EX-10.1 2 finaledgar-briggs_ablcredi.htm EXHIBIT 10.1 Exhibit
EXECUTION VERSION




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REVOLVING CREDIT AGREEMENT

among

BRIGGS & STRATTON CORPORATION, as Lead Borrower,
the Subsidiary Borrowers from time to time party hereto,
as Borrowers,

VARIOUS LENDERS AND ISSUING BANKS,

JPMORGAN CHASE BANK, N.A.,
as the Administrative Agent, the Collateral Agent and the Swingline Lender
_______________________________________

Dated as of September 27, 2019

JPMORGAN CHASE BANK, N.A.,
BANK OF AMERICA, N.A.,
BANK OF MONTREAL,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Joint Lead Arrangers and Bookrunners

BANK OF AMERICA, N.A.,
BANK OF MONTREAL,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Co-Syndication Agents

and

U.S. BANK NATIONAL ASSOCIATION,
as Documentation Agent



ASSET BASED LENDING



US-DOCS\109703890.30



TABLE OF CONTENTS
Page
Article 1
Definitions and Accounting Terms                        1
Section 1.01
Defined Terms                                1
Section 1.02
Terms Generally and Certain Interpretive Provisions            82
Section 1.03
Exchange Rates; Currency Equivalent                    84
Section 1.04
Additional Alternative Currencies                    84
Section 1.05
Divisions                                85
Section 1.06
Effectuation of Transactions                        85
Section 1.07
Timing of Payment or Performance                    85
Section 1.08
Joint and Several Liability                        85
Section 1.09
Exchange Rates; Currency Equivalents; Basket Calculations        85
Section 1.10
Interpretation (Australia) and Code of Banking Practice (Australia)    86
Article 2
Amount and Terms of Credit                            87
Section 2.01
The Commitments                            87
Section 2.02
Loans                                    87
Section 2.03
Borrowing Procedure                            89
Section 2.04
Evidence of Debt; Repayment of Loans                    90
Section 2.05
Fees                                    91
Section 2.06
Interest on Loans                            92
Section 2.07
Termination and Reduction of Commitments                95
Section 2.08
Interest Elections                            96
Section 2.09
Optional and Mandatory Prepayments of Loans                97
Section 2.10
Payments Generally; Pro Rata Treatment; Sharing of Set‑offs        100
Section 2.11
Defaulting Lenders                            101
Section 2.12
Swingline Loans                            103
Section 2.13
Letters of Credit                            104
Section 2.14
Settlement Amongst Lenders                        113
Section 2.15
Revolving Commitment Increase                    114
Section 2.16
Lead Borrower                                115
Section 2.17
Overadvances                                116
Section 2.18
Protective Advances                            116
Section 2.19
Extended Loans                                117
Section 2.20
MIRE Events                                119
Article 3
Yield Protection, Illegality and Replacement of Lenders                120
Section 3.01
Increased Costs, Illegality, Etc.                        120
Section 3.02
Compensation                                122
Section 3.03
Change of Lending Office                        123
Section 3.04
Replacement of Lenders                            123
Article 4
Swiss Guaranty Limitations                            125
Article 5
Taxes                                        127
Section 5.01
Net Payments                                127
Article 6
Conditions Precedent                                132
Section 6.01
Conditions Precedent to Credit Events on the Closing Date        132
Section 6.02
Conditions Precedent to All Credit Events                135
Article 7
[Reserved]                                    136
Article 8
Representations, Warranties and Agreements                    136
Section 8.01
Organization; Powers                            136

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Page

Section 8.02
Authorization                                136
Section 8.03
Enforceability                                137
Section 8.04
Governmental Approvals                        137
Section 8.05
Financial Statements                            137
Section 8.06
No Material Adverse Effect                        137
Section 8.07
Title to Properties; Possession Under Leases; Flood Documentation    138
Section 8.08
Subsidiaries                                138
Section 8.09
Litigation; Compliance with Law                    138
Section 8.10
Federal Reserve Regulations                        139
Section 8.11
Investment Company Act                        139
Section 8.12
Use of Proceeds                                139
Section 8.13
Tax                                    139
Section 8.14
No Material Misstatements                        139
Section 8.15
Employee Benefit Plans                            140
Section 8.16
Environmental Matters                            140
Section 8.17
Security Documents                            141
Section 8.18
Solvency                                142
Section 8.19
Labor Matters                                142
Section 8.20
Insurance                                142
Section 8.21
Intellectual Property; Licenses, Etc.                    142
Section 8.22
USA PATRIOT Act                            143
Section 8.23
Anti-Corruption Laws and Sanctions                    143
Section 8.24
[reserved]                                143
Section 8.25
EEA Financial Institutions                        143
Section 8.26
Beneficial Ownership Certificate                    143
Section 8.27
Centre of Main Interests                            143
Section 8.28
[reserved]                                143
Section 8.29
[reserved]                                143
Section 8.30
Borrowing Base Certificate                        143
Section 8.31
Compliance with the Swiss Non-Bank Rules                144
Article 9
Affirmative Covenants                                144
Section 9.01
Existence; Business and Properties                    144
Section 9.02
Insurance                                145
Section 9.03
Taxes                                    146
Section 9.04
Financial Statements, Reports, Etc.                    147
Section 9.05
Litigation and Other Notices                        148
Section 9.06
Compliance with Laws                            149
Section 9.07
Maintaining Records; Access to Properties and Inspections        149
Section 9.08
Use of Proceeds                                151
Section 9.09
Compliance with Environmental Laws                    151
Section 9.10
Further Assurances; Additional Guarantors; Additional Security        151
Section 9.11
Unrestricted Subsidiaries                        156
Section 9.12
Post-Closing                                156
Section 9.13
[reserved]                                156
Section 9.14
[reserved]                                156
Section 9.15
Centre of Main Interests                            156
Section 9.16
[reserved]                                156
Section 9.17
[reserved]                                156
Section 9.18
Collateral Monitoring and Reporting                    156
Section 9.19
Financial Assistance                            160
Section 9.20
Foreign Collateral                            160
Section 9.21
Australian PPSA Undertaking                        160
Section 9.22
Australian Tax Consolidation                        161

