FILO Subfacility, then (A) at or prior to the effective date of such reduction, the Administrative Agent shall notify the Company and the Ex-FILO Revolving Lenders of the Ex-FILO Revolving Exposures under the applicable Subfacility or Subfacilities after giving effect thereto and (B) except as permitted by Section 2.17 or Section 2.18, if the Ex-FILO Revolving Exposures under such Subfacility or Subfacilities exceed the applicable Line Cap then in effect, after giving effect to such reduction, then the Borrowers shall, on the date of such reduction, first, repay or prepay Swingline Loans (if any), second, repay or prepay Revolving Borrowings and third, replace or Cash Collateralize outstanding Letters of Credit (if any) in accordance with the procedures set forth in Section 2.13(j), in each case, under the applicable Subfacility or Subfacilities, in an amount sufficient to eliminate such excess.

(II)     If the U.S. Tranche B Revolving Loans under the U.S. Tranche B Subfacility exceed the U.S. Tranche B Line Cap then in effect, then then the Administrative Agent shall be entitled to establish a Reserve with respect to the U.S. Tranche A Borrowing Base in an amount equal to the FILO Reserve Shortfall in accordance with the last sentence of the definition of “Reserve”.

(iii)          Except as permitted by Section 2.17 or Section 2.18, on each date required pursuant to Section 1.06(a), the Borrowers shall apply an amount equal to such excess in respect of the Ex-FILO Subfacilities to prepay the Ex-FILO Revolving Loans and any interest accrued thereon, first, repay or prepay Swingline Loans, second, repay or prepay Revolving Borrowings under the Ex-FILO Subfacilities, and third, replace or Cash Collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section 2.13(j), in each case, under the applicable Ex-FILO Subfacility or Ex-FILO Subfacilities, in an amount required pursuant to Section 1.06(a) to eliminate such excess.

(iv)         [Reserved].

(v)          In the event that the aggregate LC Exposure under any Ex-FILO Subfacility exceeds the LC Commitment then in effect under such Ex-FILO Subfacility, the applicable Borrowers shall, without notice or demand, immediately replace or Cash Collateralize Letters of Credit outstanding under such Ex-FILO Subfacility in accordance with the procedures set forth in Section 2.13(j), in an amount sufficient to eliminate such excess.

(vi)         At all times after the occurrence and during the continuance of a Cash Dominion Period, on each Business Day, the Administrative Agent shall apply all same day funds credited to the Dominion Accounts as follows: first, to fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to the Credit Documents; second, to interest then due and payable on the Borrowers’ Swingline Loans; third, to the principal balance of the Swingline Loan outstanding until the same has been prepaid in full; fourth, to interest then due and payable on the Ex-FILO Revolving Loans and other amounts due and payable pursuant to Sections 3.02 and 4.01; fifth, to the principal balance of the Ex-FILO Revolving Loans until the same have been prepaid in full; sixth, to Cash Collateralize all LC Exposure plus any accrued and unpaid interest thereon (to be held and applied in accordance with Section 2.13(j) hereof); seventh, to interest then due and payable on the U.S. Tranche B Revolving Loans and other amounts due and payable pursuant to Sections 3.02 and 4.01; eighth to the principal balance of the US. Tranche B Revolving Loans until the same have been prepaid in full; ninth returned to the Relevant Borrower or to such party as otherwise required by applicable Requirements of Law.


(c)          Application of Prepayments.

(i)           Prior to any optional or mandatory prepayment of Borrowings hereunder, the Relevant Borrower shall select the Borrowing or Borrowings under the applicable Subfacility or Subfacilities to be prepaid and shall specify such selection in the notice of such prepayment pursuant to this paragraph (i) of Section 2.09(c).

(ii)          With regard to mandatory prepayments, amounts to be applied pursuant to this Section 2.09 to the prepayment of Revolving Loans under the applicable Subfacility or Subfacilities shall be applied, as applicable, first to reduce outstanding Base Rate Loans and Canadian Prime Loans, if and as applicable, and any amounts remaining after each such application shall be applied to prepay Eurocurrency Rate Loans and B/A Equivalent Loans, if and as applicable. Notwithstanding the foregoing, if the amount of any prepayment of Loans required to be prepaid under Section 2.09(b) shall be in excess of the amount of the Base Rate Loans or the Canadian Prime Loans, as applicable, at the time outstanding, only the portion of the amount of such prepayment that is equal to the amount of such outstanding Base Rate Loans or Canadian Prime Loans shall be immediately prepaid and, at the election of the Relevant Borrower, the balance of such required prepayment shall be either (A) deposited in the LC Collateral Account and applied to the prepayment of Eurocurrency Rate Loans or B/A Equivalent Loans, as applicable, on the last day of the then next-expiring Interest Period or Contract Period for Eurocurrency Rate Loans or B/A Equivalent Loans, as applicable (with all interest accruing thereon for the account of the Relevant Borrower or (B) prepaid immediately, together with any amounts owing to the Lenders under Section 2.10). Notwithstanding any such deposit in the LC Collateral Account, interest shall continue to accrue on such Loans until prepayment.

(d)          Notice of Prepayment. The Relevant Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the applicable Swingline Lender) by telecopy or electronic transmission of any prepayment of any Subfacility pursuant to Section 2.9(a), (i) in the case of prepayment of a Borrowing of Eurocurrency Rate Loans, not later than 12:00 p.m., Local Time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Borrowing of B/A Equivalent Loans, not later than 12:00 p.m., Local Time, three Business Days before the date of prepayment, (iii) in the case of prepayment of a Borrowing of Canadian Base Rate Loans, not later than 12:00 p.m., Local Time, on the date of prepayment, (iv) in the case of prepayment of a Borrowing of European Base Rate Loans (other than Dutch Swingline Loans), not later than 12:00 p.m., Local Time, on the date of prepayment, (v) in the case of prepayment of a Borrowing of Canadian Prime Loans, not later than 12:00 p.m., Local Time, on the date of prepayment, (vi) in the case of prepayment of a Borrowing of U.S. Base Rate Loans, not later than 12:00 p.m., Local Time, on the date of prepayment, (vii) in the case of prepayment of a U.S. Swingline Loan, not later than 12:00 p.m., Local Time, on the date of prepayment, (viii) in the case of prepayment of a Canadian Swingline Loan, not later than 12:00 p.m., Local Time, on the date of prepayment and (ix) in the case of prepayment of a Dutch Swingline Loan, not later than 11:00 a.m., Local Time, on the date of prepayment. Each such notice shall specify (x) the prepayment date and (y) the principal amount of each Borrowing or portion thereof to be prepaid and the Subfacility or Subfacilities under which such prepayment is being made; provided that such Borrower reimburses each Lender pursuant to Section 3.02 for any funding losses within ten Business Days after receiving written demand therefor. Promptly following receipt of any such notice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied to the Loans of any Lender included in the prepaid Borrowing under the applicable Subfacility or Subfacilities on the basis of such Lender's Pro Rata Percentage under the applicable Subfacility or Subfacilities of such Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.06.


2.10.       Payments Generally; Pro Rata Treatment; Sharing of Setoffs.

(a)          Each Borrower shall make each payment required to be made by it hereunder or under any other Credit Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Sections 3.01, 3.02 and 4.01 or otherwise) at or before the time expressly required hereunder or under such other Credit Document for such payment (or, if no such time is expressly required, prior to (x) 2:00 p.m., Local Time), with respect to payments denominated in Dollars, (y) 2:00 p.m., Local Time, with respect to payments denominated in Canadian Dollars and (z) 2:00 p.m., Local Time, with respect to payments denominated in other Alternative Currencies, in each case, on the date when due, in immediately available funds, without setoff or counterclaim. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder with respect to principal and interest on Loans denominated in an Alternative Currency shall be made to the Administrative Agent, for the account of the respective Revolving Lenders to which such payment is owed, at the Payment Office in such Alternative Currency and in immediately available funds not later than the Local Times specified by the Administrative Agent on the dates specified herein. If, for any reason, any Borrower is prohibited by any Requirement of Law from making any required payment hereunder in such Alternative Currency, such Borrower shall make such payment in Dollars in the Dollar Equivalent of the payment amount. Any amounts received after the required time on any date may, in the reasonable discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the Payment Office, except payments to be made directly to an Issuing Bank or a Swingline Lender as expressly provided herein and except that payments pursuant to Sections 3.01, 3.02, 4.01 and 12.01 shall be made to the Administrative Agent for the benefit of the Persons entitled thereto and payments pursuant to other Credit Documents shall be made to the Administrative Agent for the benefit of the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment under any Credit Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.

(b)          If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied in the manner as provided in Section 2.09(c) or 10.11 hereof, as applicable, ratably among the parties entitled thereto.

(c)          Except as otherwise set forth herein, if any Lender (a “Benefited Lender”) shall at any time receive any payment of all or part of the Loans of any Class and/or the participations in letter of credit obligations or swingline loans held by it, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 10.05, or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of such other Lender’s Loans of such Class or participations in letter of credit obligations or swingline loans, as applicable, such Benefited Lender shall (i) notify the Administrative Agent of such fact, and (ii) purchase for cash at face value from the other Lenders a participating interest in such portion of each such other Lender’s Loans of such Class or participations in letter of credit obligations or swingline loans, as applicable, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably in accordance with the aggregate principal of their respective Loans of the applicable Class or participations in letter of credit obligations or swingline loans, as applicable; provided that, (A) if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest and (B) the provisions of this paragraph shall not be construed to apply to (x) any payment made by the Company, any Borrower or any other Credit Party pursuant to and in accordance with the express terms of this Agreement and the other Credit Documents, (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans, Commitments or participations in LC Obligations or Swingline Loans to any assignee or participant or (z) any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Commitments of that Class or any increase in the Applicable Margin (or other pricing term, including any fee, discount or premium) in respect of Loans or Commitments of Lenders that have consented to any such extension to the extent such transaction is permitted hereunder. Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Requirements of Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Credit Party rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Credit Party in the amount of such participation.


2.11.       Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:

(a)          fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.05(a);

(b)          such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 12.10(e);

(c)          if any Swingline Loans are outstanding, or any LC Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such LC Exposure of such Defaulting Lender and such Lender’s Pro Rata Percentage under the applicable Ex-FILO Subfacility or Ex-FILO Subfacilities of any Swingline Exposure outstanding at such time will, subject to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders in accordance with their respective Pro Rata Percentages under the applicable Ex-FILO Subfacility or Ex-FILO Subfacilities; provided that (A) each Non-Defaulting Lender’s Ex-FILO Revolving Exposure may not in any event exceed the Ex-FILO Revolving Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation, (B) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Company, any Borrower, any Administrative Agent, any Issuing Bank, any Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender and (C) the conditions to Credit Extensions forth in Section 6 (other than Section 6.01) shall be satisfied at the time of such reallocation (and, unless the Borrowers shall have otherwise notified the Administrative Agent at such time, the Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at such time), (ii) to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s LC Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.11(c)(i) above or otherwise, the Borrowers shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Pro Rata Percentage under the applicable Ex-FILO Subfacility or Ex-FILO Subfacilities of outstanding Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s LC Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 2.13(j) for so long as such LC Exposure is outstanding, (iii) if the Borrowers Cash Collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to the requirements of this Section 2.11(c), the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.05(c) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized, (iv) if the LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.11(c), then the fees payable to the Lenders pursuant to Section 2.05(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Percentage under the applicable Ex-FILO Subfacility or Ex-FILO Subfacilities and the Borrowers shall not be required to pay any fees to the Defaulting Lender pursuant to Section 2.05(c) with respect to such Defaulting Lender’s LC Exposure during the period that such Defaulting Lender’s LC Exposure is reallocated, or (v) if any Defaulting Lender’s LC Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.11(c), then, without prejudice to any rights or remedies of the Issuing Bank or any Lender hereunder, all fees payable under Section 2.05(c) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is Cash Collateralized and/or reallocated;


(d)          (i) no Issuing Bank will be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless such Issuing Bank is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Ex-FILO Revolving Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.11(c) above or otherwise in a manner reasonably satisfactory to such Issuing Bank; and

(e)          no Swingline Lender will be required to fund any Swingline Loans unless the Swingline Lender is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Ex-FILO Revolving Commitments of the Non-Defaulting Lenders or a combination thereof in accordance with the requirements of Section 2.11(c) above.

(f)          The Company, Administrative Agent and applicable Issuing Bank may agree in writing that a Lender is no longer a Defaulting Lender. At such time, Pro Rata Percentages under the applicable Subfacility or Subfacilities shall be reallocated without exclusion of such Lender’s Commitments and Loans, and all outstanding Loans, LC Obligations and other exposures under the Commitments shall be reallocated among Lenders and settled by the Administrative Agent (with appropriate payments by the reinstated Lender) in accordance with the readjusted Pro Rata Percentages under the applicable Subfacility or Subfacilities and any amount that has been deposited in accordance with Section 2.13(j) to Cash Collateralize any LC Exposure shall be automatically released and returned to the Company or the Relevant Borrower. Unless expressly agreed in writing by the Company, the Administrative Agent and applicable Issuing Bank, no reinstatement of a Defaulting Lender shall constitute a waiver or release of claims against such Lender. The failure of any Lender to fund a Loan, to make a payment in respect of LC Obligations or otherwise to perform its obligations hereunder shall not relieve any other Lender of its obligations, and no Lender shall be responsible for default by another Lender. Subject to Section 12.22, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.


(g)          Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 10 or otherwise received by the Administrative Agent for that Defaulting Lender pursuant to Section 12.10(c) and (d)), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to any Issuing Bank and any Swingline Lender hereunder; third, as the Company may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, if so determined by the Administrative Agent and the Company, to be held in a non-interest bearing Deposit Account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize, in accordance with Section 2.13(j), the Issuing Banks’ potential future fronting exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement; fifth, to the payment of any amounts owing to the Lenders, the Issuing Banks or the Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing Bank or any Swingline Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; sixth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Company or any of its Restricted Subsidiaries pursuant to any Bank Product with such Defaulting Lender as certified by a Responsible Officer of the Company to the Administrative Agent (with a copy to the Defaulting Lender) prior to such date of payment; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Company or any other Credit Party as a result of any judgment of a court of competent jurisdiction obtained by the Company or any other Credit Party against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that, if such payment is a payment of the principal amount of any Loans or a payment of any unreimbursed LC Disbursements, such payment shall be applied solely to pay the relevant Loans of, and unreimbursed LC Disbursements owed to, the relevant Non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section 2.11(g). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to Section 2.13(j) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.

2.12.       Swingline Loans.

(a)          Swingline Commitment. Subject to the terms and conditions set forth herein, (X) the U.S. Swingline Lender shall make U.S. Swingline Loans in Dollars to a U.S. Borrower from time to time during the Revolving Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans under the U.S. Tranche A Subfacility exceeding $30,000,000, (ii) the U.S. Tranche A Revolving Exposures exceeding the U.S. Tranche A Line Cap or (iii) the Ex-FILO Revolving Exposures exceeding the Line Cap, (Y) the Canadian Swingline Lender shall make Canadian Swingline Loans in Dollars or Canadian Dollars to a Canadian Borrower from time to time during the Revolving Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the Dollar Equivalent of the aggregate principal amount of outstanding Swingline Loans under the Canadian Subfacility exceeding the Dollar Equivalent of $3,000,000, (ii) the Canadian Revolving Exposures exceeding the Canadian Line Cap or (iii) the Ex-FILO Revolving Exposures exceeding the Line Cap, and (Z) the Dutch Swingline Lender shall make Dutch Swingline Loans in Euro, Pounds Sterling, Dollars or Swiss Francs to a Dutch Borrower from time to time during the Revolving Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the Dollar Equivalent of the aggregate principal amount of outstanding Swingline Loans under the Dutch Subfacility exceeding the Dollar Equivalent of $10,000,000, (ii) the Dutch Revolving Exposures exceeding the Dutch Line Cap or (iii) the Ex-FILO Revolving Exposures exceeding the Line Cap; provided that no Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, each Borrower may borrow, repay and reborrow Swingline Loans.


(b)          Swingline Loans. To request a Swingline Loan, an applicable Borrower shall notify the applicable Administrative Agent of such request by telephonic (followed immediately by an electronic request) or electronic transmission, not later than 12:00 p.m., Local Time (in the case of U.S. Swingline Loans and Canadian Swingline Loans) and 11:00 a.m., Local Time (in the case of Dutch Swingline Loans), on the day of a proposed Swingline Loan under the relevant Subfacility. Each such notice shall be revocable (prior to the release of the requested funds) and specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the applicable Swingline Lender of any such notice received from a Borrower. The applicable Swingline Lender shall make each Swingline Loan available to the Relevant Borrower by means of a credit to the general deposit account of such Borrower with the applicable Swingline Lender (or, in the case of a U.S. Swingline Loan made to finance the reimbursement of a U.S. LC Disbursement as provided in Section 2.13(e), by remittance to the U.S. Issuing Bank) by 3:00 p.m., Local Time, on the requested date of such Swingline Loan. No Borrower shall request a Swingline Loan if at the time of and immediately after giving effect to such request a Default has occurred and is continuing.

(c)          Prepayment. Each Borrower shall have the right at any time and from time to time to repay, without premium or penalty, any Swingline Loan, in whole or in part, upon giving notice thereof pursuant to Section 2.09(d).

(d)          Participations. The U.S. Swingline Lender, Canadian Swingline Lender or Dutch Swingline Lender may by written notice given to the Administrative Agent at any time (but, in any event shall weekly, or such other time as determined by the Administrative Agent) not later than 12:00 noon, Local Time on any Business Day require the U.S. Tranche A Revolving Lenders, Canadian Revolving Lenders, or Dutch Revolving Lenders, as applicable, to acquire participations on such Business Day in all or a portion of the U.S. Swingline Loans, Canadian Swingline Loans or Dutch Swingline Loans, as applicable, outstanding, which request may be made regardless of whether the conditions set forth in Section 6 have been satisfied. Such notice shall specify the aggregate amount of Swingline Loans in which such Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to such Revolving Lender, specifying in such notice such Lender’s Pro Rata Percentage under the applicable Subfacility or Subfacilities of such Swingline Loan or Loans. Each U.S. Tranche A Revolving Lender, Canadian Revolving Lender and Dutch Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the applicable Swingline Lender, such Lender’s Pro Rata Percentage under the applicable Subfacility or Subfacilities of such Swingline Loan or Loans. Each U.S. Tranche A Revolving Lender, Canadian Revolving Lender and Dutch Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Revolving Commitments or whether an Overadvance exists or is created thereby, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever (provided that such payment shall not cause such Lender’s Ex-FILO Revolving Exposure to exceed such Lender’s Ex-FILO Revolving Commitment). Each U.S. Tranche A Revolving Lender, Canadian Revolving Lender and Dutch Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.02(f) with respect to Loans made by such Lender (and Section 2.02 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the applicable Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Relevant Borrower of any participation in a Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to any Swingline Lender. Any amounts received by a Swingline Lender from a Borrower (or other party on behalf of a Borrower) in respect of a Swingline Loan after receipt by such Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the applicable Revolving Lenders that shall have made their payments pursuant to this paragraph and to the applicable Swingline Lender, as their interests may appear. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve any Borrower of any default in the payment thereof. If and to the extent any Revolving Lender shall not have so made its transfer to the Administrative Agent as required by this paragraph, such Revolving Lender agrees to pay to the Administrative Agent, forthwith on demand, such amount, together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent at (i) in the case of a Borrower, as applicable, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such Lender, for the first such day, the Federal Funds Rate (for Dollars), the Bank of Canada Overnight Rate (for Canadian Dollars) or a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (for other Alternative Currencies), and for each day thereafter, the U.S. Base Rate (for Swingline Loans under the U.S. Tranche A Subfacility denominated in Dollars), the Canadian Base Rate (for Swingline Loans under the Canadian Subfacility denominated in Dollars), Canadian Prime Rate (for Swingline Loans denominated in Canadian Dollars) or the European Base Rate (for other Alternative Currencies).


(e)          If the Maturity Date shall have occurred at a time when Extended Revolving Commitments are in effect, then on the Maturity Date all then outstanding Swingline Loans shall be repaid in full on such date (and there shall be no adjustment to the participations in such Swingline Loans as a result of the occurrence of such Maturity Date); provided that, if on the occurrence of the Maturity Date (after giving effect to any repayments of Revolving Loans and any reallocation of Letter of Credit participations as contemplated in Section 2.13(o)), there shall exist sufficient unutilized Extended Revolving Commitments so that the respective outstanding Swingline Loans could be incurred pursuant to the Extended Revolving Commitments which will remain in effect after the occurrence of the Maturity Date, then there shall be an automatic adjustment on such date of the participations in such Swingline Loans and same shall be deemed to have been incurred solely pursuant to the Extended Revolving Commitments and such Swingline Loans shall not be so required to be repaid in full on the Maturity Date.

2.13.       Letters of Credit.

(a)          General. Subject to the terms and conditions set forth herein, (i) any U.S. Borrower may request the issuance of U.S. Letters of Credit in Dollars or in one or more Alternative Currencies for its account or for the account of any of its Restricted Subsidiaries in a form reasonably acceptable to the U.S. Issuing Bank, at any time and from time to time during the Revolving Availability Period (provided that the Relevant Borrower shall be a co-applicant with respect to each U.S. Letter of Credit issued for the account of or in favor of a Restricted Subsidiary that is not a Borrower), (ii) any Canadian Borrower may request the issuance of Canadian Letters of Credit in Dollars or in one or more Alternative Currencies for its account or the account of any of its Restricted Subsidiaries in a form reasonably acceptable to the Canadian Issuing Bank, at any time and from time to time during the Revolving Availability Period (provided that the Relevant Borrower shall be a co-applicant with respect to each Canadian Letter of Credit issued for the account of or in favor of a Restricted Subsidiary that is not a Borrower) and (iii) any Dutch Borrower may request the issuance of Dutch Letters of Credit in Dollars or in one or more Alternative Currencies for its account or the account of any of its Restricted Subsidiary in a form reasonably acceptable to the Dutch Issuing Bank, at any time and from time to time during the Revolving Availability Period (provided that the Relevant Borrower shall be a co-applicant with respect to each Dutch Letter of Credit issued for the account of or in favor of a Restricted Subsidiary that is not a Borrower). In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Relevant Borrower to, or entered into by the Relevant Borrower with, the applicable Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. The Existing Letters of Credit listed on Part A of Schedule 1.01B shall be deemed issued under the Canadian Subfacility. The Existing Letters of Credit listed on Part B of Schedule 1.01B shall be deemed issued under the Dutch Subfacility. The Existing Letters of Credit listed on Part C of Schedule 1.01B shall be deemed issued under the U.S. Tranche A Subfacility.


(b)          Request for Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit or the amendment, renewal or extension of an outstanding Letter of Credit, the Relevant Borrower shall hand deliver or telecopy or transmit by electronic communication a LC Request to the applicable Issuing Bank and the Administrative Agent not later than 1:00 p.m., Local Time, on the second Business Day preceding the requested date of issuance, amendment, renewal or extension (or such later date and time as is reasonably acceptable to the applicable Issuing Bank). A request for an initial issuance of a Letter of Credit shall specify in form and detail reasonably satisfactory to the applicable Issuing Bank: (i) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (ii) the amount and currency thereof; (iii) the expiry date thereof; (iv) the name and address of the beneficiary thereof; (v) the documents to be presented by such beneficiary in case of any drawing thereunder; (vi) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (vii) such other matters as the applicable Issuing Bank may reasonably require. A request for an amendment, renewal or extension of any outstanding Letter of Credit shall specify in form and detail reasonably satisfactory to the applicable Issuing Bank (w) the Letter of Credit to be amended, renewed or extended, (x) the proposed date of amendment, renewal or extension thereof (which shall be a Business Day), (y) the nature of the proposed amendment, renewal or extension and (z) such other matters as the applicable Issuing Bank may reasonably require. If requested by the applicable Issuing Bank, the Relevant Borrower also shall submit a letter of credit application substantially on such Issuing Bank’s standard form in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Relevant Borrower shall be deemed to represent and warrant (solely in the case of (w) and (x)) that, after giving effect to such issuance, amendment, renewal or extension) (A) (i) the LC Exposure shall not exceed the LC Sublimit, (ii) the U.S. LC Exposure shall not exceed the U.S. LC Sublimit, (iii) the Canadian LC Exposure shall not exceed the Canadian LC Sublimit and (iv) the Dutch LC Exposure shall not exceed the Dutch LC Sublimit and (B) (i) the total Revolving Exposures shall not exceed the Line Cap, (ii) the total U.S. Tranche A Revolving Exposures shall not exceed the U.S. Tranche A Line Cap, (iii) the total Canadian Revolving Exposures shall not exceed the Canadian Line Cap and (iv) the total Dutch Revolving Exposures shall not exceed the Dutch Line Cap. Unless the Administrative Agent and applicable Issuing Bank shall otherwise agree, no Letter of Credit shall be denominated in a currency other than Dollars or an Alternative Currency.


