SunOpta Inc.: Exhibit 10.11 - Filed by newsfilecorp.com






EXECUTION VERSION 

FIRST AMENDMENT 

FIRST AMENDMENT, dated as
of October 7, 2016 (this “Amendment”), to the Credit Agreement, dated as
of February 11, 2016 (the “Credit Agreement”), among SunOpta Inc. (the
“Company” or “Canadian 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
Subfacili-ty (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 Ameri-ca, 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 

A.     The
Borrowers have requested that the Credit Agreement be amended as set forth
herein; and 

B.    
Lenders constituting the Required Lenders, the Administrative Agents and the
Collateral Agent are willing to agree to this Amendment on the terms 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 but not defined herein
shall have the meanings assigned to them in the Credit Agreement. 

Section 2.     Amendments.
The Credit Agreement is hereby amended as of the First 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. 

Section 3.     Representations and
Warranties. The Company hereby represents and warrants that, as of the
date hereof: 

(i) no Default or Event of Default exists pursuant to the
Credit Agreement; and




(ii) the representations and warranties set forth in Section 7
of the Credit Agreement, and in any Credit Document entered in relation thereto,
are true and correct in all material respects (without duplication of any
materiality standard set forth in any such representation or warranty) (except
for those representations and warranties that relate to an earlier date, in
which event, such representations and warranties were true in all material
respects (without duplication of any materiality standard set forth in any such
representation or warranty) as of such earlier date). 

Section 4.     Conditions to
Effectiveness of this Amendment. This Amendment shall become effective
on the date (such date, the “First Amendment Effective Date”) that the
following conditions have been satisfied: 

(i) Counterparts to this Amendment. The U.S.
Administrative Agent shall have received counterparts of this Amendment executed
by the Administrative Agents, the Collateral Agent, the Borrowers and the
Required Lenders; 

(ii) Use of Proceeds. The net cash proceeds of the $85.0
million of Series A Preferred Stock, par value $0.001 per share, issued by the
U.S. Parent Borrower on Octo-ber 7, 2016 shall have been used, or substantially
simultaneously with the First Amendment Effective Date shall be used, to repay a
portion of the obligations outstanding under the Second Lien Loan Agreement; and


(iii) Fees. 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 (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 First Amendment Effective Date. 

Section 5.     Counterparts.
This Amendment 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 Administrative
Agent. 

Section 6.     Governing Law;
Submission to Jurisdiction; Venue; Waiver of Jury
Trial.

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

(b)     EACH PARTY TO THIS AMENDMENT
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 AGREES THAT ANY DISPUTE, ACTION, LITIGATION OR OTHER
PROCEEDING SHALL BE BROUGHT BY IT SOLELY IN ANY SUCH COURT. EACH PARTY TO THIS AMENDMENT 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 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.

- 2 - 





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

Section 7.     Headings. The
headings of the several Sections and subsections of this Amendment are inserted
for convenience only and shall not in any way affect the meaning or construction
of any provision of this Amendment. 

Section 8.     Effect of the
Amendment. Except as expressly set forth herein, (i) this Amendment
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 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 shall constitute a Credit Document for purposes of the
Credit Agreement.

- 3 - 




IN WITNESS WHEREOF, the parties hereto have caused this
Amendment 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 First Amendment] 





	 	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 First Amendment] 





	 	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 First Amendment] 





	 	TRABOCCA 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 First Amendment] 





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



	 	By: 	/s/
      Steven M. Siravo 
	 	  	Name: Steven M. Siravo 
	 	  	Title: SVP 



	 	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 M. Siravo 
	 	  	Name: Steven M. Siravo 
	 	  	Title: SVP 



	 	BANK OF AMERICA, N.A. (acting through its

	 	Canada branch), as Canadian Administrative
      Agent, 
	 	Canadian Swingline Lender, Canadian Issuing
      Bank 
	 	and a Canadian Revolving Lender




	 	By: 	/s/
      Steven M. Siravo 
	 	  	Name: Sylwia Durkiewicz 
	 	 	Title: Vice
President  



	 	BANK OF MONTREAL – CHICAGO BRANCH, 
	 	as a U.S. Lender 



	 	By: 	/s/
      Randon Gardley 
	 	  	Name: Randon Gardley 
	 	  	Title: Vice President 


[Signature Page to First Amendment] 





	 	BANK OF MONTREAL, 
	 	as a Canadian. Lender 



	 	By: 	/s/ Pedram Kaya 
	 	  	Name: 	Pedram Kaya 
	 	  	Title: 	Managing Director 
	 	  	  	Corporate Finance, ABL 
	 	  	  	BMO Bank of Montreal 



	 	BANK OF MONTREAL – LONDON BRANCH, 
	 	as a Dutch. Lender 



	 	By: 	/s/ Andy McClinton 
	 	  	Name: 	Andy McClinton 
	 	  	Title: 	Managing Director 



	 	By: 	/s/ Scott Matthews 
	 	  	Name: 	Scott Matthews 
	 	  	Title: 	Managing Director 



	 	JPMORGAN CHASE BANK, N.A., 
	 	as a U.S. Lender 



	 	By: 	/s/
      Jessica L. Zilliox 
	 	  	Name: Jessica L. Zilliox 
	 	  	Title: Authorized Officer




	 	JPMORGAN CHASE BANK, N.A., Toronto 
	 	Branch, as a Canadian Lender




	 	By: 	/s/
      Auggie Marchetti 
	 	  	Name: Auggie Marchetti 
	 	  	Title: Authorized Officer 


[Signature Page to First Amendment] 





	 	JPMORGAN CHASE BANK, N.A., London 
	 	Branch, as a Dutch Lender




	 	By: 	/s/
      Tim Jacob 
	 	 	Name: Tim Jacob  
	 	  	Title: Authorized Officer




	 	Rabobank Canada, as a Lender




	 	By: 	/s/
      Raj Joshi 
	 	  	Name: Raj Joshi 
	 	  	Title: Executive Director




	 	By: 	/s/
      Nicolas Stoupak 
	 	  	Name: Nicolas Stoupak 
	 	  	Title: Executive Director




	 	WELLS FARGO BANK, NATIONAL 
	 	ASSOCIATION, 
	 	as a U.S. Lender 



	 	By: 	/s/
      Maria Quintanilla 
	 	  	Name: Maria Quintanilla 
	 	  	Title: Authorized Signatory




	 	WELLS FARGO CAPITAL FINANCE 
	 	CORPORATION CANADA, 
	 	as a Canadian Lender 



	 	By: 	/s/ David G. Phillips 
	 	  	Name: 	David G. Phillips 
	 	  	Title: 	Senior Vice President 
	 	  	  	Credit Officer, Canada 
	 	  	  	Wells Fargo Capital Finance 
	 	  	  	Corporation Canada 


[Signature Page to First Amendment] 





	 	WELLS FARGO BANK, NATIONAL 
	 	ASSOCIATION LONDON BRANCH, 
	 	as a Dutch Lender 



	 	By: 	/s/ T
      SALDANHA 
	 	  	Name: T SALDANHA 
	 	  	Title: AUTHORISED SIGNATORY



[Signature Page to First Amendment] 




EXHIBIT A 
Amended Credit Agreement 





	EXECUTIONCONFORMED COPY REFLECTING 
	FIRST AMENDMENT, DATED AS OF
      OCTOBER 7, 2016 
	


CREDIT AGREEMENT 

Dated as of February 11, 2016, 

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 


 



 




TABLE OF CONTENTS 

	  	  	Page 
	  	  	  
	SECTION 1 	DEFINITIONS AND ACCOUNTING
      TERMS 	1 
	  	  	  
	1.01. 	   Defined Terms 	1 
	1.02. 	   Terms Generally 	83 
	1.03. 	   Uniform Commercial
      Code and PPSA 	8384
      
	1.04. 	   Exchange Rates; Currency
      Equivalent 	8384
      
	1.05. 	   Interpretation
      (Quebec) 	84 
	1.06. 	   Currency Fluctuations 	8485
      
	1.07. 	   Interpretation
      (the Netherlands) 	8586
      
	1.08. 	   Additional Alternative Currencies
    	86 
	1.09. 	   Change of Currency
    	8687
      
	1.10. 	   Letter of Credit Amounts 	87 
	1.11. 	   Accounting Terms
    	87 
	1.12. 	   Pro Forma and Other Calculations
    	88 
	  	  	  
	SECTION 2 	AMOUNT AND TERMS OF CREDIT 	8990
      
	  	  	  
	2.01. 	   Commitments 	8990
      
	2.02. 	   Loans 	90 
	2.03. 	   Borrowing Procedure 	92 
	2.04. 	   Evidence of Debt;
      Repayment of Loans 	93 
	2.05. 	   Fees 	94 
	2.06. 	   Interest on Loans
    	95 
	2.07. 	   Termination and Reduction of
      Commitments 	97 
	2.08. 	   Interest Elections
    	98 
	2.09. 	   Optional and Mandatory Prepayments
      of Loans 	99100 
	2.10. 	   Payments
      Generally; Pro Rata Treatment; Sharing of Setoffs 	102 
	2.11. 	   Defaulting Lenders 	103 
	2.12. 	   Swingline Loans
	105 
	2.13. 	   Letters of Credit 	107 
	2.14. 	   Settlement Amongst
      Lenders 	114 
	2.15. 	   Revolving Commitment Increase 	114115 
	2.16. 	   Borrower
      Representative 	117 
	2.17. 	   Overadvances 	117 
	2.18. 	   Protective
      Advances 	118 
	2.19. 	   Extensions of Revolving Loans and
      Revolving Commitments 	118119 
	2.20. 	   Adjustment of
      Revolver Commitments 	121 
	2.21. 	   Subsidiary Borrowers 	122 
	2.22. 	   Reserves 	123 
	  	  	  
	SECTION 3 	YIELD PROTECTION, ILLEGALITY
      AND REPLACEMENT OF LENDERS 	124 
	  	  	  
	3.01. 	   Increased Costs,
      Illegality, etc 	124 
	3.02. 	   Compensation 	126 
	3.03. 	   Change of Lending
      Office 	126 
	3.04. 	   Replacement of Lenders 	126 







	  	  	Page 
	  	  	  
	SECTION 4 	TAXES 	127 
	  	  	  
	4.01. 	   Net Payments 	127 
	4.02. 	   VAT 	129130 
	  	  	  
	SECTION 5 	CONDITIONS PRECEDENT TO CREDIT EVENTS ON THE
      CLOSING 	  
	  	     DATE 	131 
	  	  	  
	5.01. 	   Closing Date;
      Credit Documents 	131 
	5.02. 	   Officer’s Certificate 	131 
	5.03. 	   Opinions of
      Counsel 	131 
	5.04. 	   Corporate Documents; Proceedings,
      etc 	131 
	5.05. 	   Solvency
      Certificate 	131132 
	5.06. 	   Borrowing Base Certificate 	132 
	5.07. 	   Material Adverse
      Effect 	132 
	5.08. 	   Fees, etc 	132 
	5.09. 	   Security
      Agreements 	132 
	5.10. 	   Financial Statements 	132133 
	5.11. 	   Patriot Act 	133 
	5.12. 	   Insurance 	133 
	5.13. 	   Repayment of
      Obligations of Existing Credit Agreements 	133 
	5.14. 	   Field Examinations and Appraisals
    	133 
	5.15. 	   Mortgaged
      Properties 	133 
	5.16. 	   Intercreditor Agreement 	133 
	5.17. 	   Minimum Total
      Excess Availability. 	133134 
	  	  	  
	SECTION 6 	CONDITIONS PRECEDENT TO ALL
      CREDIT EVENTS 	134 
	  	  	  
	6.01. 	   Notice of
      Borrowing 	134 
	6.02. 	   Availability 	134 
	6.03. 	   No Default 	134 
	6.04. 	   Representations and Warranties 	134 
	  	  	  
	SECTION 7 	REPRESENTATIONS AND WARRANTIES 	134 
	  	  	  
	7.01. 	   Organizational Status 	134 
	7.02. 	   Power and
      Authority 	135 
	7.03. 	   No Violation 	135 
	7.04. 	   Approvals 	135 
	7.05. 	   Financial Statements; Financial
      Condition; Projections 	135136 
	7.06. 	   Litigation 	136 
	7.07. 	   True and Complete Disclosure 	136 
	7.08. 	   Use of Proceeds;
      Margin Regulations 	136 
	7.09. 	   Tax Returns and Payments 	136137 
	7.10. 	   ERISA 	137 
	7.11. 	   The Security Documents 	137 
	7.12. 	   Title to Real
      Estate 	138 
	7.13. 	   Subsidiaries 	138 
	7.14. 	   Compliance with
      Statutes; Sanctions; Patriot Act; Anti-Corruption Laws 	138 
	7.15. 	   Investment Company Act 	139 
	7.16. 	   Environmental
      Matters 	139
  


-ii- 





	  	  	Page 
	  	  	  
	7.17. 	   Labor Relations
	139 
	7.18. 	   Intellectual Property 	139 
	7.19. 	   Centre of Main
      Interests 	139140 
	7.20. 	   Borrowing Base Certificate 	140 
	7.21. 	   Dutch Works
      Council Act 	140 
	7.22. 	   Canadian Pension Plans 	140 
	  	  	  
	SECTION 8 	AFFIRMATIVE COVENANTS 	140 
	  	  	  
	8.01. 	   Information Covenants 	140 
	8.02. 	   Books, Records and
      Inspections 	143 
	8.03. 	   Maintenance of Property; Insurance
    	144145 
	8.04. 	   Existence;
      Franchises 	145146 
	8.05. 	   Compliance with Statutes, etc 	146 
	8.06. 	   Compliance with
      Environmental Laws 	146 
	8.07. 	   ERISA 	146 
	8.08. 	   Payment of Taxes
    	146147 
	8.09. 	   Use of Proceeds 	147 
	8.10. 	   Additional
      Security; Further Assurances; etc 	147 
	8.11. 	   Post-Closing Actions 	148149 
	8.12. 	   Dutch Works
      Council Act 	149150 
	8.13. 	   Certain Additional Account
      Security Actions and Additional Inventory Security Actions 	150 
	8.14. 	   Designation of
      Unrestricted Subsidiaries 	150 
	8.15. 	   Collateral Monitoring and
      Reporting 	150151 
	  	  	  
	SECTION 9 	NEGATIVE COVENANTS 	154 
	  	  	  
	9.01. 	   Liens 	154 
	9.02. 	   Asset Sales 	159 
	9.03. 	   Restricted Payments and Restricted
      Junior Debt Payments 	160 
	9.04. 	   Indebtedness 	163 
	9.05. 	   Investments 	167168 
	9.06. 	   Transactions with
      Affiliates 	171 
	9.07. 	   Modifications of Debt
      Documents, Certificate of Incorporation, By-Laws and Certain Other
      Agreements, etc 	173 
	9.08. 	   Limitation on
      Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
    	173 
	9.09. 	   Business; Fiscal Year 	175 
	9.10. 	   Negative Pledges
    	175176 
	9.11. 	   Merger, Consolidation or Sale of
      All or Substantially All Assets 	177178 
	9.12. 	   Financial Covenant
    	179180 
	9.13. 	   Canadian Pension Plans 	180 
	  	  	  
	SECTION 10 	EVENTS OF DEFAULT 	180 
	  	  	  
	10.01. 	   Payments 	180 
	10.02. 	   Representations,
      etc 	180 
	10.03. 	   Covenants 	180 
	10.04. 	   Default Under
      Other Agreements 	180181 
	10.05. 	   Bankruptcy, etc 	181 


-iii- 





	  	  	Page 
	  	  	  
	10.06. 	   ERISA; Dutch Works
      Council Act 	181 
	10.07. 	   Credit Documents 	181182 
	10.08. 	   Guarantees 	182 
	10.09. 	   Judgments 	182 
	10.10. 	   Change of Control
    	182 
	10.11. 	   Application of Funds 	182183 
	  	  	  
	SECTION 11 	THE ADMINISTRATIVE AGENT 	184 
	  	  	  
	11.01. 	   Appointment and Authorization 	184 
	11.02. 	   Delegation of
      Duties 	185 
	11.03. 	   Liability of Agents 	185 
	11.04. 	   Reliance by the
      Agents 	185186 
	11.05. 	   Notice of Default 	186 
	11.06. 	   Credit Decision;
      Disclosure of Information by the Agents 	186 
	11.07. 	   Indemnification of the Agents 	187 
	11.08. 	   Administrative
      Agent and Collateral Agent in Its Individual Capacity 	187 
	11.09. 	   Successor Administrative Agents
	187188 
	11.10. 	   Administrative
      Agent May File Proofs of Claim 	188189 
	11.11. 	   Collateral and Guarantee Matters
    	189 
	11.12. 	   Bank Product
      Providers 	189 
	11.13. 	   The Collateral Agent 	189190 
	11.14. 	   Withholding Taxes
    	189190 
	11.15. 	   Quebec Representative 	190 
	11.16. 	   Appointment
      of Collateral Agent as security trustee for UK Security Agreements 	190191 
	11.17. 	   Authorization to Take Action
      Regarding Dutch Pledges 	193194 
	  	  	  
	SECTION 12  	MISCELLANEOUS 	194 
	  	  	  
	12.01. 	   Payment of Expenses, etc 	194 
	12.02. 	   Right of Setoff
	195 
	12.03. 	   Notices 	195 
	12.04. 	   Benefit of
      Agreement; Assignments; Participations, etc 	196 
	12.05. 	   No Waiver; Remedies Cumulative 	198 
	12.06. 	   [Reserved] 	198 
	12.07. 	   GOVERNING LAW; SUBMISSION TO
      JURISDICTION; VENUE; WAIVER OF JURY TRIAL 	198 
	12.08. 	   Counterparts 	198199 
	12.09. 	   Headings Descriptive 	199 
	12.10. 	   Amendment or
      Waiver; etc 	199 
	12.11. 	   Survival 	202 
	12.12. 	   Domicile of Loans
    	202 
	12.13. 	   Release of Collateral or
      Guarantors 	202 
	12.14. 	   Confidentiality
	203 
	12.15. 	   USA Patriot Act Notice 	204 
	12.16. 	   Waiver of
      Sovereign Immunity 	204 
	12.17. 	   Canadian Anti-Money Laundering
      Legislation 	204205 
	12.18. 	   Absence of
      Fiduciary Relationship 	205 
	12.19. 	   Electronic Signatures 	205 


-iv- 





	  	  	Page 
	  	  	  
	12.20. 	   Judgment Currency
    	205206 
	12.21. 	   Dutch Credit Party Representation
    	206 
	12.22. 	   Acknowledgement
      and Consent to Bail-In of EEA Financial Institutions 	206 
	  	  	  
	SECTION 13 	CREDIT PARTY GUARANTEE 	206 
	  	  	  
	13.01. 	   The Guarantee 	206 
	13.02. 	   Bankruptcy 	207 
	13.03. 	   Nature of
      Liability 	207 
	13.04. 	   Independent Obligation 	207208 
	13.05. 	   Authorization 	208 
	13.06. 	   Reliance 	208209 
	13.07. 	   Subordination 	209 
	13.08. 	   Waiver 	209 
	13.09. 	   Maximum Liability
    	209210 
	13.10. 	   Payments 	210 
	13.11. 	   [Reserved] 	210 
	13.12. 	   Information 	210 
	13.13. 	   Severability 	210 
	13.14. 	   Canadian Severability 	210 



	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 2.01 	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. 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 C 	Form of U.S. Tax Compliance
      Certificate 
	EXHIBIT D 	Form of Borrowing Base Certificate 
	EXHIBIT E 	Form of Joinder Agreement

	EXHIBIT F 	Form of Solvency Certificate 
	EXHIBIT G 	Form of Compliance Certificate
    
	EXHIBIT H 	Form of Assignment and Assumption Agreement
  


-v- 





	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, dated as
of February 11, 2016, 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. Subfacility (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 $350,000,000,
consisting of (i) a U.S. Subfacility in an initial aggregate principal amount of
$260,000,000 (the “U.S. Subfacility”), (ii) a Canadian Subfacility in an
initial aggregate principal amount of $15,000,000 (the “Canadian
Subfacility”) and (iii) a Dutch Subfacility in an initial aggregate
principal amount of $75,000,000 (the “Dutch Subfacility” and, together
with the U.S. Subfacility and Canadian 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. 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. 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. 

-2- 




 “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). 

-3- 




“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. 

-4- 




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


-5- 




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. 

“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. 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); 

-6- 




(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; 

-7- 




(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. Revolving Exposure does not exceed such Lender’s U.S. Revolving
Commitment; 

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

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

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

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

(f)     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: 

-8- 




(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. 

-9- 




“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. Revolving Commitment, the U.S. Borrowing Base,
(b) with respect to the Canadian Revolving Commitment, the Canadian Borrowing
Base, (c) with respect to the Dutch Revolving Commitment, the Dutch Borrowing
Base and (d) the sum of the U.S. 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; 

-10- 




(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). 