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Page

Section 9.23
Compliance with the Swiss Non-Bank Rules                161
Article 10
Negative Covenants                                161
Section 10.01
Indebtedness                                161
Section 10.02
Liens                                    166
Section 10.03
Limitations on Certificate of Incorporation, By-Laws and Certain Other Agreements, Etc                                171
Section 10.04
Investments, Loans and Advances                    171
Section 10.05
Mergers, Consolidations, Sales of Assets and Acquisitions        175
Section 10.06
Restricted Payments                            179
Section 10.07
Transactions with Affiliates                        180
Section 10.08
Business of the Lead Borrower and the Subsidiaries; Etc.            183
Section 10.09
Restrictions on Subsidiary Distributions and Negative Pledge Clauses    183
Section 10.10
Financial Covenant                            185
Section 10.11
Fiscal Quarter and/or Fiscal Year                    185
Article 11
Events of Default                                185
Section 11.01
Events of Default                            185
Section 11.02
Application of Funds                            190
Article 12
The Administrative Agent                            195
Section 12.01
Appointment and Authorization                        195
Section 12.02
Delegation of Duties                            196
Section 12.03
Exculpatory Provisions                            197
Section 12.04
Reliance by Administrative Agent                    198
Section 12.05
No Other Duties, Etc.                            198
Section 12.06
Non-reliance on Administrative Agent and Other Lenders        198
Section 12.07
Indemnification by the Lenders                        198
Section 12.08
Rights as a Lender                            199
Section 12.09
Administrative Agent May File Proofs of Claim; Credit Bidding        199
Section 12.10
Resignation of the Agents                        200
Section 12.11
Collateral Matters and Guarantee Matters                201
Section 12.12
Bank Product Providers                            202
Section 12.13
Withholding Taxes                            202
Section 12.14
Australian Security Trust Deed                        202
Section 12.15
Parallel Debt Undertaking                        203
Section 12.16
[reserved]                                204
Section 12.17
[reserved]                                204
Section 12.18
Certain ERISA Matters                            204
Article 13
Miscellaneous                                    205
Section 13.01
Payment of Expenses, Etc.                        205
Section 13.02
Right of Set-off                                207
Section 13.03
Notices                                    207
Section 13.04
Benefit of Agreement; Assignments; Participations, Etc.            208
Section 13.05
No Waiver; Remedies Cumulative                    213
Section 13.06
Exclusions of the Australian PPSA; Australian PPSA Further Assurances    213
Section 13.07
Distributable Reserves                            214
Section 13.08
GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL; PROCESS AGENT                        214
Section 13.09
Counterparts                                216
Section 13.10
[reserved]                                216
Section 13.11
Headings Descriptive                            216
Section 13.12
Amendment or Waiver; Etc.                        216
Section 13.13
Survival                                219

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Page

Section 13.14
[reserved]                                219
Section 13.15
Confidentiality                                219
Section 13.16
USA Patriot Act Notice                            221
Section 13.17
[reserved]                                221
Section 13.18
Release of Liens and Guarantees                    221
Section 13.19
[reserved]                                224
Section 13.20
Waiver of Sovereign Immunity                        224
Section 13.21
Acknowledgement Regarding Any Supported QFCs            224
Section 13.22
Absence of Fiduciary Relationship                    225
Section 13.23
Judgment Currency                            225
Section 13.24
Electronic Execution of Assignments and Certain Other Documents    225
Section 13.25
Entire Agreement                            225
Section 13.26
Acknowledgement and Consent to Bail-In of EEA Financial Institutions    225
Section 13.27
Confirmation of Lender’s Status as a Swiss Qualifying Lender        226
Section 13.28
Termination of Commitments under Existing Credit Agreement        226