(c)          Expiration Date. Each Letter of Credit shall expire at or prior to the earlier of (i) the close of business on the date which is one year after the date of the issuance of such Letter of Credit (or such other longer period of time as the Administrative Agent and the applicable Issuing Bank may agree) (other than with respect to foreign guarantees which may expire on a date later than one year from the date of issuance) and (ii) unless Cash Collateralized or otherwise credit supported in accordance with Section 2.13(j), the Letter of Credit Expiration Date. Notwithstanding the foregoing, each Letter of Credit may, upon the request of the Relevant Borrower, include a provision whereby such Letter of Credit shall be renewed automatically for additional consecutive periods of twelve (12) months (or such longer period of time as may be agreed by the applicable Issuing Bank) or less (but not beyond the date that is after the Letter of Credit Expiration Date unless such Letter of Credit is Cash Collateralized or backstopped pursuant to arrangements reasonably acceptable to the applicable Issuing Bank; provided that no Lender shall be required to fund participations in any Letter of Credit after the Maturity Date) unless the applicable Issuing Bank notifies the beneficiary thereof at least thirty (30) days prior to the then-applicable expiration date that such Letter of Credit will not be renewed.

(d)          Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or the Lenders, the applicable Issuing Bank hereby grants to each applicable Revolving Lender, and each such Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Pro Rata Percentage of the aggregate amount available to be drawn under such Letter of Credit; provided that any participation of any Letter of Credit issued in an Alternative Currency other than those specifically listed in the definition of the term “Alternative Currency” shall be made in Dollars. In consideration and in furtherance of the foregoing, each U.S. Tranche A Revolving Lender, Canadian Revolving Lender and Dutch Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, such Lender’s Pro Rata Percentage of each LC Disbursement made by the applicable Issuing Bank and not reimbursed by the Relevant Borrower on the date due as provided in paragraph (e) of this Section 2.13, or of any reimbursement payment required to be refunded to the Relevant Borrower or for any reason (the “Unreimbursed Amount”). Each U.S. Tranche A Revolving Lender, Canadian Revolving Lender and Dutch Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Revolving Commitments or whether or not an Overadvance exists or is created thereby, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.

(e)          Reimbursement. If any Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Relevant Borrower under the applicable Subfacility shall reimburse such LC Disbursement by paying to the applicable Issuing Bank an amount equal to such LC Disbursement within one Business Day after the Relevant Borrower’s receipt of notice of such LC Disbursement from the applicable Issuing Bank; provided that, whether or not the Relevant Borrower submits a Notice of Borrowing, such Borrower shall be deemed to have requested (except to the extent such Borrower makes payment to reimburse such LC Disbursement when due or otherwise notifies the Administrative Agent and relevant Issuing Bank that it intends to make a payment to reimburse such LC Disbursement) a Borrowing of Base Rate Loans or Canadian Prime Loans of the applicable currency in an amount necessary to reimburse such LC Disbursement. If such Borrower fails to make such payment by the date due in accordance with the preceding sentence, the applicable Issuing Bank shall notify the Administrative Agent and the Administrative Agent shall notify each Revolving Lender under the applicable Subfacility or Subfacilities of the applicable LC Disbursement, the payment then due from such Borrower in respect thereof and such Lender’s Pro Rata Percentage under such Subfacility or Subfacilities. Promptly following receipt of such notice, each such Revolving Lender shall pay to the Administrative Agent its Pro Rata Percentage of the unreimbursed LC Disbursement in the same manner as provided in Section 2.02(f) with respect to Loans made by such Lender, and the Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received by it from such Revolving Lenders; provided that any such payment by a Revolving Lender of its Pro Rata Percentage of the unreimbursed LC Disbursement with respect to any Letter of Credit issued in an Alternative Currency other than those specifically listed in the definition of the term “Alternative Currency” shall me made in Dollars. In the case of a Letter of Credit denominated in an Alternative Currency, the relevant Borrower shall reimburse the applicable Issuing Bank in such Alternative Currency, unless (A) the such Issuing Bank (at its option) shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in Dollars, the applicable Borrower shall have notified the applicable Issuing Bank promptly following receipt of the notice of drawing that such Borrower will reimburse the applicable Issuing Bank in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in an Alternative Currency, the applicable Issuing Bank shall notify the applicable Borrower of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. Promptly following receipt by the Administrative Agent of any payment from any Borrower pursuant to this paragraph, the Administrative Agent shall, to the extent that Revolving Lenders have made payments pursuant to this paragraph to reimburse any Issuing Bank, distribute such payment to such Lenders and the applicable Issuing Bank as their interests may appear. Any payment made by a Revolving Lender pursuant to this paragraph to reimburse an Issuing Bank for any LC Disbursement (other than the funding of Base Rate Loans, Canadian Prime Loans or a Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve the Relevant Borrower of its obligation to reimburse such LC Disbursement. In the event that (A) a drawing denominated in an Alternative Currency is to be reimbursed in Dollars pursuant to the third sentence in this Section 2.13(e) and (B) the Dollar amount paid by the applicable Borrower shall not be adequate on the date of that payment to purchase in accordance with normal banking procedures a sum denominated in such Alternative Currency equal to the drawing, then such Borrower agrees, as a separate and independent obligation, to indemnify the applicable Issuing Bank for the loss resulting from its inability on that date to purchase the Alternative Currency in the full amount of the drawing.


(f)          Obligations Absolute.

(i)          Subject to the limitations set forth below, the obligation of the Borrowers to reimburse LC Disbursements as provided in clause (e) of this Section 2.13 shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by any Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not strictly comply with the terms of such Letter of Credit, (iv) the existence of any claim, setoff, defense or other right which any Borrower may have at any time against a beneficiary of any Letter of Credit, (v) any adverse change in the relevant exchange rates or in the availability of an Alternative Currency to the Company or any Subsidiary or in the relevant currency markets generally or (vi) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.13, constitute a legal or equitable discharge of, or provide a right of setoff against, the obligations of the Borrowers hereunder; provided that the Borrowers shall have no obligation to reimburse any Issuing Bank to the extent that such payment was made in error due to the gross negligence or willful misconduct of such Issuing Bank (as determined by a court of competent jurisdiction in a final non-appealable judgement or another independent tribunal having jurisdiction). Neither the Administrative Agent, the Lenders nor any Issuing Bank, nor any of their Affiliates, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of any Issuing Bank; provided that the foregoing shall not be construed to excuse any Issuing Bank from liability to the Borrowers to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by each Borrower to the extent permitted by applicable Requirement of Law) suffered by the Borrowers that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of any Issuing Bank (as determined by a court of competent jurisdiction or another independent tribunal having jurisdiction), each Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in strict compliance with the terms of a Letter of Credit, each Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents, if such documents are not in strict compliance with the terms of such Letter of Credit.


(ii)          No Issuing Bank assumes any responsibility for any failure or delay in performance or any breach by any Borrower or other Person of any obligations under any LC Document. No Issuing Bank makes to the Lenders any express or implied warranty, representation or guarantee with respect to the Collateral, such documents or any Credit Party. No Issuing Bank shall be responsible to any Lender for any recitals, statements, information, representations or warranties contained in, or for the execution, validity, genuineness, effectiveness or enforceability of any LC Document; the validity, genuineness, enforceability, collectability, value or sufficiency of any Collateral or the perfection of any Lien therein; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any Credit Party.

(g)          Disbursement Procedures. Each Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent and the Relevant Borrower by electronic transmission of such demand for payment and whether such Issuing Bank has made or will make a LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve any Borrower of its obligation to reimburse such Issuing Bank and the Revolving Lenders under the applicable Subfacility with respect to any such LC Disbursement (other than with respect to the timing of such reimbursement obligation set forth in Section 2.13(e)).

(h)          Interim Interest. If any Issuing Bank shall make any LC Disbursement, then, unless the Relevant Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Relevant Borrower reimburses such LC Disbursement, at the rate per annum then applicable to U.S. Tranche A Revolving Loans that are Base Rate Loans or Canadian Prime Loans, as applicable; provided that, if such Borrower fails to reimburse such LC Disbursement when due and payable pursuant to paragraph (e) of this Section 2.13, then Section 2.06(e) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to paragraph (e) of this Section 2.13 to reimburse such Issuing Bank shall be for the account of such Lender to the extent of such payment.


(i)          Resignation or Removal of the Issuing Bank. Any Issuing Bank may resign as Issuing Bank hereunder at any time upon at least 30 days’ prior written notice to the Lenders, the Administrative Agent and the Company. Any Issuing Bank may be replaced at any time by agreement between the Company and the Administrative Agent; provided that so long as no Event of Default under Section 10.01 or Section 10.05 is then continuing, such successor Issuing Bank shall be reasonably acceptable to the Company. One or more Lenders may be appointed as additional Issuing Banks in accordance with clause (k) below. The Administrative Agent shall notify the Lenders of any such replacement of such Issuing Bank or any such additional Issuing Bank. At the time any such resignation or replacement shall become effective, the Company shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.05(c). From and after the effective date of any such resignation or replacement or addition, as applicable, (i) the successor or additional Issuing Bank shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or such addition or to any previous Issuing Bank, or to such successor or such additional Issuing Bank and all previous Issuing Banks, as the context shall require. After the resignation or replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such resignation or replacement, but shall not be required to issue additional Letters of Credit. If at any time there is more than one Issuing Bank hereunder, the Company may, in its discretion, select which Issuing Bank is to issue any particular Letter of Credit.

(j)          Cash Collateralization.

(i)          If any Event of Default shall occur and be continuing, on the Business Day that the Company receives written notice from the Administrative Agent (acting at the request of the Required Lenders) demanding the deposit of Cash Collateral pursuant to this paragraph, the Borrowers shall deposit in the LC Collateral Account, in the name of the Administrative Agent and for the benefit of the Secured Creditors, an amount in cash equal to 103.00% of the LC Exposure as of such date. The Administrative Agent shall promptly release and return any such Cash Collateral to the Company (in no event later than two (2) Business Days) once all Events of Default are cured or waived.

(ii)         To the extent the Fronting Exposure associated with any Defaulting Lender cannot be reallocated pursuant to Section 2.11, the Borrowers shall, on demand by an Issuing Bank or the Administrative Agent from time to time, Cash Collateralize such Fronting Exposure; provided that any amount deposited to Cash Collateralize any Fronting Exposure associated with any Defaulting Lender shall be automatically released and returned to the Company or the Relevant Borrower at the time the Company, the Administrative Agent and the applicable Issuing Bank agree in writing that such Defaulting Lender is no longer a Defaulting Lender.

(iii)        Section 2.09 and Section 2.11 set forth certain additional circumstances under which Cash Collateral may be, or is required to be, delivered under this Agreement.

(iv)        Each deposit of Cash Collateral pursuant to this Agreement shall be held by the Administrative Agent in the LC Collateral Account as collateral for the payment and performance of the obligations of the Relevant Borrowers under this Agreement. The Administrative Agent shall have a first priority perfected Lien (subject to Permitted Liens) and exclusive dominion and control, including the exclusive right of withdrawal, over the LC Collateral Account. Other than any interest earned on the investment of such deposits of Cash Collateral, which investments shall be made only in Investment Cash Equivalents and at the direction of the Company and at the Company’s risk and expense, such deposits of Cash Collateral shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Monies in such account shall be applied by the Administrative Agent to reimburse the Issuing Banks for LC Disbursements for which they have not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrowers for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Revolving Lenders with LC Exposure representing greater than 50% of the total LC Exposure), be applied to satisfy other Obligations of the Borrowers. Except as otherwise provided in this Agreement, the Administrative Agent shall promptly (and in no event later than the next Business Day) release and return any Cash Collateral to the Company or the Relevant Borrower once the event or circumstance giving rise to the requirement of any Credit Party to deposit such Cash Collateral is no longer continuing.


(k)          Additional Issuing Banks. The Company may, at any time and from time to time with the consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned) and such Lender, designate one or more additional Lenders to act as an issuing bank under the terms of this Agreement. Any Lender designated as an issuing bank pursuant to this clause (k) shall be deemed (in addition to being a Lender) to be the Issuing Bank with respect to Letters of Credit issued or to be issued by such Lender, and all references herein and in the other Credit Documents to the term “Issuing Bank” shall, with respect to such Letters of Credit, be deemed to refer to such Lender in its capacity as Issuing Bank, as the context shall require.

(l)          No Issuing Bank shall be under an obligation to issue any Letter of Credit if:

 (i)          any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, or any Requirement of Law applicable to such Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such Issuing Bank in good faith deems material to it; or

(ii) the issuance of such Letter of Credit would violate one or more policies of such Issuing Bank.

(m)         No Issuing Bank shall be under an obligation to amend any Letter of Credit if (i) such Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (ii) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.

(n)         LC Collateral Account.

(i)          The Administrative Agent is hereby authorized to establish and maintain at the Notice Office, in the name of the Administrative Agent and pursuant to a dominion and control agreement, a restricted deposit account designated “The SunOpta Inc. LC Collateral Account.” Each Credit Party shall deposit into the LC Collateral Account from time to time the Cash Collateral required to be deposited under Section 2.13(j) hereof.

(ii)         The balance from time to time in such LC Collateral Account shall constitute part of the Collateral and shall not constitute payment of the Obligations until applied as hereinafter provided. Notwithstanding any other provision hereof to the contrary, all amounts held in the LC Collateral Account shall constitute collateral security first for the liabilities in respect of Letters of Credit outstanding from time to time and, with respect to amounts deposited in connection with the events described in clause (i) of such Section 2.13(j) only, second for the other Obligations hereunder until such time as all Letters of Credit shall have been terminated and all of the liabilities in respect of Letters of Credit have been paid in full. All funds in “The SunOpta Inc. LC Collateral Account” may be invested in accordance with the provisions of Section 2.13(j).


(o)          Extended Commitments. If the Maturity Date shall have occurred at a time when Extended Revolving Commitments are in effect, then (i) such Letters of Credit shall automatically be deemed to have been issued (including for purposes of the obligations of the Lenders to purchase participations therein and to make payments in respect thereof pursuant to Sections 2.13(d) and (e)) under (and ratably participated in by Lenders) the Extended Revolving Commitments, up to an aggregate amount not to exceed the aggregate principal amount of the unutilized Extended Revolving Commitments thereunder at such time (it being understood that no partial face amount of any Letter of Credit may be so reallocated) and (ii) to the extent not reallocated pursuant to the immediately preceding clause (i), the Borrowers shall Cash Collateralize any such Letter of Credit on such terms as may be agreed between the Relevant Borrower and the applicable Issuing Bank. Except to the extent of reallocations of participations pursuant to the prior sentence, the occurrence of the Maturity Date with respect to Existing Revolving Loans shall have no effect upon (and shall not diminish) the percentage participations of the Lenders of Extended Revolving Loans in any Letter of Credit issued before the Maturity Date.

2.14.       Settlement Amongst Lenders.

(a)          The amount of each Lender’s Pro Rata Percentage under one or more Subfacilites of outstanding Revolving Loans (including outstanding Swingline Loans) under such Subfacility or Subfacilities shall be computed weekly (or more frequently in the Administrative Agent’s discretion) and shall be adjusted upward or downward based on all Revolving Loans (including Swingline Loans) and repayments of Revolving Loans (including Swingline Loans) under such Subfacility or Subfacilities received by the Administrative Agent as of 12:00 p.m., Local Time, on the first Business Day (such date, the “Settlement Date”) following the end of the period specified by the Administrative Agent.

(b)          The Administrative Agent shall deliver to each of the Lenders promptly after a Settlement Date a summary statement of the amount of outstanding Revolving Loans (including Swingline Loans) for the period and the amount of repayments received for the period. As reflected on the summary statement, (i) the Administrative Agent shall transfer to each Lender its applicable Pro Rata Percentage under the applicable Subfacility or Subfacilities of repayments, and (ii) each Lender shall transfer to the Administrative Agent (as provided below) or the Administrative Agent shall transfer to each Lender, such amounts as are necessary to insure that, after giving effect to all such transfers, the amount of Revolving Loans made by each Lender with respect to Revolving Loans to the Borrowers (including Swingline Loans) shall be equal to such Lender’s applicable Pro Rata Percentage under the applicable Subfacility or Subfacilities of Revolving Loans (including Swingline Loans) outstanding under such Subfacility or Subfacilities as of such Settlement Date. If the summary statement requires transfers to be made to the Administrative Agent by the Lenders and is received prior to 1:00 p.m., Local Time, on a Business Day, such transfers shall be made in immediately available funds no later than 3:00 p.m., Local Time, that day; and, if received after 1:00 p.m., Local Time, then no later than 11:00 a.m., Local Time, on the next Business Day. The obligation of each Lender to transfer such funds is irrevocable, unconditional and without recourse to or warranty by the Administrative Agent. If and to the extent any Lender shall not have so made its transfer to the Administrative Agent, such Lender agrees to pay to the Administrative Agent, forthwith on demand such amount, together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, for the first such day, the Federal Funds Rate (for Dollars) or the Bank of Canada Overnight Rate (for Canadian Dollars) or a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (for other Alternative Currencies), and for each day thereafter, the U.S. Base Rate (for amounts due under theany U.S. Subfacility denominated in Dollars), the Canadian Base Rate (for amounts due under the Canadian Subfacility denominated in Dollars), the Canadian Prime Rate (for Canadian Dollars) or the European Base Rate (for other Alternative Currencies)


2.15.       Revolving Commitment Increase.

(a)          Subject to the terms and conditions set forth herein, after the ClosingSecond Amendment Effective Date, the Company shall have the right to request, by written notice to the Administrative Agent, an increase in the Revolving Commitments under any Subfacility or Revolving Commitments under a first-in last-out facility (an “Incremental FILO Facility”) (each, a “Revolving Commitment Increase”) in an aggregate amount such that, after giving effect to any such Revolving Commitment Increase, the aggregate principal amount of all then outstanding Revolving Commitments does not exceed $450,000,000435,000,0002; provided that (i) any Revolving Commitment Increase shall be on the same terms (including the Maturity Date under the applicable Subfacility) and pursuant to the documentation applicable to the applicable Subfacility, except as set forth under the second sentence of Section 2.15(d) and except with respect to any commitment, arrangement, upfront or similar fees that may be agreed to among the Company and the Increase Loan Lenders and except in the case of an Incremental FILO Facility, which shall have terms as may be agreed among the Company and the Increase Loan Lenders (which terms (other than advance rates, revolving or term nature of the facility, pricing, interest rate margins, discounts, premiums, rate floors, and fees) shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental FILO Facility or the covenant set forth in Section 9.12 is made more restrictive on the Company, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added, or such covenant is made more restrictive, for the benefit of the Lenders, and payments on any such Incremental FILO Facility pursuant to Section 10.11 shall be subordinated to payment of all other Obligations other than Secured Bank Product Obligations that are not Secured Reserved Hedges)), (ii) any Revolving Commitment Increase shall be in a minimum amount of $25,000,00015,000,000 or, if less than $25,000,00015,000,000 is available, the amount left available; provided that increases in U.S. Tranche B Revolving Commitments under the U.S. Tranche B Subfacility shall be in a minimum amount of $15,000,000, (iii) the North American Minimum Requirement shall be met at all times, and (iv) the aggregate amount of Incremental FILO Facilitiesincreases in U.S. Tranche B Revolving Commitments under the U.S. Tranche B Subfacility shall not exceed $35,000,00020,000,000 in the aggregate.

(b)          Each notice submitted pursuant to this Section 2.15 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify (i) the amount of the increase in the Revolving Commitments being requested and (ii) the Subfacility or Subfacilities under which such Revolving Commitments are being requested to be increased or if such Revolving Commitment Increase will take the form of an Incremental FILO Facility. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Company) promptly notify the applicable Revolving Lenders and each such Revolving Lender may (subject to the Company’s consent, which consent the Company may exercise in its sole discretion (it is understood that the Company shall not be obligated to notify any existing Revolving Lender of any request for a Revolving Credit Increase or consent to any existing Revolving Lender’s participation in any such Revolving Commitment Increase) have the right to elect to have its Revolving Commitment increased by its Pro Rata Percentage under the applicable Subfacility or Subfacilities (it being understood and agreed that (x) a Lender may elect to have its Revolving Commitment increased in excess of its Pro Rata Percentage under the applicable Subfacility or Subfacilities in its discretion if any other Lender declines to participate in the Revolving Commitment Increase and (y) the Company may elect to offer, or consent to, an increase in the Revolving Commitments of any Lender on a basis that is less than its Pro Rata Percentage under the applicable Subfacility or Subfacilities of such Revolving Commitment Increase) of the requested increase in Revolving Commitments; provided that (i) each Lender may elect or decline, in its sole discretion, to have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Revolving Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any Revolving Commitment Increase Notice within five (5) Business Days after such Lender’s receipt of such request, such Lender shall be deemed to have declined to participate in such Revolving Commitment Increase; (ii) if any Lender declines to participate in any Revolving Commitment Increase or the Company does not consent to or request the participation of a Revolving Lender in any such Revolving Commitment) and, as a result, commitments from additional financial institutions are required in connection with the Revolving Commitment Increase, any Person or Persons providing such commitment (such additional financial institutions “Additional Lenders”) shall be subject to the written consent of the Administrative Agent, the applicable Swingline Lenders and the applicable Issuing Banks (in each case, such consent not to be unreasonably withheld, conditioned or delayed) if such consent would be required under Section 12.04 for an assignment of the commitments to such Additional Lender; (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase; and (iv) no Issuing Bank or Swingline Lender shall be required to act in such capacity under the Revolving Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Company, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Increase Date”); provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) no Event of Default would exist after giving effect thereto; (2) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Company, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Company, the Administrative Agent, and the Increase Loan Lenders; (3) the Borrowers shall execute and deliver or cause to be executed and delivered to the Administrative Agent, to the extent required by the Lenders and Additional Lenders providing such Revolving Commitment Increases, customary closing certificates, legal opinions, good standing certificates, resolutions and organizational documents of the type and form delivered on the Closing Date; (4) the representations and warranties contained in Section 7 shall be true and correct in all material respects (or in all respects to the extent that any representation or warranty is qualified by materiality) as of the Increase Date (except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); and (5) the Borrowers shall have paid to the Administrative Agent and the Increase Loan Lenders all fees and expenses required to be paid in connection with any such Revolving Commitment Increase to the Administrative Agent and the Lenders providing such Revolving Commitment Increase shall have been paid to the extent due and owing and, with respect to expenses, to the extent invoices have been received no later than three Business Days prior to the proposed Increase Date.

_________________________________________
2
Reduced by the current FILO.


(c)          On the Increase Date, upon fulfillment of the conditions set forth in this Section 2.15, (i) the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Revolving Commitments of the Lenders as a result of the Revolving Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Credit Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iv) Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Note.


(d)          Except as described in Section 2.15, the terms and provisions of the Revolving Commitment Increase (other than an Incremental FILO Facility) shall be identical to the Revolving Loans and the Revolving Commitments under the applicable Subfacility and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Revolving Loans. Without limiting the generality of the foregoing, (i) the pricing applicable to the Revolving Commitment Increase (x) not in the form of a first-in last-out facility shall be on terms as agreed with the Increase Loan Lenders but the Applicable Margins and the Ex-FILO Unused Line Fee Rate under the then existing Revolving Commitment Increase shall be increased to be consistent with that for such Revolving Commitment Increase and (y) in the form of a first-in last-out facility shall be on terms as agreed with the Increase Loan Lenders thereunder but shall not include any “most favored nation” pricing provisions, (ii) the Revolving Commitment Increase (other than an Incremental FILO Facility) shall share ratably in any mandatory prepayments of the Revolving Loans under the applicable Subfacility, (iii) after giving effect to such Revolving Commitment Increases, Revolving Commitments shall be reduced or increased (as applicable) based on each Lender’s Pro Rata Percentage under the applicable Subfacility or Subfacilities and (iv) other than as set forth in the second parenthetical in clause (i) of Section 2.15(a) with respect to any Incremental FILO Facility, the Revolving Commitment Increase shall rank equal in right of payment and security with and shall benefit from the same guarantees as the existing Revolving Loans. The Incremental FILO Facility may have a separate borrowing base against assets of a type included in the Borrowing Base or may be Incurred in amounts that have no relationship to a borrowing base or the assets included in the Borrowing Base; provided, that, to the extent the Incremental FILO Facility is a revolving facility and there are at any time after the effectiveness of such facility, commitments thereunder to be borrowed against, any Borrowing under this Agreement shall be required to be made first under the Incremental FILO Facility until there is no longer any borrowing availability thereunder (including to the extent that the amount of any borrowing availability is capped by the size of a borrowing base) prior to being permitted be made under the Revolving Commitments under the applicable Subfacility. Each joinder agreement and any amendment to any Credit Document requested by the Administrative Agent in connection with the establishment of the Revolving Commitment Increase may, without the consent of any of the Lenders, effect such amendments to this Agreement (an “Incremental Revolving Commitment Agreement”) and the other Credit Documents as may be reasonably necessary or appropriate, in the opinion of the Administrative Agent and the Company, to effect the provisions of this Section 2.15.