-11- 




“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. 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 the
Eligible Equipment and Eligible Fee-Owned Real Estate so appraised), 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 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

-12- 




(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. Borrowing Base exceed the total Dutch Revolving Exposure and/or U.S.
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. Borrowing Base and/or
the Dutch Borrowing Base pursuant to clause (e) of the definition of the term
“U.S. 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. 

-13- 




“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. 

-14- 




“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. 

-15- 




“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 Closing Date is $15,000,000. 

-16- 




“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. 

-17- 




“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), 

-18- 




(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. 

-19- 




“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 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 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. 

-20- 




“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. 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. 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. 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. Subfacility, the
Canadian Subfacility or the Dutch Subfacility. 

-21- 




“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; 

-22- 




(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 

-23- 





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 t hereon 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. 


-24- 




“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.

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“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

-26- 




(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; 

-27- 




(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 

-28- 




(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; 

-29- 




(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; 

-30- 




(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. 

-31- 




“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. 

-32- 




“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. 

-33- 




 “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. 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. 

-34- 




“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 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) $30,000,000, 

(iii)     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 (iii) 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) $40,000,000, and 

(iv)     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.

-35- 




“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 U.S. Borrowing Base exceed the total
Canadian Revolving Exposure and/or U.S. 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 U.S.
Borrowing Base pursuant to clause 

(e)     of each of the definitions of
Canadian Borrowing Base and U.S. 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. 

-36- 




“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. 

-37- 





“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
Closing Date is $75,000,000. 

“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. 

-38- 




“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. 

-39- 




“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; 

-40- 




(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; 

-41- 




(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% (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;

-42- 




(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. 

-43- 




“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; 

-44- 




(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. 

-45- 




“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; 

-46- 




(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; 

-47- 




(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. 

-48- 




“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. 

-49- 




“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. 

-50- 




“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). 

-51- 




“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. Subfacility, 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. 

-52- 





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

“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 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. 

-53- 




“FCCR Test Amount”
shall 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. 

 “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. 

-54- 




“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. 

-55- 




 “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). 

-56- 




“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. 

-57- 




“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 Intercreditor Agreement, dated as of February 11, 2016, among
BANA, in its capacity as agent for the First Lien Claimholders, Bank of
Montreal, a Canadian chartered bank, 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. 

-58- 




“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: 


(i)     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 


(ii)     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 


(iii)     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; 

-59- 





(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. 

-60- 




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. 

-61- 




“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. 

-62- 




“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 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. Subfacility, 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. 

-63- 




“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. Borrowing Base comprise less than 60.0% of
the total Borrowing Base; and (b) the sum of the Canadian Revolving Commitment
plus the U.S. Revolving Commitment comprise less than 60.0% of the total
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. Subfacility, 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. 

-64- 




“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. 

-65- 




“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. 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. Subfacility 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. 

-66- 




“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. 

-67- 




“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”.


-68- 




“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.
Revolving Commitments represented by such Lender’s U.S. Revolving Commitment or
(iv) 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. 

-69- 




“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. 

-70- 




“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. 

-71- 




“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 and with respect
to the Canadian Borrowing Base, the Canadian Priority Payables Reserve and the
Receivables Collection Reserve (solely during a Cash Dominion Period). 

“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 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
Revolving Commitments. 

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

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“Revolving Commitment”
shall mean the Canadian Revolving Commitment, the U.S. Revolving Commitment,
and/or the Dutch Revolving Commitment, as the context may require. 

“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. 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. Revolving Loans, Dutch Revolving Loans,
Protective Advances and/or Overadvance Loans, as the context may require. 

“Revolving Note” shall
mean the U.S. 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 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 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. 

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“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. 

-74- 




“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. 

-75- 





“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%.” 

“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). 

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“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. 

-77- 




“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. 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 

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(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.
Borrowing Base calculated based on the updated information set forth in the
relevant Appraisals (and including only the Eligible Equipment and Eligible
Fee-Owned Real Estate so appraised), 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 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. 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

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(f)     the portion of the U.S. Borrowing
Base, if any, that is reallocated to the Canadian Borrowing Base and/or the
Dutch Borrowing Base pursuant to clause 


(g)     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) any Reserves 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. 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. 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. 

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“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. Line Cap” shall
mean, at any time, an amount that is equal to the lesser of (a) the U.S.
Revolving Commitments and (b) the U.S. 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. 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. Revolving Borrowing”
shall mean a Borrowing comprised of U.S. Revolving Loans. 

“U.S. Revolving Commitment”
shall mean, with respect to each U.S. Revolving Lender, the commitment, if any,
of such Lender to make U.S. Revolving Loans hereunder up to the amount set forth
and opposite such Lender’s name on Schedule 2.01 under the caption “U.S.
Revolving Commitment,” or in the Assignment and Assumption Agreement pursuant to
which such Lender assumed its U.S. 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. Revolving Commitments on the Closing Date is $260,000,000. 

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“U.S. Revolving Exposure”
shall mean, with respect to any U.S. Revolving Lender at any time, the aggregate
principal amount at such time of all outstanding U.S. 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. Revolving Lender” shall
mean any Lender under the U.S. Subfacility. 

“U.S. 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. Subfacility. 

“U.S. 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. Subfacility” shall have
the meaning provided in the recitals hereto. 

“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. 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.
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 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). 

“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. 

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“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). 

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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). 

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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 Revolving
Exposure exceeds the Line Cap, or (b) the Dollar Equivalent any part of the
Revolving Exposure (including any Subfacility) exceeds any other limit set forth
herein for such 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 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. 

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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. 

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(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 date 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. 

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(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. 

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(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.

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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. Subfacility, U.S. 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. Revolving Loans will be available under each Subfacility in Dollars
and any Alternative Currency. 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. Subfacility 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. Revolving Loan (other than U.S. Swingline Loans) shall be made as part
of a Borrowing consisting of U.S. Revolving Loans made by the U.S. Revolving
Lenders in accordance with their Pro Rata Percentage under the U.S Subfacility
of the applicable U.S. Revolving Commitments, (ii) 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 (iii) 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.

(b)    
Subject to Section 3.01, (i) each Borrowing of U.S. 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 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 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 fifteen 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. 

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(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 the 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).


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(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. 

(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. 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. To request a Revolving Borrowing under the U.S.
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. Each
such written Notice of Borrowing shall specify the following information in
compliance with Section 2.02: 

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(a)     the aggregate amount of such
Borrowing; 


(b)     the date of such Borrowing, 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; 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. 

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)     Each
U.S. Borrower, jointly and severally, hereby unconditionally promises to pay (i)
to the Administrative Agent for the account of each U.S. Revolving Lender, the
then unpaid principal amount of each U.S. Revolving Loan of such U.S. 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. 

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(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 as applicable. 

2.05.    
Fees. 

(a)    
Unused Line Fee. With respect to each Subfacility, the Borrowers
thereunder shall, jointly and severally, pay to the applicable Administrative
Agent, for the account of the Lenders (other than any Defaulting Lender) under
such Subfacility, a fee in Dollars equal to the then applicable Unused Line Fee
Rate multiplied by the average daily amount by which the Revolving Commitments
(other than Revolving Commitments of a Defaulting Lender) under such Subfacility
exceed such Lender’s Pro Rata Percentage under the applicable Subfacility of the
sum of (i) the aggregate principal amount of Revolving Loans (other than
Swingline Loans) then outstanding under such Subfacility and (ii) the aggregate
Stated Amount of outstanding Letters of Credit available to be drawn under such
Subfacility during any fiscal quarter (such fee, the “Unused Line Fee”).
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 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 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 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 and any such fees accruing after the
date on which the 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. 

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(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. 

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(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 (x) each Base Rate 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 (y) each Eurocurrency Rate 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; 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, in the case of
Revolving Loans, shall be payable on the last day of the Revolving Availability
Period; 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),
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. 

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2.07.    
Termination and Reduction of Commitments. 

(a)    
Except as otherwise provided in Section 2.19, the Revolving Commitments,
the Swingline Commitment, and the LC Commitment shall automatically terminate on
the Maturity Date. 

(b)     The
Company may at any time terminate, or from time to time reduce, the Commitments
under any Subfacility; provided that (i) any such reduction shall be in
an amount that is an integral multiple of the Borrowing Multiple, (ii) the
Commitments under any Subfacility shall not be terminated or reduced if, after
giving effect to any concurrent prepayment of the Loans under such Subfacility
in accordance with Section 2.09, the Revolving Exposures under such
Subfacility would exceed the Commitments under such 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 Commitments under any 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). 

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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 fifteen 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). 

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(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. 

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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 each partial prepayment shall be in an amount
that is an integral multiple of the Borrowing Multiple. 

(b)    
Mandatory Prepayments. 

(i)     In the
event of the termination of all the Revolving Commitments under any Subfacility,
the Borrowers shall, on the date of such termination, repay or prepay all the
outstanding 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 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)     In the
event of any partial reduction of the Revolving Commitments under any
Subfacility, then (A) at or prior to the effective date of such reduction, the
Administrative Agent shall notify the Company and the Revolving Lenders of the
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 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, second, repay or prepay Revolving Borrowings 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 Subfacility or Subfacilities, in an amount sufficient
to eliminate such excess.

(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
to prepay the Loans and any interest accrued thereon, first, repay or
prepay Swingline Loans, second, repay or prepay Revolving Borrowings, 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 Subfacility or 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 Subfacility exceeds the LC
Commitment then in effect under such Subfacility, the applicable Borrowers
shall, without notice or demand, immediately replace or Cash Collateralize
Letters of Credit outstanding under such Subfacility in accordance with the
procedures set forth in Section 2.13(j), in an amount sufficient to
eliminate such excess. 

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(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 Revolving Loans and other
amounts due and payable pursuant to Sections 3.02 and 4.01;
fifth, to the principal balance of the 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, 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. 

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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. 

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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 Subfacility or 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 Subfacility or Subfacilities; provided
that (A) each Non-Defaulting Lender’s Revolving Exposure may not in any event
exceed the 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
Subfacility or 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 Subfacility or 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; 

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(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
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 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. 

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(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.
Subfacility exceeding $30,000,000, (ii) the U.S. Revolving Exposures exceeding
the U.S. Line Cap or (iii) the 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 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 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. 

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(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. 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
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
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 Revolving Exposure to exceed such Lender’s Revolving Commitment). Each
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, 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. 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). 

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(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. Subfacility. 

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(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. Revolving Exposures shall not exceed the U.S.
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. 

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(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 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 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. 

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(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. 

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(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 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. 

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(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.

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(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). 

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(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 the 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) 

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2.15.    
Revolving Commitment Increase. 

(a)    
Subject to the terms and conditions set forth herein, after the Closing 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 $450,000,000; 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 $25,000,000 or, if
less than $25,000,000 is available, the amount left available, (iii) the North
American Minimum Requirement shall be met at all times, and (iv) the aggregate
amount of Incremental FILO Facilities shall not exceed $35,000,000. 

(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. 

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(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 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 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, (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. 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. 

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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 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.
Revolving Exposure outstanding exceeds the U.S. 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 Revolving Exposure outstanding exceeds the Line Cap (each of the
foregoing clauses (i), (ii), (iii) and (iv), 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 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. Revolving Exposure to exceed the aggregate U.S.
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 Revolving Exposure to exceed
the aggregate 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. 

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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 (each such loan, a “U.S.
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. Protective
Advances and Canadian Protective Advances, “Protective Advances”) (a) (i)
in an aggregate amount, together with the aggregate amount of all Overadvance
Loans, 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. Subfacility, not
to exceed 10% of the Line Cap for the U.S. 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
Revolving Exposure shall not exceed the aggregate Revolving Commitments, (ii)
the Dollar Equivalent of the aggregate amount of outstanding U.S. Protective
Advances plus the Dollar Equivalent of the outstanding amount of U.S.
Revolving Exposure shall not exceed the aggregate U.S. 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. 

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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 Revolving Commitments of any Class (including in respect of any Subfacility,
and, in each case, including any previously extended Revolving Commitments),
existing at the time of such request (each, an “Existing Revolving
Commitment” and any related Revolving Loans under any such Class (including
in respect of any 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 Subfacility) of
Existing Revolving Commitments, with such request offered equally to all Lenders
of such Class (including in respect of any 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 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 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 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 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, 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 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. 

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(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 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 Subfacility shall
result in a Dollar-for-Dollar decrease in one or more other Subfacilities
pursuant to this Section 2.20, and any decrease in the any Subfacility
pursuant to this Section 2.20 shall result in a Dollar-for-Dollar
increase in one or more other 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 Revolving Commitments available
for use under each 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 Revolving Commitment
reallocated in connection with any requested Revolver Commitment Adjustment, it
being understood that no Lender shall be obligated to reallocate its 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 be reduced without
its explicit consent. 

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(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 Revolving Loans held by each Lender as a result thereof, the
amount of the Revolving Commitment of each Lender available for use under each
Subfacility and the percentage of each 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. 

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(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. 

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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. 

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(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. 

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(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. 

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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. 

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(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. Subfacility: (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. 

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(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. 

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(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)). 


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(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 date 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. 

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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. 

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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. 

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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. 

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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.

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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 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 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. 

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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. 

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(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. 

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(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. 

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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.

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(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. 

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(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. 

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(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.

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(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. All reports of appraisers must be
provided directly to the Administrative Agent who shall be entitled to rely
thereon. Following the completion of any such additional Appraisals, the Company
may choose to have the Borrowing Base calculated based on the updated
information set forth in such Appraisals (and including only the Eligible
Equipment and Eligible Fee-Owned Real Estate so appraised), until such time as a
further additional Appraisal 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 have commenced, the Company shall not have the option to discontinue
such Appraisals. The Company acknowledges that 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.

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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 definiton 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. 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. 

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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. 

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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). 

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(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. 

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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 

(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. 

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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. 

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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” and “U.S.
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”). 

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(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 date 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). 

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(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. 

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(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); 

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(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; 

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(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;


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(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; 

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(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; 

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(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).

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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). 

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(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). 

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(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; 

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(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”); 

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(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); 

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(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; 

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(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;


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(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. 

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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.    
Investments. Each of the Company and any Restricted Subsidiary shall not,
directly or indirectly, make any Investment (other than any Restricted
Investment permitted to be made pursuant to Section 9.03), except that
the following Investments shall be permitted (each, a “Permitted
Investment”): 


(i)     any Investment in the Company or any other Credit
Party; 


(ii)     any Investment by any Restricted Subsidiary that is
not a Credit Party in any other Restricted Subsidiary that is not a Credit
Party; 


(iii)     any Investment in Investment Cash Equivalents or
Investment Grade Securities; 


(iv)     any Investment subject to compliance with the
Investment and Junior Debt Incurrence Conditions on a pro forma basis after
giving effect to such Investment; 


(v)     any Investments in Restricted Subsidiaries that are
not Credit Parties in an aggregate amount, measured at the time such Investment
is made (and valued at the Fair Market Value thereof at the time made), that
would not exceed the sum of (I) 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 Investment minus (II) the aggregate amount, measured at the time
such Investment is made, of all Investments (valued at the Fair Market Value of
such Investments at the time such Investments are made) made pursuant the
proviso to Section 9.05(vi); provided, however, that if any
Investment pursuant to this clause (v) is made in any Person that is not a
Credit Party at the date of the making of such Investment and such Person
becomes a Credit Party after such date, such Investment shall thereafter be
deemed to have been made pursuant to clause (i) above and shall cease to have
been made pursuant to this clause (v)); provided, further, that,
notwithstanding the foregoing, any Investment in Subsidiaries that are not
Credit Parties shall be permitted without restriction so long as (x) such
Investments are part of a series of transactions that results in all proceeds of
the intercompany Investments being invested substantially contemporaneously in
(or distributed to) any Borrower or any Guarantor or (y) such Investments
constitute intercompany Investments, reorganizations and related activities
related to tax planning and reorganization so long as after giving effect
thereto, the Lien of the Secured Creditors on the Collateral, taken as a whole,
is not impaired in any material respect (it being understood that the
contribution of the Equity Interests of one or more “first-tier” Foreign
Subsidiaries to a newly created “first-tier” Foreign Subsidiary shall be
permitted); 

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 (vi)     Permitted
Acquisitions; provided that the aggregate amount of Permitted Acquisition
Consideration relating to all such Permitted Acquisitions made or provided by a
Credit Party to acquire any Restricted Subsidiary that does not become a Credit
Party or merge, consolidate or amalgamate into a Credit Party or any assets that
shall not, immediately after giving pro forma effect to such Permitted
Acquisition, be owned by a Credit Party, shall not exceed (A) the greater of (x)
$25,000,000 and (y) 2.00% of Consolidated Total Assets, measured as of the date
of such Investment based upon the Section 8.01 Financials most recently
delivered on or prior to the date of such Investment minus (B) the
aggregate amount, measured at the time such Investment is made, of all
Investments (valued at the Fair Market Value of such Investments at the time
such Investments are made) made pursuant to Section 9.05(v); provided,
however, that if any Investment pursuant to this clause (vi) is made in
any Person that is not a Credit Party at the date of the making of such
Investment and such Person becomes a Credit Party after such date, such
Investment shall thereafter be deemed to have been made pursuant to clause (i)
above and shall cease to have been made pursuant to this clause (vi); 

 (vii)    
any Investment in securities or other assets, including earnouts not
constituting Investment Cash Equivalents or Investment Grade Securities and
received in connection with an Asset Sale made pursuant to Section 9.02
or any other disposition of assets not constituting an Asset Sale; 

 (viii)    
any Investment existing on the Closing Date and listed on Schedule
9.05(viii) or made pursuant to binding commitments in effect on the Closing
Date or an Investment consisting of any extension, modification or renewal of
any such Investment or binding commitment existing on the Closing Date;
provided that the amount of any such Investment may be increased
in such extension, modification or renewal only (i) as required by the terms of
such Investment or binding commitment as in existence on the Closing Date
(including as a result of the accrual or accretion of interest or original issue
discount or the issuance of pay-in-kind securities) or (ii) as otherwise
permitted under this Agreement; 

 (ix)    
Hedging Obligations and Secured Bank Product Obligations permitted under
Section 9.04(x); 

 (x)    
any Investment in a Similar Business, an Unrestricted Subsidiary or a joint
venture having an aggregate Fair Market Value taken together with all other
Investments made pursuant to this clause (x) that are at that time outstanding,
not to exceed, as of the date such Investment is made, $20,000,000 (in each
case, determined on the date such Investment is made, with the Fair Market Value
of each Investment being measured at the time made and without giving effect to
subsequent changes in value); provided, however, that if any
Investment pursuant to this clause (x) is made in any Person that is not a
Credit Party at the date of the making of such Investment and such Person
becomes a Credit Party after such date, such Investment shall thereafter be
deemed to have been made pursuant to clause (i) above and shall cease to have
been made pursuant to this clause (x); 

 (xi)    
guarantees of Indebtedness permitted under Section 9.04, performance
guarantees and Contingent Obligations incurred in the ordinary course of
business or consistent with past practice and the creation of Liens on the
assets of the Company or any Restricted Subsidiary in compliance with Section
9.01; 

 (xii)    
(i) advances to, or guarantees of Indebtedness of, employees not in excess of
$2,000,000 outstanding at any one time, in the aggregate; and (ii) loans and
advances to employees, directors, officers, managers, distributors and
consultants for business-related travel expenses, moving expenses and other similar expenses or payroll
advances, in each case incurred in the ordinary course of business or consistent
with past practices or to fund such Person’s purchase of Equity Interests of the
Company; 

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(xiii)     payments of Indebtedness of Opta Minerals, Inc.
concurrently with the sale thereof, solely out of the proceeds of such sale and
to the extent required by the sale agreement therefor; 


(xiv)     advances, loans or extensions of trade credit in
the ordinary course of business or consistent with past practice by the Company
or any of the Restricted Subsidiaries; 


(xv)     any Investment in any Subsidiary or any joint
venture in connection with intercompany cash management arrangements or related
activities arising in the ordinary course of business or consistent with past
practice; 


(xvi)     Investments made in the ordinary course of
business or consistent with past practice in connection with obtaining,
maintaining or renewing client contracts and loans or advances made to
distributors in the ordinary course of business; 


(xvii)     Investments in the ordinary course of business or
consistent with past practice consisting of UCC Article 3 endorsements for
collection of deposit and Article 4 customary trade arrangements with customers
consistent with past practices; 


(xviii)     additional Investments having an aggregate Fair
Market Value, taken together with all other Investments made pursuant to this
clause (xviii) that are at that time outstanding (without giving effect to the
sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do
not consist of cash or have not been subsequently sold or transferred for cash
or marketable securities), not to exceed, as of the date such Investment is
made, the greater of (A) $15,000,000 and (B) 1.20% of Consolidated Total Assets
measured as of the date of such Investment based upon the Section 8.01
Financials most recently delivered on or prior to the date such Investment is
made, calculated as of the date such Investment is made (in each case determined
as of the date such Investment is made, with the Fair Market Value of each
Investment being measured at the time made and without giving effect to
subsequent changes in value); 


(xix)     Investments received in compromise or resolution
of litigation, arbitration or other disputes; 


(xx)     Investments by the Company and the Restricted
Subsidiaries consisting of deposits, prepayment and other credits to suppliers
or lessors in the ordinary course of business; 


(xxi)     any Investment acquired by the Company or any of
the Restricted Subsidiaries (i) consisting of extensions of credit in the nature
of accounts receivable or notes receivable arising from the grant of trade
credit in the ordinary course of business, (ii) in exchange for any other
Investment or accounts receivable, endorsements for collection or deposit held
by the Company or any such Restricted Subsidiary in connection with or as a
result of a bankruptcy, workout, reorganization or recapitalization of the
issuer of such other Investment or accounts receivable (including any trade
creditor or customer) or (iii) as a result of a foreclosure by the Company or
any of the Restricted Subsidiaries with respect to any secured Investment or
other transfer of title with respect to any secured Investment in default; 

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 (xxii)     Investments the
payment for which consists of Equity Interests (exclusive of Disqualified Stock)
of the Company; 

 (xxiii)    
Investments consisting of purchases and acquisitions of inventory, supplies,
material, services, equipment or other assets or purchases of contract rights or
licenses or contributions of Intellectual Property, in each case, in the
ordinary course of business or consistent with past practice; 

 (xxiv)    
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;


 (xxv)    
Investments in prepaid expenses, negotiable instruments held for collection and
lease, utility and workers compensation, performance and similar deposits
entered into as a result of the operations of the business in the ordinary
course of business or consistent with past practice; 

 (xxvi)    
Investments consisting of promissory notes issued by the Company or any
Guarantor to future, present or former officers, directors and employees,
members of management, or consultants of the Company or any of its Subsidiaries
or their respective estates, spouses or former spouses to finance the purchase
or redemption of Equity Interests of the Company, to the extent the applicable
Restricted Payment is a permitted by Section 9.03; 

 (xxvii)    
Investments (including debt obligations and Equity Interests) received in
connection with the bankruptcy or reorganization of suppliers and customers or
in settlement of delinquent obligations of, or other disputes with, customers
and suppliers arising in the ordinary course of business or consistent with past
practice or upon the foreclosure with respect to any secured Investment or other
transfer of title with respect to any secured Investment; 

 (xxviii)    
Investments in joint ventures of the Company or any of the Restricted
Subsidiaries existing on the Closing Date having an aggregate Fair Market Value
not to exceed $10,000,000 at any one time outstanding (with the Fair Market
Value of each Investment being measured at the time made and without giving
effect to subsequent changes in value); 

 (xxix)    
Investments made in connection with crop financing and related activities,
including advances or loans to growers, (i) in the ordinary course of business
or consistent with past practice (which shall not be limited in amount) plus
(ii) in an amount having an aggregate Fair Market Value not to exceed
$10,000,000 at any one time outstanding (with the Fair Market Value of each
Investment being measured at the time made and without giving effect to
subsequent changes in value); and 

 (xxx)    
any Investment using the Available Equity Amount Basket. 