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SCHEDULE 1.01(A)
Designated Account Debtors
SCHEDULE 1.01(B)
Mortgaged Property
SCHEDULE 1.01(C)
Existing Letters of Credit
SCHEDULE 2.01
Commitments
SCHEDULE 8.04
Governmental Approvals
SCHEDULE 8.05
Financial Statements
SCHEDULE 8.08(a)
Subsidiaries
SCHEDULE 8.08(b)
Subscriptions
SCHEDULE 8.16
Environmental Matters
SCHEDULE 8.20
Insurance
SCHEDULE 8.21
Intellectual Property
SCHEDULE 9.12
Post-Closing Items
SCHEDULE 9.18
Deposit Accounts
SCHEDULE 10.01
Indebtedness
SCHEDULE 10.02(a)
Liens
SCHEDULE 10.04
Investments
SCHEDULE 10.07
Transactions with Affiliates
SCHEDULE 13.03
Lender Addresses
EXHIBIT A-1
Form of Notice of Borrowing
EXHIBIT A-2
Form of Notice of Swingline Borrowing
EXHIBIT A-3
Form of Notice of Conversion/Continuation
EXHIBIT B
Form of Note
EXHIBIT C-1
U.S. Tax Certificate (For Non-U.S. Lenders that are not Partnerships for U.S. Federal Income Tax Purposes)
EXHIBIT C-2
U.S. Tax Certificate (For Non-U.S. Lenders that are Partnerships for U.S. Federal Income Tax Purposes)
EXHIBIT C-3
U.S. Tax Certificate (For Non-U.S. Participants that are not Partnerships for U.S. Federal Income Tax Purposes)
EXHIBIT C-4
U.S. Tax Certificate (For Non-U.S. Participants that are Partnerships for U.S. Federal Income Tax Purposes)
EXHIBIT D
Form of Notice of Secured Bank Product Provider
EXHIBIT E
Form of Solvency Certificate
EXHIBIT F
[Reserved]
EXHIBIT G
Form of Perfection Certificate
EXHIBIT H
[Reserved]
EXHIBIT I
Form of U.S. Collateral Agreement
EXHIBIT J
Form of Compliance Certificate
EXHIBIT K
Form of Assignment and Assumption


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THIS REVOLVING CREDIT AGREEMENT, dated as of September 27, 2019 among BRIGGS & STRATTON CORPORATION, a Wisconsin corporation (the “Lead Borrower”), each of the other Borrowers (as hereinafter defined) party hereto from time to time, the Lenders (as hereinafter defined) party hereto from time to time, the Issuing Banks (as hereinafter defined) party hereto from time to time and JPMORGAN CHASE BANK, N.A. (“JPMCB”), as the Administrative Agent, the Collateral Agent, the Australian Security Trustee and the Swingline Lender. 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 $625,000,000, consisting of (i) a North American Revolving Facility in an aggregate principal amount at any time outstanding not to exceed $585,000,000 and (ii) a Swiss Revolving Facility in an aggregate principal amount at any time outstanding not to exceed $40,000,000, (b) the Borrowers have requested that the Issuing Banks issue Letters of Credit under each Facility in an aggregate stated amount at any time outstanding not to exceed $50,000,000 and (c) the Borrowers have requested the Swingline Lender to extend credit in the form of Swingline Loans under each Facility in an aggregate principal amount at any time outstanding not to exceed $62,500,000.
NOW, THEREFORE, the Lenders are willing to extend such credit to the Borrowers, the Swingline Lender is willing to make Swingline Loans to the Borrowers and the Issuing Banks are willing to issue Letters of Credit on the terms and subject to the conditions set forth herein.
Article 1
DEFINITIONS AND ACCOUNTING TERMS
Section 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 Party” shall have the meaning assigned to such term in Section 2.13(a).
Accounts” shall mean all “accounts,” as such term is defined in the UCC as in effect on the date hereof in the State of New York or, if applicable, in the Canadian PPSA or the Australian PPSA, in which any Person now or hereafter has rights and shall include all rights to payment for goods sold or leased, or for services rendered.
Acquisition” shall mean any transaction or series of related transactions (unless solely among the Lead Borrower and/or one or more of its Subsidiaries) for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of 50% of the Equity Interests of any Person, or otherwise causing any Person to become a Subsidiary or (c) a merger or consolidation or any other combination with another Person.
Acquisition Debt” shall mean, as to any Acquisition, any Indebtedness assumed by the Lead Borrower or any of its Subsidiaries in connection therewith.
Additional Mortgage” shall have the meaning assigned to such term in Section 9.10(c).





Additional Security Documents” shall mean each document relating to Collateral that is entered into pursuant to any Initial Security Agreement or Section 9.10.
Adjustment Date” shall mean the first day of January, April, July and October of each fiscal year.
Administrative Agent” shall mean JPMCB, in its capacity as the Administrative Agent for the Lenders hereunder, and shall include its branch offices and affiliates in any applicable jurisdiction and any successor to the Administrative Agent appointed pursuant to Section 12.10.
Administrative Agent Fees” shall have the meaning assigned to such term in Section 2.05(b).
Administrative Questionnaire” shall mean an administrative questionnaire in the form supplied by the Administrative Agent.
Affiliate” shall mean, when used with respect to a specified person, another person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the person specified; provided, however, that neither the Administrative Agent nor any Lender (nor any Affiliate thereof) shall be considered an Affiliate of the Lead Borrower or any subsidiary thereof as a result of this Agreement, the extensions of credit hereunder or its actions in connection therewith; provided further that no individual shall be deemed to be an Affiliate of a Person solely because such individual is a director (or the equivalent thereof) or senior officer of such Person.
Agents” shall mean the Administrative Agent, the Collateral Agent, any sub-agent or co-agent of either of the foregoing pursuant to the Loan Documents, the Lead Arrangers and the Documentation Agent.
Aggregate Availability” shall mean, as of any applicable date, the amount by which the Line Cap at such time exceeds the Aggregate Exposures on such date.
Aggregate Borrowing Base” shall mean the sum of all of the Borrowing Bases.
The Aggregate 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 6.01(p) or Section 9.18(a), as applicable.
The Administrative Agent shall (i) promptly notify the Lead Borrower in writing (including via e-mail) whenever it determines that a Borrowing Base as of any specified date set forth on a Borrowing Base Certificate differs from such Borrowing Base as determined by the Administrative Agent for such date, (ii) discuss at such time the basis for any such deviation and any changes proposed by the Lead Borrower, including the reasons for any impositions of or changes in Reserves (in the Administrative Agent’s Permitted Discretion and subject to the definition thereof) or eligibility criteria, with the Lead Borrower, (iii) consider at such time, in the exercise of its Permitted Discretion, any additional factual information provided by the Lead Borrower relating to the determination of such Borrowing Base and (iv) promptly notify the Lead Borrower of its decision with respect to any changes proposed by the Lead Borrower. Pending a decision by the Administrative Agent to make any requested change, the initial determination of such Borrowing Base by the Administrative Agent shall continue to constitute such Borrowing Base.