2.16.       Borrower Representative. Each Borrower hereby designates the Company as its representative and agent for all purposes under the Credit Documents, including requests for Revolving Loans and Letters of Credit, designation of interest rates, delivery or receipt of communications, preparation and delivery of Borrowing Base Certificates and financial reports, receipt and payment of Obligations, requests for waivers, amendments or other accommodations, actions under the Credit Documents (including in respect of compliance with covenants), and all other dealings with the Administrative Agent, the Issuing Banks or any Lender. The Company hereby accepts such appointment. The Administrative Agent and the Lenders shall be entitled to rely upon, and shall be fully protected in relying upon, any notice or communication (including any Notice of Borrowing) delivered by the Company on behalf of any Borrower. The Administrative Agent and the Lenders may give any notice or communication with a Borrower hereunder to the Company on behalf of such Borrower. Each of the Administrative Agent, the Issuing Banks and the Lenders shall have the right, in its discretion, to deal exclusively with the Company for any or all purposes under the Credit Documents. Each Borrower agrees that any notice, election, communication, representation, agreement or undertaking made on its behalf by the Lead Borrower shall be binding upon and enforceable against it.


2.17.       Overadvances. If (i) the Dollar Equivalent of the aggregate U.S. Tranche A Revolving Exposure outstanding exceeds the U.S. Tranche A Line Cap, (ii) the Dollar Equivalent of the aggregate Canadian Revolving Exposure outstanding exceeds the Canadian Line Cap, (iii) the Dollar Equivalent of the aggregate Dutch Revolving Exposure outstanding exceeds the Dutch Line Cap or, (iv) the Dollar Equivalent of the aggregate Ex-FILO Revolving Exposure outstanding exceeds the Line Cap or (v) the Dollar Equivalent of the aggregate Revolving Exposure outstanding exceeds the sum of the Line Cap and the U.S. Tranche B Subfacility Line Cap (each of the foregoing clauses (i), (ii), (iii) and, (iv) and (v), an “Overadvance”), in each case, at any time, the excess amount shall be payable by the applicable Borrowers in accordance with Section 2.09(b)(iii), but all such Ex-FILO Revolving Exposure and the U.S. Tranche B Revolving Exposure shall nevertheless constitute Obligations secured by the Collateral and entitled to all benefits of the Credit Documents. The Administrative Agent may require Lenders to honor requests for Overadvance Loans and to forbear from requiring the Borrowers to cure an Overadvance, (a) when no other Event of Default is known to the Administrative Agent, as long as (i) the Overadvance does not continue for more than 30 consecutive days (and no Overadvance may exist for at least five consecutive days thereafter before further Overadvance Loans are required) and, (ii) the aggregate amount of all Overadvances and Protective Advances is not known by the Administrative Agent to exceed 10% of the Line Cap or (b) when the Administrative Agent discovers an Overadvance not previously known by it to exist, so long as from the date of such discovery, the Overadvance (i) does not increase by more than $3,500,000, and (ii) does not continue for more than 30 consecutive days. In no event shall Overadvance Loans be required that would cause (i) the Dollar Equivalent of the aggregate outstanding U.S. Tranche A Revolving Exposure to exceed the aggregate U.S. Tranche A Revolving Commitments, (ii) the Dollar Equivalent of the aggregate outstanding Canadian Revolving Exposure to exceed the aggregate Canadian Revolving Commitments, (iii) the Dollar Equivalent of the aggregate outstanding Dutch Revolving Exposure to exceed the aggregate Dutch Revolving Commitments, or (iv) the Dollar Equivalent of the aggregate outstanding Ex-FILO Revolving Exposure to exceed the aggregate Ex-FILO Revolving Commitments . The making of any Overadvance shall not create nor constitute a Default or Event of Default; it being understood that the making or continuance of an Overadvance shall not constitute a waiver by the Administrative Agent or the Lenders of the then existing Event of Default. In no event shall any Borrower or other Credit Party be permitted to require any Overadvance Loan to be made. Required Lenders may at any time revoke the Administrative Agent’s authority to make further Overadvance Loans by written notice to the Administrative Agent. Absent such revocation, the Administrative Agent’s determination that funding of an Overadvance Loan is appropriate shall be conclusive.

2.18.       Protective Advances. The Administrative Agent shall be authorized, in its discretion, following notice to and consultation with the Company, at any time, to make U.S. Base Rate Loans to the U.S. Borrowers under the U.S. Tranche A Subfacility (each such loan, a “U.S. Tranche A Protective Advance”), Canadian Prime Loans (through its Canada branch or Canadian lending office) to the Canadian Borrowers (each such Loan, a “Canadian Protective Advance”) and European Base Rate Loans (through its London branch or U.K. lending office) to the Dutch Borrowers (each such Loan, a “Dutch Protective Advance” and, together with the U.S. Tranche A Protective Advances and Canadian Protective Advances, “the “Protective Advances”) (a) (i) in an aggregate amount, together with the aggregate amount of all Overadvance Loans under the Ex-FILO Subfacilities, not to exceed 10% of the Line Cap, (ii) in an aggregate amount, together with the aggregate amount of Overadvance Loans under the U.S. Tranche A Subfacility, not to exceed 10% of the Line Cap for the U.S. Tranche A Subfacility, (iii) in an aggregate amount, together with the aggregate amount of Overadvance Loans under the Canadian Subfacility, not to exceed 10% of the Line Cap for the Canadian Subfacility and (iv) in an aggregate amount, together with the aggregate amount of Overadvance Loans under the Dutch Subfacility, not to exceed 10% of the Line Cap for the Dutch Subfacility, if the Administrative Agent deems such Protective Advances necessary or desirable to preserve and protect the Collateral, or to enhance the collectability or repayment of the Obligations under such Subfacility; or (b) to pay any other amounts chargeable to Credit Parties under any Credit Documents, including costs, fees and expenses; provided that (i) the Dollar Equivalent of the aggregate amount of outstanding Protective Advances plus the Dollar Equivalent of the outstanding amount of Ex-FILO Revolving Exposure shall not exceed the aggregate Ex-FILO Revolving Commitments, (ii) the Dollar Equivalent of the aggregate amount of outstanding U.S. Tranche A Protective Advances plus the Dollar Equivalent of the outstanding amount of U.S. Tranche A Revolving Exposure shall not exceed the aggregate U.S. Tranche A Revolving Commitments, (iii) the Dollar Equivalent of the aggregate amount of outstanding Canadian Protective Advances plus the Dollar Equivalent of the outstanding amount of Canadian Revolving Exposure shall not exceed the aggregate Canadian Revolving Commitments and (iv) the Dollar Equivalent of the aggregate amount of outstanding Dutch Protective Advances plus the Dollar Equivalent of the outstanding amount of Dutch Revolving Exposure shall not exceed the aggregate Dutch Revolving Commitments. Each applicable Lender shall participate in each Protective Advance in accordance with its Pro Rata Percentage under the applicable Subfacility or Subfacilities. Required Lenders may at any time revoke the Administrative Agent’s authority to make further Protective Advances under clause (a) by written notice to the Administrative Agent. Absent such revocation, the Administrative Agent’s determination that funding of a Protective Advance is appropriate shall be conclusive. The Administrative Agent may use the proceeds of such Protective Advances to (a) protect, insure, maintain or realize upon any Collateral; or (b) defend or maintain the validity or priority of the Collateral Agent’s Liens on any Collateral, including any payment of a judgment, insurance premium, warehouse charge, finishing or processing charge, or landlord claim, or any discharge of a Lien.


2.19.       Extensions of Revolving Loans and Revolving Commitments.

(a)          The Company may at any time and from time to time request that all or a portion of the Ex-FILO Revolving Commitments of any Class (including in respect of any Ex-FILO Subfacility, and, in each case, including any previously extended Ex-FILO Revolving Commitments), existing at the time of such request (each, an “Existing Revolving Commitment” and any related Ex-FILO Revolving Loans under any such Class (including in respect of any Ex-FILO Subfacility), “Existing Revolving Loans”; each Existing Revolving Commitment and related Existing Revolving Loans together being referred to as an “Existing Revolving Class”) be converted or exchanged to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Existing Revolving Loans related to such Existing Revolving Commitments (any such Existing Revolving Commitments which have been so extended, “Extended Revolving Commitments” and any related Revolving Loans, “Extended Revolving Loans”) and to provide for other terms consistent with this Section 2.19. Prior to entering into any Extension Amendment with respect to any Extended Revolving Commitments, the Company shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class (including in respect of any Ex-FILO Subfacility) of Existing Revolving Commitments, with such request offered equally to all Lenders of such Class (including in respect of any Ex-FILO Subfacility)) (a “Extension Request”) setting forth the proposed terms of the Extended Revolving Commitments to be established thereunder, which terms shall be similar to those applicable to the Existing Revolving Commitments from which they are to be extended (the “Specified Existing Revolving Commitment Class”) except that (w) all or any of the final maturity and/or termination dates of such Extended Revolving Commitments may be delayed to later dates than the final maturity and/or termination dates of the Existing Revolving Commitments of the Specified Existing Revolving Commitment Class, (x)(A) the interest rates, interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment terms and premiums with respect to the Extended Revolving Commitments may be different than those for the Existing Revolving Commitments of the Specified Existing Revolving Commitment Class and/or (B) additional fees and/or premiums may be payable to the Lenders providing such Extended Revolving Commitments in addition to or in lieu of any of the items contemplated by the preceding clause (A) and (y)(1) the Ex-FILO Unused Line Fee Rate with respect to the Extended Revolving Commitments may be different than those for the Specified Existing Revolving Commitment Class and (2) the Extension Amendment may provide for other covenants and terms that apply to any period after the Latest Maturity Date; provided that, notwithstanding anything to the contrary in this Section 2.19 or otherwise, (I) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of the Extended Revolving Loans under any Extended Revolving Commitments shall be made on a pro rata basis with any borrowings and repayments of the Existing Revolving Loans of the Specified Existing Revolving Commitment Class (the mechanics for which may be implemented through the applicable Extension Amendment and may include technical changes related to the borrowing and repayment procedures of the Specified Existing Revolving Commitment Class) and (II) subject to the applicable limitations set forth in Section 2.07, permanent repayments of Extended Revolving Loans (and corresponding permanent reduction in the related Extended Revolving Commitments) shall be permitted as may be agreed between the Company and the Lenders thereof. No Lender shall have any obligation to agree to have any of its Revolving Loans or Revolving Commitments of any Existing Revolving Class converted or exchanged into Extended Revolving Loans or Extended Revolving Commitments pursuant to any Extension Request. Any Extended Revolving Commitments of any Extension Series shall constitute a separate Class of Revolving Commitments from Existing Revolving Commitments of the Specified Existing Revolving Commitment Class and from any other Existing Revolving Commitments (together with any other Extended Revolving Commitments so established on such date).


(b)          The Company shall provide the applicable Extension Request to the Administrative Agent at least five (5) Business Days (or such shorter period as the Administrative Agent may determine in its reasonable discretion) prior to the date on which Lenders under the Existing Revolving Class are requested to respond, and shall agree to such procedures, if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably, to accomplish the purpose of this Section 2.19. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Ex-FILO Revolving Commitments (or any earlier Extended Revolving Commitments) of an Existing Revolving Class subject to such Extension Request converted or exchanged into Extended Revolving Commitments shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Ex-FILO Revolving Commitments (and/or any earlier Extended Revolving Commitments) which it has elected to convert or exchange into Extended Revolving Commitments (subject to any minimum denomination requirements imposed by the Administrative Agent). Any Lender that does not respond to the Extension Request on or prior to the date specified therein shall be deemed to have rejected such Extension Request. Each Lender under the Class of Existing Revolving Loans being extended shall have the opportunity to participate in such extension on the same terms as each other Lender under such Class of Existing Revolving Loans. In the event that the aggregate amount of Ex-FILO Revolving Commitments (and any earlier extended Extended Revolving Commitments) subject to Extension Elections exceeds the amount of Extended Revolving Commitments requested pursuant to the Extension Request, Ex-FILO Revolving Commitments or earlier extended Extended Revolving Commitments, as applicable, subject to Extension Elections shall be converted to or exchanged to Extended Revolving Commitments on a pro rata basis (subject to such rounding requirements as may be established by the Administrative Agent) based on the amount of Ex-FILO Revolving Commitments and earlier extended Extended Revolving Commitments included in each such Extension Election or as may be otherwise agreed to in the applicable Extension Amendment. Notwithstanding the conversion of any Existing Revolving Commitment into an Extended Revolving Commitment, unless expressly agreed by the holders of each affected Existing Revolving Commitment of the Specified Existing Revolving Commitment Class, such Extended Revolving Commitment shall not be treated more favorably than all Existing Revolving Commitments of the Specified Existing Revolving Commitment Class for purposes of the obligations of a Lender in respect of Swingline Loans and Letters of Credit, except that the applicable Extension Amendment may provide that the last day for making Swingline Loans and/or the last day for issuing Letters of Credit may be extended and the related obligations to make Swingline Loans and issue Letters of Credit may be continued (pursuant to mechanics to be specified in the applicable Extension Amendment) so long as the Swingline Lender and/or each Issuing Bank shall have consented to such extensions (it being understood that no consent of any other Lender shall be required in connection with any such extension).


(c)          Extended Revolving Commitments shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement (notwithstanding anything to the contrary set forth in Section 12.10, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Revolving Commitments established thereby), executed by the Credit Parties, the Administrative Agent and the Extending Lenders. In connection with any Extension Amendment, the Company shall deliver an opinion of counsel reasonably acceptable to the Administrative Agent and addressed to the Administrative Agent and the applicable Extending Lenders (i) as to the enforceability of such Extension Amendment, this Agreement as amended thereby, and such of the other Credit Documents (if any) as may be amended thereby and covering customary matters and (ii) to the effect that such Extension Amendment, included the Extended Revolving Loans and Extended Revolving Commitments provided for therein, does not breach or result in a default under this Agreement.

(d)          Notwithstanding anything to the contrary contained in this Agreement, (i) on any date on which any Class of Existing Revolving Commitments is converted or exchanged to extend the related scheduled maturity or termination date(s) in accordance with paragraph (a) above (an “Extension Date”), the aggregate principal amount of such Existing Revolving Commitments shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Revolving Commitments so converted or exchanged by such Lender on such date (or by any greater amount as may be agreed by the Company and such Lender), and such Extended Revolving Commitments shall be established as a separate Class of Revolving commitments from the Specified Existing Revolving Commitment Class and from any other Existing Revolving Commitments (together with any other Extended Revolving Commitments so established on such date) and (ii) if, on any Extension Date, any Existing Revolving Loans of any Extending Lender are outstanding under the Specified Existing Revolving Commitment Class, such Existing Revolving Loans (and any related participations) shall be deemed to be converted or exchanged to Extended Revolving Loans (and related participations) of the applicable Class in the same proportion as such Extending Lender’s Specified Existing Revolving Commitments to Extended Revolving Commitments of such Class.

(e)          In the event that the Administrative Agent determines in its sole discretion that the allocation of the Extended Revolving Commitments of a given Class to a given Lender was incorrectly determined as a result of manifest administrative error in the receipt and processing of an Extension Election timely submitted by such Lender in accordance with the procedures set forth in the applicable Extension Amendment, then the Administrative Agent, the Company and such affected Lender may (and hereby are authorized to), in their sole discretion and without the consent of any other Lender, enter into an amendment to this Agreement and the other Credit Documents (each, a “Corrective Extension Amendment”) within 15 days following the effective date of such Extension Amendment, as the case may be, which Corrective Extension Amendment shall (i) provide for the conversion or exchange and extension of Existing Revolving Commitments (and related Revolving Exposure), as the case may be, in such amount as is required to cause such Lender to hold Extended Revolving Commitments (and related Revolving Exposure) of the applicable Extension Series into which such other commitments were initially converted or exchanged, as the case may be, in the amount such Lender would have held had such administrative error not occurred and had such Lender received the minimum allocation of the applicable Loans or Commitments to which it was entitled under the terms of such Extension Amendment, in the absence of such error, and (ii) be subject to the satisfaction of such conditions as the Administrative Agent, the Company and such Lender may agree.


(f)          No conversion or exchange of Loans or Commitments pursuant to any Extension Amendment in accordance with this Section 2.19 shall constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement.

2.20.       Adjustment of Revolver Commitments.

(a)          The Company may, by written notice to the Administrative Agent, request that the Administrative Agent and the Lenders increase or decrease any Ex-FILO Subfacility (a “Revolver Commitment Adjustment”), which request shall be granted by each Lender electing to participate in such Revolver Commitment Adjustment (subject to the last sentence of this clause (a)) provided that each of the following conditions are satisfied: (i) no more than four Revolver Commitment Adjustments may be made in any fiscal year, (ii) the written request for a Revolver Commitment Adjustment must be received by the Administrative Agent at least five (5) Business Days (or such shorter period of time as may be reasonably agreed to by the Administrative Agent) prior to the requested date (which shall be a Business Day) of the effectiveness of such Revolver Commitment Adjustment (such date of effectiveness, the “Commitment Adjustment Date”), (iii) no Default or Event of Default shall have occurred and be continuing as of the date of such request or both immediately before and after giving effect thereto as of the Commitment Adjustment Date, (iv) any increase in any Ex-FILO Subfacility shall result in a Dollar-for-Dollar decrease in one or more other Ex-FILO Subfacilities pursuant to this Section 2.20, and any decrease in the any Ex-FILO Subfacility pursuant to this Section 2.20 shall result in a Dollar-for-Dollar increase in one or more other Ex-FILO Subfacilities, (v) the North American Minimum Requirement shall be met at such time, (vi) no Revolver Commitment Adjustment shall be permitted if, after giving effect thereto, an Overadvance would exist as determined according to the Borrowing Base Certificate delivered pursuant to clause (ii), and (viii) the Administrative Agent shall have received a certificate of the Company dated as of the Commitment Adjustment Date certifying the satisfaction of all such conditions (including calculations thereof in reasonable detail) and otherwise in form and substance reasonably satisfactory to the Administrative Agent. Any such Revolver Commitment Adjustment shall be in an amount equal to $5,000,000 or a multiple of $1,000,000 in excess thereof and shall concurrently increase or reduce, as applicable, the aggregate Ex-FILO Revolving Commitments available for use under each Ex-FILO Subfacility on a basis allocated by the Administrative Agent following discussion with each Lender as to their desire to participate in such Revolver Commitment Adjustment (which allocation may vary from each such Lender’s Pro Rata Percentage under the applicable Subfacility or Subfacilities of the amount to be reallocated). Notwithstanding the foregoing, (i) each Lender may elect or decline, in its sole discretion, to have its Ex-FILO Revolving Commitment reallocated in connection with any requested Revolver Commitment Adjustment, it being understood that no Lender shall be obligated to reallocate its Ex-FILO Revolving Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any request for a Revolver Commitment Adjustment within five (5) Business Days after such Lender’s receipt of such request, such Lender shall be deemed to have declined to participate in such Revolver Commitment Adjustment and (ii) in no event shall a Lender’s aggregate Commitment with respect to the Ex-FILO Subfacilities be reduced without its explicit consent.

(b)          The Administrative Agent shall promptly inform the Lenders of any request for a Revolver Commitment Adjustment made by the Company. If the conditions set forth in clause (a) above are not satisfied on the applicable Commitment Adjustment Date (or, to the extent such conditions relate to an earlier date, such earlier date), the Administrative Agent shall notify the Company in writing that the requested Revolver Commitment Adjustment will not be effectuated; provided, however, that the Administrative Agent shall in all cases be entitled to rely (without liability) on the certificate delivered by the Company pursuant to clause (a)(viii) immediately above in making its determination as to the satisfaction of such conditions. On each Commitment Adjustment Date, the Administrative Agent shall notify the Lenders and the Company, on or before 2:00 p.m. (Local Time), by e-mail, of the occurrence of the Revolver Commitment Adjustment to be effected on such Commitment Adjustment Date, the amount of Ex-FILO Revolving Loans held by each Lender as a result thereof, the amount of the Ex-FILO Revolving Commitment of each Lender available for use under each Ex-FILO Subfacility and the percentage of each Ex-FILO Revolving Loan that each participant must purchase a participation interest in as a result thereof.


2.21.       Subsidiary Borrowers.

(a)          The Company may at any time, upon not less than 5 Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be reasonably agreed by the Administrative Agent), designate any one or more Domestic Subsidiaries, Canadian Subsidiaries or Dutch Subsidiaries of the Company that have assets of the type eligible for inclusion in the applicable Borrowing Base (an “Applicant Borrower”) as a U.S. Borrower, Canadian Borrower or Dutch Borrower, respectively, to receive Loans hereunder by delivering to the Administrative Agent (which shall promptly deliver counterparts thereof to each Lender) a duly executed notice and agreement in substantially the form of Exhibit K or such other form as may be agreed by the Company and the Administrative Agent (acting reasonably) (a “Borrower Designation Request and Assumption Agreement”). The parties hereto acknowledge and agree that prior to any Applicant Borrower becoming entitled to utilize the credit facilities provided for herein the Administrative Agent and the Lenders shall have received such supporting resolutions, constitutional documents, incumbency certificates, opinions of counsel, other documents required to be delivered pursuant to the Collateral and Guarantee Requirement, valuations and other documents, instruments or information (including any “know-your-customer” information reasonably requested by the Administrative Agent or any Lender (through the Administrative Agent)), in each case similar in scope and substance to the same type of documents delivered on the Closing Date, as may be required by the Administrative Agent or the Required Lenders, and Notes signed by such new Borrowers to the extent any Lenders so require. If the Administrative Agent agrees that an Applicant Borrower shall have satisfied all of the requirements of this Section 2.21 and, therefore, be entitled to receive Loans hereunder, then promptly following receipt of all such requested resolutions, incumbency certificates, other documents required to be delivered pursuant to the Collateral and Guarantee Requirement, opinions of counsel and other documents, instruments or information, the Administrative Agent shall send a notice in substantially the form of Exhibit K (a “Borrower Designation Notice”) to the Company and the Lenders specifying the effective date upon which the Applicant Borrower shall constitute a U.S. Borrower, if the Applicant Borrower is a Domestic Subsidiary, a Canadian Borrower, if the Applicant Borrower is a Canadian Subsidiary, or a Dutch Borrower, if the Applicant Borrower is a Dutch Subsidiary, for purposes hereof, whereupon each of the Lenders agrees to permit such Applicant Borrower to become a Borrower for all purposes of this Agreement (including to receive Loans hereunder, on the terms and conditions set forth herein); provided that no Notice of Borrowing may be submitted by or on behalf of such Applicant Borrower until one Business Day after such effective date.

(b)          The Company may from time to time, upon not less than 5 Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be reasonably agreed by the Administrative Agent), terminate any Domestic Subsidiary's, Canadian Subsidiary’s or Dutch Subsidiary’s status as a Borrower; provided that there are no outstanding Revolving Loans or LC Obligations payable by such Borrower or other amounts payable by such Borrower on account of any Credit Extensions made to it, as of the effective date of such termination (unless such Loans and other Obligations have been assumed by another Borrower). Following the termination of any Subsidiary’s status as a Borrower hereunder, such Subsidiary shall, subject to the Collateral and Guarantee Requirement, remain a Subsidiary Guarantor and shall remain subject to the terms of this Agreement. The Administrative Agent will promptly notify the Lenders of any such termination of a Borrower’s status.


2.22.       Reserves.

(a)          The Administrative Agent may at any time and from time to time in the exercise of its Permitted Discretion establish and increase or decrease Reserves; provided that, as a condition to the establishment of any new category of Reserves, or any increase in Reserves resulting from a change in the manner of determination thereof, any Required Reserve Notice shall have been given to the Company. The amount of any Reserve established or modified by the Administrative Agent shall have a reasonable relationship to circumstances, conditions, events or contingencies that are the basis for such Reserve, as reasonably determined, without duplication, by the Administrative Agent; provided that circumstances, conditions, events or contingencies existing or arising prior to the Closing Date and, in each case, disclosed in writing in any Field Examination or Appraisal delivered to the Administrative Agent in connection herewith or otherwise known to the Administrative Agent prior to the Closing Date shall not be the basis for any establishment of any Reserves after the Closing Date, unless (x) such circumstances, conditions, events or contingencies shall have changed in a material respect since the Closing Date or (y) the Administrative Agent has identified, or been made aware of, such circumstances, conditions, events or contingencies prior to the Closing Date and advised the Company that a future Reserve may be taken therefor.