For purposes of this Section 9.05, in the event that a
proposed Investment (or portion thereof) meets the criteria of more than one of
the categories of Permitted Investments described in clauses (i) through (xxx)
above, or is otherwise entitled to be incurred or made pursuant to Section
9.03, the Company will be entitled to classify (but not reclassify such
Investment (or portion thereof) in one or more of such categories set forth
above or under Section 9.03. 

9.06.    
Transactions with Affiliates. Each of the Company and any Restricted
Subsidiary shall not make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make
or amend any transaction, contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate of the Company (each of the
foregoing, an “Affiliate Transaction”) involving aggregate payments or
consideration in excess of $5,000,000, other than any such Affiliate Transaction
on terms that are not materially less favorable to the Company or any such
Restricted Subsidiary than those that would have been obtained in a comparable
transaction by the Company such Restricted Subsidiary with an unrelated Person
on an arm’s-length basis, except: 

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 (i)    
transactions between or among the Company or any of the Restricted Subsidiaries
or any entity that becomes a Restricted Subsidiary as a result of such
transaction to the extent not prohibited by this Agreement; 

 (ii)    
Restricted Payments permitted by Section 9.03 and Investments permitted
by Section 9.05; 

 (iii)    
(A) employment agreements, employee benefit and incentive compensation plans and
arrangements and (B) the payment of reasonable fees, expenses and compensation
paid to, and indemnities and reimbursements and employment and severance
arrangements provided on behalf of or for the benefit of, current, former or
future employees, directors, officers, managers, distributors or consultants of
the Company or any of the Restricted Subsidiaries; 

 (iv)    
transactions in which the Company or any of the Restricted Subsidiaries, as the
case may be, delivers to the Administrative Agent a letter from an Independent
Financial Advisor stating that such transaction is fair to the Company or such
Restricted Subsidiary from a financial point of view or stating that the terms
are not materially less favorable, when taken as a whole, to the Company or its
relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary with an
unrelated Person on an arm’s-length basis; 

 (v)    
transactions with customers, clients, suppliers, contractors, joint venture
partners or purchasers or sellers of goods or services, in each case in the
ordinary course of business or that are consistent with past practice and
otherwise in compliance with the terms of this Agreement which are fair to the
Company and the Restricted Subsidiaries, in the reasonable determination of the
board of directors of the Company or the senior management thereof, or are on
terms at least as favorable as might reasonably have been obtained at such time
from an unaffiliated party; 

 (vi)    
the issuance or transfer of Equity Interests (other than Disqualified Stock) of
the Company to any director, officer, employee or consultant; 

 (vii)    
payments on Indebtedness and Disqualified Stock (and cancellation of any
thereof) of the Company and the Restricted Subsidiaries and Preferred Stock
(cancellation thereof) of any Restricted Subsidiary to any future, current or
former employee, director, officer, manager or consultant of the Company or any
of its Subsidiaries 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 that are, in each case, approved by the
Company in good faith; and any employment agreements, stock option plans and
other compensatory arrangements (and any successor plans thereto) and any
supplemental executive retirement benefit plans or arrangements with such
employees, directors, officers, managers or consultants which, in each case, are
approved by the Company in good faith; 

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(viii)     the pledge of Equity Interests of any
Unrestricted Subsidiary; 


(ix)     payments to or from and transactions with joint
ventures or Unrestricted Subsidiaries entered into in the ordinary course of
business or consistent with past practice (including, without limitation, any
cash management activities related thereto); 


(x)     transactions permitted by, and complying with, the
provisions of Section 9.11; 


(xi)     transactions between the Company or any of the
Restricted Subsidiaries and any Person, the sole affiliation to the Company or
any of the Restricted Subsidiaries of which is that a director of such Person is
also a director of the Company; provided, however, that such
director abstains from voting as a director of the Company on any matter
involving such other Person 


(xii)     Intellectual Property licenses in the ordinary
course of business; 


(xiii)     any contributions to the common equity capital of
the Company; and 


(xiv)     any agreement or arrangement as in effect as of
the Closing Date, or any amendment thereto (so long as any such amendment is not
disadvantageous in any material respect to the Lenders when taken as a whole as
compared to the applicable agreement as in effect on the Closing Date). 

9.07.    
Modifications of Debt Documents, Certificate of Incorporation, By-Laws and
Certain Other Agreements, etc. Each of the Company and any Restricted
Subsidiary shall not: 

 (a)     amend or modify any provision of
the Second Lien Loan Agreement (or the Second Lien Notes Indenture, if
applicable) (or any documentation governing any Refinancing Indebtedness in
respect thereof) or any documentation governing any other Junior Debt that has
an outstanding principal amount at the time of such amendment or modification in
excess of the Threshold Amount, to the extent that any such amendment or
modification, taken as a whole, would be materially adverse to the interests of
the Lenders; or 

 (b)     amend, modify or change its
certificate or articles of incorporation (including, without limitation, by the
filing or modification of any certificate or articles of designation),
certificate of formation, limited liability company agreement or by-laws (or the
equivalent organizational documents in the relevant jurisdiction), as
applicable, to the extent that any such amendment, modification or change, taken
as a whole, would be materially adverse to the interests of the Lenders. 

9.08.    
Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.

(a)     The Company shall not, and shall
not permit any Restricted Subsidiary that is not a Credit Party to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
consensual encumbrance or consensual restriction on the ability of any such
Restricted Subsidiary that is not a Credit Party to: 

(i)    
(A) pay dividends or make any other distributions to any
Credit Party on its Capital Stock or with respect to any other interest or
participation in, or measured by, its profits or owned by the Company or any
Restricted Subsidiary or (B) pay any Indebtedness owed to any Credit Party; 

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(ii)     make loans or advances to any Credit Party; or 


(iii)     sell, lease or transfer any of its properties or
assets to the Company or any Restricted Subsidiary. 

(b)     The
restrictions in Section 9.08(a) shall not apply to encumbrances or
restrictions existing under or by reason of: 


(i)     applicable Requirements of Law; 


(ii)     this Agreement and the other Credit Documents; 


(iii)     contractual encumbrances or restrictions pursuant
to the Second Lien Loan Agreement and the “Collateral Documents” as defined in
the Second Lien Loan Agreement (or the Second Lien Notes Indenture, if
applicable, and the “Collateral Documents” as defined in the Second Lien Notes
Indenture) or in any agreement effecting a refinancing, replacement or
substitution thereof and other contractual encumbrances existing on the Closing
Date; 


(iv)     purchase money obligations for property acquired in
the ordinary course of business and Capitalized Lease Obligations that impose
restrictions of the nature discussed in clause (iii) of Section 9.08(a)
hereof on the property so acquired; 


(v)     any agreement or other instrument of a Person
acquired by or merged or consolidated with or into the Company or any Restricted
Subsidiary in existence at the time of such acquisition or at the time it merges
with or into the Company or any Restricted Subsidiary or assumed in connection
with the acquisition of assets from such Person (but, in any such case, not
created in contemplation thereof), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person so acquired and its Subsidiaries, or the property or assets of the
Person so acquired and its Subsidiaries or the property or assets so acquired;



(vi)     contracts for the sale of assets, including
customary restrictions with respect to a Subsidiary of the Company pursuant to
an agreement that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary; 


(vii)     Indebtedness and Liens otherwise permitted to be
incurred pursuant to Section 9.01 and Section 9.04. 


(viii)     customary provisions in joint venture agreements
and other similar agreements or arrangements relating solely to such joint
venture; 


(ix)     customary provisions contained in contracts,
leases, sub-leases, licenses, sub-licenses or similar agreements, including with
respect to intellectual property and other agreements, in each case, entered
into in the ordinary course of business 


(x)     restrictions or conditions contained in any trading,
netting, operating, construction, service, supply, purchase, sale or other
agreement to which the Company or any Restricted Subsidiary is a party entered
into in the ordinary course of business; provided that such agreement
prohibits the encumbrance of solely the property or assets of the Company or
such Restricted Subsidiary that are the subject to such agreement, the payment
rights arising thereunder or the proceeds thereof and does not extend to any
other asset or property of the Company or such Restricted Subsidiary or the
assets or property of another Restricted Subsidiary; 

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(xi)     any encumbrance or restriction
with respect to a Restricted Subsidiary which was previously an Unrestricted
Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a
party to or entered into before the date on which such Subsidiary became a
Restricted Subsidiary; provided that such agreement was not entered into
in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary
and any such encumbrance or restriction does not extend to any assets or
property of the Company or any other Restricted Subsidiary other than the assets
and property of such Subsidiary; 

(xii)     other Indebtedness,
Disqualified Stock or Preferred Stock permitted to be incurred subsequent to the
Closing Date pursuant to Section 9.04 hereof; provided that, in
the judgment of the Company, such incurrence will not materially impair any
Credit Party’s ability to make payments under the Obligations when due; 

(xiii)     provisions limiting the
disposition or distribution of assets or property in asset sale agreements,
sale-leaseback agreements, stock sale agreements and other similar agreements
(including agreements entered into in connection with a Restricted Investment),
which limitation is applicable only to the assets that are the subject of such
agreements; 

(xiv)     customary provisions restricting
subletting or assignment of any lease governing any leasehold interest of the
Company or any Restricted Subsidiary; 

(xv)     customary provisions
restricting assignment of any agreement entered into by the Company or any
Restricted Subsidiary in the ordinary course of business; (xvi) restrictions
arising in connection with cash or other deposits permitted pursuant to
Section 9.01; and 

(xvii)     restrictions on cash or
other deposits or net worth imposed by (i) customers, lenders or suppliers or
(ii) other third parties under contracts entered into in the ordinary course of
business or arising in connection with any Permitted Liens; or 

(xviii)     any encumbrances or
restrictions of the type referred to in clauses (i), (ii) and (iii) of
Section 9.08(a) imposed by any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings of
the contracts, instruments or obligations referred to in clauses (i) through
(xvii) of this Section 9.08(b); provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of the Company, no
more restrictive in any material respect with respect to such encumbrance and
other restrictions taken as a whole than those prior to such amendment,
modification, restatement, renewal, increase, supplement, refunding, replacement
or refinancing. 

9.09.     Business; Fiscal Year. 

(a)     The Company and the Restricted
Subsidiaries, taken as a whole, shall not fundamentally and substantively alter
the character of their business, taken as a whole, from the business conducted
by the Company and the Restricted Subsidiaries, taken as a whole, on the Closing
Date and other business activities that are reasonably similar, ancillary,
complementary or related to, or a reasonable extension, development or expansion
of, such business. 

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(b)     The Company shall not change
its fiscal year; provided that the Company may, upon written notice to,
and consent by, the Administrative Agent, change the financial reporting
convention specified above to any other financial reporting convention
reasonably acceptable to the Administrative Agent, in which case the Company and
the Administrative Agent will, and are hereby authorized by the Lenders to, make
any adjustments to this Agreement that are necessary in order to reflect such
change in financial reporting. 

9.10.     Negative Pledges.

(a)     Each of the Company and any
Restricted Subsidiary shall not enter into or permit to exist any Contractual
Obligation that restricts in any way the ability of any Credit Party to grant
any Lien on its assets in favor of the Secured Creditors with respect to the
Obligations or under the Security Documents, other than pursuant to any
intercreditor agreement contemplated by this Agreement. 

(b)     The restrictions in Section
9.10(a) shall not apply to Contractual Obligations restricting the ability
of any Credit Party to grant any Lien on its assets in favor of the Secured
Creditors with respect to the Obligations or under the Security Documents that
exists under or by reason of: 

(i)     applicable Requirements of
Law; 

(ii)     this Agreement and the other
Credit Documents; 

(iii)     contractual encumbrances or
restrictions pursuant to the Second Lien Loan Agreement and the “Collateral
Documents” as defined in the Second Lien Loan Agreement (or the Second Lien
Notes Indenture, if applicable, and the “Collateral Documents” as defined in the
Second Lien Notes Indenture) or in any agreement effecting a refinancing,
replacement or substitution thereof and other contractual encumbrances existing
on the Closing Date; 

(iv)     purchase money obligations
for property acquired in the ordinary course of business and Capitalized Lease
Obligations that impose restrictions of the nature discussed in clause (iii) of
Section 9.08(a) hereof on the property so acquired; 

(v)     any agreement or other
instrument of a Person acquired by or merged or consolidated with or into the
Company or any Restricted Subsidiary in existence at the time of such
acquisition or at the time it merges with or into the Company or any Restricted
Subsidiary or assumed in connection with the acquisition of assets from such
Person (but, in any such case, not created in contemplation thereof), which
encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person so acquired and its Subsidiaries, or
the property or assets of the Person so acquired and its Subsidiaries or the
property or assets so acquired; 

(vi)     contracts for the sale of assets,
including customary restrictions with respect to a Subsidiary of the Company
pursuant to an agreement that has been entered into for the sale or disposition
of all or substantially all of the Capital Stock or assets of such Subsidiary;


(vii)     Indebtedness and Liens otherwise
permitted to be incurred pursuant to Section 9.01 and Section
9.04. 

(viii)     customary provisions in
joint venture agreements and other similar agreements or arrangements relating
solely to such joint venture; 

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(ix)     customary provisions contained in
contracts, leases, sub-leases, licenses, sub-licenses or similar agreements,
including with respect to intellectual property and other agreements, in each
case, entered into in the ordinary course of business 

(x)     restrictions or conditions
contained in any trading, netting, operating, construction, service, supply,
purchase, sale or other agreement to which the Company or any Restricted
Subsidiary is a party entered into in the ordinary course of business;
provided that such agreement prohibits the encumbrance of solely the
property or assets of the Company or such Restricted Subsidiary that are the
subject to such agreement, the payment rights arising thereunder or the proceeds
thereof and does not extend to any other asset or property of the Company or
such Restricted Subsidiary or the assets or property of another Restricted
Subsidiary; 

(xi)     any encumbrance or restriction
with respect to a Restricted Subsidiary which was previously an Unrestricted
Subsidiary pursuant to or by reason of an agreement that such Subsidiary is a
party to or entered into before the date on which such Subsidiary became a
Restricted Subsidiary; provided that such agreement was not entered into
in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary
and any such encumbrance or restriction does not extend to any assets or
property of the Company or any other Restricted Subsidiary other than the assets
and property of such Subsidiary; 

(xii)     other Indebtedness, Disqualified
Stock or Preferred Stock permitted to be incurred subsequent to the Closing Date
pursuant to Section 9.04 hereof; provided that, in the judgment of
the Company, such incurrence will not materially impair any Credit Party’s
ability to make payments under the Obligations when due; 

(xiii)     provisions limiting the
disposition or distribution of assets or property in asset sale agreements,
sale-leaseback agreements, stock sale agreements and other similar agreements
(including agreements entered into in connection with a Restricted Investment),
which limitation is applicable only to the assets that are the subject of such
agreements; 

(xiv)     customary provisions restricting
subletting or assignment of any lease governing any leasehold interest of the
Company or any Restricted Subsidiary; 

(xv)     customary provisions restricting
assignment of any agreement entered into by the Company or any Restricted
Subsidiary in the ordinary course of business; 

(xvi)     restrictions arising in
connection with cash or other deposits permitted pursuant to Section
9.01; and 

(xvii)     restrictions on cash or other
deposits or net worth imposed by (i) customers, lenders or suppliers or (ii)
other third parties under contracts entered into in the ordinary course of
business or arising in connection with any Permitted Liens; 

(xviii)     any encumbrances or
restrictions of the type referred to in clauses (i), (ii) and (iii) of
Section 9.08(a) imposed by any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings of
the contracts, instruments or obligations referred to in clauses (i) through
(xvii) of this Section 9.08(b); provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of the Company, no
more restrictive in any material respect with respect to such encumbrance and
other restrictions taken as a whole than those prior to such amendment, modification, restatement,
renewal, increase, supplement, refunding, replacement or refinancing. 

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9.11.     Merger, Consolidation or Sale
of All or Substantially All Assets.

(a)     Neither the Company nor the U.S.
Parent Borrower may consolidate, amalgamate or merge with or into or wind up
into (whether or not the Company or the U.S. Parent Borrower, as applicable, is
the surviving Person), or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its properties or assets, in one or more
related transactions, to any Person, unless: 

(i)     in the case of any such
consolidation, amalgamation, merger, winding up or sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
or properties of (A) the Company, the Company is the surviving Person or the
Person formed by or surviving any such consolidation, amalgamation or merger (if
other than the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made, is a Person organized or
existing under the Requirements of Law of Canada or any province thereof (such
surviving Person being herein called the “Successor Company”) or (B) the
U.S. Parent Borrower, the U.S. Parent Borrower is the surviving Person or the
Person formed by or surviving any such consolidation, amalgamation or merger (if
other than the U.S. Parent Borrower) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made, is a
Person organized or existing under the law of the United States, any state
thereof, the District of Columbia, or any territory thereof (such surviving
Person being herein called the “Successor U.S. Parent Borrower”). 