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Aggregate Commitments” shall mean, at any time, the aggregate amount of the North American Revolving Commitments and the Swiss Revolving Commitments of all Lenders.
Aggregate Exposures” shall mean, at any time, the sum of (a) the aggregate Outstanding Amount of all Loans plus (b) the LC Exposure, each determined at such time.
Agreement” shall mean this Revolving Credit Agreement, as may be amended, restated, amended and restated, modified, supplemented, extended or renewed from time to time.
ALTA” shall mean the American Land Title Association.
ALTA Survey” shall mean, with respect to real property located in the United States, an ALTA survey (or its equivalent in non-ALTA jurisdictions) as of a date reasonably acceptable to the Administrative Agent and the title company issuing the applicable Mortgage Policy, certified to the Administrative Agent and the issuer of the Mortgage Policy in a manner reasonably satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the state in which such real property is located and reasonably acceptable to the Administrative Agent, showing no Liens other than the Permitted Liens and containing any Table A items (or their equivalent in non-ALTA jurisdictions) reasonably requested by the Administrative Agent and sufficient in all respects to remove the standard survey exceptions from the applicable Mortgage Policy and to allow the issuance of such survey-related endorsements that the Administrative Agent shall reasonably request.
Alternative Currency” shall mean, (a) with respect to the North American Revolving Facility, each currency approved in accordance with Section 1.04 and (b) with respect to the Swiss Revolving Facility, (i) Pound Sterling, (ii) Euros, (iii) Australian Dollars and (iv) Swiss Francs, in each case of this clause (b) together with each other currency that is approved in accordance with Section 1.04.
AML Legislation” shall mean anti-money laundering, anti-terrorist financing, government sanction and “know your client” laws, in each case to the extent applicable to the Loan Parties.
Anti-Corruption Laws” shall mean all laws, rules, and regulations of any jurisdiction applicable to the Lead Borrower or any of its Subsidiaries from time to time concerning or relating to bribery or corruption or money-laundering.
Applicable Account Diligence” shall have the meaning assigned to such term in the definition of “Eligible Accounts”.
Applicable Inventory Diligence” shall have the meaning assigned to such term in the definition of “Eligible Inventory”.
Applicable Margin” shall mean, with respect to any Type of Revolving Loan, the per annum margin set forth below, as determined by the Consolidated Fixed Charge Coverage Ratio as of the most recent determination date:

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Level
Consolidated Fixed Charge Coverage Ratio
Base Rate Loans
LIBO Rate Loans and Overnight LIBO Rate Loans
I
> 1.75:1.00
0.50%
1.50%
II
> 1.40:1.00 ≤ 1.75:1.00
0.75%
1.75%
III
> 1.00:1.00 ≤ 1.40:1.00
1.00%
2.00%
IV
≤ 1.00:1.00
1.25%
2.25%

If at any time the Lead Borrower fails to deliver any Financial Statements or Compliance Certificate required under Section 9.04 on or before the date such Financial Statements and Compliance Certificate are due, Level IV shall be deemed applicable for the period commencing three (3) Business Days after such required date of delivery and ending on the date which is three (3) Business Days after such Financial Statements and Compliance Certificate are actually delivered, after which the Level shall be determined in accordance with this definition.
Except as otherwise provided in the paragraph below or in the immediately preceding paragraph, adjustments, if any, to the Level then in effect shall be effective three (3) Business Days after the Administrative Agent has received the applicable Financial Statements and Compliance Certificate (it being understood and agreed that each change in Level shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change).
Notwithstanding anything to the contrary set forth in this definition, Level III shall be deemed to be applicable until the Administrative Agent’s receipt of the Financial Statements for the Lead Borrower’s first full fiscal quarter ending after the Closing Date (unless such Financial Statements demonstrate that Level IV should have been applicable during such period, in which case Level IV shall be deemed to be applicable during such period) and adjustments to the Level then in effect shall thereafter be effected in accordance with the terms of this definition.
Applicable Time” shall mean, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent or the applicable Issuing Bank, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment and, in the case of Notices of Borrowings and payments by Borrowers, notified in writing to the Lead Borrower.
Approved Fund” shall mean any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) an existing Lender, (b) an Affiliate or branch of an existing Lender or (c) an entity or an Affiliate of an entity that administers or manages an existing Lender.
Asset Sale” shall mean (x) any Disposition (including any sale and lease-back of assets and any mortgage or lease of owned Real Property) to any person of any asset or assets of the Lead Borrower or any Subsidiary and (y) any sale of any Equity Interests by any Subsidiary to a person other than the Lead Borrower or a Subsidiary.
Assignment and Assumption” shall mean an Assignment and Assumption substantially in the form of Exhibit K (appropriately completed) or such other form as shall be acceptable to the