(b)          Upon delivery of such notice, the Administrative Agent shall be available to discuss the proposed Reserve or increase, and the Company may take such action as may be required so that the event, condition or matter that is the basis for such Reserve or increase no longer exists, in a manner and to the extent reasonably satisfactory to the Administrative Agent in the exercise of its Permitted Discretion. In no event shall such notice and opportunity limit the right of the Administrative Agent to establish or change such Reserve, unless the Administrative Agent shall have determined in its Permitted Discretion that the event, condition or other matter that is the basis for such new Reserve or such change no longer exists or has otherwise been adequately addressed by the Credit Parties. Notwithstanding anything herein to the contrary, Reserves shall not duplicate eligibility criteria contained in the definition of the term “Eligible Accounts”, “Eligible Equipment”, “Eligible Fee-Owned Real Estate”, “Eligible InTransit Inventory”, “Eligible Insured and Letter of Credit Backed Account” or “Eligible Inventory” and vice versa, or reserves or criteria deducted in computing the Cost or Fair Market Value or the Outstanding Balance or the Net Orderly Liquidation Value of any Eligible Account, Eligible Equipment, Eligible Fee-Owned Real Estate, Eligible In-Transit Inventory, Eligible Insured and Letter of Credit Backed Account or Eligible Inventory, as the case may be, and vice versa.

Section 3      Yield Protection, Illegality and Replacement of Lenders.

3.01.       Increased Costs, Illegality, etc.

(a)          In the event that (x) in the case of clause (i) below, the Administrative Agent, or (y), in the case of clauses (ii) and (iii) below, any Lender, shall have determined (which determination shall, absent demonstrable error, be final and conclusive and binding upon all parties hereto:

 (i)          on any Rate Determination Date that, by reason of any changes arising after the Closing Date affecting the interbank Eurodollar market or Canadian interbank market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of the term “Eurocurrency Rate” or “Canadian B/A Rate”;

 (ii)         at any time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurocurrency Rate Loan or B/A Equivalent Loan because of any change since the Closing Date in any Requirements of Law (whether or not having the force of a law) or in the official interpretation or administration thereof and including the introduction of any new Requirements of Law, official guideline or request, such as, but not limited to: (A) any Tax imposed on any Lender (except Indemnified Taxes or Other Taxes indemnifiable under Section 4.01 or any Excluded Taxes) or (B) a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurocurrency Rate or Canadian B/A Rate, as applicable; or


 (iii)          at any time, that the making or continuance of any Eurocurrency Rate Loan or B/A Equivalent Loans has been made (x) unlawful by any Requirement of Law, (y) impossible by compliance by any Lender, in good faith with any governmental request (whether or not having force of a Requirement of Law) or (z) impracticable as a result of a contingency occurring after the Closing Date which materially and adversely affects the London interbank market for such Eurocurrency Rate Loan or the Canadian interbank market;

then, and in any such event, such Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice in writing to the Company and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice to the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurocurrency Rate Loans or B/A Equivalent Loans shall no longer be available until such time as the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Relevant Borrower with respect to Eurocurrency Rate Loans or B/A Equivalent Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the applicable Borrowers, (y) in the case of clause (ii) above, each Borrower, jointly and severally, agrees to pay, as applicable, to such Lender, upon such Lender’s written request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice setting forth the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, shall be submitted to the Company by such Lender and shall, absent demonstrable error, be final and conclusive and binding on all the parties hereto), (z) in the case of clause (iii) above, the Borrowers shall take one of the actions specified in Section 3.01(b) as promptly as possible and, in any event, within the time period required by a Requirement of Law.

(b)          At any time that any Eurocurrency Rate Loan or B/A Equivalent Loan is affected by the circumstances described in Section 3.01(a)(ii), the Relevant Borrower may, and in the case of a Eurocurrency Rate Loan or a B/A Equivalent Loan affected by the circumstances described in Section 3.01(a)(iii), the Relevant Borrower shall either (x) if the affected Eurocurrency Rate Loan or B/A Equivalent Loan is then being made initially or pursuant to a conversion, cancel such Borrowing by giving the Administrative Agent written notice on the same date that the Relevant Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 3.01(a)(ii) or (iii) or (y) if the affected Eurocurrency Rate Loan or B/A Equivalent Loan is then outstanding, upon at least three Business Days’ written notice to the Administrative Agent, require the affected Lender to convert such Eurocurrency Rate Loan into the applicable Base Rate Loan, or such B/A Equivalent Loan into a Canadian Prime Loan at the end of the applicable Interest Period or Contract Period, or such earlier date as may be required by applicable Requirement of Law, provided that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 3.01(b).

(c)          If any Lender determines that after the Closing Date the introduction of or any change in any applicable Requirement of Law, guideline, directive or request (whether or not having the force of a law) concerning capital adequacy or liquidity, or any change in interpretation or administration thereof by the NAIC or any Governmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital or liquidity required or expected to be maintained by such Lender or any corporation controlling such Lender based on the existence of such Lender’s Commitments hereunder or its obligations hereunder, then, each Borrower, jointly and severally, agrees to pay to such Lender, upon its written demand therefor, such additional amounts as shall be required to compensate such Lender or such other corporation for the increased cost to such Lender or such other corporation or the reduction in the rate of return to such Lender or such other corporation as a result of such increase of capital or liquidity. In determining such additional amounts, each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, provided that such Lender’s determination of compensation owing under this Section 3.01(c) shall, absent demonstrable error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 3.01(c), will give prompt written notice thereof to the Company, which notice shall show in reasonable detail the basis for calculation of such additional amounts.


(d)          Notwithstanding anything in this Agreement to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III ((x) and (y) collectively referred to as “Dodd-Frank and Basel III”), shall be deemed to be a change after the Closing Date in a Requirement of Law or government rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 3.01); provided, however, that no Lender or Issuing Bank shall be entitled to seek compensation under this Section 3.01 based on the occurrence of a change in a Requirement of Law arising solely from Dodd-Frank and Basel III, unless such Lender or Issuing Bank is generally seeking compensation from other borrowers in the asset-based lending market with respect to its similarly affected commitments, loans and/or participations under agreements with such borrowers having provisions similar to this Section 3.01.

(e)          Notwithstanding anything in this Agreement to the contrary, the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section (i) for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of such Lender’s or Issuing Bank’s intention to claim compensation under this Section 3.01; provided, however, that, if the introduction or change referred to in Section 3.01(a)(ii) or 3.01(c) giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof; or (ii) such Lender or Issuing Banks is not charging such costs or reduced return to its borrowers generally with respect to which it has the right to charge such costs.

3.02.       Compensation. Each Borrower, jointly and severally, agrees to compensate each Revolving Lender, upon its written request (which request shall set forth in reasonable detail the basis for requesting such compensation and the calculation of the amount of such compensation), for all losses, expenses and liabilities (including, without limitation, any loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by such Lender to fund its Eurocurrency Rate Loans or B/A Equivalent Loans but excluding loss of the Applicable Margin or other anticipated profits) which such Lender may sustain: (i) if for any reason (other than a default by such Lender or the Administrative Agent) a Borrowing of, or conversion from or into, Eurocurrency Rate Loans or B/A Equivalent Loans does not occur on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn by the applicable Borrower or deemed withdrawn pursuant to Section 3.01(a)); (ii) if any prepayment or repayment (including any termination or reduction of Commitments made pursuant to Section 2.07 or as a result of an acceleration of the Loans pursuant to Section 10) or conversion of any of its Eurocurrency Rate Loans or B/A Equivalent Loans occurs on a date which is not the last day of an Interest Period or Contract Period with respect thereto (including as a result of the notice of prepayment, termination or reduction, as applicable, being revoked by the Relevant Borrower); (iii) if any prepayment of any Eurocurrency Rate Loans or B/A Equivalent Loans is not made on any date specified in a notice of termination or reduction given by the Company (including as a result of such notice of termination or reduction being revoked by the Relevant Borrower); (iv) if any Borrower shall fail to make a payment of any Loan or drawing under any Letter of Credit (or interest due thereon) denominated in Canadian Dollars on its scheduled due date or any payment thereof in a different currency or (v) as a consequence of (x) any other default by any Borrower to repay its Eurocurrency Rate Loans or B/A Equivalent Loans when required by the terms of this Agreement or any Note held by such Lender or (y) any election made pursuant to Section 3.01(b).


3.03.       Change of Lending Office. Each Lender agrees that on the occurrence of any event giving rise to the operation of Section 3.01(a)(ii) or (iii), Section 3.01(c) or Section 4.01 with respect to such Lender, it will, if requested by the Company, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event; provided that such designation is made on such terms that such Lender and its lending office suffer no economic, legal or regulatory disadvantage, with the object of avoiding the consequence of the event giving rise to the operation of such Section. Nothing in this Section 3.03 shall affect or postpone any of the obligations of the Borrowers or the right of any Lender provided in Sections 3.01 and 4.01.

3.04.       Replacement of Lenders. (x) If any Lender becomes a Defaulting Lender, (y) upon the occurrence of an event giving rise to the operation of Section 3.01(a)(ii) or (iii), Section 3.01(c) or Section 4.01 with respect to such Lender or (z) in the case of a refusal by a Lender to consent to certain proposed changes, waivers, discharges or terminations with respect to this Agreement which have been approved by the Required Lenders as (and to the extent) provided in Section 12.10(b), the Company shall have the right, if no Event of Default then exists (or, in the case of preceding clause (z), will exist immediately after giving effect to such replacement), to replace such Lender (the “Replaced Lender”) with one or more other Eligible Assignees, none of whom shall constitute a Defaulting Lender at the time of such replacement (collectively, the “Replacement Lender”) and each of whom shall be required to be reasonably acceptable to the Administrative Agent (to the extent the Administrative Agent’s consent would be required for an assignment to such Replacement Lender pursuant to Section 12.04); provided that (i) at the time of any replacement pursuant to this Section 3.04, the Replacement Lender shall enter into one or more Assignment and Assumption Agreements pursuant to Section 12.04(b) (and with all fees payable pursuant to Section 12.04(c) to be paid by the Replacement Lender and/or the Replaced Lender (as may be agreed to at such time by and among the Company, the Replacement Lender and the Replaced Lender)) pursuant to which the Replacement Lender shall acquire all of the Commitments and outstanding Loans of, the Replaced Lender and, in connection therewith, shall pay to (x) the Replaced Lender in respect thereof an amount equal to the sum of (I) an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the respective Replaced Lender and (II) an amount equal to all accrued, but theretofore unpaid, fees owing to the Replaced Lender pursuant to Section 2.05 and (ii) all obligations of each Borrower due and owing to the Replaced Lender at such time (other than those specifically described in clause (i) above in respect of which the assignment purchase price has been, or is concurrently being, paid) shall be paid in full to such Replaced Lender concurrently with such replacement. Upon receipt by the Replaced Lender of all amounts required to be paid to it pursuant to this Section 3.04, the Administrative Agent shall be entitled (but not obligated) and authorized to execute an Assignment and Assumption Agreement on behalf of such Replaced Lender, and any such Assignment and Assumption Agreement so executed by the Administrative Agent and the Replacement Lender shall be effective for purposes of this Section 3.04 and Section 12.04. Upon the execution of the respective Assignment and Assumption Agreement, the payment of amounts referred to in clauses (i) and (ii) above, recordation of the assignment on the register pursuant to Section 12.04(e) and, if so requested by the Replacement Lender, delivery to the Replacement Lender of the appropriate Note or Notes executed by the applicable Borrower, (x) the Replacement Lender shall become a Lender hereunder and the Replaced Lender shall cease to constitute a Lender hereunder, except with respect to indemnification provisions under this Agreement (including, without limitation, Sections 3.01, 3.02, 4.01, 11.07 and 12.01), which shall survive as to such Replaced Lender. In connection with any replacement of Lenders pursuant to, and as contemplated by, this Section 3.04, each Borrower hereby irrevocably authorizes the Company to take all necessary action, in the name of such Borrower, as described above in this Section 3.04 in order to effect the replacement of the respective Lender or Lenders in accordance with the preceding provisions of this Section 3.04.


Section 4      Taxes.

4.01.       Net Payments.

(a)          All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable Requirements of Law. If any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after all required deductions or withholdings (including deductions or withholdings applicable to additional sums payable under this Section 4.01) have been made, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent . The Credit Parties jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by such Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.

(b)          Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.


(c)          Without limiting the generality of the foregoing, (I) solely with respect to the U.S. Subfacilityies: (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender claiming exemption from U.S. federal withholding Tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest,” a certificate substantially in the form of Exhibit C (any such certificate, a “U.S. Tax Compliance Certificate”) and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers and Dutch Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender’s non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender’s obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, “FATCA” shall include any amendment made to FATCA after the Closing Date.


(d)          Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.

(e)          Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).

(f)          If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.

(g)          For the avoidance of doubt, for purposes of this Section 4.01, the term “Lender” shall include any Issuing Bank and any Swingline Lender.

4.02.       VAT.

(a)          All amounts expressed to be payable under a Credit Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Credit Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party). In this Section 4.02, the following expressions shall have the following meanings: (i) “Finance Party” shall mean any Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Credit Party under any Credit Document; (ii) “Party” shall mean any party to this Agreement and (iii) “VAT” shall mean (a) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112) and (b) any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in clause (a) above, or imposed elsewhere.

(b)          If VAT is or becomes chargeable on any supply made by any Finance Party (the “Supplier”) to any other Finance Party (the “Recipient”) under a Credit Document, and any Party other than the Recipient (the “Relevant Party”) is required by the terms of any Credit Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):



  (i)

(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

     
  (ii)

(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

(c)          Where a Credit Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

(d)          Any reference in this Section 4.02 to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in article 11 of Council Directive 2006/112/EC as amended (or as implemented by any relevant member state of the European Union)).

(e)          In relation to any supply made by a Finance Party to any Party under a Credit Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.

Section 5      Conditions Precedent to Credit Events on the Closing Date. The Administrative Agents, Swingline Lenders, the Issuing Bank and the Lenders shall not be required to fund any Revolving Loans or Swingline Loans, or arrange for the issuance of any Letters of Credit on the Closing Date, until the following conditions are satisfied or waived.

5.01.       Closing Date; Credit Documents. On or prior to the Closing Date, each Credit Party, the Administrative Agents, the Collateral Agent, the Issuing Banks and each of the Lenders on the Closing dDate hereof shall have signed a counterpart of this Agreement (whether the same or different counterparts) and shall have delivered (by electronic transmission or otherwise) the same to the Administrative Agent or, in the case of the Lenders, shall have given to the Administrative Agent telephonic (confirmed in writing), written or telex notice (actually received) at such office that the same has been signed and mailed to it.

5.02.       Officer’s Certificate. On the Closing Date, the Administrative Agent shall have received a certificate, dated the Closing Date and signed on behalf of the Company (and not in any individual capacity) by a Responsible Officer of the Company, certifying on behalf of the Company that (i) no Default or Event of Default exists and (ii) the representations and warranties set forth in Section 7 are true and correct in all material respects (without duplication of any materiality standard set forth in any such representation or warranty) on and as of the Closing Date (except for those representations and warranties that relate to an earlier date, in which event, such representations and warranties shall have been true in all material respects (without duplication of any materiality standard set forth in any such representation or warranty) as of such earlier date).


5.03.       Opinions of Counsel. On the Closing Date, the Administrative Agent shall have received from (i) Simpson Thacher & Bartlett LLP, U.S. counsel to the Credit Parties, (ii) Wildeboer Dellelce LLP, special Canadian counsel to the Credit Parties and (iii) NautaDutilh, special Dutch counsel to the Credit Parties, in each case, an opinion addressed to the Administrative Agents, the Collateral Agent and each of the Lenders party hereto on the Closing Date and dated the Closing Date in form and substance reasonably satisfactory to the Administrative Agent.

5.04.       Corporate Documents; Proceedings, etc.

(a)          On the Closing Date, the Administrative Agent shall have received a certificate from each Credit Party, dated the Closing Date, signed by a Responsible Officer of such Credit Party, and to the extent applicable attested to by the secretary or any assistant secretary of such Credit Party, in each case, on behalf of such Credit Party (and not in any individual capacity), in customary form, together with copies of the certificate or articles of incorporation and by-laws (or equivalent organizational documents), as applicable, of such Credit Party and the resolutions of such Credit Party referred to in such certificate, and each of the foregoing shall be in form and substance reasonably satisfactory to the Administrative Agent.

(b)          On the Closing Date, the Administrative Agent shall have received good-standing certificates (or similar instrument, if applicable) and bring-down telegrams or facsimiles, with respect to entities incorporated or formed under the Requirements of Law of any jurisdiction for the Credit Parties which the Administrative Agent reasonably may have requested, certified by proper governmental authorities.

5.05.       Solvency Certificate. On the Closing Date, the Administrative Agent shall have received a solvency certificate from the chief financial officer of the Company substantially in the form of Exhibit F.

5.06.       Borrowing Base Certificate. The Company shall have delivered to the Administrative Agent a Borrowing Base Certificate as of the most recent month ended at least 20 days prior to the Closing Date, substantially in the form of Exhibit D.

5.07.       Material Adverse Effect. Since January 3, 2015, there shall not have occurred a Material Adverse Effect.

5.08.       Fees, etc. On the Closing Date, the Company shall have paid to the Agents and each Lender all fees, if any, required to be paid to such Person on the Closing Date and all reasonable and documented out-of-pocket expenses required to be reimbursed by the Company to the Administrative Agents and the Joint Lead Arrangers in connection with the Transactions, in the case of such expenses to the extent invoiced at least three Business Days prior to the Closing Date.

5.09.       Security Agreements. On the Closing Date, (a) each U.S. Credit Party shall have duly authorized, executed and delivered the U.S. Security Agreement, (b) each Canadian Credit Party shall have duly authorized, executed and delivered the Canadian Security Agreement described in clause (i) of the definition thereof and (c) each Dutch Credit Party shall have duly authorized, executed and delivered the Dutch Security Agreements (other than the deeds of pledge over shares listed in clauses (i), (ii) and (iii) under the definition of the term “Dutch Security Agreements” (collectively, the “Dutch Pledges Over Shares”), which shall be authorized, executed and delivered in accordance with Section 8.11(c)), covering all of such Credit Party’s present and future Collateral required by the Collateral and Guarantee Requirement, and the applicable Credit Parties shall have delivered:


 (i)          in respect of each Credit Party, proper financing statements (Form UCC-1 or the equivalent) authorized for filing under the UCC, PPSA and RDPRM, and documentation required to register the Dutch Security Agreement described in clause (iv) of the definition thereof with the tax authorities in the Netherlands, filings with the United States Patent and Trademark Office, the United States Copyright Office, the Canadian Intellectual Property Office, any documents required for registration of the security interests in intellectual property granted by the relevant Dutch Security Agreement with any appropriate intellectual property registers in the Netherlands and consent letters with respect to each relevant bank in respect of any security interests in bank account receivables granted by any Dutch Security Agreement, in each case, as may be reasonably necessary to perfect the security interests to the extent required by the Collateral and Guarantee Requirement;

 (ii)         an executed Perfection Certificate; and

 (iii)        (a) certificates, if any (which certificates shall be accompanied by irrevocable undated stock powers or stock transfer forms, duly endorsed in blank), representing all Equity Interests (other than (x) the certificate representing Equity Interests of SunOpta Global Organic Ingredients, Inc. (and the accompanying irrevocable undated stock power or stock transfer form), which shall be delivered in accordance with Section 8.11(e), and (y) Excluded Assets), and (b) any promissory notes or other instruments (duly endorsed, where appropriate) evidencing any Indebtedness for borrowed money (other than intercompany Indebtedness) in a principal amount in excess of $2,500,000 (individually) owing to any Credit Party, in the case of each of clauses (a) and (b), to the extent required to be delivered in accordance with the Collateral and Guarantee Requirement.

5.10.       Financial Statements. On or prior to the Closing Date, the Administrative Agent shall have received (i) the Historical Financial Statements, (ii) the Borrowers’ and their respective Restricted Subsidiaries’ most recent annual projected statement of operations, balance sheet and statement of cash flows, for the period through December 31, 2020 and (iii) quarterly balance sheet projections for the period ending December 31, 2016 (the information delivered under clauses (ii) and (iii), the “Projections”). The Administrative Agent hereby confirms that it has received all such Historical Financial Statements and Projections.

5.11.       Patriot Act. The Administrative Agent and the Lenders shall have received all documentation and other information about the Company and the other Credit Parties that shall have been reasonably requested by the Administrative Agent or the Lenders and that the Administrative Agent reasonably determines is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act and AML Legislation. The Administrative Agent and the Lenders hereby confirm that they have received all such information.

5.12.       Insurance. The Administrative Agent shall have received certificates of insurance for the insurance policies carried by the Credit Parties.

5.13.       Repayment of Obligations of Existing Credit Agreements. Reasonably satisfactory arrangements shall have been made for the repayment in full of the “Obligations” under and as defined in the Existing Credit Agreements and for the release of all the liens and security interests thereunder.


5.14.       Field Examinations and Appraisals. The Administrative Agent shall have received, in form and substance reasonably satisfactory to it, all Inventory Appraisals and Field Examinations and Appraisals of all Eligible Equipment and Eligible Fee-Owned Real Estate, each dated no earlier than three months prior to the Closing Date. The Administrative Agent hereby confirms that it has received all of such Appraisals and Field Examinations and is satisfied therewith.

5.15.       Mortgaged Properties. With respect to each Real Property located in the United States of America owned as of the Closing Date and listed on Schedule 5.15, the Administrative Agent shall have received (i) a completed “life-of-loan” Federal Emergency Management Agency standard flood hazard determination (to the extent a Mortgaged Property is located in a Special Flood Hazard Area, together with a notice about Special Flood Hazard Area status and flood disaster assistance duly executed by the Company and the applicable Credit Party relating thereto) and (ii) a copy of, or a certificate as to coverage under, and a declaration page relating to, the insurance policies required by Section 8.03 hereof and the applicable provisions of the Collateral and Guarantee Requirement, each of which shall (A) be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (as applicable), (B) name the Collateral Agent, on behalf of the Secured Creditors, as additional insured and loss payee/mortgagee, (C) identify the address of each property located in a Special Flood Hazard Area, the applicable flood zone designation and the flood insurance coverage and deductible relating thereto and (D) be otherwise in form and substance reasonably satisfactory to the U.S. Administrative Agent.

5.16.       Intercreditor Agreement. On or prior to the Closing Date, the Intercreditor Agreement shall have been entered into by the Administrative Agent, in its capacity as collateral agent for the First Lien Claimholders and Bank of Montreal, a Canadian chartered bank, in its capacity as collateral agent for the Second Lien Claimholders.

5.17.       Minimum Total Excess Availability. The Total Excess Availability as of the Closing Date shall be no less than 15.0% of the Line Cap.

Section 6      Conditions Precedent to All Credit Events. The obligation of each Lender and each Issuing Bank to make any Credit Extension shall be subject to the satisfaction (or waiver) of each of the conditions precedent set forth below:

6.01.       Notice of Borrowing. The Administrative Agent shall have received a Notice of Borrowing as required by Section 2.03 (or such notice shall have been deemed given in accordance with Section 2.03) if Loans are being requested (other than pursuant to Section 2.02(f)) or, in the case of the issuance, amendment, extension or renewal of a Letter of Credit, the Issuing Bank and the Administrative Agent shall have received a notice requesting the issuance, amendment, extension or renewal of such Letter of Credit as required by Section 2.13(b) or, in the case of the Borrowing of a Swingline Loan, the Swingline Lender and the Administrative Agent shall have received a notice requesting such Swingline Loan as required by Section 2.12(b).

6.02.       Availability. The Availability Conditions on the proposed date of such Credit Extension shall be satisfied.

6.03.       No Default. No Default or Event of Default shall exist at the time of, or result from, such funding or issuance, or, in the case of a Borrowing of Loans under an Incremental FILO Facility, no Event of Default shall exist at the time of, or result from, such Borrowing only in the case of, and to the extent of, a deemed Borrowing of Loans under an Incremental FILO Facility upon the inception of any Incremental FILO Facility at a time when Loans are then outstanding that have been borrowed in reliance on a Borrowing Base including assets of the same type as the FILO Borrowing Base..


6.04.       Representations and Warranties. Each of the representations and warranties made by any Credit Party set forth in Section 7 hereof or in any other Credit Document shall be true and correct in all material respects (without duplication of any materiality standard set forth in any such representation or warranty) on and as of the date of such Credit Extension with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such date (without duplication of any materiality standard set forth in any such representation or warranty).

The acceptance of the benefits of each Credit Extension shall constitute a representation and warranty by each Borrower to the Administrative Agent and each of the Lenders that all the conditions specified in this Section 6 and applicable to such Credit Event are satisfied as of that time (other than such conditions which are subject to the discretion of the Administrative Agent or the Lenders). All of the Notes, certificates, legal opinions and other documents and papers referred to in Section 5 and in this Section 6, unless otherwise specified, shall be delivered to the Administrative Agent at the Notice Office for the account of each of the Lenders.

Section 7      Representations and Warranties. In order to induce the Agents, the Lenders and the Issuing Banks to enter into this Agreement and to make the Credit Extensions hereunder, each Credit Party, as applicable, makes the following representations and warranties.