(ii)     the Successor Company (if other
than the Company) or the Successor U.S. Parent Borrower (if other than the U.S.
Parent Borrower), as applicable, expressly assumes all the obligations of the
Company or the U.S. Parent Borrower, as applicable, under this Agreement and the
other applicable Credit Documents pursuant to an assumption agreement hereto or
thereto in form reasonably satisfactory to the Administrative Agent; 

(iii)     immediately after such
transaction, no Default or Event of Default exists; 

(iv)     any Guarantee provided by the
Company or the U.S. Parent Borrower, as applicable, shall remain in full force
and effect; and 

(v)     any security interests and Liens
granted to the Collateral Agent for the benefit of the Secured Creditors in and
on the assets of the Company or the U.S. Parent Borrower, as applicable, shall
remain in full force and effect and perfected and enforceable (to at least the
same extent as in effect immediately prior to such merger, consolidation,
merger, winding up or sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the assets or properties); 

(b)     Except as permitted by Section
9.04 or otherwise not constituting an Asset Sale, no Credit Party (other
than the Company or the U.S. Parent Borrower) may consolidate, amalgamate or
merge with or into or wind up into (whether or not such Credit Party, is the
surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose
of all or substantially all of its properties or assets, in one or more related
transactions, to any Person, unless: 

(i)     such Credit Party is the surviving
Person or the Person formed by or surviving any such consolidation, amalgamation
or merger (if other than such Credit Party) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made, is a Person organized or existing under the law of the jurisdiction
of organization of such Credit Party, or, in the case of any such Credit Party
that is a Domestic Subsidiary, the laws of the United States, any state thereof,
the District of Columbia, or any territory thereof or, in the case of any such
Credit Party that is a Canadian Subsidiary, the law of Canada or any province
thereof , or, in the case of any such Credit Party that is a Dutch Subsidiary,
the law of the Netherlands (such surviving Person, as the case may be, being
herein called a “Successor Person”); 

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(ii)     the Successor Person (if other
than such Credit Party) expressly assumes all the obligations of such Credit
Party under this Agreement and the other applicable Credit Documents pursuant to
an assumption agreement hereto or thereto in form reasonably satisfactory to the
Administrative Agent; 

(iii)     immediately after such
transaction, no Default or Event of Default exists; 

(iv)     any Guarantee provided by such
Credit Party shall remain in full force and effect; and 

(v)     any security interests and Liens
granted to the Collateral Agent for the benefit of the Secured Creditors in and
on the assets of such Credit Party shall remain in full force and effect and
perfected and enforceable (to at least the same extent as in effect immediately
prior to such merger, consolidation, merger, winding up or sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets or properties); 

(c)     Notwithstanding clause (iii) of
Section 9.11(a) or clause (iii) of Section 9.11(b): 

(i)     any Restricted Subsidiary that is
not a Subsidiary Guarantor may consolidate or amalgamate with or merge with or
into or transfer all or part of its properties and assets to the Company or any
Restricted Subsidiary; 

(ii)     any Subsidiary Guarantor may
consolidate or amalgamate with or merge with or into or transfer all or part of
its properties and assets to the Company, any Borrower or any Subsidiary
Guarantor (or to a Restricted Subsidiary that is not a Subsidiary Guarantor if
that Restricted Subsidiary becomes a Subsidiary Guarantor); and 

(iii)     (x) the Company may merge with an
Affiliate of the Company solely for the purpose of reincorporating the Company
in Canada or any province or territory thereof and (y) the U.S. Parent Borrower
may merge with an Affiliate of the U.S. Parent Borrower solely for the purpose
of reincorporating the U.S. Parent Borrower in the United States, any state
thereof, the District of Columbia or any territory thereof, in the case of each
of clauses (x) and (y), so long as the amount of Indebtedness of the Company and
the Restricted Subsidiaries is not increased thereby. 

(d)     Upon any consolidation,
amalgamation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the assets of any Credit Party
in accordance with Section 9.11(a) or (b), the Successor Company,
Successor U.S. Parent Borrower or Successor Person, as applicable, formed by
such consolidation or into or with which such Credit Party is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Agreement referring to such Company, such U.S. Parent
Borrower or such other Credit Party, as applicable, shall refer instead to the
Successor Company, Successor U.S. Parent Borrower or Successor Person, as
applicable, and not to such Company, such U.S. Parent Borrower or such other Credit Party, as
applicable), and may exercise every right and power of such Company, such U.S.
Parent Borrower or such other Credit Party, as applicable, as applicable, under
this Agreement with the same effect as if such successor Person had been named
as the Company, such U.S. Parent Borrower or such other Credit Party, as
applicable, herein; provided that a predecessor Credit Party shall not be
relieved from the obligation to pay the Obligations except in the case of a
sale, assignment, transfer, conveyance or other disposition of all of such
predecessor Credit Party’s assets that meets the requirements of Section
9.11(a) or (b), as applicable. 

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9.12.     Financial Covenant. The
Company will not permit its Consolidated Fixed Charge Coverage Ratio for any
Test Period to be lower than 1.00 to 1.00; provided that such Consolidated Fixed
Charge Coverage Ratio will only be tested as of the last day of the Test Period
ending immediately prior to the date on which a Financial Covenant Triggering
Event shall have occurred and shall continue to be tested as of the last day of
each Test Period thereafter until such Financial Covenant Triggering Event is no
longer continuing. 

9.13.     Canadian Pension Plans. No
Credit Party shall: 

(a)     establish, sponsor, maintain,
contribute or have any liability or obligation under any Canadian Pension Plan;
or 

(b)     consummate any transaction that
would result in any Person not already a Subsidiary becoming a Subsidiary if
such Person sponsors, maintains or contributes or has any liability or
obligation under one or more Canadian Pension Plans, without the prior consent
of the Administrative Agent. 

Section 10     Events of Default.
Upon the occurrence of any of the following specified events (each, an “Event
of Default”): 

10.01.     Payments. Any Borrower
shall (i) default in the payment when due of any principal of any Loan or any
Note or (ii) default, and such default shall continue unremedied for five or
more Business Days, in the payment when due of any interest on any Loan or Note,
or any Fees or any other amounts owing hereunder or under any other Credit
Document; or 

10.02.     Representations, etc. Any
representation, warranty or statement made or deemed made by any Credit Party
herein or in any other Credit Document or in any certificate delivered to the
Administrative Agent or any Lender pursuant hereto or thereto shall prove to be
untrue in any material respect (without duplication of any materiality standard
set forth in any such representation or warranty) on the date as of which made
or deemed made; or 

10.03.     Covenants. The Company or
any Restricted Subsidiary shall (i) default in the due performance or observance
by it of any term, covenant or agreement contained in Section 8.01(f)(i),
8.04(a) (as to the existence of the Company), 8.09, 8.11,
8.15(c) (solely during a Cash Dominion Period) or Section 9, (ii)
fail to deliver a Borrowing Base Certificate required to be delivered pursuant
to Section 8.15(a) within five (5) Business Days of the date such
Borrowing Base Certificate is required to be delivered (other than during the
occurrence of a Weekly Reporting Event, in which case such period shall be two
(2) Business Days), (iii) default in the due performance or observance by it of
any other term, covenant or agreement contained in this Agreement or in any
other Credit Document (other than those set forth in Sections 10.01 and
10.02), and such default shall continue unremedied for a period of 30
days after the earlier of (x) written notice thereof is received by the Company
from the Administrative Agent or the Required Lenders or (y) a Responsible
Officer of such defaulting party gains knowledge of such default; or 

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10.04.     Default Under Other
Agreements. (i) The Company or any Restricted Subsidiary shall (x) fail to
make any payment of any Indebtedness (other than the Obligations) beyond the
period of grace, if any, provided in an instrument or agreement under which such
Indebtedness was created or (y) fail to observe or perform any agreement or
condition relating to any Indebtedness (other than the Obligations) or contained
in any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which failure or other
event or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause (determined without regard to whether any notice is required), any such
Indebtedness to become due prior to its stated maturity, or (ii) any
Indebtedness (other than the Obligations) of the Company or any Restricted
Subsidiary shall be declared to be (or shall become) due and payable prior to
the stated maturity thereof; provided that, (A) it shall not be a Default
or an Event of Default under this Section 10.04 unless the principal
amount of any Indebtedness as described in preceding clauses (i) and (ii) is at
least equal to the Threshold Amount and (B) the preceding clauses (i) and (ii)
of this Section 10.04 shall not apply to (x) Indebtedness that becomes
due as a result of a sale, transfer or other disposition (including as a result
of a Casualty Event) of the property or assets securing such Indebtedness, if
such sale, transfer or other disposition is otherwise permitted hereunder, (y)
any Indebtedness permitted to exist or be incurred under the terms of this
Agreement that is required to be repurchased, prepaid, defeased or redeemed in
connection with any asset sale event, casualty or condemnation event, change of
control (without limiting the rights of the Administrative Agent and the Lenders
under Section 10.10), excess cash flow or other customary provision in
such Indebtedness giving rise to such requirement to prepay, defease, repurchase
or redeem in the absence of any default thereunder or (z) Indebtedness in
respect of any Hedging Agreement that becomes due pursuant to a termination
event or equivalent event (other than an event that, pursuant to the terms of
such Hedge Agreement, constitutes a default or event of default in accordance
with the terms thereof ) under the terms of such Hedging Agreement; or 

10.05.     Bankruptcy, etc. The
Company or any Material Subsidiaries shall, to the extent applicable, commence a
voluntary case or proceeding concerning itself under Title 11 of the United
States Code entitled “Bankruptcy,” as now or hereafter in effect, or any
successor thereto (the “Bankruptcy Code”) or commence any analogous case,
proceeding, step or procedure under any other Debtor Relief Law of any
jurisdiction (including pursuant to the Bankruptcy and Insolvency Act (Canada),
the Companies’ Creditors Arrangement Act (Canada) or the Insolvency Act of
1986); or an involuntary case or proceeding under the Bankruptcy Code or under
any other Debtor Relief Law is commenced against the Company or any Material
Subsidiary in any jurisdiction, and the petition or proceeding is not
controverted within 30 days, or is not dismissed within 60 days, after
commencement of the case or proceeding; or a custodian (as defined in the
Bankruptcy Code), receiver, interim receiver, receiver-manager, trustee,
liquidator, administrator, monitor or similar officer is appointed for, or takes
charge of, all or substantially all of the property of the Company or any
Material Subsidiary, or there is commenced against the Company or any Material
Subsidiary any such proceeding which remains undismissed for a period of 60
days, or the company or any Material Subsidiary is adjudicated, or is deemed for
purposes of any applicable Debtor Relief Law to be, insolvent or bankrupt; or
any order of relief or other order approving any such case or proceeding is
entered; or the Company or any Material Subsidiary suffers any appointment of
any custodian, receiver, interim receiver, receiver-manager, trustee,
liquidator, administrator, monitor or the like for it or any substantial part of
its property to continue undischarged or unstayed for a period of 60 days; or
the Company or any Material Subsidiary makes a general assignment for the
benefit of creditors; or any corporate, limited liability company or similar
action is taken by the Company or any Material Subsidiary for the purpose of
effecting any of the foregoing; or 

10.06.     ERISA; Dutch Works Council
Act. (a) An ERISA Event has occurred which has resulted or could reasonably
be expected to result in a Material Adverse Effect, (b) a Foreign Pension Plan
has failed to comply with, or be funded in accordance with, applicable
Requirement of Law which has resulted or could reasonably be expected to result in a
Material Adverse Effect, or (c) a Dutch Works Council Act Event has occurred and
has resulted or could reasonably be expected to result in a Material Adverse
Effect; or 

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10.07.     Credit Documents. (i) Any
Credit Document shall cease to be, or shall be asserted in writing by any
Borrower or any Restricted Subsidiary not to be, a legal, valid and binding
obligation of any party thereto, other than as a result of acts or omissions by
any Administrative Agent, the Collateral Agent or any Lender or upon the
occurrence of the Payment in Full Date or (ii) any of the Security Documents
shall for any reason cease to be in full force and effect (other than as a
result of acts or omissions by any Administrative Agent, the Collateral Agent or
any Lender or the satisfaction in full of the Obligations), or shall cease to
give the Collateral Agent for the benefit of the Secured Creditors the Liens,
rights, powers and privileges purported to be created thereby (including,
without limitation (to the extent provided therein), a perfected (or the
equivalent with respect to the Canadian Credit Parties and Dutch Credit Parties
under applicable Requirements of Law) security interest in, and Lien on, all of
the Collateral (other than immaterial Collateral), in favor of the Collateral
Agent, superior to and prior to the rights of all third Persons (subject to (x)
the Collateral and Guarantee Requirement and (y) any Lien permitted by
Section 9.01), and subject to no other Liens (except as permitted by
Section 9.01) other than (x) as a result of a release of Collateral
permitted under Section 12.12, (y) as a result of the failure of any
Administrative Agent or the Collateral Agent to (1) maintain possession of any
stock certificates, promissory notes or other instruments actually delivered to
it under the Credit Documents or (2) file initial UCC or PPSA financing
statements; provided that it shall not be a Default or Event of Default
under this Section 10.07 if the Credit Document or Security Document at
issue was not required by virtue of the requirements of the Collateral and
Guarantee Requirement to have been executed and delivered by any Credit Party;
or 

10.08.     Guarantees. Any Credit
Party Guarantee or any provision thereof shall cease to be in full force or
effect as to any Credit Party, or any Guarantor shall deny or disaffirm such
Credit Party’s obligations under the Credit Party Guarantee to which it is a
party; or 

10.09.     Judgments. One or more
judgments or decrees for the payment of money shall be entered against the
Company or any Restricted Subsidiary involving in the aggregate for the Company
and any Restricted Subsidiary a liability or liabilities (not paid or fully
covered by a reputable and solvent insurance company (as determined in good
faith by the Company) and such judgments and decrees either shall be final and
non-appealable and not satisfied or shall not be vacated, discharged or stayed
or bonded pending appeal for any period of 60 consecutive days, and the
aggregate amount of all such judgments and decrees for the payment of money (to
the extent not paid or fully covered by such insurance company) equals or
exceeds the Threshold Amount; or 

10.10.     Change of Control. A
Change of Control shall occur; 

then and in any such event, and at any time thereafter, if any
Event of Default shall then be continuing, the Administrative Agent may, and
upon the written request of the Required Lenders, shall, by written notice to
the Company, take any or all of the following actions, without prejudice to the
rights of the Administrative Agents, any Lender or the holder of any Note to
enforce its claims against any Credit Party (provided that, if an Event
of Default specified in Section 10.05 shall occur with respect to any
Credit Party, the result which would occur upon the giving of written notice by
the Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Revolving
Commitments terminated, whereupon all Commitments of each Lender shall forthwith
terminate immediately; (ii) declare the principal of and any accrued interest in
respect of all Loans and the Notes owing hereunder and thereunder to be,
whereupon the same shall become, forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by each Credit Party; (iii) enforce, as Collateral
Agent, all of the Liens and security interests created pursuant to the Security
Documents; (iv) enforce each Credit Party Guarantee, (v) terminate, reduce or
condition any Revolving Commitment, or make any adjustment to the Borrowing Base
and (vi) require the Credit Parties to Cash Collateralize LC Obligations, and,
if the Credit Parties fail promptly to deposit such Cash Collateral, the
Administrative Agent may (and shall upon the direction of Required Lenders)
advance the required Cash Collateral as Revolving Loans (whether or not an
Overadvance exists or is created thereby, or the conditions in Section
6.01 are satisfied). 

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10.11.     Application of Funds.
After the exercise of remedies provided for above (or after the Loans have
automatically become immediately due and payable and the LC Exposure has
automatically been required to be Cash Collateralized as set forth above), any
amounts received on account of the Obligations shall, subject to the provisions
of Sections 2.11 and 2.13(j), be applied in the following order:


First, to the payment of all reasonable costs and
out-of-pocket expenses, fees, commissions and taxes of such sale, collection or
other realization including, without limitation, compensation to the
Administrative Agents, the Collateral Agent and its agents and counsel, and all
expenses, liabilities and advances made or incurred by the Administrative Agent
or the Collateral Agent in connection therewith (other than in respect of
Secured Bank Product Obligations and any Incremental FILO Facility); 

Second, to the payment of all other reasonable costs and
out-of-pocket expenses of such sale, collection or other realization including,
without limitation, costs and expenses and all costs, liabilities and advances
made or incurred by the other Secured Creditors in connection therewith (other
than in respect of Secured Bank Product Obligations and any Incremental FILO
Facility); 

Third, to interest then due and payable on the Swingline
Loans; 

Fourth, to the principal balance of the Swingline Loans
and Protective Advances outstanding until the same has been prepaid in full;


Fifth, to interest then due and payable on Revolving
Loans (other than any Loans under an Incremental FILO Facility) and other
amounts due pursuant to Sections 3.01, 3.02 and 4.01; 

Sixth, to Cash Collateralize all LC Exposures (to the
extent not otherwise Cash Collateralized pursuant to the terms hereof) plus any
accrued and unpaid interest thereon; 

Seventh, to the principal balance of Revolving
Borrowings (other than any Loans under an Incremental FILO Facility) then
outstanding and all Secured Bank Product Obligations on account of Secured
Reserved Hedges with Secured Hedge Banks pro rata; 

Eighth, to the payment of all Obligations of the Credit
Parties with respect to any Incremental FILO Facility that are then due and
payable to the applicable Administrative Agents, the Collateral Agent, each
Issuing Bank, the Swingline Lender, the Lenders and other Secured Creditors,
ratably based upon the respective aggregate amounts of all such Obligations
owing to them on such date; 

Ninth, to all Secured Unreserved Hedges, other Secured
Bank Product Obligations and other Obligations pro rata; and 

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Tenth, the balance, if any, as required by any
intercreditor agreement or, in the absence of any such requirement, to the
Person lawfully entitled thereto (including the applicable Credit Party or its
successors or assigns). 

Amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause Sixth above shall be applied to
satisfy drawings under such Letters of Credit as they occur. If any amount
remains on deposit as Cash Collateral after all Letters of Credit have either
been fully drawn or expired, such remaining amount shall be applied to the other
Obligations, if any, in the order set forth above. Amounts distributed with
respect to any Secured Bank Product Obligations shall be the lesser of the
maximum Secured Bank Product Obligations last reported to the Administrative
Agent or the actual Secured Bank Product Obligations as calculated by the
methodology reported to the Administrative Agent for determining the amount due.
The Administrative Agent shall have no obligation to calculate the amount to be
distributed with respect to any Secured Bank Product Obligations, and may
request a reasonably detailed calculation of such amount from the applicable
Secured Creditor. If a Secured Creditor fails to deliver such calculation within
five (5) Business Days following request by the Administrative Agent, the
Administrative Agent may assume the amount to be distributed is zero. 

In the event that any such proceeds are insufficient to pay in
full the items described in clauses First through Eighth of this
Section 10.11, the Credit Parties shall remain liable for any deficiency.
Notwithstanding the foregoing provisions, this Section 10.11 is subject
to the provisions of any intercreditor agreement. 

Excluded Swap Obligations with respect to any Guarantor shall
not be paid with amounts received from such Guarantor or its assets, but
appropriate adjustments shall be made with respect to payments from other Credit
Parties to preserve the allocation to Obligations otherwise set forth above in
this Section 10.11. 

Section 11     The Administrative
Agent. 

11.01.     Appointment and
Authorization. 

(a)     Each Lender hereby irrevocably
designates and appoints (i) BANA as U.S. Administrative Agent and Collateral
Agent for such Lender, Bank of America, N.A. (acting through its Canada Branch)
as Canadian Administrative Agent for such Lender and Bank of America, N.A.
(acting through its London Branch) as Dutch Administrative Agent for such
Lender, (ii) Rabobank Nederland, Canadian Branch and Bank of Montreal as
Co-Syndication Agents for such Lender, (iii) JPMorgan Chase Bank, N.A., as
Documentation Agent for such Lender and (iv) Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Rabobank Nederland, Canadian Branch and Bank of Montreal as
Joint Lead Arrangers for such Lender, each to act as specified herein and in the
other Credit Documents. Each Lender hereby irrevocably authorizes the
Administrative Agent and the Collateral Agent to take such action on its behalf
under the provisions of this Agreement and each other Credit Document and to
exercise such powers and perform such duties as are expressly delegated to it by
the terms of this Agreement or any other Credit Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere herein or in any other Credit Document, the
Administrative Agent and the Collateral Agent shall not have any duties or
responsibilities, except those expressly set forth herein. The Co-Syndication
Agents, the Documentation Agent and Joint Lead Arrangers shall have no rights,
powers, obligations, liabilities, responsibilities or duties under this
Agreement or any of the other Credit Documents, except in its capacity, as
applicable, as a Lender, a Swingline Lender or an Issuing Bank hereunder. The
Agents shall not have or be deemed to have any fiduciary relationship with any
Lender or participant, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any
other Credit Document or otherwise exist against the Agents. Without limiting the generality of the foregoing
sentence, the use of the term “agent” herein and in the other Credit Documents
with reference to the Agents is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any applicable
Requirement of Law. Instead, such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative relationship
between independent contracting parties. 

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(b)     Each of the Lenders (including in
its capacity as a Secured Bank Product Provider) hereby further authorizes the
Administrative Agent and/or the Collateral Agent to enter into the Lender Loss
Sharing Agreement, the Intercreditor Agreement, any other intercreditor
agreement (including those contemplated by Section 9.01(vi)) and any
respective amendments thereto on behalf of such Lender. Without limiting the
generality of the foregoing, each of the Lenders hereby authorizes and directs
the Administrative Agent and/or the Collateral Agent to bind each Lender to the
actions required by such Lender under the terms of the Lender Loss Sharing
Agreement and any intercreditor agreement, including the Intercreditor
Agreement. In addition, (i) each of the Lenders and each Issuing Bank hereby
authorizes the Collateral Agent to act as the agent of such Lender and Issuing
Bank for purposes of acquiring, holding and enforcing any and all Liens on
Collateral granted by any of the Credit Parties to secure any of the
Obligations, together with such powers and discretion as are reasonably
incidental thereto, and (ii) to the extent required under the Requirements of
Law of any jurisdiction other than the United States of America, each of the
Lenders and the Issuing Banks hereby grants to the Administrative Agent and
Collateral Agent any required powers of attorney to execute any Security
Document governed by the Requirements of Law of such jurisdiction on such
Lender’s or Issuing Bank’s behalf.