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Administrative Agent and the Lead Borrower (such approval by the Lead Borrower not to be unreasonably withheld, delayed or conditioned).
Attributable Receivables Indebtedness” shall mean the principal amount of Indebtedness (other than any Indebtedness subordinated in right of payment owing by a Receivables Entity to a Receivables Seller or a Receivables Seller to another Receivables Seller in connection with the transfer, sale and/or pledge of Permitted Receivables Facility Assets) which (i) if a Qualified Receivables Facility is structured as a secured lending agreement or other similar agreement, constitutes the principal amount of such Indebtedness or (ii) if a Qualified Receivables Facility is structured as a purchase agreement or other similar agreement, would be outstanding at such time under such Qualified Receivables Facility if the same were structured as a secured lending agreement rather than a purchase agreement or such other similar agreement.
AUD Rate” shall mean, for any Loans denominated in Australian Dollars, the AUD Screen Rate or, if applicable pursuant to the definition of “LIBO Rate”, the applicable Interpolated Rate or such other rate as determined pursuant to the terms of Section 3.01, as applicable.
AUD Screen Rate” shall mean, with respect to any Interest Period, the Australian Bank Bill Swap Reference Rate (Bid) as administered by ASX Benchmarks Pty Limited (or any other Person that takes over the administration of such rate) for a tenor equal to such Interest Period displayed on page BBSY of the Reuters screen (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen or service that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion and applied generally by the Administrative Agent to other credit facilities for which it acts as administrative agent for purposes of determining such rate) at or about 11:00 a.m. (Sydney, Australia time) on the Quotation Day for such Interest Period.
Australian Account Control Deed” means each account control agreement over an Australian ADI Account held by a Loan Party between that Loan Party, the account bank that holds that Australian ADI Account and the Australian Security Trustee.
Australian ADI Account” shall have the meaning assigned to such term in Section 10 of the Australian PPSA.
Australian Borrowing Base” shall mean, at any time of calculation, an amount equal to the sum of, without duplication:
(a)    Eligible Cash of the Australian Loan Parties; plus
(b)    (i) the book value of all Eligible Accounts of the Australian Loan Parties owing by an Account Debtor that has an Investment Grade Rating multiplied by the advance rate of 90% (or, for the period commencing on the first day of the fiscal month commencing on or about December 1 of each calendar year and ending on the last day of the fiscal month ending on or about the last day of February the following calendar year, 95%) plus (ii) the book value of all other Eligible Accounts of the Australian Loan Parties multiplied by the advance rate of 85% (or, for the period commencing on the first day of the fiscal month commencing on or about December 1 of each calendar year and ending on the last day of the fiscal month ending on or about the last day of February the following calendar year, 90%); plus
(c)    the lesser of (i) the Cost of Eligible Inventory of the Australian Loan Parties multiplied by the advance rate of 75% and (ii) the Cost of Eligible Inventory of the Australian Loan Parties

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multiplied by the appraised NOLV Percentage of Eligible Inventory of the Australian Loan Parties multiplied by the advance rate of 85% (or, for the period commencing on the first day of the fiscal month commencing on or about December 1 of each calendar year and ending on the last day of the fiscal month ending on or about the last day of February the following calendar year, 90%); minus
(d)    any Reserves pertaining to the Australian Loan Parties established from time to time by the Administrative Agent in accordance herewith (without duplication of any Reserves deducted in the calculation of any other Borrowing Base);
provided that in no event shall the aggregate amount of Eligible Cash included in all the Borrowing Bases exceed $35,000,000 at any time.
Australian Collateral” shall mean all property (whether real, personal or otherwise) with respect to which any security interests have been granted (or purported to be granted) pursuant to any Australian Security Document (including any Additional Security Documents) or will be granted in accordance with requirements set forth in Section 9.12, including, without limitation, all collateral as described in the Australian Security Agreement. For the avoidance of doubt, in no event shall Australian Collateral include Excluded Property.
Australian Corporations Act” shall mean the Corporations Act 2001 (Cth) of Australia.
Australian Dollars” shall mean the lawful currency of Australia.
Australian GAAP” shall mean generally accepted accounting principles, standards and practices in Australia.
Australian Loan Parties” shall mean, individually and collectively, each Australian Subsidiary that is a Guarantor.
Australian Pension Plan” shall mean a superannuation, retirement benefit or pension fund (whether established by deed or under any statute of Australia or any state or territory of Australia) contributed to by, or to which there is or may be an obligation to contribute by, any Loan Party in respect of its Australian employees and officers or former employees and officers.
Australian Priority Payables Reserve” shall mean reserves for amounts which rank or are capable of ranking in priority to the Liens granted to the Australian Security Trustee under the Security Documents, including without limitation, in the Permitted Discretion of the Administrative Agent, any such amounts due or which may become due and not paid for wages, long service leave, retrenchment, payment in lieu of notice, or vacation pay (including in all respects amounts protected by or payable pursuant to the Fair Work Act 2009 (Cth of Australia)), any preferential claims as set out in the Australian Corporations Act, amounts due or which may become due and not paid under any legislation relating to workers’ compensation or to employment insurance, all amounts deducted or withheld and not paid and remitted when due under the Taxation Administration Act 1953 (Cth of Australia) (but excluding Pay as You Go income withholding tax) and amounts in the future, currently or past due and not contributed, remitted or paid in respect of any Australian Pension Plan, together with any charges which may be levied by a Governmental Authority as a result of any default in payment obligations in respect of any Australian Pension Plan.
Australian PPSA” shall mean the Personal Property Securities Act 2009 (Cth) of Australia.