7.01.       Organizational Status. The Company and each of its Restricted Subsidiaries (i) is a duly organized or incorporated and validly existing organization in good standing under the law of the jurisdiction of its organization or incorporation (to the extent such concept exists and is applicable under the Requirements of Law of the relevant jurisdiction), (ii) has the organizational power and authority to own its property and assets and to transact the business in which it is engaged, except to the extent that any failure to have such organizational power and authority would not reasonably be expected to have a Material Adverse Effect and (iii) is, to the extent such concepts exists and is applicable under the Requirements of Law of the relevant jurisdiction, duly qualified and is authorized to do business and is in good standing in each jurisdiction where the ownership, leasing or operation of its property or the conduct of its business requires such qualifications except for failures to be so qualified which, individually and in the aggregate, have not had, and could not reasonably be expected to have, a Material Adverse Effect.

7.02.       Power and Authority. Each Credit Party has the corporate, partnership, limited liability company, unlimited liability company or similar organizational power and authority, as the case may be, to execute, deliver and perform the terms and provisions of each of the Credit Documents to which it is party and has taken all necessary corporate, partnership, limited liability company, unlimited liability company or similar organizational action, as the case may be, to authorize the execution, delivery and performance by it of each of such Credit Documents. Each Credit Party has duly executed and delivered each of the Credit Documents to which it is party, and each of such Credit Documents constitutes its legal, valid and binding obligation enforceable in accordance with its terms, except to the extent that the enforceability thereof may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar law generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).

7.03.       No Violation. Neither the execution, delivery or performance by any Credit Party of the Credit Documents to which it is a party, nor compliance by it with the terms and provisions thereof, (i) will contravene any provision of any Requirement of Law, other than any Requirement of Law the violation of which could not reasonably be expected to result in a Material Adverse Effect, (ii) will conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien (except pursuant to the Security Documents) upon any of the property or assets of any Credit Party or any of its respective Restricted Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, credit agreement or loan agreement, or any other material agreement, contract or instrument, in each case to which any Credit Party or any of its Restricted Subsidiaries is a party or by which it or any of its property or assets is bound or to which it may be subject (any such term, covenant, condition or provision, a “Contractual Requirement”), the violation of which could reasonably be expected to result in a Material Adverse Effect or (iii) will violate any provision of the certificate or articles of incorporation, certificate of formation, limited liability company agreement or by-laws (or equivalent organizational documents), as applicable, of any Credit Party.


7.04.       Approvals. No order, consent, approval, license, authorization or validation of, or filing, recording or registration with (except for (x) those that have otherwise been obtained or made on or prior to the Closing Date (or with respect to any Person that becomes a Credit Party after the Closing Date, on or prior to the date such Person becomes a Credit Party) and which remain in full force and effect on the Closing Date (or with respect to any Person that becomes a Credit Party after the Closing Date, on or prior to the date such Person becomes a Credit Party), (y) filings which are necessary to perfect the security interests and Liens created under the Security Documents to the extent required by the Collateral and Guarantee Requirement and (z) periodic reports under the Exchange Act), or exemption by, any governmental or public body or authority, or any subdivision thereof, is required to be obtained or made by, or on behalf of, any Credit Party to authorize, or is required to be obtained or made by, or on behalf of, any Credit Party in connection with, the execution, delivery and performance of any Credit Document.

7.05.       Financial Statements; Financial Condition; Projections.

(a)          The Historical Financial Statements have been prepared in accordance with GAAP, and fairly present, in all material respects, the financial positions and results of operations of the Company and its consolidated Subsidiaries as of the dates and for the periods indicated. The Projections have been prepared in good faith, based on assumptions believed as of the Closing Date to be reasonable in light of the circumstances under which such Projections were prepared; it being recognized by the Agents, the Lenders and the Issuing Banks that such projections are as to future events and are not to be viewed as facts, the projections are subject to significant uncertainties and contingencies, many of which are beyond the control of Company and its Restricted Subsidiaries, that no assurance can be given that any particular projections will be realized and that actual results during the period or periods covered by any such projections may differ from the projected results and such differences may be material. Since the Closing Date, there has been no Material Adverse Effect.

(b)          On and as of the Closing Date, after giving effect to the consummation of the Transactions (including the incurrence of the Loans made on the Closing Date), the Company and its consolidated Subsidiaries, taken as a whole, are Solvent.

7.06.       Litigation. There are no actions, suits or proceedings pending or, to the knowledge of any Credit Party, threatened (i) with respect to any Credit Document or (ii) that either individually or in the aggregate, have had, or could reasonably be expected to have, a Material Adverse Effect.

7.07.       True and Complete Disclosure. None of the written information or written factual data (taken as a whole) heretofore or contemporaneously furnished by the Company or any of its Subsidiaries or any of their respective authorized representatives in writing to the Administrative Agent or any Lender on or before the Closing Date (including all such information contained in any confidential information memorandum (and all information incorporated by reference therein) and in the Credit Documents) for purposes of, or in connection with, this Agreement, the other Credit Documents or any transaction contemplated herein or therein contained any untrue statement of material fact or omitted to state any material fact necessary to make such information and data (taken as a whole) not materially misleading at such time (after giving effect to all supplements so furnished prior to the date the representation and warranty in this Section 7.07 is being made) in light of the circumstances under which such information or data was furnished; it being understood and agreed that for purposes of this Section 7.07(a), such factual information and data shall not include projections (including the Projections, financial estimates, forecasts and other forward-looking information), pro forma financial information or information of a general economic or industry specific nature.


7.08.       Use of Proceeds; Margin Regulations.

(a)          All proceeds of the Loans incurred on the Closing Date will be used by the Borrowers to finance the repayment of the Existing Credit Agreements and to pay Transaction Costs.

(b)          All proceeds of the Loans incurred after the Closing Date will be used for working capital needs and general corporate purposes, including the financing of capital expenditures, Permitted Acquisitions, and other permitted Investments, Restricted Payments, Restricted Junior Debt Prepayments and any other purpose not prohibited hereunder.

(c)          No Credit Party is engaged, principally or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No part of any Credit Event (or the proceeds thereof) will be used to purchase or carry any Margin Stock or to extend credit for the purpose of purchasing or carrying any Margin Stock. Neither the making of any Loan nor the use of the proceeds thereof nor the occurrence of any other Credit Event will violate the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System.

7.09.       Tax Returns and Payments. Except where the failure to do so could not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect: (i) the Company and each of its Restricted Subsidiaries has timely filed or caused to be timely filed with the appropriate taxing authority all Tax returns, statements, forms and reports for Taxes (the “Returns”) required to be filed by, or with respect to the income, properties or operations of, the Company and/or any of its Restricted Subsidiaries and (ii) the Company and each of its Restricted Subsidiaries have paid all Taxes payable by them (including in its capacity as a withholding agent), other than those that are being contested in good faith by appropriate proceedings and fully provided for as a reserve on the financial statements of the Company and its Restricted Subsidiaries in accordance with GAAP. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, there is no action, suit, proceeding, investigation, audit or claim now pending or, to the best knowledge of the Company or any of its Restricted Subsidiaries, threatened in writing by any authority regarding any Taxes relating to the Company or any of its Restricted Subsidiaries.

7.10.       ERISA.

(a)          No ERISA Event has occurred or is reasonably expected to occur that could reasonably be expected to result in a Material Adverse Effect. Each Plan is in compliance in form and operation with its terms and with the applicable provisions of ERISA, the Code and other applicable Requirement of Law, except for such non-compliance that could not reasonably be expected to have a Material Adverse Effect.

(b)          There are no actions, suits or claims pending against or involving a Plan (other than routine claims for benefits) or, to the knowledge of the Company or any Restricted Subsidiary, threatened, which could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.


7.11.       The Security Documents.

(a)          The provisions of the Security Documents are effective to create in favor of the Collateral Agent for the benefit of the Secured Creditors legal, valid and enforceable security interests and Liens (except to the extent that the enforceability thereof may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Requirements of Law generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)) in and on all right, title and interest of the Credit Parties in the Collateral specified therein in which a security interest or Lien can be created under applicable Requirements of Law, and (i) in the case of the U.S. Security Agreement and the U.S. Collateral described therein, upon the timely and proper filing of UCC financing statements listing each applicable U.S. Credit Party, as a debtor, and the Collateral Agent, as secured party, in the secretary of state’s office (or other similar governmental entity) in the Location of such Credit Party, the Collateral Agent, for the benefit of the Secured Creditors, has a fully perfected security interest in and Lien on all right, title and interest in all of the U.S. Collateral (as described in the U.S. Security Agreement), subject to no other Liens other than Permitted Liens, to the extent perfection can be accomplished by filing of financing statements under applicable Requirements of Law in such Location, (ii) in the case of each Canadian Security Agreement and the Canadian Collateral described therein, proper filings of PPSA financing statements and other required filings and registrations required by any Canadian Security Agreement have been made to create a fully perfected security interest in and Lien on all right, title and interest in all of the Canadian Collateral, subject to no other Liens other than Permitted Liens, in each case, to the extent perfection can be accomplished under applicable Requirements of Law through these actions, (iii) in the case of each Dutch Security Agreement and the Dutch Collateral described therein, required registrations (in the case of the Dutch Security Agreement described in clause (iv) of the definition thereof) have been made, notices have been given or acknowledgements have been received (in each case, to the extent provided in such Dutch Security Agreement) to create a fully perfected security interest in and Lien on all right, title and interest in all of the Dutch Collateral described in such Dutch Security Agreement, subject to no other Liens other than Permitted Liens, in each case, to the extent perfection can be accomplished under applicable Requirements of Law through these actions, and (iv) upon execution of each Deposit Account Control Agreement, the Collateral Agent for the benefit of the Secured Creditors will have a first priority perfected security interest and Lien in each Deposit Account subject thereto.

(b)          Upon delivery, if any, in accordance with the Collateral and Guarantee Requirement, each Mortgage will create, as security for the obligations purported to be secured thereby, a valid and enforceable (except to the extent that the enforceability thereof may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Requirements of Law generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)) and, upon recordation in the appropriate recording office, perfected security interest in and mortgage Lien on the respective Mortgaged Property in favor of the Collateral Agent (or such other trustee as may be required or desired under local Requirement of Law) for the benefit of the Secured Creditors, superior and prior to the rights of all third Persons (except as may exist pursuant to the Permitted Encumbrances related thereto) and subject to no other Liens (other than Permitted Liens related thereto).

7.12.       Title to Real Estate. Each Canadian Credit Party and each U.S. Credit Party has good and indefeasible title to (or valid leasehold interests in) all of its Eligible Fee-Owned Real Estate and Mortgaged Property, free of Liens except Permitted Liens or any defects in title which do not constitute Liens or that individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect.


7.13.       Subsidiaries. On and as of the Closing Date, the Company has (i) no Subsidiary that is a FSHCO or CFC and (ii) no Subsidiaries other than those Subsidiaries listed on Schedule 7.13. Schedule 7.13 correctly sets forth, as of the Closing Date, the percentage ownership (direct and indirect) of the Company in each class of Capital Stock of each of its Subsidiaries and also identifies the direct owner thereof. There are no Canadian Subsidiaries or Dutch Subsidiaries that are owned, directly or indirectly, by the U.S. Parent Borrower.

7.14.       Compliance with Statutes; Sanctions; Patriot Act; Anti-Corruption Laws.

(a)          Each of the Company and each of its Restricted Subsidiaries, and, to the knowledge of the Company, each of their respective officers, is in compliance in all material respects with Anti-Terrorism Laws, Sanctions, the Patriot Act and AML Legislation. Each of the Company and each of its Restricted Subsidiaries is in compliance with all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property except where the failure to be in compliance would not reasonably be expected to have a Material Adverse Effect.

(b)          Neither the Company, nor any of its Subsidiaries, nor, to the knowledge of the Company and its Subsidiaries, any director, officer or employee thereof, is a Person that is, or is owned or controlled by any individual or entity that is (i) currently the subject or target of any Sanctions, (ii) a Canadian Blocked Person, (iii) included on OFAC’s List of Specially Designated nationals, HMT’s Consolidated List of Financial Sanctions Targets and the Investment Ban List or (iv) located, organized or resident in a Designated Jurisdiction. No part of the proceeds of any Loans or Letters of Credit hereunder will be used, by any Credit Party or any of its Subsidiaries for the purpose of funding any operations in, financing any investments or activities in or making any payments in violation of Sanctions, the Special Economics Measures Act (Canada), Anti-Terrorism Laws, AML Legislation and any similar Requirements of Law of Canada or the FCPA.

(c)          The Company and its Subsidiaries have conducted their businesses in compliance in all material respects with the United States Foreign Corrupt Practices Act of 1977 (“FCPA”), the UK Bribery Act 2010, any Canadian counterpart thereto applicable to the Company or such Subsidiary, and other similar anti-corruption legislation in other jurisdictions and have instituted and maintained policies and procedures reasonably designed to promote and achieve compliance with such laws.

7.15.       Investment Company Act. None of the Company or any Restricted Subsidiaries is an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and required to be registered as such.

7.16.       Environmental Matters.

The Company and each Restricted Subsidiary and their respective operations and facilities are in compliance with all Environmental Laws and have obtained, maintained and are in compliance with the requirements of all applicable permits, licenses and other approvals required to be issued under such Environmental Laws, except where the failure to comply with Environmental Laws or to obtain, maintain or comply with such permits, licenses or approvals would not reasonably be expected to have a Material Adverse Effect. There are no pending or, to the knowledge of the Company, threatened Environmental Claims which would reasonably be expected to result in liability to the Company or any Restricted Subsidiaries or with respect to any Real Property currently or to the knowledge of any Credit Party, formerly owned, leased or operated by the Company or any Restricted Subsidiaries, which would in each case be reasonably expected to have a Material Adverse Effect. To the knowledge of any Credit Party, there are no facts, activities, circumstances, conditions or occurrences that would be reasonably expected (i) to form the basis of an Environmental Claim against or result in liability to the Company or any Restricted Subsidiaries or (ii) to cause any Real Property owned, leased or operated by the Company or any Restricted Subsidiaries to be subject to any restrictions on the ownership, lease, occupancy or transferability of such Real Property by the Company or any Restricted Subsidiaries under any Environmental Law and that in any such case which would reasonably be expected to have a Material Adverse Effect.


7.17.       Labor Relations. Except as would not reasonably be expected to have a Material Adverse Effect, (a) as of the Closing Date, there are no strikes, lockouts, slowdowns or other labor disputes pending against the Company or any Restricted Subsidiaries or, to the knowledge of each Credit Party, threatened against the Company or any Restricted Subsidiaries, (b) to the knowledge of each Credit Party, there are no questions concerning union representation with respect to the Company or any Restricted Subsidiaries, (c) the hours worked by and payments made to employees of the Company or any Restricted Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable federal, state, provincial, municipal, local, or foreign Requirement of Law dealing with such matters and (d) to the knowledge of each Credit Party, no wage and hour department investigation has been made of the Company or any Restricted Subsidiaries.

7.18.       Intellectual Property. Except as would not reasonably be expected to have a Material Adverse Effect, the Company and each other Restricted Subsidiary owns or has the right to use all Intellectual Property used in, held for use in and otherwise necessary for the present conduct of their respective businesses. To the knowledge of each Credit Party, the operation of their respective businesses by the Company and each other Restricted Subsidiary does not infringe upon, misappropriate, violate or otherwise conflict with the Intellectual Property of any third party, except as such would not reasonably expected to have a Material Adverse Effect.

7.19.       Centre of Main Interests. The “centre of main interest”, as referred to in the Council Regulation (EC) No. 1346/2000 of 29 May 2000 on Insolvency Proceedings, of each Dutch Credit Party is and has always been located in the Netherlands. No Dutch Credit Party has any “establishment” (as referred to in that regulation) in any other jurisdiction other than in Germany.

7.20.       Borrowing Base Certificate. At the time of delivery of each Borrowing Base Certificate, assuming that any eligibility criterion that requires the approval or satisfaction of the Administrative Agent has been approved by or is satisfactory to the Administrative Agent, each Account reflected therein as eligible for inclusion in the Borrowing Base is an Eligible Account or Eligible Insured Letter of Credit Backed Account, the Inventory reflected therein as eligible for inclusion in the Borrowing Base constitutes Eligible Inventory and/or Eligible In-Transit Inventory, the Equipment reflected therein as eligible for inclusion in the Borrowing Base constitutes Eligible Equipment and the Real Property reflected therein as eligible for inclusion in the Borrowing Base constitute Eligible Fee-Owned Real Estate, in each case as of the fiscal month end (or week end) date for which such Borrowing Base Certificate is calculated.

7.21.       Dutch Works Council Act. At the Closing Date and at the time of delivery of each Borrowing Base Certificate, all requirements under the Dutch Works Councils Act have been complied with by each Dutch Credit Party and no advice is required to be sought from any other works council in the group of companies with which any of the Dutch Credit Parties forms a group in respect of the Transaction and the transactions contemplated thereby.

7.22.       Canadian Pension Plans. As of the Closing Date, there are no Canadian Pension Plans maintained, contributed or administered by any Canadian Credit Party or in respect of which any Canadian Credit Party has any liability or obligation.


Section 8      Affirmative Covenants. The Company and each other Restricted Subsidiary hereby covenants and agrees that on and after the Closing Date until the Payment in Full Date:

8.01.       Information Covenants. The Company will furnish to the Administrative Agent for further distribution to each Lender:

(a)          Quarterly Financial Statements. Within 45 days (or such earlier date on which the Company is required (giving effect to any extensions granted by the SEC) to make any public filing of such information) after the end of each of the first three fiscal quarters of each fiscal year, (i) the unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries as of the end of such fiscal quarterly accounting period and the related unaudited consolidated statements of operations, comprehensive earnings (loss), shareholders’ equity and cash flows for such fiscal quarterly accounting period and for the elapsed portion of the fiscal year ended with the last day of such quarterly accounting period, in each case setting forth comparative figures for the corresponding fiscal quarterly accounting period in the prior fiscal year, or in the case of the balance sheet, setting forth the comparable figures as of the end of the prior fiscal year, certified by a Responsible Officer of the Company (in such capacity as a Responsible Officer and not in an individual capacity) that they fairly present, in all material respects and in accordance with GAAP, the financial condition of the Company and its consolidated Subsidiaries as of the dates indicated and the results of their operations for the periods indicated, subject to changes resulting from audit and normal year-end audit adjustments and to the absence of footnotes, and (ii) management’s discussion and analysis of the important operational and financial developments during such quarterly accounting period.

(b)          Annual Financial Statements. Within 90 days (or such earlier date on which the Company is required (giving effect to any extensions granted by the SEC) to make any public filing of such information) after the end of each fiscal year, (i) the audited consolidated balance sheet of the Company and its consolidated Subsidiaries as of the end of such fiscal year and the related audited consolidated statements of operations, comprehensive earnings (loss), shareholders’ equity and cash flows for such fiscal year setting forth comparative figures, or as of the end of, for the preceding fiscal year, together with an opinion from Deloitte LLP or other independent certified public accountants of recognized national standing (which opinion (1) may be addressed to the board of directors and the shareholders of the Company and (2) shall be without a “going concern” or like qualification nor any qualification as to the scope of such audit), (ii) the unaudited consolidating balance sheet of each of (x) the U.S. Parent Borrower and the Domestic Subsidiaries, (y) the Canadian Parent Borrower and the Canadian Subsidiaries and (z) the Dutch Parent Borrower and the other Dutch Subsidiaries as of the end of such fiscal year and the related unaudited consolidating statements of operations, comprehensive earnings (loss), shareholders’ equity and cash flows by jurisdiction for the United States, Canada and the Netherlands for such fiscal year setting forth comparative figures for the preceding fiscal year, or in the case of the balance sheet, setting forth the comparable figures as of the end of the prior fiscal year, and (iii) management’s discussion and analysis of the important operational and financial developments during such fiscal year.

(c)          Perfection Certificate Update. At the time of delivery of the Section 8.01(b) annual financials, a certificate from a Responsible Officer certifying that there have been no changes to Schedules 1(a) and 2(a) of the Perfection Certificate since the Closing Date or, if later, since the date of the most recent certificate delivered pursuant to this Section 8.01(c), or if there have been any such changes, a list in reasonable detail of such changes (but, in each case with respect to this clause, only to the extent that such changes are required to be reported to the Collateral Agent pursuant to the terms of the Collateral and Guarantee Requirement) and whether the Company and the other Credit Parties have otherwise taken all actions required to be taken by them pursuant to the Collateral and Guarantee Requirement in connection with any such changes.


(d)          Annual Budget. Concurrently with the delivery of annual financial statements pursuant to Section 8.01(b), a consolidated annual plan, prepared in accordance with the Company’s normal accounting procedures applied on a consistent basis, for the next fiscal year, containing quarterly detail, including projected quarterly borrowing base levels for the fiscal year (it being understood that such plan has already been delivered under this Section 8.01(d) for the 2016 fiscal year).

(e)          Officer’s Certificates. At the time of the delivery of the Section 8.01 Financials, a Compliance Certificate from a Responsible Officer of the Company, certifying on behalf of the Company that, to such Responsible Officer’s knowledge after due inquiry, no Default or Event of Default has occurred and is continuing or, if any Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof, which certificate shall also set forth (i) the reasonably detailed calculations with respect to the Consolidated Fixed Charge Coverage Ratio for such period, whether or not a Financial Covenant Triggering Event shall have occurred and (ii) a list of all Restricted Subsidiaries of the Company specifying whether each such Subsidiary is a “Material Subsidiary” or an “Immaterial Subsidiary” for purposes of this Agreement.

(f)          Notices. Promptly after any Responsible Officer of the Company or any of its Restricted Subsidiaries obtains actual knowledge thereof, notice of (i) the occurrence of any event which constitutes a Default or an Event of Default or any event of default under the Second Lien Loan Agreement (or the Second Lien Notes Indenture, if applicable) or any refinancing thereof or other debt instrument in excess of the Threshold Amount, (ii) any litigation or governmental investigation or proceeding pending against the Company or any of its Subsidiaries (x) which, either individually or in the aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect or (y) with respect to any Credit Document, or (iii) any other event, change or circumstance that has had, or could reasonably be expected to have, a Material Adverse Effect.

(g)          Other Reports and Filings. (i) Promptly upon filing thereof, (x) copies of any filings (including on Form 10-K, 10-Q or 8-K) or registration statements with, and reports to, the SEC, the Ontario Securities Commission or any analogous Governmental Authority in any relevant jurisdiction by the Company or any of the Restricted Subsidiaries (other than amendments to any registration statement (to the extent such registration statement, in the form it becomes effective, is delivered to the Administrative Agent for further delivery to the Lenders), exhibits to any registration statement and, if applicable, any registration statements on Form S-8 and other than any filing filed confidentiality with the SEC, the Ontario Securities Commission or any analogous Governmental Authority in any relevant jurisdiction) and (y) copies of all financial statements, proxy statements, notices and reports that the Company or any of the Restricted Subsidiaries shall send to the holders of any publicly issued debt of the Company and/or any of the Restricted Subsidiaries in their capacity as such holders (in each case to the extent not theretofore delivered to the Administrative Agent for further delivery to the Lenders pursuant to this Agreement).

(h)          Financial Statements of Unrestricted Subsidiaries. If following the Closing Date, any Subsidiary (other than an Immaterial Subsidiary) is designated as an Unrestricted Subsidiary, then simultaneously with the delivery of each set of Section 8.01 Financials, a reconciliation reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated or consolidating financial statements.


(i)          Monthly Financial Statements. At any time when Total Excess Availability is less than the greater of (i) 17.5% of the Line Cap and (ii) $35,000,000, upon the written request of the Administrative Agent, within 10 calendar days after the end of each fiscal month, the unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries as of the end of such fiscal month and the related unaudited consolidated statement of operations, for such fiscal month and, with respect to the consolidated statement of operations only, the elapsed portion of the fiscal year ended with the last day of such fiscal month, certified by a Responsible Officer of the Company that they fairly present, in all material respects and in accordance with GAAP, the financial condition of the Company and its consolidated Subsidiaries as of the dates indicated and the results of their operations for the periods indicated, subject to changes resulting from audit and normal year-end audit adjustments and to the absence of footnotes; provided that the requirements to deliver monthly financial statements pursuant to this clause (k) shall terminate upon the date that Total Excess Availability shall have been at least equal to the greater of (x) 17.5% of the Line Cap and (y) $35,000,000 over a period of 30 consecutive calendar days.

(j)          Pension Plan Notices. The Company shall deliver to the Administrative Agent upon request (i) a complete copy of the most recent annual report (on Internal Revenue Service Form 5500 series, including, to the extent required, the related financial and actuarial statements and opinions and other supporting statements, certifications, schedules and information) filed with the Internal Revenue Service or other Governmental Authority of each Plan that is maintained or sponsored by the Company or a Restricted Subsidiary, (ii) copies of the annual actuarial report (including applicable schedules) with respect to each Canadian Pension Plan as filed with any applicable Governmental Authority, (iii) copies of annual financial statements or reports in respect of Canadian Pension Plan funds delivered to the appropriate Canadian pension authorities, and (iv) all documents relating to collective pension schemes and agreements relating to individual pensions, such as pension regulations, letters of pension, agreements with pension agencies (including business sector and company pension funds and insurers), notices or letters regarding possible exemption from compulsory participation in a pension scheme, and premium statements during the then-most recent three years.