(c)     The provisions of this Section
11 (other than Sections 11.09 and 11.11) are solely for the
benefit of the Agents, the Lenders and the Issuing Banks, and the Borrowers
shall not have rights as a third party beneficiary of any of such provisions.


11.02.     Delegation of Duties. The
Administrative Agent and the Collateral Agent may execute any of their duties
under this Agreement or any other Credit Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties.
The Administrative Agent and the Collateral Agent shall not be responsible for
the negligence or misconduct of any agent or attorney-in-fact that it selects in
the absence of such Administrative Agent’s or the Collateral Agent’s gross
negligence or willful misconduct as determined in a final non-appealable
judgment by a court of competent jurisdiction. 

11.03.     Liability of Agents. No
Agent-Related Person shall (a) be liable for any action taken or omitted to be
taken by it under or in connection with this Agreement or any other Credit
Document or the transactions contemplated hereby (i) with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as such Agent-Related Person shall believe in
good faith shall be necessary, under the circumstances as provided in Section
10) or (ii) in the absence of its own gross negligence or willful misconduct
as determined in a final non-appealable judgment by a court of competent
jurisdiction in connection with its duties expressly set forth herein, (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Credit Party or any officer
thereof, contained herein or in any other Credit Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any other Credit Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Credit
Document, or for any failure of any Credit Party or any other party to any
Credit Document to perform its obligations hereunder or thereunder, or (c) have
any duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby or by the
other Credit Documents that such Agent-Related Person is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be expressly provided for herein or in
the other Credit Documents); provided that each of the Administrative
Agent and the Collateral Agent shall not be required to take any action that, in
its opinion or the opinion of its counsel, may expose such Administrative Agent
or Collateral Agent to liability or that is contrary to any Credit Document or
applicable Requirement of Law. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Credit Document, or to inspect the properties,
books or records of any Credit Party or any Affiliate thereof. 

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11.04.     Reliance by the Agents.


(a)     Each of the Administrative Agent
and the Collateral Agent shall be entitled to rely, and shall be fully protected
in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to any Credit Party),
independent accountants and other experts selected by such Administrative Agent
or Collateral Agent. Each of the Administrative Agent and the Collateral Agent
shall be fully justified in failing or refusing to take any action under any
Credit Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. Each of the Administrative Agent and the Collateral Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement or any other Credit Document in accordance with a request
or consent of the Required Lenders (or such greater number of Lenders as may be
expressly required hereby in any instance) and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders. 

(b)     For purposes of determining
compliance with the conditions specified in Section 5, each Lender that
has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to a
Lender unless the Administrative Agent shall have received notice from such
Lender prior to the Closing Date specifying its objection thereto. 

11.05.     Notice of Default. The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default, except with respect to defaults in the payment of
principal, interest and Fees required to be paid to the Administrative Agent for
the account of the Lenders, unless the Administrative Agent shall have received
written notice from a Lender or the Company referring to this Agreement,
describing such Default and stating that such notice is a “notice of default.”
The Administrative Agent will notify the Lenders of its receipt of any such
notice. The Administrative Agent and Collateral Agent shall take such action
with respect to such Default as may be directed by the Required Lenders in
accordance with Section 10; provided, however, that unless
and until the Administrative Agent or Collateral Agent has received any such
direction, the Administrative Agent and Collateral Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable or in the best interest of the
Lenders. 

11.06.     Credit Decision; Disclosure
of Information by the Agents. Each Lender acknowledges that no Agent-Related
Person has made any representation or warranty to it, and that no act by any
Agent hereafter taken, including any consent to and acceptance of any assignment
or review of the affairs of any Credit Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender
represents to the Agents that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of an investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Credit Parties and their respective Subsidiaries, and
all applicable bank or other regulatory Requirements of Law relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Borrowers and the other Credit Parties
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Credit Documents, and to make such investigations
as it deems necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Borrowers and the other Credit Parties. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent herein, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any of the Credit Parties or any of their
respective Affiliates which may come into the possession of any Agent-Related
Person. 

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11.07.     Indemnification of the
Agents. Whether or not the transactions contemplated hereby are consummated,
the Lenders shall indemnify upon demand each Agent (and its officers, directors,
employees, agents and attorneys in fact which are acting on behalf of the such
Agent) (to the extent not reimbursed by or on behalf of any Credit Party and
without limiting the obligation of any Credit Party to do so), pro rata, and
hold harmless each Agent (and its officers, directors, employees, agents and
attorneys in fact which are acting on behalf of such Agent) from and against any
and all Indemnified Liabilities incurred by it; provided, however,
that no Lender shall be liable for the payment to any Agent (and its officers,
directors, employees, agents and attorneys in fact which are acting on behalf of
such Agent) of any portion of such Indemnified Liabilities to the extent
determined in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Agent’s (and its officers, directors,
employees, agents and attorneys in fact which are acting on behalf such Agent)
own gross negligence or willful misconduct; provided, however,
that no action taken in accordance with the directions of the Required Lenders
shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section. Without limitation of the foregoing, each Lender shall
reimburse each Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including, without limitation, the reasonable fees and
disbursements of counsel) incurred by such Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Credit Document, or any document contemplated by or referred to
herein, to the extent that the such Agent is not reimbursed for such expenses by
or on behalf of the Borrowers. The undertaking in this Section shall survive
termination of the Revolving Commitments, the payment of all other Obligations
and the resignation of the Agents. 

11.08.     Administrative Agent and
Collateral Agent in Its Individual Capacity. BANA and its Affiliates may
make loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with each of the Credit
Parties and their respective Affiliates as though BANA was not an Administrative
Agent or the Collateral Agent hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities, BANA or its
Affiliates may receive information regarding any Credit Party or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of such Credit Party or such Affiliate) and acknowledge that the
Administrative Agents and Collateral Agent shall be under no obligation to
provide such information to them. With respect to its Loans, BANA shall have the same
rights and powers under this Agreement as any other Lender and may exercise such
rights and powers as though it were not an Administrative Agent or the
Collateral Agent, and the terms “Lender” and “Lenders” include
BANA in its individual capacity. 

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11.09.     Successor Administrative
Agents. 

(a)     Any Agent may resign upon 30 days’
prior written notice to the Lenders and to the Company. Such Agent may be
replaced by the Required Lenders if it or one of its Affiliates shall become a
Defaulting Lender. If an Agent under any Subfacility resigns or is replaced, the
Agents under the other Subfacilities shall also be deemed to have resigned and
need to be replaced. If an Agent resigns or is replaced under this Agreement,
the Required Lenders shall appoint from among the Lenders a successor
administrative agent or collateral agent, as applicable, for the Lenders under
each Subfacility, which successor agent shall be consented to by the Company at
all times other than during the existence of an Event of Default under
Section 10.01 or 10.05 (which consent of the Company shall not be
unreasonably withheld or delayed). If no successor agent is appointed prior to
the effective date of the resignation of an Agent, such Agent may appoint (if it
resigns but not if it is replaced), after consulting with the Lenders and with
the consent of the Company at all times other than during the existence of an
Event of Default under Section 10.01 or 10.05 (with respect to the
Company), a successor agent from among the Lenders under each Subfacility;
provided that any such successor agent shall be either a domestic office
of a commercial bank organized under the Requirements of Law of the United
States or any State thereof, or a United States branch of a bank that is
organized under the Requirements of Law of another jurisdiction, in either case
which has a combined capital and surplus of at least $500,000,000. Upon the
acceptance of its appointment as successor agent hereunder, the Person acting as
such successor agent shall succeed to all the rights, powers and duties of the
retiring Agent and the term “U.S. Administrative Agent,” “Canadian
Administrative Agent,” “Dutch Administrative Agent,” “Administrative Agent”
and/or “Collateral Agent” shall mean such successor agent and the retiring or
replaced Agent’s appointment, powers and duties as Agent shall be terminated.
After any retiring or replaced Agent’s resignation or replacement hereunder as
Agent, the provisions of this Section 11 and Section 12.01 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement. If no successor agent has accepted
appointment as Agent by the date which is 30 days following a retiring or
replaced Agent’s notice of resignation or its replacement, the retiring or
replaced Agent’s resignation or replacement shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Agent hereunder
until such time, if any, as the Required Lenders appoint a successor agent as
provided for above (except that in the case of any Collateral held by the
Collateral Agent on behalf of the Lenders or each Issuing Bank under any of the
Credit Documents, the retiring Collateral Agent shall continue to hold such
collateral security until such time as a successor Collateral Agent is
appointed). 

(b)     Any resignation or replacement by
BANA as administrative agent pursuant to this Section 11.09 shall also
constitute its resignation or replacement as lender of the Swingline Loans under
the relevant Subfacility to the extent that BANA is acting in such capacity at
such time. Upon the acceptance of a successor’s appointment as Administrative
Agent hereunder, (i) such successor shall succeed to and become vested with all
of the rights, powers, privileges and duties of the retiring lender of the
Swingline Loans and (ii) the retiring or replaced lender of the Swingline Loans
shall be discharged from all of its duties and obligations hereunder or under
the other Credit Documents. 

(c)     For purposes of any Dutch Security
Agreement or any other right of pledge governed by Netherlands Requirements of
Law, any resignation by the Administrative Agent is not effective with respect
to its rights under a Parallel Debt until all rights and obligations under such
Parallel Debt have been assigned and assumed to the successor agent. The
Administrative Agent will reasonably cooperate in assigning its rights under the
Parallel Debts to any such successor agent and will reasonably cooperate in transferring all rights under any Dutch Security Agreement or
any other Security Agreement governed by Netherlands Requirements of Law (as the
case may be) to such successor agent. 

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11.10.     Administrative Agent May File
Proofs of Claim. In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to any Credit Party, the Administrative Agent
(irrespective of whether the principal of any Loan or LC Exposure shall then be
due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Borrowers) shall be entitled and empowered, by intervention in such
proceeding or otherwise: 

(a)     to file and prove a claim for the
whole amount of the principal and interest owing and unpaid in respect of the
Loans, LC Exposure and all other Obligations that are owing and unpaid and to
file such other documents as may be necessary or advisable in order to have the
claims of the Lenders, the Issuing Banks and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders, the Issuing Banks and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders, the Issuing
Banks and the Administrative Agent under Sections 2.05 and 12.01)
allowed in such judicial proceeding; and 

(b)     to collect and receive any monies
or other property payable or deliverable on any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender and each Issuing Bank to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders and the Issuing
Banks, to pay to the Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the Administrative Agent
and its agents and counsel, and any other amounts due the Administrative Agent
under Sections 2.05 and 12.01. 

Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender or any Issuing Bank any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender
or any Issuing Bank to authorize the Administrative Agent to vote in respect of
the claim of any Lender or any Issuing Bank in any such proceeding. 

11.11.     Collateral and Guarantee
Matters. The Lenders and the Issuing Banks irrevocably authorize the
Administrative Agents and the Collateral Agent, to take any action permitted by
Section 12.13. 

Upon request by an Administrative Agent or the Collateral Agent
at any time, the Required Lenders will confirm in writing the applicable
Administrative Agent’s or the Collateral Agent’s, as applicable, authority to
release or subordinate its interest in particular types or items of property, or
to release any Guarantor from its obligations under the Credit Party Guarantee
pursuant to Section 12.13; provided that such authorization shall
not in any event be or become a condition to the effectiveness of any such
release or subordination if the provisions of Section 12.13 are otherwise
satisfied. 

11.12.     Bank Product Providers.
Each Secured Bank Product Provider, by delivery of a notice to the
Administrative Agent of such agreement, agrees to be bound by this Section
11. Each such Secured Bank Product Provider shall indemnify and hold
harmless Agent-Related Persons, to the extent not reimbursed by the Credit Parties, against all claims that may
be incurred by or asserted against any Agent-Related Person in connection with
such provider’s Secured Bank Product Obligations. 

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11.13.     The Collateral Agent. The
Collateral Agent and any agent, employee or attorney-in-fact appointed by the
“collateral agent” pursuant to Section 11.02 for purposes of holding or
enforcing any Lien on the Collateral (or any portion thereof) granted under the
Security Documents, or for exercising any rights and remedies thereunder at the
direction of the “collateral agent,” shall be entitled to the benefits of all
provisions of this Section 11 and Section 12 as though such agent,
employee or attorney-in-fact were the “collateral agent” under the Credit
Documents, as set forth in full herein with respect thereto. 

11.14.     Withholding Taxes. To the
extent required by any applicable Requirements of Law (as determined in good
faith by the Administrative Agent), the Administrative Agent may withhold from
any payment to any Lender under any Credit Document an amount equivalent to any
applicable withholding Tax. Without limiting or expanding the provisions of
Section 4.01, each Lender shall indemnify and hold harmless the
Administrative Agent against, and shall make payable in respect thereof within
10 days after demand therefor, any and all Taxes and any and all related losses,
claims, liabilities and expenses (including fees, charges and disbursements of
any counsel for the Administrative Agent) incurred by or asserted against the
Administrative Agent by the Internal Revenue Service or any other Governmental
Authority as a result of the failure of the Administrative Agent to properly
withhold Tax from amounts paid to or for the account of such Lender for any
reason (including because the appropriate form was not delivered or not properly
executed, or because such Lender failed to notify the Administrative Agent of a
change in circumstance that rendered the exemption from, or reduction of,
withholding Tax ineffective). A certificate as to the amount of such payment or
liability delivered to any Lender by the Administrative Agent shall be
conclusive absent demonstrable error. Each Lender hereby authorizes the
Administrative Agent to set off and apply any and all amounts at any time owing
to such Lender under this Agreement or any other Credit Document against any
amount due the Administrative Agent under this Section 11.14. The
agreements in this Section 11.14 shall survive the resignation and/or
replacement of the Administrative Agent, any assignment of rights by, or the
replacement of, a Lender, the termination of the Commitments and the repayment,
satisfaction or discharge of all other Obligations. For the avoidance of doubt,
for purposes of this Section 11.14, the term “Lender” shall include any
Issuing Bank and any Swingline Lender. 

11.15.     Quebec Representative.
Without limiting the powers of the Collateral Agent, for the purposes of holding
any hypothec granted to the Attorney (as defined below) pursuant to the
Requirements of Law of the Province of Québec to secure the prompt payment and
performance of any and all Obligations by any Credit Party, each of the Secured
Creditors hereby irrevocably appoints and authorizes the Collateral Agent and,
to the extent necessary, ratifies the appointment and authorization of the
Collateral Agent, to act as the hypothecary representative of the creditors as
contemplated under Article 2692 of the Civil Code of Québec (in such capacity,
the “Attorney”), and to enter into, to take and to hold on their behalf,
and for their benefit, any hypothec, and to exercise such powers and duties that
are conferred upon the Attorney under any related deed of hypothec. The Attorney
shall: (a) have the sole and exclusive right and authority to exercise, except
as may be otherwise specifically restricted by the terms hereof, all rights and
remedies given to the Attorney pursuant to any such deed of hypothec and
applicable law, and (b) benefit from and be subject to all provisions hereof
with respect to the Collateral Agent mutatis mutandis, including, without
limitation, all such provisions with respect to the liability or responsibility
to and indemnification by the Secured Creditors and Credit Parties. Any person
who becomes a Secured Creditor shall, by its execution of an Assignment and
Acceptance Agreement, be deemed to have consented to and confirmed the Attorney
as the person acting as hypothecary representative holding the aforesaid
hypothecs as aforesaid and to have ratified, as of the date it becomes a Secured Creditor, all actions taken by the Attorney in such
capacity. The substitution of the Collateral Agent pursuant to the provisions of
this Section 11.15 also constitutes the substitution of the Attorney. 

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11.16.     Appointment of Collateral
Agent as security trustee for UK Security Agreements. For the purposes of
any Liens or Collateral created under the UK Security Agreements, the following
additional provisions shall apply, in addition to the provisions set out in
Section 11 or otherwise hereunder. 

(a)     In this Section 11.16, the
following expressions shall have the following meanings: 

(i)     “Appointee” shall mean any
receiver, administrator or other insolvency officer appointed in respect of any
Credit Party or its assets. 

(ii)     “Charged Property” shall
mean the assets of the Credit Parties subject to a security interest under the
UK Security Agreements. 

(iii)     “Delegate” shall mean any
delegate, agent, attorney or co-trustee appointed by the Collateral Agent (in
its capacity as security trustee). 

(iv)     “UK Security Agreements”
shall mean each security document executed by any Credit Party and governed by
English law in favour of the Collateral Agent. 

(b)     The Secured Creditors appoint the
Collateral Agent to hold the security interests constituted by the UK Security
Agreements on trust for the Secured Creditors on the terms of the Credit
Documents and the Collateral Agent accepts that appointment.

(c)     The Collateral Agent, its
subsidiaries and associated companies may each retain for its own account and
benefit any fee, remuneration and profits paid to it in connection with (i) its
activities under the Credit Documents; and (ii) its engagement in any kind of
banking or other business with any Credit Party. 

(d)     Nothing in this Agreement
constitutes the Collateral Agent as a trustee or fiduciary of, nor shall the
Collateral Agent have any duty or responsibility to, any Credit Party. 

(e)     The Collateral Agent shall have no
duties or obligations to any other person except for those which are expressly
specified in the Credit Documents or mandatorily required by applicable law.


(f)     The Collateral Agent may appoint
one or more Delegates on such terms (which may include the power to
sub-delegate) and subject to such conditions as it thinks fit, to exercise and
perform all or any of the duties, rights, powers and discretions vested in it by
the UK Security Agreements and shall not be obliged to supervise any Delegate or
be responsible to any person for any loss incurred by reason of any act,
omission, misconduct or default on the part of any Delegate. 

(g)     The Collateral Agent may (whether
for the purpose of complying with any law or regulation of any overseas
jurisdiction, or for any other reason) appoint (and subsequently remove) any
person to act jointly with the Collateral Agent either as a separate trustee or
as a co-trustee on such terms and subject to such conditions as the Collateral
Agent thinks fit and with such of the duties, rights, powers and discretions vested in
the Collateral Agent by the UK Security Agreements as may be conferred by the
instrument of appointment of that person. 

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(h)     The Collateral Agent shall notify
the Lenders of the appointment of each Appointee (other than a Delegate). 

(i)     The Collateral Agent may pay
reasonable remuneration to any Delegate or Appointee, together with any costs
and expenses (including legal fees) reasonably incurred by the Delegate or
Appointee in connection with its appointment. All such remuneration, costs and
expenses shall be treated, for the purposes of this Agreement, as paid or
incurred by the Collateral Agent. 

(j)     Each Delegate and each Appointee
shall have every benefit, right, power and discretion and the benefit of every
exculpation (together “Rights”) of the Collateral Agent (in its capacity
as security trustee) under the UK Security Agreements, and each reference to the
Collateral Agent (where the context requires that such reference is to the
Collateral Agent in its capacity as security trustee) in the provisions of the
UK Security Agreements which confer Rights shall be deemed to include a
reference to each Delegate and each Appointee. 

(k)     Each Secured Creditor confirms its
approval of the UK Security Agreements and authorizes and instructs the
Collateral Agent: (i) to execute and deliver the UK Security Agreements; (ii) to
exercise the rights, powers and discretions given to the Collateral Agent (in
its capacity as security trustee) under or in connection with the UK Security
Agreements together with any other incidental rights, powers and discretions;
and (iii) to give any authorizations and confirmations to be given by the
Collateral Agent (in its capacity as security trustee) on behalf of the Secured
Creditors under the UK Security Agreements. 

(l)     The Collateral Agent may accept
without inquiry the title (if any) which any person may have to the Charged
Property. 

(m)     Each other Secured Creditor
confirms that it does not wish to be registered as a joint proprietor of any
security interest constituted by a UK Security Agreement and accordingly
authorizes: (a) the Collateral Agent to hold such security interest in its sole
name (or in the name of any Delegate) as trustee for the Secured Creditors; and
(b) the Land Registry (or other relevant registry) to register the Collateral
Agent (or any Delegate or Appointee) as a sole proprietor of such security
interest. 

(n)     Except to the extent that a UK
Security Agreement otherwise requires, any moneys which the Collateral Agent
receives under or pursuant to a UK Security Agreement may be: (a) invested in
any investments which the Collateral Agent selects and which are authorized by
applicable law; or (b) placed on deposit at any bank or institution (including
the Collateral Agent) on terms that the Collateral Agent thinks fit, in each
case in the name or under the control of the Collateral Agent, and the
Collateral Agent shall hold those moneys, together with any accrued income (net
of any applicable Tax) to the order of the Lenders, and shall pay them to the
Lenders on demand. 

(o)     On a disposal of any of the Charged
Property which is permitted under the Credit Documents, the Collateral Agent
shall (at the cost of the Credit Parties) execute any release of the UK Security
Agreements or other claim over that Charged Property and issue any certificates
of non-crystallisation of floating charges that may be required or take any
other action that the Collateral Agent considers desirable. 