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Australian Security Agreement” shall mean:
(a)    each Initial Australian Security Agreement; and
(b)    any other security deed, mortgage or agreement entered into, after the date of this Agreement by any Australian Loan Party or any other Person in respect of Australian Collateral for the benefit of the Secured Parties (in each case as required by this Agreement or any other Loan Document).
Australian Security Documents” shall mean the Australian Security Agreement, the Australian Security Trust Deed and each Australian Account Control Deed.
Australian Security Trust Deed” shall mean the Security Trust Deed, dated on or about the date of this Agreement, among each Loan Party thereto, the Administrative Agent and the Australian Security Trustee.
Australian Security Trustee” shall mean JPMCB or any other security trustee appointed under this Agreement and the Australian Security Trust Deed.
Australian Subsidiary” shall mean any Subsidiary of the Lead Borrower that is organized under the laws of Australia.
Australian Tax Act” shall mean the Income Tax Assessment Act 1936 of Australia.
Australian Tax Consolidated Group” shall mean a “Consolidated Group” or an “MEC Group” as defined in the Australian Tax Act.
Availability Conditions” shall be deemed satisfied only if:
(a)    each Lender’s North American Revolving Exposure does not exceed such Lender’s North American Revolving Commitment;
(b)    each Lender’s Swiss Revolving Exposure does not exceed such Lender’s Swiss Revolving Commitment;
(c)    the aggregate Revolving Exposures of all Lenders with respect to the U.S. Loan Parties do not exceed an amount equal to (i) the U.S. Borrowing Base minus (ii) the excess, if any, of (A) the aggregate Revolving Exposures of all Lenders with respect to the Foreign Loan Parties over (B) the sum of the Australian Borrowing Base plus the Swiss Borrowing Base;
(d)    the aggregate Revolving Exposures of all Lenders with respect to the Foreign Loan Parties do not exceed an amount equal to (i) the sum of the U.S. Borrowing Base plus the Australian Borrowing Base plus the Swiss Borrowing Base minus (ii) the aggregate Revolving Exposures of all Lenders with respect to the U.S. Loan Parties; and
(e)    if any Senior Notes then remain outstanding (it being understood that, at any time of determination, any Senior Notes that have been defeased and/or discharged in accordance with the terms of the Senior Notes Indenture shall not be deemed to be outstanding), the Aggregate Exposures are permitted to be incurred at such time pursuant to the Senior Notes Indenture.

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Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
Bail-In Legislation” shall mean, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
Bail-In Lender” shall have the meaning assigned to such term in Section 3.04.
Bank Product” shall mean any of the following products, services or facilities extended to the Lead Borrower or any of its Subsidiaries: (a) Cash Management Services; (b) products under Swap Contracts; (c) commercial credit card, purchase card and merchant card services; (d) Supply Chain Financings and (e) other banking products or services (including, without limitation, demand lines of credit) as may be requested by the Lead Borrower or any of its Subsidiaries, other than Letters of Credit issued pursuant to the provisions of Section 2.13 by the Administrative Agent or any Issuing Bank.
Bank Product Debt” shall mean Indebtedness and other obligations of a Borrower or any of its Subsidiaries relating to Bank Products.
Bank Product Reserve” shall mean the aggregate amount of reserves established by the Administrative Agent from time to time in its Permitted Discretion in respect of Secured Bank Product Obligations (which shall at all times include a reserve for the maximum amount of all Noticed Hedges outstanding at that time).
Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, and any successor thereto.
Base Rate” shall mean, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1.00%, (c) the LIBO Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00%; provided that the LIBO Rate for any day shall be based on the LIBO Rate at approximately 11:00 a.m. London time on such day and (d) 1.00 %. Any change in the Base Rate due to a change in the Prime Rate, the NYFRB Rate or the LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the LIBO Rate, respectively.
Base Rate Loan” shall mean each Revolving Loan which is designated or deemed designated as a Revolving Loan bearing interest at the Base Rate by the Lead Borrower at the time of the incurrence thereof or conversion thereto. All Base Rate Loans shall be denominated in U.S. Dollars.
Beneficial Ownership Certification” shall mean a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.
Beneficial Ownership Regulation” shall mean 31 C.F.R. § 1010.230.
BHC Act Affiliate” of a party shall mean an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. § 1841(k)) of such party.
Board” shall mean the Board of Governors of the Federal Reserve System of the United States of America.