(k)          Other Information. Subject to the limitation set forth in Section 12.14, from time to time, such other information or documents (financial or otherwise) with respect to the Company or any of its Restricted Subsidiaries (including in relation to any Canadian Pension Plans) as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request, including a listing of each Credit Party’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging; provided that neither the Company nor any Restricted Subsidiary will be required to disclose any information or documents (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by applicable Requirements of Law or any binding agreement or (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product.

(l)          Information required to be delivered pursuant to this Section shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information (including, in the case of certifications required pursuant to clause (a) and (b) above, the certifications accompanying any such report pursuant to Section 302 of the Sarbanes-Oxley Act of 2002), shall have been posted by the Administrative Agent on an IntraLinks or similar site to which the Lenders have been granted access or after written notice from the Company or shall be available on the website of the Securities and Exchange Commission at http://www.sec.gov within the time periods set forth in this Section 8.01. Information required to be delivered pursuant to this Section may also be delivered by electronic communications permitted by Section 12.03.


8.02.       Books, Records and Inspections.

(a)          The Company and any Restricted Subsidiary will keep proper books of record and accounts in which full, true and correct entries are made in conformity with GAAP (or applicable local standards) in all material respects.

(b)          The Company will permit the Administrative Agent, subject to reasonable advance notice to, and reasonable coordination with, the Company and during normal business hours, to visit and inspect the properties of any Borrower, at the Borrowers’ expense to the extent provided in clause (c) below, inspect, audit and make extracts from any Borrower’s corporate, financial or operating records, and discuss with its officers and employees and, in the presence of the Company, any Borrower or a Subsidiary of the Company, independent accountants (subject to such accountants’ customary policies and procedures) such Borrower business, financial condition, assets and results of operations; provided that excluding any such visits and inspections during the continuation of an Event of Default, the Administrative Agent shall not exercise such rights more often than once during any calendar year absent the existence of an Event of Default; provided, further that neither the Company nor any Restricted Subsidiary will be required to disclose, permit the inspection, audit, examination or making copies or abstracts of, or discussion of, any document, information or other matter (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent (or its representatives or contractors) is prohibited by applicable Requirement of Law or any binding agreement or (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product. In addition to the foregoing, the Administrative Agent shall be permitted to conduct one Field Examination and one Appraisal with respect to any Accounts or Inventory comprising the Borrowing Base during any 12-month period; provided, further, that (i) if at any time Total Excess Availability is less than the greater of (x) 17.5% of the Line Cap and (y) $35,000,000 for a period of 5 consecutive Business Days during such 12-month period, one additional Field Examination and one additional Appraisal will be permitted in such 12-month period and (ii) if an Event of Default has occurred and is continuing, there shall be no limit on the number of additional Field Examinations and Appraisals that shall be permitted at the Administrative Agent’s request; it being understood that such Field Examination or Appraisal once commenced, may be completed at, subject to Section 12.01, the Borrowers’ expense notwithstanding the cessation of such Event of Default. Neither the Administrative Agent nor any Lender shall have any duty to any Borrower to share any results of any Field Examination with any Borrower. The Company acknowledges that all Field Examinations and Appraisals are conducted by or for the Administrative Agent and Lenders for their purposes, and the Borrowers shall not be entitled to rely upon them.

(c)          Subject to Section 12.01(a), reimburse the Administrative Agent for any reasonable and documented out-of-pocket costs and expenses of the Administrative Agent in connection with (i) one examination per fiscal year of any Borrower’s books and records, (ii) if an Event of Default has occurred and is continuing, any examination per fiscal year of any Borrower’s books and records (without duplication of the examination referred to in clause (i) above) and (iii) Field Examinations and Appraisals of Collateral comprising the Borrowing Base in each case subject to the limitations on such examinations, audits and Appraisals permitted under the preceding paragraph and the succeeding paragraph.

(d)          Notwithstanding the foregoing, Equipment and Real Property Appraisals will not be required at any time following the delivery of the original Appraisals to the Administrative Agent on the Closing Date. The Company may at its option and its sole cost and expense, no more than three times after the Closing Date, elect to effect a reappraisal of the Eligible Equipment and Eligible Fee-Owned Real Estate (a “Fixed Asset Reappraisal Event”) by delivering written notice to the Administrative Agent requesting the retention by the Administrative Agent of appraisers reasonably satisfactory to them to commence Appraisals covering any Eligible Fee-Owned Real Estate and all Eligible Equipment to be included in the Borrowing Base calculation going forward; provided that any reappraisal of Eligible Fee-Owned Real Estate that is consummated after the Second Amendment Effective Date shall be accompanied by Phase I environmental assessments in accordance with the ASTM E1527-13 standard and in form and substance reasonably satisfactory to the Administrative Agent. Such environmental assessments shall be at the Company’s sole cost and expense. All reports of appraisers and all environmental assessments must be provided directly to the Administrative Agent who shall be entitled to rely thereon. Following the completion of any such additional Appraisals (and environmental assessments in connection with any Fixed Asset Reappraisal Event occurring after the Second Amendment Effective Date), the Company may choose to have the Borrowing Base calculated based on the updated information set forth in such Appraisals (and including only (i) the Eligible Equipment so appraised and (ii) Eligible Fee-Owned Real Estate so appraised and subject to such environmental assessments), until such time as a further additional Appraisal and environmental assessment is completed, if ever, on the applicable assets; provided that, the Company may not elect to conduct a Fixed Asset Reappraisal Event unless, on the date of such election, the Consolidated Fixed Charge Coverage Ratio for the most recently completed Test Period to occur on or prior to such date of election is no less than 1.0 to 1.0, and no Default or Event of Default exists and is continuing on such date. For the avoidance of doubt, (i) even if the Company chooses not to cause the Borrowing Base to be calculated based on such updated Appraisals, only the assets so appraised shall be included in future Borrowing Base calculations and the Administrative Agent may establish Reserves with respect to such assets in its Permitted Discretion, and (ii) following such notice of a Fixed Asset Reappraisal Event, once such Appraisals and environmental assessments have commenced, the Company shall not have the option to discontinue such Appraisals and environmental assessments. The Company acknowledges that all environmental assessments with respect to Eligible Fee-Owned Real Estate and all Appraisals are conducted by or for the Administrative Agent and Lenders for their purposes, and the Borrowers shall not be entitled to rely upon them.


8.03.       Maintenance of Property; Insurance.

(a)          The Company and each Restricted Subsidiary will, (i) keep all tangible property necessary to the business of the Company and such Restricted Subsidiary in good working order and condition, ordinary wear and tear, casualty and condemnation excepted, except to the extent that the failure to so keep such property in good working order and condition would not reasonably be expected to have a Material Adverse Effect, (ii) maintain with financially sound and reputable insurance companies (as determined in good faith by the Company) insurance on all such property and the businesses of the Company and such Restricted Subsidiary against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar businesses, of such types and in such amounts (after giving effect to any self-insurance reasonably and customary for similarly situated Persons who are engaged in the same or similar businesses as the Company and its Restricted Subsidiaries) as are customarily carried under similar circumstances by such other Persons (in the good faith determination of the Company) and in accordance with industry practice for companies similarly situated owning similar properties and engaged in similar businesses as the Company and such Restricted Subsidiary and (iii) furnish to the Administrative Agent, upon its reasonable request therefor, evidence as to its compliance with the foregoing clause (ii).

(b)          If the improvements on a Mortgaged Property are at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to which flood insurance has been made available under the Flood Insurance Laws (including as a result of re-zoning), then the Relevant Borrower shall, or shall cause the applicable Credit Party to (i) maintain, with a financially sound and reputable insurer, flood insurance in an amount and otherwise sufficient to comply with all applicable Requirements of Law promulgated pursuant to the Flood Insurance Laws and (ii) subject to the proviso in clause (f) of the definition of “Collateral and Guarantee Requirement”, deliver to the Administrative Agent evidence of such insurance in form and substance reasonably acceptable to the Administrative Agent and the U.S. Tranche A Revolving Lenders, including, without limitation, evidence of annual renewals of such insurance.


(c)          The Company and each Restricted Subsidiary will at all times keep its property constituting Collateral insured in favor of the Collateral Agent, and all policies or certificates (or certified copies thereof) with respect to such insurance (and any other insurance maintained by the Company and/or such Restricted Subsidiaries) (i) shall be endorsed to the Administrative Agent’s reasonable satisfaction for the benefit of the Collateral Agent (including, without limitation, by naming the Collateral Agent as additional loss payee or additional insured, as applicable), (ii) shall, in the case of Canadian Collateral, include an Insurance Bureau of Canada, Form 3000, mortgagee endorsement, and (iii) if agreed by the insurer (which agreement the Relevant Borrower shall use commercially reasonable efforts to obtain), shall state that such insurance policies shall not be canceled without at least 30 days’ prior written notice thereof (or, with respect to non-payment of premiums, 10 days’ prior written notice) by the respective insurer to the Collateral Agent; provided that the requirements of this Section 8.03(c) shall not apply to (x) insurance policies covering (1) directors and officers, fiduciary or other professional liability, (2) employment practices liability, (3) workers’ compensation liability, (4) automobile and aviation liability, (5) health, medical, dental and life insurance, and (6) such other insurance policies and programs as the Collateral Agent may approve; and (y) self-insurance programs.

(d)          If the Company or any Restricted Subsidiary shall fail to maintain insurance in accordance with this Section 8.03, after any applicable grace period, the Administrative Agent shall have the right (but shall be under no obligation), after 10 Business Days’ notice to the Company, to procure such insurance and the Credit Parties jointly and severally agree to reimburse the Administrative Agent for all reasonable costs and expenses of procuring such insurance.

8.04.       Existence; Franchises. The Company and any Restricted Subsidiary will (a) do all things necessary to preserve and keep in full force and effect the Company’s existence and (b) in the case of the Company and such Restricted Subsidiaries, its and their rights, franchises, licenses, permits, and Intellectual Property, in each case under this clause (b), to the extent the failure to do so would reasonably be expected to have a Material Adverse Effect; provided, however, that nothing in this Section 8.04 shall prevent (i) sales and licenses of assets and other transactions by the Company or such Restricted Subsidiaries in accordance with Section 9.02 or Section 9.11, (ii) the abandonment or allowing the expiration or lapse by the Company or such Restricted Subsidiaries of any rights, franchises, licenses, permits, or Intellectual Property that the Company reasonably determines are no longer material to the operations of the Company and such Restricted Subsidiaries taken as a whole, or (iii) the withdrawal by the Company or such Restricted Subsidiaries of its qualification as a foreign corporation, partnership, limited liability company or unlimited liability company, as the case may be, in any jurisdiction if such withdrawal could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

8.05.       Compliance with Statutes, etc. The Company and any Restricted Subsidiary will comply with all applicable Requirements of Law, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including applicable Requirements of Law relating to ERISA, Canadian Employee Benefits Legislation, OFAC, FCPA, Anti-Terrorism Laws, AML Legislation and Patriot Act), except in each case such noncompliance as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


8.06.       Compliance with Environmental Laws. The Company and any Restricted Subsidiary will comply with all Environmental Laws and permits applicable to, or required by, the ownership, lease or use of Real Property by the Company or any Restricted Subsidiary, and will promptly pay or cause to be paid all costs and expenses incurred in connection with such compliance, and will keep or cause to be kept all such Real Property free and clear of any Liens imposed pursuant to such Environmental Laws (other than Liens imposed on leased Real Property resulting from the acts or omissions of the owner of such leased Real Property or of other tenants of such leased Real Property who are not within the control of the Company), except, in each case, where the failure to do so would not reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Restricted Subsidiary will generate, use, treat, store, Release or permit the generation, use, treatment, storage, or Release of Hazardous Materials at, on or under any Real Property by the Company or any Restricted Subsidiary, or transport or permit the transportation of Hazardous Materials to or from any such Real Property, except in compliance with all Environmental Laws or where such non-compliance would not reasonably be expected to have a Material Adverse Effect.

8.07.       ERISA. As soon as reasonably practicable and, in any event, within ten (10) Business Days after the Company or any Restricted Subsidiary knows of the occurrence of any of the following, the Company will deliver to the Administrative Agent a certificate setting forth a reasonable level of detail as to such occurrence and the action, if any, that the Company, such Restricted Subsidiary or, to the knowledge of the Company, an ERISA Affiliate is required or proposes to take, together with any notices required or proposed to be given or filed by the Company, such Restricted Subsidiary, the Plan administrator or, to the extent available, such ERISA Affiliate to or with the PBGC or any other Governmental Authority, or a Plan participant and any notices received by the Company, such Restricted Subsidiary or, to the extent available, such ERISA Affiliate from the PBGC or any other Governmental Authority, or a Plan participant with respect thereto: that (a) an ERISA Event has occurred that is reasonably expected to result in a Material Adverse Effect; or (b) the Company, any Restricted Subsidiary or, to the knowledge of the Company, any ERISA Affiliate adopts, or commences contributions to, any Plan subject to Section 412 of the Code, or adopts any amendment to a Plan subject to Section 412 of the Code which is reasonably expected to result in a Material Adverse Effect.

8.08.       Payment of Taxes. Each of the Company and any Restricted Subsidiary will pay and discharge all Taxes imposed upon it or upon its income or profits or upon any properties belonging to it, prior to the date on which penalties attach thereto and all lawful claims which, if unpaid, might become a Lien or charge upon any properties of the Company or any Restricted Subsidiary not otherwise permitted under Section 9.01(iv); provided that neither the Company nor any Restricted Subsidiary shall be required to pay any such Tax or claim which is being contested in good faith and by appropriate proceedings if it has maintained adequate reserves with respect thereto in accordance with GAAP, or where the failure to pay such Tax or claim would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

8.09.       Use of Proceeds. Each Borrower will use the proceeds of the Loans only as provided in Section 7.08. No part of the proceeds of any Loans or Letters of Credit hereunder will be used, by any Credit Party or any of its Subsidiaries for the purpose of funding any operations in, financing any investments or activities in or making any payments in violation of Sanctions, the Special Economics Measures Act (Canada), Anti-Terrorism Laws, AML Legislation and any similar Requirements of Law of Canada or the FCPA.

8.10.       Additional Security; Further Assurances; etc.

(a)          Each Borrower and each Wholly-Owned Restricted Subsidiary which is a Domestic Subsidiary, a Canadian Subsidiary or a Dutch Subsidiary, but excluding any Excluded Subsidiary, will promptly grant to the Collateral Agent for the benefit of the Secured Creditors perfected security interests in such Collateral of such Borrower and such Restricted Subsidiaries as are not covered by Security Documents then in effect, in order to comply with the Collateral and Guarantee Requirement.


(b)          Subject to the provisions of the Collateral and Guarantee Requirement and the other limitations set forth in this Agreement or the applicable Security Documents, with respect to any Person that is or becomes after the Closing Date a Wholly-Owned Restricted Subsidiary that is either a Domestic Subsidiary, a Canadian Subsidiary, or a Dutch Subsidiary, or any such Wholly-Owned Restricted Subsidiary that ceases to constitute an Excluded Subsidiary, but excluding any Excluded Subsidiary, the applicable Credit Party that is the parent of such Wholly-Owned Restricted Subsidiary or such Wholly-Owned Restricted Subsidiary, as applicable, shall within 30 days (other than with respect to Real Property, which actions shall be required only to the extent, and pursuant to the timing, required by clause (f) of this Section 8.10) (or such longer period as the Administrative Agent may reasonably agree) of such event, (i) cause such new Subsidiary (A) to execute a joinder agreement to this Agreement, in the form attached as Exhibit E hereto, to join as a Guarantor hereto and a joinder agreement to each applicable Security Agreement, substantially in the form annexed thereto, or, if applicable, each additional Security Document in lieu of such joinder, provided that such additional Security Document shall be substantially similar in form and substance to such applicable Security Agreement and (B) to take all actions, if any, reasonably necessary or advisable in the opinion of the Administrative Agent to cause the Lien created by the applicable Security Agreement to be duly perfected to the extent required by the Collateral and Guarantee Requirement in accordance with all applicable law, including the filing of financing statements as required by the Collateral and Guarantee Requirement; and (ii) at the reasonable request of the Administrative Agent, deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agents, the Collateral Agent and the other Lenders, of counsel to the Credit Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 8.10(b) (provided that the Administrative Agent agrees that any such opinion that is similar in scope and substance to the opinion of the applicable counsel to the Credit Parties delivered on the Closing Date with respect to the Security Documents delivered on the Closing Date shall be reasonably acceptable to the Administrative Agent).

(c)          Subject to the limitation set forth in the Collateral and Guarantee Requirement and the other limitations set forth in this Agreement or the applicable Security Documents, each of the Credit Parties will, at the expense of the Company, make, execute, endorse, acknowledge, file and/or deliver to the Administrative Agent, promptly, upon the reasonable request of the Administrative Agent, at Company’s expense, any document or instrument supplemental to or confirmatory of the Security Documents required by the Collateral and Guarantee Requirement that are deemed by the Administrative Agent reasonably necessary for the continued validity, perfection (or the equivalent with respect to the Canadian Credit Parties under applicable law in Canada and with respect to the Dutch Credit Parties, under applicable law in the Netherlands or England) and priority of the Liens on the Collateral covered thereby subject to no other Liens except for Permitted Liens or as otherwise permitted by the applicable Security Document.

(d)          Each of the Credit Parties agrees that each action required by clauses (a) through (c) of this Section 8.10 shall be completed as soon as reasonably practicable, after such action is required to be taken pursuant to such clauses or requested to be taken by the Administrative Agent or the Required Lenders (or such longer period as the Administrative Agent shall otherwise reasonably agree), as the case may be; provided that, without limiting (x) any requirement to take any Additional Account Security Action set forth in the definition of the term “Eligible Accounts” solely for the purpose of determining the eligibility of Accounts originated by any Borrower that are owed from Account Debtors located in any Account Debtor Approved Country (other than the United States, Canada or the Netherlands) for inclusion in the applicable Borrowing Base or (y) any requirement to take any Additional Inventory Security Action set forth in the definition of the term “Eligible Inventory” solely for the purpose of determining the eligibility of any Inventory owned by a Dutch Borrower and located in the United Kingdom, France or Germany for inclusion in the Dutch Borrowing Base, in no event will the Credit Parties be required to take any action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section 8.10.


(e)          (i) During the continuance of a Cash Dominion Period and (ii) after delivery of a written notice thereof by the Administrative Agent to the Company, to request Account Debtor notifications in the relevant Account Debtor Approved Countries, the Relevant Borrowers shall provide notice to the Account Debtors in such requested Account Debtor Approved Countries of the Collateral Agent’s security interest in the Accounts owing by such Account Debtors.

(f)          Subject to the limitation set forth in the Collateral and Guarantee Requirement and the other limitations set forth in this Agreement or the applicable Security Documents, with respect to any Material Real Property acquired by any U.S. Credit Party or any Canadian Credit Party after the Closing Date (or, in each such case, with respect to any Person that is or becomes after the Closing Date a U.S. Credit Party or a Canadian Credit Party, any Material Real Property owned by such Credit Party as to the date such Person became a Credit Party), within 90 days after such acquisition (or designation or formation as a Credit Party) (or with respect to any Material Real Property under construction or improvement, within 90 days after substantial completion thereof) (or such later date as the Administrative Agent may agree in its reasonable discretion) such Credit Party shall (i) grant to the Collateral Agent for the benefit of the Secured Creditors security interests in and Mortgages on such Material Real Property pursuant to documentation substantially in the form of Mortgage delivered to the Collateral Agent with respect to the Mortgaged Properties set forth on Schedule 5.15 as of the Closing Date or in such other form as is reasonably satisfactory to the Administrative Agent (each, an “Additional Mortgage”), which security interest and mortgage shall constitute valid and enforceable Liens subject to no other Liens except Permitted Liens, at the time of recordation thereof, and (ii) record or file, and cause each such Credit Party to record or file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, preserve and protect the Liens in favor of the Collateral Agent (for the benefit of the Secured Creditors) required to be granted pursuant to the Additional Mortgages and pay, and cause each such Credit Party to pay, in full, all recording and similar taxes, fees and other charges required to be paid in connection with such recording or filing, and deliver to the Collateral Agent all Related Real Estate Documents in connection with such additional Mortgaged Properties.

8.11.       Post-Closing Actions. Each of the Credit Parties agrees that it will complete each of the actions described below as soon as commercially reasonable and by no later than the date set below with respect to such action or such later date as the Administrative Agent may reasonably agree:

(a)          with respect to each Real Property listed on Schedule 5.15, the relevant Credit Parties shall cause to be delivered to the Collateral Agent each of the Related Real Estate Documents within 90 days following the Closing Date;

(b)          the Administrative Agent shall have received the appropriate endorsements for the certificates of insurance delivered pursuant to Section 5.12 within 30 days following the Closing Date;

(c)          within five (5) Business Days following the Closing Date, the Administrative Agent shall have received (x) the Dutch Pledges Over Shares, which Dutch Pledges Over Shares (i) shall have been duly authorized, executed and delivered by each Dutch Credit Party party thereto and (ii) shall be in form and substance reasonably satisfactory to the Collateral Agent and (y) an opinion from NautaDutilh, special Dutch counsel to the Credit Parties, addressed to the Administrative Agents, the Collateral Agent and each of the Lenders party hereto on such date in form and substance reasonably satisfactory to the Administrative Agent;


(d)          within ten (10) Business Days following the Closing Date, the Company and any applicable Subsidiaries of the Company shall discharge, or cause to be discharged, each and every filing, registration or recordation made in any province or territory of Canada (other than Ontario) that perfects, hypothecates or records a Lien made or created pursuant to, or in connection with, the Second Lien Loan Agreement and any loan documents thereunder, and the Company and any applicable Subsidiaries of the Company shall forthwith thereafter provide to the Collateral Agent evidence of such discharge reasonably requested by the Collateral Agent including, without limitation, Lien searches conducted in the applicable provinces and territories of Canada evidencing the complete discharge of such Liens; and[Reserved];

(e)          within five (5) Business Days following the Closing Date, the Company shall deliver to the Administrative Agent the certificate representing Equity Interests of SunOpta Global Organic Ingredients, Inc. (and the accompanying irrevocable undated stock power or stock transfer form);

(f)          within five (5) Business Days following the Closing Date, the Collateral Agent shall have received the Subordinated Intercompany Note duly executed by the Company and each Restricted Subsidiary, together with undated instruments of transfer with respect thereto endorsed in blank; and

(g)          within thirty (30) days following the Closing Date, the Administrative Agent shall have received (i) a draft of the Quebec Hypothec and RDPRM registration form for the Collateral Agent’s approval, and (ii) evidence that such Quebec Hypothec shall have been duly authorized, executed and delivered by Tradin Organics USA LLC. Once approved by the Collateral Agent, and subsequent to the execution and requisite filing/registration of same, the Administrative Agent shall have received (i) RDPRM and Lien searches and other evidence reasonably satisfactory to the Collateral Agent that such filing/registration are the only Liens against Tradin Organics USA LLC or the Collateral thereof except Liens permitted by Section 9.01 hereof, and (ii) an opinion from Miller Thomson LLP, special Quebec counsel to Tradin Organics USA LLC, addressed to the Administrative Agents, the Collateral Agent and each of the Lenders party hereto on such date in form and substance reasonably satisfactory to the Administrative Agent.

8.12.       Dutch Works Council Act. Each Dutch Credit Party shall comply with the requirements of the Dutch Works Council Act in respect of the Transaction and the transactions contemplated thereby.


8.13.       Certain Additional Account Security Actions and Additional Inventory Security Actions. (a) Each applicable Borrower shall endeavor to satisfy the Additional Account Security Actions with respect to Accounts originated by such Borrower that are owed from Account Debtors located in the United Kingdom, France and Germany within thirty (30) calendar days after the Closing Date and (b) each applicable Dutch Borrower shall endeavor to satisfy the Additional Inventory Security Actions with respect to Inventory located in the United Kingdom that is owned by such Dutch Borrower within thirty (30) calendar days after the Closing Date; provided that the failure by any Borrower to take such Additional Account Security Actions and/or Additional Inventory Security Actions pursuant to this Section 8.13 shall not constitute a Default or an Event of Default and the effect of any such failure shall be limited to the impact, if any, on the eligibility of such Accounts or Inventory, as applicable, for inclusion in the applicable Borrowing Base pursuant to the rules set forth in the definitions of the terms “Eligible Accounts” and “Eligible Inventory”.