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(p)     The Collateral Agent shall not be
liable for: 

(i)     any defect in or failure of the
title (if any) which any person may have to any assets over which security is
intended to be created by a UK Security Agreement; 

(ii)     any loss resulting from the
investment or deposit at any bank of moneys which it invests or deposits in a
manner permitted by a UK Security Agreement; 

(iii)     the exercise of, or the failure
to exercise, any right, power or discretion given to it by or in connection with
any Credit Document or any other agreement, arrangement or document entered
into, or executed in anticipation of, under or in connection with, any Credit
Document; or 

(iv)     any shortfall which arises on
enforcing a UK Security Agreement. 

(q)     The Collateral Agent shall not be
obligated to: 

(i)     obtain any authorization or
environmental permit in respect of any of the Charged Property or a UK Security
Agreement; 

(ii)     hold in its own possession a UK
Security Agreement, title deed or other document relating to the Charged
Property or a UK Security Agreement; 

(iii)     perfect, protect, register, make
any filing or give any notice in respect of a UK Security Agreement (or the
order of ranking of a UK Security Agreement), unless that failure arises
directly from its own gross negligence or willful misconduct; or 

(iv)     require any further assurances in
relation to a UK Security Agreement. 

(r)     In respect of any UK Security
Agreement, the Collateral Agent shall not be obligated to: (i) insure, or
require any other person to insure, the Charged Property; or (ii) make any
enquiry or conduct any investigation into the legality, validity, effectiveness,
adequacy or enforceability of any insurance existing over such Charged Property.


(s)     In respect of any UK Security
Agreement, the Collateral Agent shall not have any obligation or duty to any
person for any loss suffered as a result of: (i) the lack or inadequacy of any
insurance; or (ii) the failure of the Collateral Agent to notify the insurers of
any material fact relating to the risk assumed by them, or of any other
information of any kind, unless Required Lenders have requested it to do so in
writing and the Collateral Agent has failed to do so within fourteen (14) days
after receipt of that request. 

(t)     Every appointment of a successor
Collateral Agent under a UK Security Agreement shall be by deed. 

(u)     Section 1 of the Trustee Act 2000
(UK) shall not apply to the duty of the Collateral Agent in relation to the
trusts constituted by this Agreement. 

(v)     In the case of any conflict between
the provisions of this Agreement and those of the Trustee Act 1925 (UK) or the
Trustee Act 2000 (UK), the provisions of this Agreement shall prevail to the
extent allowed by law, and shall constitute a restriction or exclusion for the
purposes of the Trustee Act 2000 (UK). 

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(w)     The perpetuity period under the
rule against perpetuities if applicable to this Agreement and any UK Security
Agreement shall be 80 years from the date of this Agreement.] 

11.17.     Authorization to Take Action
Regarding Dutch Pledges. The Administrative Agent is hereby authorized by
the Lenders which are a party to this Agreement to execute and deliver any
documents necessary or appropriate to create the rights of pledge governed by
the laws of the Netherlands for the benefit of the Secured Creditors, including
the Dutch Security Agreements. Without prejudice to the provisions of this
Agreement and the other Credit Documents, the parties hereto acknowledge and
agree with the creation of parallel debt obligations of the Dutch Credit Parties
and any other Person providing security under a Dutch Security Agreement as will
be described in the Parallel Debt(s), including that any payment received by the
Administrative Agent in respect of the Parallel Debt(s) will be deemed a
satisfaction of a pro rata portion of the corresponding amounts of the
Obligations. 

Section 12     Miscellaneous. 

12.01.     Payment of Expenses, etc.


(a)     The Credit Parties hereby jointly
and severally agree to: (i) pay all reasonable and documented out-of-pocket
costs and expenses (A) of the Agents and the Joint Lead Arrangers and Issuing
Banks (without duplication) limited, in the case of legal fees, to the
reasonable fees and disbursements of one primary counsel in each of the U.S.,
Canada, the U.K. and the Netherlands, and, if reasonably necessary, one local
counsel in any relevant jurisdiction and an additional counsel in the case of
conflicts) in connection with the preparation, execution and delivery of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein, the administration hereof and thereof and any
amendment, waiver or consent relating hereto or thereto (whether or not
effective), (B) of the Agents and the Joint Lead Arrangers (without duplication)
in connection with their syndication efforts with respect to this Agreement, (C)
of the Agents in connection with the enforcement of this Agreement and the other
Credit Documents and the documents and instruments referred to herein and
therein or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a “work-out” or
pursuant to any insolvency or bankruptcy proceedings and (D) of the Agents in
connection with Collateral monitoring, Collateral reviews and Appraisals and
Field Examinations (limited, as set forth in Section 8.15); and (ii)
indemnify each Agent, each Joint Lead Arranger, each Lender, each Issuing Bank
and their respective Affiliates and branches, and the officers, directors,
employees, controlling persons, agents, advisors and other representatives of
each of the foregoing (each, an “Indemnified Person”) from and hold each
of them harmless against any and all liabilities (including Environmental
Liabilities), losses, damages, claims and expenses to which any such Indemnified
Person may become subject, in each case arising out of or in connection with (w)
any claim, litigation, investigation or proceeding relating to the Credit
Documents, (x) any use or proposed use of proceeds hereunder and any of the
other transactions contemplated hereby and (y) to reimburse each such
Indemnified Person upon demand for any reasonable and documented fees,
disbursements and other charges of counsel (limited to one firm of counsel for
all Indemnified Persons (and, in the case of an actual or perceived conflict of
interest where the Indemnified Person affected by such conflict has retained its
own counsel, another firm of counsel for such affected Indemnified Person) and,
to the extent required, one firm of local counsel in each relevant jurisdiction
for all Indemnified Persons) incurred in connection with investigating or
defending any of the foregoing (collectively, the “Indemnified
Liabilities”); provided that the foregoing indemnity will not, as to
any Indemnified Person, apply to liabilities, losses, damages, claims and
expense to the extent that (x) such liability, loss, damage, claim or expense
resulted from the gross negligence, willful misconduct or bad faith of such
Indemnified Person, any Affiliate or branch of such Indemnified Person or any of
their respective officers, directors, employees, controlling persons, agents,
advisors and other representatives, as determined by a court of competent
jurisdiction in a final and non-appealable decision, (y) in the case of any
claim, litigation, investigation or proceeding initiated by the Company or one of
its Subsidiaries against any Agent, any Joint Lead Arranger, any Lender or any
Issuing Bank, such liability, loss, damage, claim or expense resulted from a
breach by such Agent, such Joint Lead Arranger, such Lender or Issuing Bank, as
applicable, or its Affiliates or any of its or their respective officers,
directors, employees, controlling persons, agents, advisors and other
representatives of the obligations of such Agent, such Joint Lead Arranger, such
Lender or such Issuing Bank, as applicable, hereunder as determined by a court
of competent jurisdiction in a final and non-appealable decision or (z) such
liability, loss, damage, claim or expense resulted from any claim,
investigation, litigation or proceeding solely between and among Indemnified
Persons and not arising from any act or omission by the Company or any of its
Affiliates; provided that the Agents, the Joint Lead Arrangers and the
Issuing Banks to the extent fulfilling their respective roles as an Agent, Joint
Lead Arranger or Issuing Bank hereunder and in their capacities as such, shall
remain indemnified in such claim, investigation, litigation or proceeding to the
extent the exception set forth in clause (x) of the immediately preceding
proviso does not apply to such Person at such time. For the avoidance of doubt,
this Section 12.01(a)(ii) shall not apply to any Taxes other than Taxes
that represent liabilities, obligations, losses, damages, penalties, actions,
costs, expenses and disbursements arising from a non-Tax claim. 

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(b)     (i) No Agent or any Indemnified
Person shall be responsible or liable to any Credit Party or any other Person
for any damages arising from the use by others of information or other materials
obtained through electronic, telecommunications or other information
transmission systems, in each case, in the absence of gross negligence, willful
misconduct or bad faith on the part of such Agent or Indemnified Person (in each
case, as determined by a court of competent jurisdiction in a final and
non-appealable judgment) and (ii) no Agent, Indemnified Person or Credit Party
or any Subsidiary or Affiliate thereof shall be liable for any indirect,
special, exemplary, incidental, punitive or consequential damages (including,
without limitation, any loss of profits, business or anticipated savings) which
may be alleged as a result of this Agreement or any other Credit Document or the
financing contemplated hereby; provided that nothing in this clause
(b)(ii) shall limit the Credit Parties’ indemnification obligations pursuant to
clause (a) above to the extent such indirect, special, punitive or consequential
damages are included in any third party claim in connection with which such
Indemnified Person is entitled to indemnification under clause (a) above. 

12.02.     Right of Setoff. In
addition to any rights now or hereafter granted under applicable Requirements of
Law or otherwise, and not by way of limitation of any such rights, upon the
occurrence and during the continuance of an Event of Default, each
Administrative Agent and each Lender is hereby authorized at any time or from
time to time, without presentment, demand, protest or other notice of any kind
to any Credit Party or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and apply any and all deposits
(general or special, in whatever currency) (other than accounts used exclusively
for payroll, payroll taxes, fiduciary and trust purposes, and employee benefits)
and any other Indebtedness (in whatever currency) at any time held or owing by
such Administrative Agent or such Lender (including, without limitation, by
branches and agencies of such Administrative Agent or such Lender wherever
located) to or for the credit or the account of the Company or any Restricted
Subsidiaries against and on account of the Obligations of the Credit Parties
that are at such time due and owing to such Administrative Agent or such Lender
under this Agreement or under any of the other Credit Documents. 

12.03.     Notices. 

(a)     Except as otherwise expressly
provided herein or in any other Credit Document, all notices and other
communications provided for hereunder shall be in writing (including electronic
communication) and mailed, or delivered: (x) if to any Credit Party, c/o SunOpta
Inc., 2233 Argentia Road, Suite 401, Mississauga, Ontario L5N 2X7, Attention:
Rick Albert, Treasurer, (email: rick.albert@sunopta.com); and (y) if to any Lender, at its
address specified in writing to the Administrative Agent, at the Notice Office;
or, (z) if to any Administrative Agent or the Collateral Agent, at the addresses
set forth in Schedule 12.03 and at such other address as shall be
designated by such party in a written notice to the other parties hereto. All
such notices and communications shall, when mailed, sent by electronic
transmission or sent by overnight courier, be effective five (5) Business Days
after deposit in the mails, one (1) Business Day after delivery to the overnight
courier, or when received in the case of electronic transmission, except that
notices and communications to the Administrative Agents and the Credit Parties
shall not be effective until received by the applicable Administrative Agent or
the Company, as the case may be. 

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(b)     Notices and other communications to
the Lenders hereunder may be delivered or furnished by electronic communications
pursuant to procedures approved by the Administrative Agent. Each of the
Administrative Agent and the Company may, in its respective discretion, agree to
accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications. 

12.04.     Benefit of Agreement;
Assignments; Participations, etc. 

(a)     This Agreement shall be binding
upon and inure to the benefit of the Credit Parties, the Agents, the Lenders,
the Issuing Banks and their respective successors and permitted assigns, (a)
except as otherwise set forth herein or in any other Credit Document, no
Borrower shall have the right to assign its rights or delegate its obligations
under any Credit Documents; and (b) except that any assignment, transfer,
participation or other disposition by a Lender of its rights and obligations
under this Agreement or the other Credit Documents must be made in compliance
with this Section 12.04. The Administrative Agent may treat the Person
which made any Loan as the owner thereof for all purposes until such Person
makes an assignment in accordance with this Section 12.04. Any
authorization or consent of a Lender shall be conclusive and binding on any
subsequent transferee, participant or assignee of such Lender. 

(b)     A Lender may assign to an Eligible
Assignee any of its rights and obligations under the Credit Documents, as long
as (a) in the case of a partial assignment, is in a minimum principal amount of
$5,000,000 (unless otherwise agreed by Administrative Agent and the Company in
their reasonable discretion) and integral multiples of $100,000 in excess of
that amount; (b) except in the case of an assignment in whole of a Lender’s
rights and obligations, the aggregate amount of the Commitments retained by the
transferor Lender is at least $5,000,000 (unless otherwise agreed by the
Administrative Agent and the Company in their reasonable discretion); and (c)
except as otherwise provided in Section 3.04, the parties to each such
assignment shall execute and deliver an Assignment and Assumption Agreement to
the Administrative Agent for acceptance and recording. For the avoidance of
doubt, there is no prohibition on assignments of Loans or Commitments under one
Subfacility without a pro rata assignment of Loans or Commitments under the
other Subfacilities. Nothing herein shall limit the right of a Lender to pledge
or assign any rights under the Credit Documents to secure obligations of such
Lender to a Federal Reserve Bank; provided, however, that no such
pledge or assignment shall release the Lender from its obligations hereunder nor
substitute the pledge or assignee for such Lender as a party hereto. 

(c)     Upon delivery to the Administrative
Agent of an assignment notice in the form of Exhibit I and a
processing fee of $3,500 (unless otherwise agreed by the Administrative Agent in
its discretion or otherwise not payable due to the operation of Section
3.04), the assignment shall become effective as specified in the notice, if
it complies with this Section 12.04. From such effective date, the
Eligible Assignee shall for all purposes be a Lender under the Credit Documents,
and shall have all rights and obligations of a Lender thereunder. Upon
consummation of an assignment, the transferor Lender, the Administrative Agent
and the Company shall make appropriate arrangements for issuance of replacement
and/or new Notes, if applicable, but the Company shall have no
obligation to issue any new Notes unless and until the Note of the transferor
Lender shall have been returned to, and cancelled by, the Company or a lost note
affidavit reasonably satisfactory to the Company has been obtained. The
transferee Lender shall comply with Section 4 and deliver, upon request,
an administrative questionnaire satisfactory to the Administrative Agent. 

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(d)     No assignment or participation may
be made to a Borrower, Affiliate of a Borrower, Defaulting Lender or natural
person. The Administrative Agent has no obligation to determine whether any
assignee is permitted under the Credit Documents. Except as otherwise set forth
in Section 3.04, any assignment by a Defaulting Lender shall be effective
only if there is concurrent satisfaction of all outstanding obligations of the
Defaulting Lender under the Credit Documents in a manner reasonably satisfactory
to the Administrative Agent and the Company, including payment by the Eligible
Assignee or Defaulting Lender to the Administrative Agent of an aggregate amount
sufficient upon distribution (through direct payment, purchases of
participations or other methods acceptable to the Administrative Agent) to
satisfy all funding and payment liabilities of the Defaulting Lender. Except as
otherwise set forth in Section 3.04, if assignment by a Defaulting Lender
occurs (by operation of law or otherwise) without compliance with the foregoing
sentence, the assignee shall be deemed a Defaulting Lender for all purposes
until compliance occurs. 

(e)     The Administrative Agent, acting as
a non-fiduciary agent of the Borrowers (solely for tax purposes), shall maintain
(a) a copy (or electronic equivalent) of each Assignment and Assumption
Agreement delivered to it, and (b) a register for recordation of the names,
addresses and Commitments of, and the Loans, interest and LC Obligations owing
to, each Lender. Entries in the register shall be conclusive, absent manifest
error, and Borrowers, the Administrative Agents and Lenders shall treat each
Person recorded in such register as a Lender for all purposes under the Credit
Documents, notwithstanding any notice to the contrary. The Administrative Agent
may choose to show only one Borrower as the borrower in the register, without
any effect on the liability of any Credit Party with respect to the Obligations.
The register shall be available for inspection by the Borrowers and, solely with
respect to its own Loans and Commitments, any Lender, from time to time upon
reasonable notice. 

(f)     Subject to this Section
12.04, any Lender may sell to a financial institution (“Participant”)
a participating interest in the rights and obligations of such Lender under any
Credit Documents. Despite any sale by a Lender of participating interests to a
Participant, such Lender’s obligations under the Credit Documents shall remain
unchanged, it shall remain solely responsible to the other parties hereto for
performance of such obligations, it shall remain the holder of its Loans and
Commitments for all purposes, all amounts payable by the Borrowers shall be
determined as if it had not sold such participating interests, and the Borrowers
and the Administrative Agents shall continue to deal solely and directly with
such Lender in connection with the Credit Documents. Each Lender shall be solely
responsible for notifying its Participants of any matters under the Credit
Documents, and the Administrative Agent and the other Lenders shall not have any
obligation or liability to any such Participant.

 (g)     The Credit Parties agree that
each Participant shall be entitled to the benefits of Sections 3.01,
3.02 and 4.01 (subject to the requirements and limitations of such
Sections and Section 3.04) to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to Section 12.04(b);
provided that a Participant shall not be entitled to receive any greater
payment under Sections 3.01, 3.02 or 4.01 hereof
than the applicable Lender would have been entitled to receive with respect to
the participating interest sold to such Participant, unless (x) the sale of the
participating interest to such Participant is made with the Company’s prior
written consent (which consent shall not be unreasonably withheld) or (y) such
entitlement to receive a greater payment results from a change in any
Requirement of Law occurring after the sale of the participation takes place.


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(h)     Each Lender shall retain the sole
right to approve, without the consent of any Participant, any amendment, waiver
or other modification of a Credit Document other than that which requires the
consent of all Lenders or each affected Lender. 

(i)     Each Lender that sells a
participation shall, acting as a non-fiduciary agent of the Borrowers (solely
for Tax purposes), maintain a register in which it enters the Participant’s
name, address and interest in Commitments, Loans (and stated interest) and LC
Obligations. Entries in the register shall be conclusive, absent manifest error,
and such Lender shall treat each Person recorded in the register as the owner of
the participation for all purposes, notwithstanding any notice to the contrary.
No Lender shall have an obligation to disclose any information in such register
except to the extent necessary to establish that a Participant’s interest is in
registered form under the Code and Treasury Regulations. 

12.05.     No Waiver; Remedies
Cumulative. No failure or delay on the part of the Administrative Agents,
the Collateral Agent or any Lender in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
the Borrowers or any other Credit Party and the Administrative Agents, the
Collateral Agent or any Lender shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under
any other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights, powers and remedies herein or in any other Credit Document expressly
provided are cumulative and not exclusive of any rights, powers or remedies
which the Administrative Agents, the Collateral Agent or any Lender would
otherwise have. No notice to or demand on any Credit Party in any case shall
entitle any Credit Party to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Administrative
Agents, the Collateral Agent or any Lender to any other or further action in any
circumstances without notice or demand. 

12.06.     [Reserved]. 

12.07.     GOVERNING LAW; SUBMISSION TO
JURISDICTION; VENUE; WAIVER OF JURY TRIAL. 

(a)     THIS AGREEMENT (EXCEPT FOR
SECTION 11.15, WHICH SHALL BE GOVERNED BY THE LAWS OF QUEBEC) SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK. 

(b)     EACH PARTY TO THIS AGREEMENT
CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE COURT SITTING IN NEW YORK
COUNTRY 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 ANY CREDIT DOCUMENTS, AND AGREES THAT ANY DISPUTE, ACTION, LITIGATION OR
OTHER PROCEEDING SHALL BE BROUGHT BY IT SOLELY IN ANY SUCH COURT. EACH PARTY TO
THIS AGREEMENT 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 AGREEMENT
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. 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. NOTWITHSTANDING THE
FOREGOING AND FOR FURTHER CERTAINTY, NOTHING IN THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY AGENT, ANY ISSUING
BANK OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING
SOLELY TO THE CREDIT PARTY GUARANTEE AGAINST ANY CANADIAN CREDIT PARTY IN A
CANADIAN COURT. 

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(c)     EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. 

12.08.     Counterparts. This
Agreement may be executed in any number of counterparts and by the 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 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 Administrative Agent. 

12.09.     Headings Descriptive. The
headings of the several Sections and subsections of this Agreement are inserted
for convenience only and shall not in any way affect the meaning or construction
of any provision of this Agreement. 

12.10.     Amendment or Waiver; etc.


(a)     Except as otherwise set forth in
this Agreement or any other Credit Document, neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the Credit Parties party hereto or thereto and the Required
Lenders (although additional parties may be added to (and annexes may be
modified to reflect such additions), the Credit Party Guarantee, the
Intercreditor Agreement or the Security Documents in accordance with the
provisions hereof and thereof without the consent of the other Credit Parties
party thereto or the Required Lenders); provided that no such change,
waiver, discharge or termination shall (i) without the prior written consent of
each Lender (and Issuing Bank, if applicable) directly affected thereby, extend
the Maturity Date of any Revolving Commitment or increase the Revolving
Commitments of any Lender over the amount thereof then in effect, or reduce the
rate or extend the time of payment of interest or Fees thereon or reduce or
forgive the principal amount thereof or forgive the payment of such interest or
Fees (it being understood that waivers or modifications of conditions precedent,
Defaults or Events of Default shall not constitute a reduction or extension of
the time of payment of interest or Fees thereon of any Lender), (ii) release all
or substantially all of the Collateral under all the Security Documents without
the prior written consent of each Lender, (iii) release all or substantially all
of the value of the Credit Party Guarantee without the prior written consent of
each Lender or, except as otherwise expressly provided herein or in the Credit
Documents or release any Borrower with respect to whom any Credit Extension is
then outstanding, without the prior written consent of each Lender, (iv) reduce
the amount of, or extend the payment for, any required mandatory prepayments of
principal hereunder (it being understood that waivers or modifications of
conditions precedent, Defaults or Events of Default, Cash Dominion Periods (or
the thresholds or time periods for entering or exiting a Cash Dominion Period)
shall not constitute reduction or extension of the time of payment of such
principal) without the prior written consent of each Lender directly affected
thereby, (v) amend, modify or waive any pro rata sharing provision of Section
2.10, the payment waterfall provision of Section 10.11, or any
provision of this Section 12.10(a) (except for amendments with respect to
additional extensions of credit pursuant to this Agreement which afford the
protections to such additional extensions of credit of the type provided to the
Revolving Commitments on the Closing Date and amendments to effect the
provisions of Sections 2.15, 2.19 or 2.21 (including
amendments of Section 12.10(a) to add Class votes for the benefit of any
Incremental FILO Facility)), in each case, without the prior written consent of each Lender, (vi) reduce the
percentage specified in the definitions of “Required Lenders” or “Supermajority
Lenders” without the prior written consent of each Lender (it being understood
that, with the prior written consent of the Required Lenders or Supermajority
Lenders, as applicable, additional extensions of credit pursuant to this
Agreement may be included in the determination of the Required Lenders or
Supermajority Lenders, as applicable, on substantially the same basis as the
extensions of Revolving Commitments are included on the Closing Date), (vii)
reduce the percentage specified in the definition of “North American Minimum
Requirement” without the prior written consent of each Lender, (viii) consent to
the assignment or transfer by any Borrower of any of its rights and obligations
under this Agreement without the consent of each Lender or (ix) contractually
subordinate the Obligations without the consent of each Lender; provided, further, that no such change, waiver, discharge or termination shall (1)
without the consent of each Agent adversely affected thereby, amend, modify or
waive any provision of Section 11 or any other provision as same relates
to the rights or obligations of such Agent, (2) without the consent of
Collateral Agent, amend, modify or waive any provision relating to the rights or
obligations of the Collateral Agent, (3) without the consent of an Issuing Bank
or a Swingline Lender, amend, modify or waive any provision relating to the
rights or obligations of the such Issuing Bank or such Swingline Lender, (4)
without the prior written consent of the Supermajority Lenders, change the
definition of the terms “U.S. Borrowing Base,” “Canadian Borrowing Base,” “Dutch
Borrowing Base” or “Borrowing Base” or any component definition used therein
(including, without limitation, the definitions of “Eligible Accounts”,
“Eligible In-Transit Inventory”, “Eligible Insured and Letter of Credit Backed
Accounts”, “Eligible Inventory”, “Eligible Equipment” and “Eligible Fee-Owned
Real Estate”) if, as a result of such change, the amounts available to be
borrowed by the Borrowers would be increased or add any new classes of eligible
assets thereto; provided that the foregoing shall not limit the
discretion of the Administrative Agent to change, establish or eliminate any
Reserves or to add Accounts and Inventory acquired in a Permitted Acquisition to
the Borrowing Base as provided herein or (5) without the prior written consent
of each Lender, increase the percentages set forth in the terms “Canadian
Borrowing Base,” “Dutch Borrowing Base” and “U.S. Borrowing Base”.

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(b)     If, in connection with any proposed
change, waiver, discharge or termination of any of the provisions of this
Agreement as contemplated by clauses (i) through (viii), inclusive, of the first
proviso to Section 12.10(a), the consent of the Required Lenders is
obtained but the consent of one or more of such other Lenders whose consent is
required is not obtained, then the Company shall have the right, so long as all
non-consenting Lenders whose individual consent is required are treated as
described in either clause (A) or (B) below, to either (A) replace each such
non-consenting Lender or Lenders with one or more Replacement Lenders pursuant
to Section 3.04 so long as at the time of such replacement, each such
Replacement Lender consents to the proposed change, waiver, discharge or
termination or (B) terminate such non-consenting Lender’s Commitments and/or
repay the outstanding Revolving Loans of such Lender in accordance with
Section 3.04; provided that, unless the Commitments that are
terminated, and Revolving Loans repaid, pursuant to the preceding clause (B) are
immediately replaced in full at such time through the addition of new Lenders or
the increase of outstanding Loans of existing Lenders (who in each case must
specifically consent thereto), then in the case of any action pursuant to the
preceding clause (B) the Required Lenders (determined after giving effect to the
proposed action) shall specifically consent thereto, provided,
further, that in any event the Company shall not have the right to
replace a Lender, terminate its Commitments or repay its Revolving Loans solely
as a result of the exercise of such Lender’s rights (and the withholding of any
required consent by such Lender) pursuant to the second proviso to Section
12.10(a). 

(c)     Notwithstanding anything to the
contrary contained in clause (a) of this Section 12.10, the Borrowers,
the Administrative Agents, the Collateral Agent and each Lender providing the
relevant Revolving Commitment Increase may (i), in accordance with the
provisions of Section 2.15, enter into an Incremental Revolving
Commitment Agreement, and (ii) in accordance with the provisions of Section
2.19, enter into an Extension Amendment and, in each case, make any changes
to this Agreement (including amendments to this Section 12.10 to add Class votes
for the benefit of any Incremental FILO Facility) in order to effect the
provisions of such Sections as permitted by such Sections; provided that
after the execution and delivery by the Borrowers, the Administrative Agents,
the Collateral Agent and each such Lender may thereafter only be modified in
accordance with the requirements of clause (a) above of this Section
12.10. 

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(d)     Without the consent of any other
Person, the applicable Credit Party or Credit Parties and the Administrative
Agent and/or Collateral Agent may (in its or their respective sole discretion,
or shall, to the extent required by any Credit Document) enter into any
amendment or waiver of any Credit Document, or enter into any new agreement or
instrument, to effect the granting, perfection, protection, expansion or
enhancement of any security interest in any Collateral or additional property to
become Collateral for the benefit of the Secured Creditors, or as required by
local Requirements of Law to give effect to, or protect any security interest
for the benefit of the Secured Creditors, in any property or so that the
security interests therein comply with applicable Requirements of Law. 

(e)     Anything herein to the contrary
notwithstanding, during such period as a Lender is a Defaulting Lender, to the
fullest extent permitted by applicable Requirements of Law, such Lender will not
be entitled to vote in respect of amendments, waivers and consents hereunder and
the Commitment and the outstanding Loans or other extensions of credit of such
Lender hereunder will not be taken into account in determining whether the
Required Lenders or all of the Lenders, as required, have approved any such
amendment, waiver or consent (and the definitions of “Supermajority Lenders” and
“Required Lenders” will automatically be deemed modified accordingly for the
duration of such period); provided that (i) any waiver, amendment or
modification requiring the consent of all Lenders or each affected Lender which
affects such Defaulting Lender differently than other affected Lenders shall
require the consent of such Defaulting Lender and (ii) the Revolving Commitment
of any Defaulting Lender may not be increased or extended without the consent of
such Lender. 

(f)     Further, notwithstanding anything
to the contrary contained in this Section 12.10, if following the Closing
Date, the Administrative Agent and any Credit Party shall have jointly
identified an any error, ambiguity, omission, defect or inconsistency, in each
case, in any provision of the Credit Documents, then the Administrative Agent
and the Credit Parties shall be permitted to amend such provision by an
agreement in writing (including, without limitation any amendment, supplement or
waiver to this Agreement, any Security Document, any guarantee, any
intercreditor agreement or any related document executed by any Credit Party or
any other Subsidiary of the Company in connection with this Agreement or any
other Credit Document if such amendment, supplement or waiver is delivered in
order to cause this Agreement or such Security Agreement, guarantee,
intercreditor agreement or related document, as applicable, to be consistent
with this Agreement and the other Credit Documents) and such amendment shall
become effective without any further action or consent of any other party to any
Credit Documents if the same is not objected to in writing by the Required
Lenders within five (5) Business Days following receipt of notice thereof. 

(g)     Notwithstanding the foregoing, (A)
the consent of the Lenders or the Required Lenders, as the case may be, shall
not be required to make any such changes necessary to be made in connection with
any borrowing of an Incremental FILO Facility to effect the provisions of
Section 2.15 or, the provision of any Revolving Commitment Increase or
otherwise to effect the provisions of Section 2.15, 2.19,
2.20 or 2.21 or to update Schedule 1.01D after any Fixed
Asset Reappraisal Event as described in the definitions of the terms “Canadian
Borrowing Base” and “U.S. Borrowing Base” and (B) the Company, the
Administrative Agents, the Collateral Agent and the other Credit Parties may,
without the input or consent of the other Lenders, (i) negotiate the form of any
Mortgage or other Security Document as may be necessary or appropriate in the
opinion of the Administrative Agent and the Company (x) in connection with any
Additional Account Security Action or Additional Inventory Security Action, (y)
to comply with the Collateral and Guarantee Requirement or (z) to
otherwise comply with this Agreement, (ii) execute, deliver and perform any new
Security Document or intercreditor agreement or amendment to any Security
Document or intercreditor agreement or enter into any amendment to the Security
Documents or intercreditor agreement as may be necessary or appropriate in the
opinion of the Administrative Agent and the Company (x) in connection with any
Additional Account Security Action or Additional Inventory Security Action, (y)
to comply with the Collateral and Guarantee Requirement or (z) otherwise comply
with this Agreement and (iii) terminate any Security Document not required by
the Collateral and Guarantee Requirement. 

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(h)     To the extent notice has been
provided to the Administrative Agent pursuant to Section 2.15 with
respect to any new financial maintenance covenant or any more restrictive
financial maintenance covenant, this Agreement shall be automatically and
without further action on the part of any Person hereunder and notwithstanding
anything to the contrary in this Section 12.10 deemed modified to include
such financial maintenance covenant or such more restrictive financial
maintenance covenant on the date of the Incurrence of the applicable
Indebtedness to the extent required by the terms of such section. 

12.11.     Survival. All indemnities
set forth herein including, without limitation, in Sections 3.01,
3.02, 4.01, 11.07 and 12.01 shall survive the
execution, delivery and termination of this Agreement and the Notes and the
making and repayment of the Obligations. 

12.12.     Domicile of Loans. Each
Lender may transfer and carry its Revolving Loans at, to or for the account of
any office, branch, Subsidiary or Affiliate of such Lender. Notwithstanding
anything to the contrary contained herein, to the extent that a transfer of
Loans pursuant to this Section 12.12 would, at the time of such transfer,
result in increased costs under Section 3.01 or 4.01 from those
being charged by the respective Lender prior to such transfer, then the
Borrowers shall not be obligated to pay such increased costs (although the
Borrowers shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer). 

12.13.     Release of Collateral or
Guarantors. 

(a)     The Agents, the Lenders and the
Issuing Banks hereby irrevocably agree that the Liens granted to the Collateral
Agent by the Credit Parties on any Collateral shall be automatically released
(i) in full, as set forth in clause (b) below, (ii) upon the sale, transfer or
other disposition of such Collateral (including as part of or in connection with
any other sale, transfer or other disposition permitted hereunder) to any Person
other than another Credit Party, to the extent such sale, transfer or other
disposition is made in compliance with the terms of this Agreement (and the
Administrative Agents and Collateral Agent may rely conclusively on a
certificate to that effect provided to it by any Credit Party upon its
reasonable request without further inquiry), (iii) to the extent such Collateral
is comprised of property leased to a Credit Party by a Person that is not a
Credit Party, upon termination or expiration of such lease, (iv) if the release
of such Lien is approved, authorized or ratified in writing by the Required
Lenders (or such other percentage of the Lenders whose consent may be required
in accordance with Section 12.10), (v) to the extent the property
constituting such Collateral is owned by any Guarantor, upon the release of such
Guarantor from its obligations under its Guarantee, (vi) as required by
Collateral Agent to effect any sale, transfer or other disposition of Collateral
in connection with any exercise of remedies of the Collateral Agent pursuant to
the Security Documents, and (vii) upon the request of the Company, any asset or
property of any Credit Party included in the Collateral to the extent such asset
or property is not required by the Collateral and Guarantee Requirement to be
included in the Collateral, so long as upon the release of the Collateral
Agent’s Lien on such asset or property, such property or asset is no longer
included in the Borrowing Base and the Company shall continue to be in
compliance with the Collateral and Guarantee Requirement. Any such release shall
not in any manner discharge, affect, or impair the Obligations or any Liens (other than those being
released) upon all interests retained by the Credit Parties, including the
proceeds of any disposition, all of which shall continue to constitute part of
the Collateral except to the extent otherwise released in accordance with the
provisions of the Credit Documents. Additionally, the Agents, the Lenders and
the Issuing Banks hereby irrevocably agree that each Guarantor shall be released
from its Guarantee upon consummation of any transaction permitted hereunder
resulting in such Subsidiary ceasing to constitute a Restricted Subsidiary, or
otherwise becoming an Excluded Subsidiary. The Lenders and the Issuing Banks
hereby authorize the Administrative Agents and the Collateral Agent, as
applicable, to execute and deliver any instruments, documents, and agreements
necessary or desirable to evidence and confirm the release of any Guarantor or
Collateral pursuant to the foregoing provisions of this paragraph, all without
the further consent or joinder of any Lender or any Issuing Bank. Any
representation, warranty or covenant contained in any Credit Document relating
to any such released Collateral or Guarantor shall no longer be deemed to be
repeated. 

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(b)     Upon the occurrence of the Payment
in Full Date, upon request of the Company, the Administrative Agents and/or the
Collateral Agent, as applicable, shall (without notice to, or vote or consent
of, any Secured Creditor) take such actions as shall be required to release its
security interest in all Collateral, and to release all obligations under, and
terminate, any Credit Document, whether or not on the date of such release and
termination there may be any (i) Secured Bank Product Obligations or (ii) any
contingent indemnification obligations or other contingent obligations not then
due and payable. Any such release and termination of Obligations shall be deemed
subject to the provision that such Obligations shall be reinstated if after such
release any portion of any payment in respect of the Obligations guaranteed
thereby shall be rescinded or must otherwise be restored or returned upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any Guarantor or any substantial part of its property, or otherwise,
all as though such payment had not been made. 

12.14.     Confidentiality. 

(a)     Each Agent, Joint Lead Arranger,
Co-Syndication Agent, Documentation Agent, Lender and Issuing Bank agrees to
maintain the confidentiality of the Information and not to use or disclose such
Information, except that each Agent, Joint Lead Arranger, Co-Syndication Agent,
Documentation Agent, Lender and Issuing Bank may disclose the Information (i) to
its Affiliates and its and its Affiliates’ respective officers, directors,
employees, legal counsel, independent auditors and other experts, advisors or
agents who need to know such information in connection with this Agreement and
are informed of the confidential nature of such information and who are subject
to customary confidentiality obligations of professional practice or who agree
to be bound by the terms of this Section 12.14 (or language substantially
similar to this Section 12.14) (with each such Agent, Joint Lead
Arranger, Co-Syndication Agent, Documentation Agent, Lender and Issuing Bank, to
the extent such Person is within its control, responsible for such Person’s
compliance with this Section 12.14), (ii) to the extent such Information
becomes publicly available other than by reason of disclosure by any Agent,
Joint Lead Arranger, Co-Syndication Agent, Documentation Agent, Lender or
Issuing Bank or, in each case, its Affiliates or any of its or their respective
officers, directors, employees, legal counsel, independent auditors or other
experts, advisors or agents in violation of this Section 12.14 or any
similar confidentiality agreement binding on such Person, (iii) pursuant to the
order of any court or administrative agency in any pending legal or
administrative proceeding or otherwise as required by applicable law or
compulsory legal process (in which case such Agent, Joint Lead Arranger,
Co-Syndication Agent, Documentation Agent, Lender or Issuing Bank, as
applicable, agrees (except with respect to any audit or examination conducted by
bank accountants or any governmental bank regulatory authority exercising
examination or regulatory authority) to inform the Company promptly thereof
prior to disclosure thereof to the extent practicable and not prohibited by applicable law), (iv) upon the request or
demand of any regulatory authority having jurisdiction over such Agent, Joint
Lead Arranger, Co-Syndication Agent, Documentation Agent, Lender or Issuing
Bank, as applicable, or its Affiliates (in which case, such Agent, Joint Lead
Arranger, Co-Syndication Agent, Documentation Agent, Lender or Issuing Bank, as
applicable, agrees (except with respect to any audit or examination conducted by
bank accountants or any governmental bank regulatory authority exercising
examination or regulatory authority) to inform the Company promptly thereof
prior to disclosure thereof to the extent practicable and not prohibited by
applicable law), (v) to the extent such Information is received by the such
Agent, Joint Lead Arranger, Co-Syndication Agent, Documentation Agent, Lender or
Issuing Bank from a third party that is not, to the knowledge of such Agent,
Joint Lead Arranger, Co-Syndication Agent, Documentation Agent, Lender or
Issuing Bank (as applicable), subject to contractual or fiduciary
confidentiality obligations owing to the Company, its Subsidiaries or their
respective Affiliates or its or their respective officers, directors, employees,
legal counsel, independent auditors and other experts, advisors or agents or to
the extent such Information is developed independently by such Agent, Joint Lead
Arranger, Co-Syndication Agent, Documentation Agent, Lender or Issuing Bank
without the use of confidential information in violation of this Section
12.14, (vi) to (A) any assignee or Participant in, or prospective assignee
or Participant, any of its rights and obligations under this Agreement or (B)
any prospective or actual counterparty (or such counterparty’s affiliates and
its and their respective officers, directors, employees, legal counsel,
independent auditors or other experts, advisors or agents) in any swap,
derivative or other transaction under which the payments are to be made by
reference to the Borrowers and their obligations, the Agreement or payments
hereunder; provided that in each case of clauses (A) and (B), the
relevant Person is advised of and agrees to be bound by the provisions of this Section 12.14 or other provisions at least as restrictive as this Section 12.14, (vii) for purposes of establishing a “due diligence”
defense under applicable federal securities law or (viii) with the prior written
consent of the Company. For purposes of this Section 12.14,
“Information” shall mean all information furnished by or on behalf of the
Company and its Subsidiaries relating to the Company or its Subsidiaries or any
of their businesses, other than any such information that is publicly available
to any Agent, any Joint Lead Arranger, any Co-Syndication Agent, Documentation
Agent, any Lender or any Issuing Bank prior to disclosure by or on behalf of the
Company and its Subsidiaries other than as a result of a breach of this Section 12.14 or similar obligation of confidentiality, including,
without limitation, information delivered pursuant to Section 8.01. 

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12.15.     USA Patriot Act Notice.
Each Lender hereby notifies the Borrowers that pursuant to the requirements of
the USA PATRIOT Act Title III of Pub. 107-56 (signed into law October 26, 2001
and amended on March 9, 2009) (the “Patriot Act”) and other applicable
anti-money laundering, anti-terrorist financing, government sanction and “know
your client” policies, regulations, laws or rules and Anti-Terrorism Laws, it is
required to obtain, verify, and record information that identifies the Borrowers
and each Subsidiary Guarantor, which information includes the name of each
Credit Party and other information that will allow such Lender to identify the
Credit Party in accordance therewith, and each Credit Party agrees to provide
such information from time to time to any Lender. 

12.16.     Waiver of Sovereign
Immunity. Each of the Credit Parties, in respect of itself, its
Subsidiaries, its process agents and its properties and revenues, hereby
irrevocably agrees that, to the extent that the Borrowers, or any of their
respective Subsidiaries or any of their properties has or may hereafter acquire
any right of immunity, whether characterized as sovereign immunity or otherwise,
from any legal proceedings, whether in the United States or elsewhere, to
enforce or collect upon the Loans or any Credit Document or any other liability
or obligation of the Borrowers, or any of their respective Subsidiaries related
to or arising from the transactions contemplated by any of the Credit Documents,
including, without limitation, immunity from service of process, immunity from
jurisdiction or judgment of any court or tribunal, immunity from execution of a
judgment, and immunity of any of its property from attachment prior to any entry
of judgment, or from attachment in aid of execution upon a judgment, the
Borrowers, for themselves and on behalf of their respective Subsidiaries, hereby
expressly waive, to the fullest extent permissible under applicable law, any such
immunity, and agree not to assert any such right or claim in any such
proceeding, whether in the United States or elsewhere. Without limiting the
generality of the foregoing, the Company further agrees that the waivers set
forth in this Section 12.16 shall have the fullest extent permitted under
the Foreign Sovereign Immunities Act of 1976 of the United States and other
applicable Requirements of Law and are intended to be irrevocable for purposes
of such Act and such other applicable Requirements of Law. 