8.14.       Designation of Unrestricted Subsidiaries. The Company may at any time after the Closing Date designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary by written notice to the Administrative Agent; provided that (i) immediately before and after such designation, no Event of Default shall have occurred and be continuing, (ii) immediately after giving effect to such designation, the Distribution Conditions shall be satisfied on a pro forma basis, (iii) in the case of any Borrower designated as an Unrestricted Subsidiary, all Loans outstanding to such Borrower shall be repaid in full or assumed by another Borrower and all Letters of Credit issued for the account of such Borrower shall have expired or been terminated or assumed by another Borrower, (iv) in the case of the designation of any Subsidiary as an Unrestricted Subsidiary, such designation shall constitute an Investment in such Unrestricted Subsidiary (calculated as an amount equal to the aggregate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in such Subsidiary), and such Investment shall be permitted under Section 9.05, (v) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for the purpose of (I) the Second Lien Loan Agreement (or the Second Lien Notes Indenture, if applicable), or (II) any other Contractual Requirement governing any Indebtedness, in each case of this clause (II), with a principal amount in excess of the Threshold Amount, (vi) immediately after giving effect to the designation of an Unrestricted Subsidiary as a Restricted Subsidiary, the Company shall comply with the provisions of Section 8.10 with respect to such designated Restricted Subsidiary, (vii) no Restricted Subsidiary may be a Subsidiary of an Unrestricted Subsidiary, (viii) in the case of the designation of any Subsidiary as an Unrestricted Subsidiary, no recourse whatsoever (whether by contract or by operation of law or otherwise) may be had to the Company or any Restricted Subsidiary or any of their respective properties or assets for any obligations of such Unrestricted Subsidiary except as permitted by Section 9.05 and (ix) the Company shall have delivered to the Administrative Agent and each Lender a certificate executed by Responsible Officer, certifying to the best of such officer’s knowledge, compliance with the requirements of the preceding clauses (i) through (vii), inclusive, and containing the calculations (in reasonable detail) required by the preceding clause (ii). The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (A) the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time and (B) a return on any Investment by the Company in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the Fair Market Value at the date of such designation of the Company’s Investment in such Subsidiary.

8.15.       Collateral Monitoring and Reporting.

(a)          Borrowing Base Certificates. By the 20th calendar day after the end of each fiscal month of the Company, the Company shall deliver to the Administrative Agent (and the Administrative Agent shall promptly deliver same to Lenders) a Borrowing Base Certificate as of the close of business of the previous month; provided that, if a Weekly Reporting Event shall have occurred and be continuing, the Company shall deliver to the Administrative Agent weekly Borrowing Base Certificates by Wednesday of every week prepared as of the close of business on Friday of the previous week, which weekly Borrowing Base Certificates shall be in standard form unless otherwise reasonably agreed to by the Administrative Agent; it being understood that any Borrowing Base Certificates delivered on a weekly basis will be limited to updating the balances of the Accounts as of the most recently ended week. All information (including calculation of Total Excess Availability) in a Borrowing Base Certificate shall be certified by the Company. The Administrative Agent may from time to time adjust any such report to the extent any information or calculation is inaccurate or does not comply with this Agreement in accordance with the definitions of “Canadian Borrowing Base”, “Dutch Borrowing Base”, “U.S. Tranche A Borrowing Base” and “U.S. Tranche B Borrowing Base”.


(b)          Records and Schedules of Accounts.

(i)           Each Borrower shall keep accurate and complete records of its Accounts in all material respects, including all payments and collections thereon, and the Company shall submit to the Administrative Agent sales, collection, reconciliation and other reports at the time of delivery of each Borrowing Base Certificate. The Company shall also provide to the Administrative Agent, at the time of delivery of each Borrowing Base Certificate, a summary aged trial balance of all Accounts as of the end of the preceding month.

(ii)          During (A) any Cash Dominion Period, whether or not a Default or Event of Default exists or (B) the continuance of an Event of Default, the Administrative Agent shall have the right, in the name of the Administrative Agent, any designee of the Administrative Agent or any Credit Party, to verify the validity, amount or any other matter relating to any Accounts of the Credit Parties by mail, telephone or otherwise. The Credit Parties shall cooperate fully with Administrative Agent in an effort to facilitate and promptly conclude any such verification process.

(c)          Cash Management.

(i)          Within ninety (90) days after the Closing Date (or such longer period as the Administrative Agent may reasonably agree), (A) the U.S. Parent Borrower shall have opened an account maintained by the U.S. Administrative Agent at BANA in the United States, under its sole dominion and control (the “U.S. Dominion Account”), (B) the Company shall have opened an account maintained by the Canadian Administrative Agent at BANA in Canada, under its sole dominion and control (the “Canadian Dominion Account”), and (C) the Dutch Parent Borrower shall have opened an account with a depository bank reasonably satisfactory to the Administrative Agent in the United Kingdom, over which a perfected first priority security interest and control has been granted to the Collateral Agent pursuant to an English Control Agreement (the “Dutch Dominion Account” and, together with the U.S. Dominion Account and the Canadian Dominion Account, the “Dominion Accounts”).

(ii)          Within ninety (90) days after the Closing Date (or such longer period as the Administrative Agent may reasonably agree), the U.S. Credit Parties shall have moved their Deposit Accounts into which the proceeds or products of Collateral may have been deposited to BANA (the “U.S. Collection Bank”) in the United States (and shall have closed any Deposit Accounts (other than Excluded Accounts) owned by them at any other financial institution and into which the proceeds or products of Collateral may have been deposited unless reasonably agreed by the Administrative Agent), and shall have entered into a Deposit Account Control Agreement reasonably satisfactory to the Administrative Agent, with respect to each such Deposit Account (collectively, the “U.S. Collection Accounts”). All U.S. Collection Accounts shall thereafter be maintained with BANA. No U.S. Credit Party shall after the Closing dDate hereof open or establish any Deposit Account into which the proceeds or products of Collateral may be deposited with any financial institution, other than BANA. Each U.S. Credit Party shall instruct all Account Debtors of the U.S. Credit Parties to remit all payments to the “P.O. Boxes” or “Lockbox Addresses” of the U.S. Collection Bank (or to remit such payments to the U.S. Collection Bank by electronic settlement) with respect to all Accounts of such Account Debtor, which remittances shall be collected by the U.S. Collection Bank and deposited in a U.S. Collection Account. Each U.S. Credit Party hereby agrees that all cash that constitutes proceeds or products of Collateral received by such U.S. Credit Party in any Deposit Account that is not a U.S. Collection Account will be promptly transferred into a U.S. Collection Account. There shall be at all times at least one Collection Account in the U.S. Each Deposit Account Control Agreement relating to a U.S. Collection Account shall (unless otherwise reasonably agreed by the Administrative Agent) include provisions that allow, during any Cash Dominion Period, for all collected amounts held in such U.S. Collection Account from and after the date requested by the Administrative Agent, to be sent by ACH or wire transfer or similar electronic transfer no less frequently than once per Business Day to the U.S. Dominion Account. Subject to the terms of the respective Security Document and to Section 10.11, all amounts received in the U.S. Dominion Account during the existence of a Cash Dominion Period shall be applied (and allocated) by the Administrative Agent on a daily basis in accordance with Section 2.09(b)(vi).


(iii)          Within ninety (90) days after the Closing Date (or such longer period as the Administrative Agent may reasonably agree), the Canadian Credit Parties shall have used commercially reasonable efforts to enter into a Deposit Account Control Agreement reasonably satisfactory to the Administrative Agent, with respect to each Deposit Account (other than Excluded Accounts) owned by them in the Canada and into which the proceeds or products of Collateral may have been deposited and existing as of such date; provided that to the extent a Deposit Account Control Agreement has not been obtained on or prior to the date that is ninety (90) days after the Closing Date (or such later date as the Administrative Agent may reasonably agree) over any such Deposit Account, the Canadian Credit Parties shall have moved such Deposit Account to BANA, or another depositary bank who has entered into such a Deposit Account Control Agreement (collectively, the “Canadian Collection Accounts”. Each Canadian Credit Party shall instruct all Account Debtors of the Canadian Credit Parties to remit all payments to the “P.O. Boxes” or “Lockbox Addresses” of the depositary banks maintaining Canadian Collection Accounts (or to remit such payments to the applicable depositary bank by electronic settlement) with respect to all Accounts of such Account Debtor, which remittances shall be collected by such depositary banks and deposited in a Canadian Collection Account. Each Canadian Credit Party hereby agrees that all cash that constitutes proceeds or products of Collateral received by such Canadian Credit Party in any Deposit Account that is not a Canadian Collection Account will be promptly (and, in any event within two Business Days) transferred into a Canadian Collection Account. There shall be at all times at least one Collection Account in Canada. Each Deposit Account Control Agreement relating to a Canadian Collection Account shall (unless otherwise reasonably agreed by the Administrative Agent ) include provisions that allow, during any Cash Dominion Period, for all collected amounts held in such Canadian Collection Account from and after the date requested by the Administrative Agent, to be sent by ACH or wire transfer or similar electronic transfer no less frequently than once per Business Day to the Canadian Dominion Account. Subject to the terms of the respective Security Document and to Section 10.11, all amounts received in the Canadian Dominion Account during the existence of a Cash Dominion Period shall be applied (and allocated) by the Administrative Agent on a daily basis in accordance with Section 2.09(b)(vi).

(iv)          Within ninety (90) days after the Closing Date (or such longer period as the Administrative Agent may reasonably agree), the Dutch Credit Parties shall have (A) used commercially reasonable efforts to open an account with a depositary bank reasonably satisfactory to the Administrative Agent in the United Kingdom and (B) grant a perfected first priority security interest and control over any such account to the Collateral Agent pursuant to an English Control Agreement and a fixed charge over any such account governed by English law between the relevant Dutch Credit Party and the Collateral Agent; provided that to the extent an English Control Agreement has not been obtained on or prior to the date that is ninety (90) days after the Closing Date (or such later date as the Administrative Agent may reasonably agree) over any such account, the Dutch Credit Parties shall have opened such account to BANA, or another depositary bank who has entered into such a English Control Agreement (the “Dutch Collection Account”). Within 120 days after the Closing Date (or such longer period as the Administrative Agent may reasonably agree), the Dutch Credit Parties shall instruct all Account Debtors of the Dutch Credit Parties to remit all payments to the “P.O. Boxes” or “Lockbox Addresses” of the depositary bank maintaining the Dutch Collection Account (or to remit such payments to such depositary bank by electronic settlement) with respect to all Accounts of such Account Debtor, which remittances shall be collected by such depositary bank and deposited in the Dutch Collection Account. Each Credit Party hereby agrees that from and after the date the Dutch Collection Account is opened, all amounts held in Deposit Accounts owned by the Dutch Credit Parties in the Netherlands and into which the proceeds and products of Collateral may be deposited (other than Excluded Accounts) shall be sent by ACH or wire transfer or similar electronic transfer no less frequently than once per Business Day to the Dutch Collection Account. The English Control Agreement relating to the Dutch Collection Account shall (unless otherwise reasonably agreed by the Administrative Agent) include provisions that allow, during any Cash Dominion Period, for all collected amounts held in such Dutch Collection Account from and after the date requested by the Administrative Agent, to be sent by ACH or wire transfer or similar electronic transfer no less frequently than once per Business Day to the Dutch Dominion Account. Subject to the terms of the respective Security Documents and to Section 10.11, all amounts received in the Dutch Dominion Account during the existence of a Cash Dominion Period shall be applied (and allocated) by the Administrative Agent on a daily basis in accordance with Section 2.09(c) .


(v)          During the continuance of a Cash Dominion Event, at the request of the Administrative Agent, each of the relevant Credit Parties shall provide the Administrative Agent with an accounting of the contents of the Collection Accounts not maintained at BANA, which shall identify, to the reasonable satisfaction of the Administrative Agent, the proceeds from the Collateral which were deposited into a Collection Account and swept into a Dominion Account.

(vi)         The Credit Parties (other than the Dutch Credit Parties) may close Deposit Accounts and/or open or acquire new Deposit Accounts, subject to the limitations set forth above, and the use of commercially reasonable efforts to execute and deliver to the Administrative Agent appropriate Deposit Account Control Agreements (except with respect to Excluded Accounts) consistent with the provisions of this Section 8.15, within ninety (90) days of the opening or acquisition thereof (as may be extended by the Administrative Agent acting reasonably), it being understood that no such new Deposit Account shall qualify as a U.S. Collection Account or Dutch Collection Account until such Deposit Account Control Agreement is obtained. So long as no Cash Dominion Period is continuing, the Credit Parties may direct the manner of disposition of funds in the Collection Accounts (including transfers to the Excluded Accounts) and any amounts remaining on deposit in any Dominion Account shall promptly be transferred by the Administrative Agent or relevant depositary bank to a Collection Account specified by the Company and may not be used by the Administrative Agent to prepay the Loans or other Obligations thereafter unless and until a new Cash Dominion Period shall occur.

(vii)        The Dominion Accounts shall at all times be under the sole dominion and control of the Collateral Agent. Each Credit Party hereby acknowledges and agrees that (i) such Credit Party has no right of withdrawal from the Dominion Accounts, except as specified in clause (vi) above, (ii) the funds on deposit in the Dominion Accounts shall at all times continue to be Collateral for all of the Obligations, and (iii) the funds on deposit in the Dominion Accounts shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 8.15, during the continuation of a Cash Dominion Period, any Credit Party receives or otherwise has dominion and control of any proceeds or collections of Collateral (other than amounts constituting proceeds of Indebtedness (including the Loans)), such proceeds and collections shall be held in trust by such Credit Party for the Secured Creditors, shall not be commingled with any of such Credit Party’s other funds or deposited in any account of such Credit Party and shall promptly be deposited into the Dominion Accounts or dealt with in such other fashion as such Credit Party may be instructed by the Administrative Agent.


(d)          Administration of Deposit Accounts. Schedule 8.15(d) sets forth, as of the Closing Date, all Deposit Accounts (other than Excluded Accounts) maintained by the Credit Parties, including all Dominion Accounts. The applicable Credit Party shall be the sole account holder of each Deposit Account (other than any Excluded Account) into which the proceeds or products of any Collateral are, or are intended to be, deposited and shall not allow any other Person to have a perfected Lien (other than Permitted Liens) on any Deposit Account or any property deposited therein. On each date on which Section 8.01 Financials are required to be delivered to the Administrative Agent, each Credit Party shall notify the Administrative Agent of any opening or closing of a Deposit Account (other than any Excluded Account) into which the proceeds or products of any Collateral are, or are intended to be, deposited and, with the consent of the Administrative Agent, will amend Schedule 8.15(d) to reflect the same.

(e)          Inventory, Equipment and Real Estate. Each Borrower shall keep accurate and complete records of its Inventory, Equipment and Real Property, in all material respects, including costs and daily withdrawals and additions, and shall submit to the Administrative Agent Inventory, Equipment, Real Property and reconciliation reports at the time of delivery of each Borrowing Base Certificate.

Section 9      Negative Covenants. The Company and any Restricted Subsidiary hereby covenant and agree that on and after the Closing Date and until the Payment in Full Date:

9.01.       Liens. Each of the Company and any Restricted Subsidiary shall not, directly or indirectly, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets (real or personal, tangible or intangible) of the Company or any Restricted Subsidiary, whether now owned or hereafter acquired; provided that the provisions of this Section 9.01 shall not prevent the creation, incurrence, assumption or existence of, or any filing in respect of, the following (Liens described below are herein referred to as “Permitted Liens”):

 (i)          Liens created pursuant to the Credit Documents (including Liens on Secured Bank Product Obligations);

 (ii)         pledges, deposits or security by such Person under workmen’s compensation laws, unemployment insurance, employers’ health tax, and other social security Requirements of Law or similar legislation or other insurance related obligations (including, but not limited to, in respect of deductibles, self-insured retention amounts and premiums and adjustments thereto) or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory or similar obligations of such Person or deposits of cash or U.S. government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business (including Liens to secure letters of credit issued to assure payment of such obligations);

 (iii)        Liens imposed by Requirement of Law, such as landlords’, carriers’, warehousemen’s, materialmen’s, repairmen’s, mechanics’ and similar Liens, in each case for sums not yet overdue for a period of more than 90 days or remain payable without penalty or being contested in good faith by appropriate actions if adequate reserves with respect thereto are maintained on the book of such person in accordance with GAAP or other Liens arising out of judgments or awards not constituting an Event of Default under Section 10;


 (iv)         Liens for Taxes, assessments or other governmental charges not yet overdue or not yet payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;

 (v)          Liens in favor of issuers of performance, surety, bid, indemnity, warranty, release, appeal or similar bonds or with respect to other regulatory requirements or letters of credit or bankers acceptances issued, and completion guarantees provided for, in each case, issued pursuant to the request of and for the account of such Person in the ordinary course of its business or consistent with past practice prior to the Closing Date;

 (vi)         Liens securing obligations relating to any Indebtedness permitted to be Incurred pursuant to Section 9.04(ii) or (xxv), so long as after giving effect to the incurrence of any such Indebtedness, the Consolidated Secured Leverage Ratio of the Company is less than 5.00:1.00; provided that, to the extent such Liens attach to any Collateral, then the Liens on the Collateral securing such obligations, shall (x) rank junior to the Liens securing the Obligations and (y) be subject to the Intercreditor Agreement or another intercreditor agreement reasonably satisfactory in form and substance to the Administrative Agent;

 (vii)        Liens securing obligations relating to any Indebtedness permitted to be Incurred pursuant to clause (v) of Section 9.04 hereof; provided that such Liens extend only to the assets so purchased, leased or improved and any accessions or extensions thereof;

 (viii)       Liens existing on the Closing Date or pursuant to agreements in existence on the Closing Date and set forth in Schedule 9.01(viii) (which may include Liens on (A) after-acquired property that is affixed or incorporated into the property covered by such Lien, (B) after-acquired property subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or include a pledge of after-acquired property (it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition) and (C) the proceeds and products thereof), including Liens securing any Refinancing Indebtedness secured by such Liens;

 (ix)          (a) Liens on property or shares of stock or other assets of a Person at the time such Person becomes a Subsidiary; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary; provided, further, that such Liens may not extend to any other property or other assets owned by the Company or any of the Restricted Subsidiaries (other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien, (B) after-acquired property subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or include a pledge of after-acquired property (it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition) and (C) the proceeds and products thereof); and (b) Liens on property or other assets at the time the Company or a Restricted Subsidiary acquired the property or such other assets, including any acquisition by means of a merger, amalgamation or consolidation with or into the Company or any of the Restricted Subsidiaries; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition, amalgamation, merger or consolidation; provided, further, any Liens on assets of a type included in the Borrowing Base (other than on Equipment and Real Property) by the Credit Parties pursuant to this clause (viii) shall be junior and subordinate to the Collateral Agent’s Lien on the Collateral and shall be subject to the Intercreditor Agreement or another intercreditor agreement on terms substantially similar to those contained in the Intercreditor Agreement and otherwise reasonably satisfactory to the Collateral Agent;


 (x)          Liens to secure any modification, refinancing, refunding, extension, renewal or replacement (or successive refinancing, refunding, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (vii), (viii), (ix) and this clause (x); provided that (a) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus accessions, additions and improvements on such property (other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien, (B) after-acquired property subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or include a pledge of after-acquired property (it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition) and (C) the proceeds and products thereof)), and (b) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (i) the outstanding principal amount or, if greater, committed amount, of the Indebtedness described under clauses (vii), (viii), (ix) and this clause (x) at the time the original Lien became a Permitted Lien under this Agreement and (ii) an amount necessary to pay any fees and expenses, including original issue discount, upfront fees or similar fees and premiums (including tender premiums, and accrued and unpaid interest related to such modification, refinancing, refunding, extension, renewal or replacement);

 (xi)         Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 9.05; provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;

 (xii)        any encumbrance or restriction (including put and call arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;

 (xiii)       Liens arising out of conditional sale, title retention, consignment or similar arrangements with vendors for the sale or purchase of goods entered into by the Company or any Restricted Subsidiary in the ordinary course of business;

 (xiv)       Liens solely on any cash earnest money deposits made by the Company or any of the Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted under this Agreement;

 (xv)        Liens securing Indebtedness outstanding under the Second Lien Loan Agreement and the related guarantees thereof (and, if applicable, the Second Lien Notes Indenture and the Second Lien Notes and the related guarantees thereof) or any Refinancing Indebtedness in connection therewith; provided that such Indebtedness shall (x) be subject to the Intercreditor Agreement and (y) rank junior in priority to the Liens securing the Obligations;

 (xvi)       easements, rights-of-way, encroachments, covenants, conditions, zoning and other restrictions, minor defects or other irregularities in title, and other similar encumbrances which, either individually or in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or interfere in any material respect with the ordinary conduct of the businesses of the Company, taken as a whole;


 (xvii)        any interest or title of a lessor or sublessor under any lease permitted by this Agreement and the Security Documents;

 (xviii)       Liens arising from UCC, PPSA or other similar financing statement filings regarding operating leases or consignments entered into by the Company and the Restricted Subsidiaries in the ordinary course of business or purported Liens evidenced by the filing of precautionary UCC, PPSA or other similar financing statements or similar public filings;

 (xix)         licenses and sublicenses granted by the Company or a Restricted Subsidiary and leases and subleases (by the Company or any Restricted Subsidiary as lessor or sublessor) to third parties in the ordinary course of business not materially interfering with the business of the Company, taken as a whole;

 (xx)          Liens in favor of collecting banks arising by operation of law under Section 4-210 of the UCC (or equivalent statute) or, with respect to collecting banks located in the State of New York, under Section 4-208 of the UCC (or equivalent statute);

 (xxi)          Liens that are contractual rights of set-off or rights of pledge (a) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (b) relating to pooled deposit or sweep accounts of the Company or any of the Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company and the Restricted Subsidiaries or (c) relating to purchase orders and other agreements entered into with customers of the Company or any of the Restricted Subsidiaries in the ordinary course of business;

 (xxii)         Liens in favor of customs and revenue authorities arising as a matter of law which secure payment of customs duties in connection with the importation of goods in the ordinary course of business;

 (xxiii)        Liens securing financings of insurance premiums, which such Liens attach solely to the insurance policies financed and the proceeds thereof;

 (xxiv)        Liens on brokerage accounts incurred in the ordinary course of business securing obligations to settle trades made by the Company or any Restricted Subsidiary;

 (xxv)         the rights reserved to or vested in municipalities or governmental or other public authorities or agencies by statutory provisions or by the terms of leases, licenses, franchises, grants or permits, which affect any land to terminate any such leases, licenses, franchises, grants or permits or to require annual or other payments as a condition to the continuance thereof;

 (xxvi)        deposits with public utilities or to any municipalities or governmental or other public authorities when required by the utility, municipality, governmental or other public authority in connection with the supply of services or utilities to the Company or any Restricted Subsidiary;

 (xxvii)       Liens on assets of non-Credit Parties to solely secure Indebtedness of non-Credit Parties permitted pursuant to Section 9.04(xxiv);


 (xxviii)       Liens in favor of the Company or any Restricted Subsidiary subject to the requirement to deliver a Subordinated Intercompany Note to the extent required by clauses (vii) or (viii) of Section 9.04;

 (xxix)         Liens on Investment Cash Equivalents or other property (other than Investment Cash Equivalents or property constituting Collateral) arising in connection with the defeasance or discharge of Indebtedness; provided that such defeasance or discharge is not prohibited by this Agreement;

 (xxx)          customary Liens granted in favor of a trustee to secure fees and other amounts owing to such trustee under an indenture or other agreement pursuant to which Indebtedness not prohibited by this Agreement is issued;

 (xxxi)          other Liens securing obligations in an aggregate amount not to exceed, as of the date incurred (and taking into account any other Liens incurred under this clause (xxxi) and outstanding on such date), the greater of (A) $20,000,000 and (B) 1.60 % of Consolidated Total Assets, measured as of the date such Lien is Incurred based upon the Section 8.01 Financials most recently delivered on or prior to the date such Lien is Incurred; provided that if the Liens incurred under this clause (xxxi) secure obligations secured by the Collateral (other than Investment Cash Equivalents), then the Liens on the Collateral securing such obligations shall (x) rank junior to the Liens securing the Obligations and (y) shall be subject to the Intercreditor Agreement or another intercreditor agreement reasonably satisfactory in form and substance to the Administrative Agent;

 (xxxii)         Liens solely on specific items of inventory or other goods and proceeds of any Person securing such Person’s accounts payable or similar trade obligations in respect of bankers’ acceptances or documentary letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

 (xxxiii)        Liens on Equipment of the Company or any of the Restricted Subsidiaries granted in the ordinary course of business to the Company’s clients;

 (xxxiv)        Liens encumbering reasonable customary deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;

 (xxxv)         ground leases in respect of real property on which facilities owned or leased by the Company or any of its Subsidiaries are located;

 (xxxvi)        Liens on Capital Stock of an Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary; and (xxxvii) Liens on cash advances in favor of the seller of any property to be acquired in an Investment permitted under this Agreement to be applied against the purchase price for such Investment.

For purposes of this Section 9.01, “Indebtedness” shall be deemed to include interest on such Indebtedness. For purposes of determining compliance with this Section 9.01, (a) Permitted Liens need not be incurred solely by reference to one category of Permitted Liens described above but are permitted to be incurred in part under any combination thereof and (b) in the event that a Lien (or any portion thereof) meets the criteria of one or more categories of Permitted Liens described above, the Company shall, in its sole discretion, classify (or later reclassify) such item of Permitted Liens (or any portion thereof) in any manner that complies with this Section 9.01 and will only be required to include the amount and type of such item of Permitted Liens in one of the above clauses and such Lien will be treated as having been incurred pursuant to only one of such clauses.