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12.17.     Canadian Anti-Money
Laundering Legislation. If the Administrative Agent has ascertained the
identity of any Canadian Credit Party or any authorized signatories of any
Canadian Credit Party for the purposes of the PCMLTFA and other applicable
Anti-Terrorism Laws and “know your client” policies or Requirements of Law and
such other Anti-Terrorism Laws applicable in Canada, as well as all applicable
“know your client” policies or Requirements of Law, collectively, including any
guidelines or orders thereunder, “AML Legislation”), then the
Administrative Agent: 

(a)     shall be deemed to have done so as
an agent for each Lender and this Agreement shall constitute a “written
agreement” in such regard between each Lender and the Administrative Agent
within the meaning of the applicable AML Legislation; and 

(b)     shall provide to the Lenders,
copies of all information obtained in such regard without any representation or
warranty as to its accuracy or completeness. 

Notwithstanding the preceding sentence and except as may
otherwise be agreed in writing, each Lender agrees that the Administrative Agent
has no obligation to ascertain the identity of the Canadian Credit Parties or
any authorized signatories of the Canadian Credit Parties on behalf of any
Lender, or to confirm the completeness or accuracy of any information it obtains
from any Canadian Credit Party or any such authorized signatory in doing so.


12.18.     Absence of Fiduciary
Relationship. Notwithstanding any other provision of this Agreement or any
provision of any other Credit Document, (i) none of the Joint Lead Arrangers,
the Co-Syndication Agents, the Documentation Agent or any Lender shall, solely
by reason of this Agreement or any other Credit Document, have any fiduciary,
advisory or agency relationship or duty in respect of any Lender or any other
Person and (ii) the Borrowers hereby agree not to assert any claims they may
have against any Joint Lead Arranger, any Co-Syndication Agent, the
Documentation Agent or any Lender for breach of fiduciary duty or alleged breach
of fiduciary duty in connection with such Persons serving in such capacities
under this Agreement and the other Credit Documents. Each Agent, Lender and
their Affiliates may have economic interests that conflict with those of the
Credit Parties, their stockholders and/or their Affiliates. 

12.19.     Electronic Signatures.
The words “execution,” “signed,” “signature,” and words of like import in any
Credit Document shall be deemed to include electronic signatures or the keeping
of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a
paper-based record keeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state law based on the Uniform Electronic
Transactions Act; provided that notwithstanding anything contained herein
to the contrary the Administrative Agent is under no obligation to agree to
accept electronic signatures in any form or in any format unless expressly
agreed to by the Administrative Agent pursuant to procedures approved by it;
provided, further, that the Administrative Agent expressly agrees to
accept any facsimile or other electronic transmission (i.e. “pdf” or “tif”) of
any manually executed signature page to this Agreement, any other Credit
Document or any notice, certificate or other document delivered in connection
therewith. 

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12.20.     Judgment Currency. If,
for purposes of obtaining judgment in any court, it is necessary to convert a
sum from the currency provided under a Credit Document (“Agreement
Currency”) into another currency, the rate of exchange used shall be the
Spot Rate for conversion into Dollars or, for conversion into another currency,
the Spot Rate for the purchase of the Agreement Currency with such other
currency through the Administrative Agent’s principal foreign exchange trading
office for the other currency during such office’s preceding Business Day.
Notwithstanding any judgment in a currency (“Judgment Currency”) other
than the Agreement Currency, a Credit Party shall discharge its obligation in
respect of any sum due under a Credit Document only if, on the Business Day
following receipt by the Administrative Agent of payment in the Judgment
Currency, the Administrative Agent can use the amount paid to purchase the sum
originally due in the Agreement Currency. If the purchased amount is less than
the sum originally due, such Credit Party agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent and
Lenders against such loss. If the purchased amount is greater than the sum
originally due, the Administrative Agent shall return the excess amount to such
Credit Party (or to the Person legally entitled thereto). 

12.21.     Dutch Credit Party
Representation. If any Dutch Credit Party is represented by an attorney in
connection with the signing and/or execution of this Agreement (including by way
of accession to this Agreement) or any other agreement, deed or document
referred to in or made pursuant to this Agreement, it is hereby expressly
acknowledged and accepted by the other parties to this Agreement that the
existence and extent of the attorney’s authority and the effects of the
attorney’s exercise or purported exercise of his or her authority shall be
governed by the law of the Netherlands.

12.22.     Acknowledgement and Consent
to Bail-In of EEA Financial Institutions. Notwithstanding anything to the
contrary in any Credit Document or in any other agreement, arrangement or
understanding among any such parties, each party hereto acknowledges that any
liability of any EEA Financial Institution arising under any Credit Document, to
the extent such liability is unsecured, may be subject to the write-down and
conversion powers of an EEA Resolution Authority and agrees and consents to, and
acknowledges and agrees to be bound by: 

(a)     the application of any Write-Down
and Conversion Powers by an EEA Resolution Authority to any such liabilities
arising hereunder which may be payable to it by any party hereto that is an EEA
Financial Institution; and 

(b)     the effects of any Bail-In Action
on any such liability, including, if applicable: 

(i)     a reduction in full or in part or
cancellation of any such liability; 

(ii)     a conversion of all, or a portion
of, such liability into shares or other instruments of ownership in such EEA
Financial Institution, its parent undertaking, or a bridge institution that may
be issued to it or otherwise conferred on it, and that such shares or other
instruments of ownership will be accepted by it in lieu of any rights with
respect to any such liability under this Agreement or any other Credit Document;
or 

the variation of the terms of such liability in connection with
the exercise of the write-down and conversion powers of any EEA Resolution
Authority. 

Section 13     Credit Party
Guarantee. 

13.01.     The Guarantee. In order
to induce the Administrative Agent, the Collateral Agent, the Issuing Banks and
the Lenders to enter into this Agreement and to extend credit hereunder, and to
induce the other Guaranteed Creditors to enter into Secured Bank Product
Obligations in recognition of the direct benefits to be received by each Credit Party from the proceeds
of the Revolving Loans and the entering into of such Secured Bank Product
Obligations, each Credit Party hereby agrees with the Guaranteed Creditors as
follows: until the Payment in Full Date, each Credit Party hereby
unconditionally and irrevocably guarantees (other than its own Obligations) as
primary obligor and not merely as surety the full and prompt payment when due,
whether upon maturity, acceleration or otherwise, of any and all of the
Obligations to the Guaranteed Creditors. If any or all of the Obligations of any

Credit Party to the Guaranteed Creditors becomes due and payable hereunder, such
Credit Party, unconditionally and irrevocably, promises to pay such Obligations
to the Administrative Agents and/or the other Guaranteed Creditors or order, on
demand, together with any and all expenses which may be incurred by the
Administrative Agent and the other Guaranteed Creditors in collecting any of the
Obligations. This Credit Party Guarantee is a guarantee of payment and not of
collection. Until the Payment in Full Date, this Credit Party Guarantee is a
continuing one and all liabilities to which it applies or may apply under the
terms hereof shall be conclusively presumed to have been created in reliance
hereon. If a claim is ever made upon any Guaranteed Creditor for repayment or
recovery of any amount or amounts received in payment or on account of any of
the Obligations and any of the aforesaid payees repays all or part of said
amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property
or (ii) any settlement or compromise of any such claim effected by such payee
with any such claimant (including any Guaranteed Party), then and in such event
the respective Credit Party agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon such Credit Party,
notwithstanding any revocation of this Credit Party Guarantee or any other
instrument evidencing any liability of any Guaranteed Party, and each Credit
Party shall be and remain liable to the aforesaid payees hereunder for the
amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee until the Payment in Full Date. 

-206- 




13.02.     Bankruptcy. Additionally,
each Credit Party unconditionally and irrevocably guarantees the payment of any
and all of its Obligations to the Guaranteed Creditors whether or not due or
payable by any Guaranteed Party upon the occurrence of any of the events
specified in Section 10.05, and irrevocably and unconditionally promises
to pay such indebtedness to the Guaranteed Creditors, or order, on demand, in
the currency in which the obligation was originally denominated. 

13.03.     Nature of Liability. The
liability of each Credit Party hereunder is primary, absolute and unconditional,
exclusive and independent of any security for or other guarantee of the
Obligations, whether executed by any other guarantor or by any other party, and
each Credit Party understands and agrees, to the fullest extent permitted under
law, that the liability of such Credit Party hereunder shall not be affected or
impaired by (a) any direction as to application of payment by any Guaranteed
Party or by any other party, or (b) any other continuing or other guarantee,
undertaking or maximum liability of a guarantor or of any other party as to the
Obligations, or (c) any payment on or in reduction of any such other guarantee
or undertaking (other than in connection with the Payment in Full Date), or (d)
any dissolution, termination or increase, decrease or change in personnel by any
Guaranteed Party, or (e) any payment made to any Guaranteed Creditor on the
Obligations which any such Guaranteed Creditor repays to any Guaranteed Party
pursuant to court order in any bankruptcy, insolvency, receivership,
reorganization, arrangement, moratorium, winding up or other debtor relief
proceeding, and each Credit Party waives any right to the deferral or
modification of its obligations hereunder by reason of any such proceeding, or
(f) any action or inaction by the Guaranteed Creditors as contemplated in
Section 13.05, or (g) any invalidity, irregularity or enforceability of
all or any part of the Obligations or of any security therefor, or (h) any
change in the corporate existence, structure or ownership of any Credit Party or
any other Person liable for any of the Obligations, or (i) any bankruptcy,
insolvency, receivership, reorganization, arrangement, moratorium, winding up or
other debtor relief proceeding affecting any Credit Party, or their assets or
any resulting release or discharge of any obligation of any Credit Party, or (j)
the existence of any claim, setoff or other rights which any Credit Party may
have at any time against any other Credit Party, a Guaranteed Creditor, or any
other Person, whether in connection herewith or in any unrelated transactions, or (k) any other circumstance which
might otherwise constitute a defense available to, or a discharge of, a Credit
Party in respect of the Obligations or a Credit Party in respect of this Credit
Party Guarantee or the Obligations other than the occurrence of the Payment in
Full Date. 

-207- 




13.04.     Independent Obligation.
The obligations of each Credit Party hereunder are independent of the
obligations of any other guarantor, any other party or any Guaranteed Party, and
a separate action or actions may be brought and prosecuted against any Credit
Party (and solely with respect to a Canadian Credit Party relating to the Credit
Party Guarantee, may be brought and prosecuted in a Canadian court) whether or
not action is brought against any other guarantor, any other party or any
Guaranteed Party and whether or not any other guarantor, any other party or any
Guaranteed Party be joined in any such action or actions. Each Credit Party
waives, in its capacity as a Guarantor, to the fullest extent permitted by law,
the benefit of any statute of limitations affecting its liability hereunder or
the enforcement thereof. Any payment by any Guaranteed Party or other
circumstance which operates to toll any statute of limitations as to such
Guaranteed Party shall operate to toll the statute of limitations as to the
relevant Credit Party. 

13.05.     Authorization. To the
fullest extent permitted under all law, each Credit Party authorizes the
Guaranteed Creditors without notice or demand, and without affecting or
impairing its liability hereunder, from time to time to: 

(a)     change the manner, place or terms
of payment of, and/or change or extend the time of payment of, renew, increase,
accelerate or alter, any of the Obligations (including any increase or decrease
in the principal amount thereof or the rate of interest or fees thereon), any
security therefor, or any liability incurred directly or indirectly in respect
thereof, and this Credit Party Guarantee shall apply to the Obligations as so
changed, extended, renewed or altered; 

(b)     take and hold security for the
payment of the Obligations and sell, exchange, release, impair, surrender,
realize upon or otherwise deal with in any manner and in any order any property
by whomsoever at any time pledged or mortgaged to secure, or howsoever securing,
the Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset there
against; 

(c)     exercise or refrain from exercising
any rights against any Guaranteed Party, any other Credit Party or others or
otherwise act or refrain from acting; 

(d)     release or substitute any one or
more endorsers, guarantors, any Guaranteed Party, other Credit Parties or other
obligors; 

(e)     settle or compromise any of the
Obligations, any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of any Guaranteed Party to its creditors other
than the Guaranteed Creditors; 

(f)     apply any sums by whomsoever paid
or howsoever realized to any liability or liabilities of any Guaranteed Party to
the Guaranteed Creditors regardless of what liability or liabilities of such
Guaranteed Party remain unpaid; 

(g)     consent to or waive any breach of,
or any act, omission or default under, this Agreement, any other Credit
Document, any Secured Bank Product Obligation or any of the instruments or
agreements referred to herein or therein, or otherwise amend, modify or
supplement this Agreement, any other Credit Document, any Secured Bank Product
Obligation or any of such other instruments or agreements; and/or 

-208- 




(h)     take any other action which would,
under otherwise applicable principles of common law, give rise to a legal or
equitable discharge of such Credit Party from its liabilities under this Credit
Party Guarantee. 

13.06.     Reliance. It is not
necessary for any Guaranteed Creditor to inquire into the capacity or powers of
any Guaranteed Party or the officers, directors, partners or agents acting or
purporting to act on their behalf, and any obligations made or created in
reliance upon the professed exercise of such powers shall be guaranteed
hereunder. 

13.07.     Subordination. Any
indebtedness of any Guaranteed Party now or hereafter owing to any Credit Party
is hereby subordinated to the Obligations of such Guaranteed Party owing to the
Guaranteed Creditors; and if the Administrative Agent so requests at a time when
an Event of Default is then continuing, all such indebtedness of such Guaranteed
Party to such Credit Party shall be collected, enforced and received by such
Credit Party for the benefit of the Guaranteed Creditors and be paid over to the
Administrative Agent on behalf of the Guaranteed Creditors on account of the
Obligations of such Guaranteed Party to the Guaranteed Creditors, but without
affecting or impairing in any manner the liability of any Credit Party under the
other provisions of this Credit Party Guarantee. Without limiting the generality
of the foregoing, each Credit Party hereby agrees with the Guaranteed Creditors
that it will not exercise any right of subrogation which it may at any time
otherwise have as a result of this Credit Party Guarantee (whether contractual,
under Section 509 of the Bankruptcy Code or otherwise) until all Obligations
have been irrevocably paid in full in cash. 

13.08.     Waiver. 

(a)     Each Credit Party waives any right
(except as shall be required by applicable law and cannot be waived) to require
any Guaranteed Creditor to (i) proceed against any Guaranteed Party, any other
guarantor or any other party, or against a Canadian Credit Party relating solely
to the Credit Party Guarantee in a Canadian court, (ii) proceed against or
exhaust any security held from any Guaranteed Party, any other guarantor or any
other party or (iii) pursue any other remedy in any Guaranteed Creditor’s power
whatsoever. For purposes of the law of the Province of Quebec, if applicable,
each Credit Party waives, in its capacity as a Guarantor, the benefits of
division and discussion. Each Credit Party waives any defense (except as shall
be required by applicable law and cannot be waived) based on or arising out of
any defense of any Guaranteed Party, any other guarantor or any other party,
other than payment of the Obligations to the extent of such payment, based on or
arising out of the disability of any Guaranteed Party, any other guarantor or
any other party, or the validity, legality or unenforceability of the
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of any Guaranteed Party other than payment of the Obligations
to the extent of such payment. The Guaranteed Creditors may, at their election,
foreclose on any security held by the Administrative Agent, the Collateral Agent
or any other Guaranteed Creditor by one or more judicial or nonjudicial sales,
whether or not every aspect of any such sale is commercially reasonable (to the
extent such sale is permitted by applicable law), or exercise any other right or
remedy the Guaranteed Creditors may have against any Guaranteed Party or any
other party, or any security, without affecting or impairing in any way the
liability of any Credit Party hereunder except to the extent the Obligations
have been paid. Each Credit Party waives, to the fullest extent permitted under
law, any defense arising out of any such election by the Guaranteed Creditors,
even though such election operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of such Credit Party
against any Guaranteed Party or any other party or any security. 

(b)     Each Credit Party waives, to the
fullest extent permitted under law, all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Credit
Party Guarantee, and notices of the existence, creation or incurring of new or additional
Obligations. Each Credit Party assumes all responsibility for being and keeping
itself informed of each Guaranteed Party’s financial condition and assets, and
of all other circumstances bearing upon the risk of nonpayment of the
Obligations and the nature, scope and extent of the risks which such Credit
Party assumes and incurs hereunder, and agrees that neither the Administrative
Agent nor any of the other Guaranteed Creditors shall have any duty to advise
any Credit Party of information known to them regarding such circumstances or
risks. 

-209- 




13.09.     Maximum Liability. It is
the desire and intent of each Credit Party and the Guaranteed Creditors that
this Credit Party Guarantee shall be enforced against such Credit Party to the
fullest extent permissible under all law and public policies applied in each
jurisdiction in which enforcement is sought. If, however, and to the extent
that, the obligations of any Credit Party under this Credit Party Guarantee
shall be adjudicated to be invalid or unenforceable for any reason (including,
without limitation, because of any applicable federal, state, provincial or
foreign law relating to fraudulent conveyances or transfers), then the amount of
such Credit Party’s obligations under this Credit Party Guarantee shall be
deemed to be reduced and such Credit Party shall pay the maximum amount of the
Obligations which would be permissible under applicable law. 

13.10.     Payments. All payments
made by a Credit Party pursuant to this Section 13 will be made without
setoff, counterclaim or other defense, and shall be subject to the provisions of
Section 2.06. 

13.11.     [Reserved].

13.12.     Information. Each Credit
Party assumes all responsibility for being and keeping itself informed of each
applicable Borrower’s financial condition and assets, and of all other
circumstances bearing upon the risk of non-payment of the Obligations and the
nature, scope and extent of the risks that each Credit Party assumes and incurs
under this guarantee, and agrees that no Guaranteed Creditor shall have any duty
to advise any Credit Party of information known to it regarding those
circumstances or risks. 

13.13.     Severability. If any
provision of this Agreement or the other Credit Documents is held to be illegal,
invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Credit Documents shall not
be affected or impaired thereby and (b) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Without limiting the
foregoing provisions of this Section 13.13, if and to the extent that the
enforceability of any provisions in this Agreement relating to Defaulting
Lenders shall be limited by Debtor Relief Laws, as determined in good faith by
the Administrative Agent, the Issuing Banks or the Swingline Lenders, as
applicable, then such provisions shall be deemed to be in effect only to the
extent not so limited. 

 13.14.     Canadian
Severability. Notwithstanding any other provision contained herein or in any
other Credit Document, if a “secured creditor” (as that term is defined under
the Bankruptcy and Insolvency Act (Canada)) is determined by a court of
competent jurisdiction not to include a Person to whom obligations are owed on a
joint and several basis, then such Person’s Obligations (and the Obligations of
each other Canadian Credit Party or Dutch Credit Party), to the extent such
Obligations are secured, shall be several obligations and not joint and several
obligations. 

* * * 

-210- 




IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written. 


	SUNOPTA INC. 
	 	  
	 	  
	By:	 
	 	Name: 
	 	Title: 
	 	  
	 	  
	SUNOPTA FOODS INC. 
	 	  
	 	  
	By:	 
	 	Name: 
	 	Title: 
	 	  
	 	  
	SUNOPTA GRAINS AND FOODS INC.

	 	  
	 	  
	By:	
	 	Name: 
	 	Title: 
	 	  
	 	  
	CITRUSOURCE, LLC 
	 	  
	 	  
	By:	
	 	Name: 
	 	Title: 
	 	  
	 	  
	SUNOPTA COMPANIES INC. 
	 	  
	 	  
	By:	By:
	 	Name: 
	 	Title: 
	 	  
	 	  
	SUNOPTA GLOBAL ORGANIC INGREDIENTS
      INC. 
	 	  
	 	  
	By:	
	 	Name: 
	 	Title: 



-1- 






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



-2- 






	COÖPERATIE SUNOPTA U.A. 
	 	  
	 	  
	By:	 
	 	Name: 
	 	Title: 
	 	  
	 	  
	THE ORGANIC CORPORATION B.V. 
	 	  
	 	  
	By:	 
	 	Name: 
	 	Title: 
	 	  
	 	  
	CROWN OF HOLLAND B.V. 
	 	  
	 	  
	By:	 
	 	Name: 
	 	Title: 
	 	  
	 	  
	TRADIN ORGANIC AGRICULTURE B.V. 
	 	  
	 	  
	By:	 
	 	Name: 
	 	Title: 
	 	  
	 	  
	TRABOCCA B.V. 
	 	  
	 	  
	By:	 
	 	Name: 
	 	Title: 



-3- 






	BANK OF AMERICA, N.A., 
	as U.S. Administrative Agent, Collateral Agent,
      U.S. 
	Swingline Lender, U.S. Issuing Bank and a U.S.
  
	Revolving Lender 
	 	  
	 	  
	By: 	 
	 	Name: 
	 	Title: 
	 	  
	 	 
	By: 	 
	 	Name: 
	 	Title: 



-4- 






	BANK OF AMERICA, N.A. 
	(acting through its Canada branch), as Canadian
    
	Administrative Agent, Canadian Swingline Lender,
    
	Canadian Issuing Bank and a Canadian Revolving
  
	Lender 
	 	  
	 	  
	By: 	
	 	Name: 
	 	Title: 



-5- 






	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: 	
	 	Name: 
	 	Title: 



-6- 






	[ ], 
	as a Lender 
	 	  
	 	  
	By: 	
	 	Name: 
	 	Title: 



-7-