In connection with the granting of Liens of the type described in this Section 9.01 by the Company and any Restricted Subsidiary, the Administrative Agent shall, and shall be authorized to, take any actions deemed appropriate by it in connection therewith (including, without limitation, by executing appropriate lien releases or lien subordination agreements in favor of the holder or holders of such Liens, in either case solely with respect to the item or items of equipment or other assets subject to such Liens).

9.02.       Asset Sales. Each of the Company and any Restricted Subsidiary shall not consummate an Asset Sale, except the Company and any Restricted Subsidiary may dispose any of its assets or property, so long as (w) a new Borrowing Base Certificate is delivered substantially concurrently with the closing of any Significant Asset Sale, (x) no Event of Default has occurred and is continuing, or would result therefrom, on the date that the definitive documentation with respect to such Asset Sale is executed, (y) each such sale the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (such Fair Market Value to be determined by the Company at the time the Company or such Restricted Subsidiary contractually agrees to such Asset Sale) of the assets sold or otherwise disposed of and (z) except in the case of a Permitted Asset Swap (subject to the next paragraph), at least 75% of the consideration received by the Company or such Restricted Subsidiary, on a per transaction basis, shall be in the form of Investment Cash Equivalents (taking into account the amount of Investment Cash Equivalents, the principal amount of any promissory notes and the Fair Market Value, as determined by the Company, in good faith, of any other consideration) and is paid at the time of the closing of such disposition; provided, however, that for purposes of this clause (z), the following shall be deemed to be Investment Cash Equivalents: (A) any liabilities (as shown on Company’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto, or, if incurred or increased subsequent to the date of such balance sheet, such liabilities that would have been shown on the Company’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence or increase had taken place on or prior to the date of such balance sheet, as determined by the Company) of the Company or such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee with respect to the applicable disposition and for which the Company and the Restricted Subsidiaries shall have been validly released by all applicable creditors or indemnified in writing, (B) any securities, notes or other obligations or assets received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into Investment Cash Equivalents (to the extent of the Investment Cash Equivalents received in the conversion) within 180 days following the closing of the applicable Asset Sale, and (C) any Designated Non-Cash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (y), not to exceed, as of the date of receipt (and taking into account all other Designated Non-Cash Consideration received under this clause (y) and then outstanding on such date), the greater of (A) $25,000,000 and (B) 2.00% of Consolidated Total Assets measured on the date of receipt of such Designated Non-Cash Consideration based upon the Section 8.01 Financials most recently delivered on or prior to the date of the receipt of such Designated Non-Cash Consideration (with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

The Permitted Asset Swaps referenced in clause (z) of the preceding paragraph shall only be permitted under this Agreement, and be exempted from the 75% Investment Cash Equivalents consideration requirement in such clause (z), only if an updated Borrowing Base Certificate is delivered to the Administrative Agent concurrently with the consummation of such Permitted Asset Swap, which adjusts the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 8.15(a) as necessary to reflect the impact of any Permitted Asset Swap of Eligible Fee-Owned Real Property and/or Eligible Equipment that was part of the Borrowing Base immediately prior to such Permitted Asset Swap. For the avoidance of doubt, no new Eligible Fee-Owned Real Property and/or Eligible Equipment received in exchange for existing Eligible Fee-Owned Real Property and/or Eligible Equipment of the Credit Parties will be included in the Borrowing Base unless and until a Fixed Asset Reappraisal Event occurs pursuant to Section 8.02(d).


9.03.       Restricted Payments and Restricted Junior Debt Payments.

(a)          Each of the Company and any Restricted Subsidiary shall not:

 (i)          declare or pay any dividend or make any payment or distribution on account of the Company’s or any of the Restricted Subsidiaries’ Equity Interests, including any dividend or distribution payable in connection with any merger, amalgamation or consolidation, other than:

(A)          dividends or distributions by the Company or any Restricted Subsidiary payable solely in Equity Interests (other than Disqualified Stock) of the Company or any Restricted Subsidiary;

(B)          dividends, payments or distributions by a Restricted Subsidiary so long as, in the case of any dividend, payment or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly-Owned Subsidiary, the Company or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities;

 (ii)         purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Company, including in connection with any merger, amalgamation or consolidation;

(as such payments and other actions set forth in clauses (i) through (ii) above (other than any exceptions thereto) being collectively referred to as “Restricted Payments”);

 (iii)        make any Restricted Junior Debt Prepayment; or

 (iv)        make any Restricted Investment, with the only exception under this covenant being clause (xi) of Section 9.03(b).

(b)          Section 9.03(a) shall not prohibit:

 (i)          (a) the redemption, repurchase, defeasance, retirement or other acquisition of any Equity Interests (“Treasury Capital Stock”) or Junior Debt of the Company or any Restricted Subsidiary, in exchange for, or out of the proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary) of, Equity Interests of the Company or any Restricted Subsidiary to the extent contributed to the Company or such Restricted Subsidiary (in each case, other than any Disqualified Stock) (“Refunding Capital Stock”) and (b) the declaration and payment of dividends on Treasury Capital Stock out of the proceeds of the substantially concurrent sale or issuance (other than to a Subsidiary of the Company or to an employee stock ownership plan or any trust established by the Company or any of its Subsidiaries) of Refunding Capital Stock;


 (ii)          the prepayment, redemption, defeasance, repurchase, exchange or other acquisition or retirement of (1) Junior Debt of the Company, any Borrower or any Subsidiary Guarantor made by exchange for, or out of the proceeds of a substantially concurrent sale of, new Indebtedness of the Company, any Borrower or any Subsidiary Guarantor or (2) Disqualified Stock of the Company, any Borrower or any Subsidiary Guarantor made by exchange for, or out of the proceeds of a substantially concurrent sale of, new Indebtedness of the Company, any Borrower or any Subsidiary Guarantor that, in each case, is Incurred in compliance with Section 9.04, so long as:

(A)          the principal amount (or accreted value, if applicable) of such new Indebtedness or the liquidation preference of such new Disqualified Stock does not exceed the principal amount of (or accreted value, if applicable), plus any accrued and unpaid interest on, the Junior Debt or the liquidation preference of, plus any accrued and unpaid dividends on, the Disqualified Stock being so prepaid, defeased, redeemed, repurchased, exchanged, acquired or retired for value, plus the amount of any reasonable premium to be paid (including reasonable tender premiums), defeasance costs and any fees and expenses incurred in connection with the issuance of such new Indebtedness or Disqualified Stock;

(B)          (x) if the Junior Debt was subordinated to the Obligations, then such new Indebtedness shall be subordinated to the Obligations at least to the same extent as such Junior Debt so purchased, exchanged, redeemed, defeased, repurchased, exchanged, acquired or retired, (y) if the Junior Debt was secured by a Lien, then such new Indebtedness shall not be secured by a Lien on assets senior in priority to the Liens securing such Junior Debt so purchased, exchanged, redeemed, defeased, repurchased, exchanged, acquired or retired and (z) if the Junior Debt was unsecured, then such new Indebtedness shall be unsecured;

(C)          such new Indebtedness or Disqualified Stock has a final scheduled maturity date or final mandatory redemption date equal to or later than the final scheduled maturity date of the Junior Debt or Disqualified Stock being so redeemed, defeased, repurchased, exchanged, acquired or retired (or, if earlier, the date that is 91 days after the maturity date of the Obligations); and

(D)          such new Indebtedness or Disqualified Stock has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Junior Debt or Disqualified Stock being so redeemed, defeased, repurchased, exchanged, acquired or retired (or requires no or nominal payments in cash prior to the date that is 91 days after the maturity date of the Obligations).

 (iii)         any Restricted Payment to pay for the repurchase, redemption, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Stock) of the Company held by any future, present or former employee, director, officer, manager or consultant (including trustees, administrators, executors, powers of attorney, heirs, assignees, estates and beneficiaries of any of the foregoing) of the Company or any of its Restricted Subsidiaries pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or arrangement, or any stock subscription or shareholder agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by the Company in connection with such repurchase, retirement or other acquisition) including any Equity Interest rolled over or purchased by management, directors or employees of the Company in connection with the Transactions; provided that the aggregate amount of Restricted Payments made under this clause does not exceed $5,000,000 in any fiscal year following the Closing Date (with unused amounts in any fiscal year being carried over to the next succeeding fiscal year); provided further that such amount in any fiscal year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests (other than Disqualified Stock) of the Company to any future, present or former employee, director, officer, manager or consultant (including trustees, administrators, executors, powers of attorney, heirs, assignees, estates and beneficiaries of any of the foregoing) of the Company or any of its Subsidiaries that occurs after the Closing Date, to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of this Section 9.03; plus (B) the cash proceeds of key man life insurance policies received by the Company or the Restricted Subsidiaries after the Closing Date; less (C) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (A) and (B) of this clause (iii); and provided further that (x) cancellation of Indebtedness owing to the Company or any of the Restricted Subsidiaries from any future, present or former employee, director, officer, manager or consultant (including trustees, administrators, executors, powers of attorney, heirs, assignees, estates and beneficiaries of any of the foregoing) of the Company or any of its Subsidiaries in connection with a repurchase of Equity Interests of the Company and (y) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or similar instruments if such Equity Interests represents all or a portion of the exercise price thereof or payments, in lieu of the issuance of fractional Equity Interests or withholding to pay other taxes payable in connection therewith, in the case of each of clauses (x) and (y), shall not be deemed to constitute a Restricted Payment for purposes of this Section 9.03 or any other provision of this Agreement;


(iv)         payments of cash, dividends, distributions, advances or other Restricted Payments by the Company or any Restricted Subsidiary to allow the payment of cash in lieu of the issuance of fractional shares;

 (v)          reasonable and customary indemnities to directors, officers and employees in the ordinary course of business;

 (vi)         payments made or expected to be made by the Company or any Restricted Subsidiary in respect of withholding or similar taxes payable upon the exercise of Equity Interests by any future, present or former employee, director, officer, manager or consultant and any repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants or other convertible, exchangeable or exercisable instruments if such Equity Interests represent a portion of the exercise price of such instruments or required withholding or similar taxes;

 (vii)        the Company or any Subsidiary may make payments of dividends on Disqualified Stock or Preferred Stock issued in accordance with Section 9.04;

 (viii)       the payment of any dividend or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or other distribution or giving of the redemption or prepayment notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment or prepayment would have complied with the provisions of Section 9.03; provided that it is understood that the Administrative Agent, in its Permitted Discretion, may establish a Reserve during such 60-day period in an amount not to exceed the amount of such declared but unpaid dividend or distribution;


 (ix)         any Restricted Payment (including dividends and other payments in respect of Capital Stock) or Restricted Junior Debt Prepayment; provided that the Distribution Conditions are satisfied both before and after giving effect to such Restricted Payment or Restricted Junior Debt Prepayment;

 (x)          any Restricted Payment or Restricted Junior Debt Prepayments with the Available Equity Amount Basket; and

 (xi)         other Restricted Payments, Restricted Junior Debt Prepayments and Restricted Investments in an aggregate amount, as of the date made, taken together with any other Restricted Payments made pursuant to this clause (xi) (in the case of Restricted Investments incurred under this clause (xi) and outstanding on such date (without giving effect to the sale of an Investment to the extent the proceeds of such sale do not consist of, or have not been subsequently sold or transferred for, cash or Investment Cash Equivalents)) and Restricted Junior Debt Prepayments made pursuant to under this clause (xi), following the Closing Date, not to exceed $20,000,000.

9.04.       Indebtedness. Each of the Company and any Restricted Subsidiary shall not, directly or indirectly, Incur any Indebtedness or issue any Disqualified Stock and each Restricted Subsidiary that is not a Credit Party shall not issue Preferred Stock, except:

 (i)          Indebtedness incurred pursuant to this Agreement and the other Credit Documents;

 (ii)         unsecured Indebtedness and secured Indebtedness ranking junior in Lien priority to the Liens securing the Obligations and any Disqualified Stock and Preferred Stock (any of the foregoing, “Junior Debt”); provided that (A) after giving effect to the Incurrence of any such Junior Debt, the Consolidated Secured Leverage Ratio of the Company is less than 5.00:1.00, (B) any such Junior Debt does not mature prior to the date that is 91 days after the Maturity Date; provided that, if the amortization schedule of any such Junior Debt requires annual principal payments exceeding the Amort Cap prior to the date that is 91 days after the Maturity Date, then the Administrative Agent shall have the right, in its Permitted Discretion in accordance with Section 2.22, to establish Amortization Reserves with respect to amortization payments in excess of the Amort Cap against the assets included in the Borrowing Base on the date that is 91 days prior to each due date of such Junior Debt amortization payments, (C) if such Junior Debt is Incurred or guaranteed by a non-Credit Party, the aggregate amount such Junior Debt Incurred or guaranteed by a non-Credit Party pursuant to this Section 9.04(ii) shall not exceed, as of the date of such Incurrence (and taking into account any other Indebtedness Incurred under this clause (C) and then outstanding), the greater of (x) $25,000,000 and (y) 2.00% of Consolidated Total Assets, measured as of the date of such Incurrence based upon the Section 8.01 Financials most recently delivered on or prior to the date of such Incurrence, and (D) if such Junior Debt is secured by the Collateral, then the Liens on any Collateral securing such Junior Debt shall be permitted pursuant to Section 9.01(vi) or (xxxi) (the conditions in clauses (B) through (D) are herein referred to as the “Junior Debt Conditions”);

 (iii)        Indebtedness incurred pursuant to the Second Lien Loan Agreement or the Second Lien Notes Indenture (and any guarantees of either thereof) and any Refinancing Indebtedness thereof (including, for the avoidance of doubt, any refinancing of Indebtedness incurred pursuant to the Second Lien Loan Agreement into any exchange notes contemplated thereby);


 (iv)         Indebtedness of the Company and the Restricted Subsidiaries in existence on the Closing Date and listed on Schedule 9.04(iv) (“Existing Indebtedness”);

 (v)          Indebtedness (including Capitalized Lease Obligations and Purchase Money Obligations) and Disqualified Stock Incurred or issued by the Company or any Restricted Subsidiary and Preferred Stock issued by any Restricted Subsidiary, to finance the purchase, restoration, lease or improvement of property (real or personal), equipment or other assets, including assets that are used or useful in a Similar Business, within 270 days of such purchase, restoration, lease or improvement, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets in an aggregate principal amount, together with any Refinancing Indebtedness incurred to refinance any other Indebtedness incurred under this clause (v), not to exceed, as of the date of such Incurrence (and taking into account any other Indebtedness Incurred under this clause (v) and then outstanding), the greater of (A) $35,000,000 and (B) 2.70% of Consolidated Total Assets, measured as of the date of such Incurrence or issuance based upon the Section 8.01 Financials most delivered ended on or prior to the date of such Incurrence or issuance;

 (vi)         Indebtedness Incurred by the Company or any of the Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, bank guarantees, workers’ compensation claims, self-insurance obligations, bankers’ acceptances, warehouse receipts, guarantees, statutory, export or import indemnities, customs, revenue bonds or similar instruments issued or created, including letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance; provided that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 Business Days following such drawing or incurrence;

 (vii)        Indebtedness of the Company to a Restricted Subsidiary; provided that any such Indebtedness owing to a Restricted Subsidiary that is not a Credit Party is subordinated in right of payment to the Guarantee by the Company (including pursuant to the Subordinated Intercompany Note) (for the avoidance of doubt, any such Indebtedness owing to a Restricted Subsidiary that is not a Credit Party shall be deemed to be expressly subordinated in right of payment to the Guarantee by the Company unless the terms of such Indebtedness expressly provide otherwise); provided, further, that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness (except to the Company or another Restricted Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien (but not foreclosure thereon)) shall be deemed, in each case, to be an incurrence of such Indebtedness not permitted by this clause (vii);

 (viii)       Indebtedness of a Restricted Subsidiary to the Company or another Restricted Subsidiary; provided that if a Credit Party incurs such Indebtedness to a Restricted Subsidiary that is not a Credit Party, such Indebtedness is subordinated in right of payment to the Obligations (including pursuant to the Subordinated Intercompany Note) (for the avoidance of doubt, any such Indebtedness owing to a Restricted Subsidiary that is not a Credit Party shall not be deemed to be expressly subordinated in right of payment to the Obligations, unless the terms of such Indebtedness expressly provide otherwise); provided, further, that any subsequent transfer of any such Indebtedness (except to the Company or another Restricted Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien (but not foreclosure thereon)) shall be deemed, in each case, to be an incurrence of such Indebtedness not permitted by this clause (viii);


 (ix)         shares of Preferred Stock of a Restricted Subsidiary issued to the Company or another Restricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock (except to the Company or another of the Restricted Subsidiaries) or any pledge of such Capital Stock constituting a Permitted Lien (but not foreclosure thereon) shall be deemed, in each case, to be an issuance of such shares of Preferred Stock not permitted by this clause (ix);

 (x)          Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes) and other Bank Product Debt;

 (xi)         the Incurrence by the Company or any Restricted Subsidiary of Indebtedness, the issuance by the Company or any Restricted Subsidiary of Disqualified Stock or the issuance by any Restricted Subsidiary of Preferred Stock which serves to extend, replace, refund, refinance, renew or defease any Indebtedness Incurred or Disqualified Stock or Preferred Stock issued as permitted under clauses (ii), (iii) and (iv) of this Section 9.04 and this clause (xi) and clause (xxv) of this Section 9.04, or any Indebtedness Incurred or Disqualified Stock or Preferred Stock issued to so extend, replace, refund, refinance, renew or defease such Indebtedness, Disqualified Stock or Preferred Stock including additional Indebtedness Incurred to pay premiums (including reasonable tender premiums), defeasance costs, accrued interest and fees and expenses in connection therewith (the “Refinancing Indebtedness”) prior to its respective maturity; provided that such Refinancing Indebtedness (A) has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred which is not less than the remaining Weighted Average Life to Maturity of the Indebtedness, Disqualified Stock or Preferred Stock being extended, replaced, refunded, refinanced, renewed or defeased (or requires no or nominal payments in cash prior to the date that is 91 days after the Latest Maturity Date), (B) to the extent such Refinancing Indebtedness extends, replaces, refunds, refinances, renews or defeases (i) Indebtedness subordinated in right of payment to the Revolving Loans, such Refinancing Indebtedness is subordinated in right of payment to the Revolving Loans at least to the same extent as the Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased or (ii) Disqualified Stock or Preferred Stock, such Refinancing Indebtedness must be Disqualified Stock or Preferred Stock, respectively; and (C) shall not include (i) Indebtedness, Disqualified Stock or Preferred Stock of a Restricted Subsidiary that is not a Credit Party that refinances Indebtedness, Disqualified Stock or Preferred Stock of a Credit Party; or (ii) Indebtedness or Disqualified Stock of the Company or Indebtedness, Disqualified Stock or Preferred Stock of a Restricted Subsidiary, in either case, that refinances Indebtedness, Disqualified Stock or Preferred Stock of an Unrestricted Subsidiary;

 (xii)        (A) any guarantee by a Credit Party of Indebtedness or other obligations of any other Credit Party so long as the incurrence of such Indebtedness incurred by such other Credit Party is permitted under the terms of this Agreement, or (B) any guarantee by a Restricted Subsidiary that is not a Credit Party of Indebtedness of a Credit Party;

 (xiii)       (A) Indebtedness consisting of Indebtedness issued by the Company or any of the Restricted Subsidiaries to future, present or former employees, directors, officers, managers and consultants thereof (including trustees, administrators, executors, powers of attorney, heirs, assignees, estates and beneficiaries), in each case to finance the purchase or redemption of Equity Interests of the Company to the extent described in clause (iii) of Section 9.03 or (B) Indebtedness representing deferred compensation to employees of the Company or any of the Restricted Subsidiaries incurred in the ordinary course of business;


 (xiv)         Indebtedness or Disqualified Stock of the Company and Indebtedness, Disqualified Stock or Preferred Stock of any other Credit Party not otherwise permitted hereunder in an aggregate principal amount or liquidation preference which, when aggregated with the principal amount and liquidation preference of all other Indebtedness then outstanding and Incurred pursuant to this clause (xiv), does not at any one time outstanding exceed, as of the date of such Incurrence, the greater of (A) $30,000,000 and (B) 2.40% of Consolidated Total Assets measured as of the date of such Incurrence or issuance based upon the Section 8.01 Financials most recently delivered on or prior to the date of such Incurrence or issuance;

 (xv)          Indebtedness arising from agreements of the Company or the Restricted Subsidiaries providing for indemnification, adjustment of purchase price, earnouts or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided, however, that the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Company and the Restricted Subsidiaries in connection with such disposition;

 (xvi)         obligations in respect of self-insurance and performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by the Company or any of the Restricted Subsidiaries in the ordinary course of business or consistent with past practice;

 (xvii)        Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds; provided that such Indebtedness is extinguished within ten Business Days of its incurrence;

 (xviii)       Indebtedness of the Company or any of the Restricted Subsidiaries consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements in each case, incurred in the ordinary course of business;

 (xix)         Indebtedness incurred on behalf of, or representing guarantees of Indebtedness of, joint ventures of the Company or any Restricted Subsidiary not in excess, at any one time outstanding, of $7,500,000;

 (xx)          obligations or commitments to public utilities or to any municipalities or governmental or other public authorities in connection with the maintenance of or supply of services or utilities to the Company or any Restricted Subsidiary;

 (xxi)         endorsement of instruments or other payment items by the Company or any Restricted Subsidiary for deposit;


 (xxii)          to the extent constituting Indebtedness, customer deposits and advance payments (including progress premiums) received in the ordinary course of business from customers for goods purchased in the ordinary course of business;

 (xxiii)          Indebtedness incurred by a Restricted Subsidiary in connection with bankers’ acceptances or discounted bills of exchange for credit management purposes, in each case incurred or undertaken consistent with past practice or in the ordinary course of business on arm’s length commercial terms;

 (xxiv)         the Incurrence of Indebtedness of Restricted Subsidiaries of the Company that are not Credit Parties in an amount outstanding under this clause (xxiv) not to exceed, determined as of the date of such Incurrence and taking into account any other Indebtedness Incurred under this clause (xxiv) and then outstanding, the greater of (A) $10,000,000 and (B) 0.80% of Consolidated Total Assets measured as of the date of such Incurrence or issuance based upon the Section 8.01 Financials most recently delivered on or prior to the date of such Incurrence or issuance;

 (xxv)          Junior Debt subject to compliance with the Investment and Junior Debt Incurrence Conditions;

 (xxvi)         any Indebtedness arising under guarantees entered into pursuant to Section 2:403 of the Dutch Civil Code in respect of a Dutch Subsidiary and any residual liability with respect to such guarantees arising under Section 2:404 of the Dutch Civil Code;

 (xxvii)        any joint and several liability arising as a result of (the establishment) of a Dutch fiscal unity (Nederlandse fiscale eenheid) between a Dutch Credit Party and one or more of its subsidiaries or its equivalent in any other relevant jurisdiction.

For purposes of determining compliance with this Section 9.04, (1) in the event that an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) meets the criteria of more than one of the categories of permitted Indebtedness, Disqualified Stock or Preferred Stock described in clauses (i) through (xxvii) of this Section 9.04, the Company, in its sole discretion, may classify (but not reclassify) such item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) as one or more types of Indebtedness described in the above clauses; provided that the Company will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described under this Section 9.04.

Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, shall not be deemed to be an Incurrence or issuance of Indebtedness, Disqualified Stock or Preferred Stock for purposes of this Section 9.04 or Section 9.01 hereof. Any Refinancing Indebtedness and any Indebtedness permitted to be incurred under this Agreement to refinance Indebtedness Incurred pursuant to clauses (ii), (iii), (iv), (xiv) and (xxv) of this Section 9.04 shall be deemed to include additional Indebtedness, Disqualified Stock or Preferred Stock Incurred to pay premiums (including reasonable tender premiums), defeasance costs, fees and expenses in connection with such refinancing.

Notwithstanding anything to the contrary, no Credit Party shall, directly or indirectly, Incur any Indebtedness that is contractually subordinated or junior in right of payment to any Indebtedness of the such Credit Party unless such Indebtedness is expressly subordinated in right of payment to the Obligations to the extent and in the same manner as such Indebtedness is subordinated to other Indebtedness of such Credit Party.


No Credit Party shall incur any Indebtedness owing directly to ING Bank N.V. or Deutsche Bank AG, Amsterdam Branch, that is subject to their respective “General Banking Conditions” (Algemene Bankvoorwaarden) or that is secured by any right of pledge established pursuant to such General Banking Conditions, except any such Indebtedness that is outstanding (whether contingent or not) on and as of the Closing Date or arises in respect of transactions that are outstanding on and as of the Closing Date.

9.05.       Investmen