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Borrowers” shall mean, subject to Section 9.10(g) and Section 13.18(b)(2), the U.S. Borrowers and the Swiss Borrower.
Borrowing” shall mean the borrowing of the same Type, Class and in the same currency, of Revolving Loan by the Borrowers from all the Lenders having Commitments under the applicable Facility on a given date (or resulting from a conversion or conversions on such date), having, in the case of LIBO Rate Loans, the same Interest Period; provided that Base Rate Loans incurred pursuant to Section 3.01 shall be considered part of the related Borrowing of LIBO Rate Loans.
Borrowing Base” shall mean any of the U.S. Borrowing Base, the Australian Borrowing Base and the Swiss Borrowing Base, as applicable.
Borrowing Base Certificate” shall mean a certificate of a Responsible Officer of the Lead Borrower in form and substance reasonably satisfactory to the Administrative Agent.
Budget” shall have the meaning assigned to such term in Section 9.04(e).
Business Day” shall mean any day that is any day except Saturday, Sunday and any day which shall be in New York City a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close in New York City, and (A) in connection with Loans to the Swiss Borrower, any day except Saturday, Sunday and any day which shall be in London a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close in London, (B) if such day relates to (x) any Loans denominated in Euros or (y) payment or purchase of Euros, any day on which TARGET2 payment system is open for the settlement of payments in Euros, (C) if such day relates to (x) any Loans denominated in Pound Sterling or (y) payment or purchase of Pound Sterling, any day on which banks are open for general business in London and (D) with respect to all notices and determinations in connection with, and payments of principal and interest on, LIBO Rate Loans, any day which is a Business Day which is also a day for trading by and between banks in the New York or London interbank market or the principal financial center of such Alternative Currency.
Canadian Collateral” shall mean all property (whether real, personal or otherwise) located in Canada with respect to which any security interests have been granted (or purported to be granted) pursuant to any U.S. Security Document (including any Additional Security Documents) or will be granted in accordance with requirements set forth in Section 9.12, including, without limitation, all collateral as described in the U.S. Security Documents. For the avoidance of doubt, in no event shall Canadian Collateral include Excluded Property.
Canadian Dollars” and “C$” shall mean the lawful money of Canada.
Canadian Economic Sanctions and Export Control Laws” shall mean any Canadian laws, regulations or orders governing transactions in controlled goods or technologies or dealings with countries, entities, organizations, or individuals subject to economic sanctions and similar measures, including the Special Economic Measures Act (Canada), the United Nations Act (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada), Part II.1 of the Criminal Code (Canada) and the Export and Import Permits Act (Canada), and any related regulations.
Canadian PPSA” shall mean the Personal Property Security Act (Ontario), as amended; provided that, in the event that, by reason of mandatory provisions of law, the validity, perfection and effect of perfection or non‑perfection of a security interest or other applicable Lien is governed by other personal

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property security laws in any other province or territory of Canada, the term “Canadian PPSA” shall mean such other personal property security laws (including the Civil Code (Quebec)) of such other province or territory of Canada.
Canadian Unpaid Supplier Reserve” shall mean, with respect to each U.S. Loan Party, a reserve established by the Administrative Agent in the exercise of its Permitted Discretion in respect of (i) any Inventory that is subject to rights of a supplier to repossess goods pursuant to Section 81.1 of the Bankruptcy and Insolvency Act (Canada) as amended, or any other laws of Canada or laws of any Province of Canada that grant repossession, revendication or similar rights to an unpaid supplier, and (ii) Accounts, Inventory and/or proceeds thereof subject to security interests, trusts or repossessory rights in favor of farmers under Section 81.2 of the Bankruptcy and Insolvency Act (Canada), in each case, where such supplier’s or farmer’s right ranks or is capable of ranking in priority to, or pari passu with, one or more of the Liens granted in the Security Documents.
Capital Expenditures” shall mean, with respect to any Person, all expenditures by such Person which are required to be capitalized in accordance with GAAP and, without duplication, the amount of Capitalized Lease Obligations incurred by such Person; provided that Capital Expenditures shall not include (i) the purchase price paid in connection with a Permitted Acquisition, (ii) the purchase price of equipment that is purchased substantially 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 such existing equipment being traded in at such time, (iii) expenditures made in leasehold improvements, to the extent reimbursed by the landlord, (iv) expenditures to the extent that (A) they are actually paid for by any Person other than a Loan Party or any of its Subsidiaries and (B) no Loan Party or any of its Subsidiaries has provided or is required to provide or incur, directly or indirectly, any consideration or monetary obligation to such third party or any other Person (whether before, during or after such period) and (v) property, plant and equipment taken in settlement of accounts.
Capitalized Lease Obligations” shall mean an obligation that is required to be accounted for as a financing or capital lease (and, for the avoidance of doubt, not a straight-line or operating lease) on both the balance sheet and income statement for financial reporting purposes in accordance with GAAP as in effect prior to giving effect to the adoption of ASU No. 2016-02 “Leases (Topic 842)” and ASU No. 2018-11 “Leases (Topic 842)” and the stated maturity date thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty. In the case of an Australian Loan Party, it shall not include any liability in respect of a lease or hire purchase contract which would, in accordance with Australian GAAP in force prior to January 1, 2019, have been treated as an operating lease.
Cash Collateralize” shall mean to pledge and deposit with or deliver to the Administrative Agent for deposit into the LC Collateral Account, for the benefit of the Administrative Agent, the Issuing Banks or the Swingline Lender (as applicable) and the Lenders, cash (or other credit support in the form of a standby letter of credit in form and substance, and issued by a financial institution, reasonably acceptable to the Administrative Agent and the applicable Issuing Bank) 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), cash 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 Equivalents” shall mean:

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(i)    U.S. Dollars, Canadian Dollars, Pound Sterling, Euros, the national currency of any participating member state of the European Union or, in the case of any Foreign Subsidiary, such local currencies held by it from time to time in the ordinary course of business;
(ii)    readily marketable direct obligations of any member of the European Economic Area or Switzerland or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of such country, and, at the time of acquisition thereof, having a credit rating of at least Aa3 (or the equivalent grade) by Moody’s or AA- by S&P;
(iii)    marketable general obligations issued by any state of the United States or any political subdivision thereof or any instrumentality thereof that are guaranteed by the full faith and credit of such state, and, at the time of acquisition thereof, having a credit rating of at least Aa3 (or the equivalent grade) by Moody’s or AA- by S&P;
(iv)    securities or any other evidence of Indebtedness or readily marketable direct obligations issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government (provided that the full faith and credit of the United States is pledged in support of those securities), in such case having maturities of not more than twelve (12) months from the date of acquisition;
(v)    certificates of deposit and eurodollar time deposits with maturities of twenty-four (24) months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding twenty-four (24) months and overnight bank deposits, in each case, with any Lender party to this Agreement at the time of acquisition thereof or any commercial bank or trust company having, or which is the principal banking subsidiary of a bank holding company having, a long-term unsecured debt rating of at least “A” or the equivalent thereof from S&P or “A2” or the equivalent thereof from Moody’s;
(vi)    repurchase obligations with a term of not more than thirty (30) days for underlying securities of the types described in clauses (iv) and (v) above entered into with any financial institution meeting the qualifications specified in clause (v) above;
(vii)    commercial paper having one of the two highest ratings obtainable from Moody’s or S&P and, in each case, maturing within twenty-four (24) months after the date of acquisition;
(viii)    money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (i) through (vii) of this definition; and
(ix)    Indebtedness or preferred stock issued by Person having a credit rating of at least A-2 (or the equivalent grade) by Moody’s or A by S&P, maturing within twenty-four (24) months after the date of acquisition.
Cash Management Services” shall mean any services provided from time to time to any Borrower or any of its Subsidiaries in connection with operating, collections, payroll, trust, or other depository or disbursement accounts, including automated clearinghouse, e-payable, electronic funds transfer, wire transfer, controlled disbursement, overdraft, depository, information reporting, lockbox and stop payment services.
CFC” shall mean a “controlled foreign corporation” within the meaning of section 957(a) of the Code.

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Change in Law” shall mean (a) the adoption or taking effect of any law, rule, regulation or treaty after the Closing Date or, as to any Lender, if later, the date such Lender becomes a party hereto, (b) any change in law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority after the Closing Date or, as to any Lender, if later, the date such Lender becomes a party hereto or (c) compliance by any Lender, Issuing Bank or Swingline Lender (or, for purposes of Section 3.01(b), by any lending office of such Lender or by such Lender’s holding company, if any) with any written request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date or, as to any Lender, if later, the date such Lender becomes a party hereto; provided, however, that, notwithstanding anything herein to the contrary, except to the extent they are merely proposed and not in effect, (x) all requests, rules, guidelines or directives under or issued in connection with the Dodd‑Frank Wall Street Reform and Consumer Protection Act, all interpretations and applications thereof and any compliance by a Lender with any request or directive relating thereto and (y) all requests, rules, guidelines or directives promulgated under or in connection with, all interpretations and applications of, and any compliance by a Lender, Issuing Bank or Swingline Lender with any request or directive relating to the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States of America or foreign regulatory authorities, in each case pursuant to Basel III (including CRD IV), shall in each case under clauses (x) and (y) above be deemed to be a “Change in Law” regardless of when adopted, enacted, issued or implemented but, for purposes of Section 2.15, only to the extent it is the general policy of a Lender, Issuing Bank or Swingline Lender, as applicable, to impose applicable increased costs or costs in connection with capital adequacy requirements similar to those described in clauses (b) and (c) of Section 3.01 generally on other similarly situated borrowers under similar circumstances under agreements permitting such impositions.
Change of Control” shall mean (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any “person” or “group” (within the meaning of the Exchange Act and the rules of the SEC thereunder as in effect on the Closing Date, but excluding any employee benefit plan and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) or any person or group of persons acting in concert of Equity Interests representing more than 50% of the aggregate ordinary voting power for the election of directors of the Lead Borrower (determined on a fully diluted basis); (b) the sale, lease or transfer (other than by way of merger, amalgamation, consolidation or other business combination transaction, and excluding the creation of a Lien), in one or a series of related transactions, of all or substantially all of the assets of the Lead Borrower and its Subsidiaries, taken as a whole, to any person, other than the Lead Borrower or any of its Subsidiaries; or (c) except as otherwise permitted by this Agreement, the Lead Borrower shall cease, directly or indirectly, to own and control legally and beneficially all of the Equity Interests in any other Borrower.
Chattel Paper” shall have the meaning assigned to such term in Article 9 of the UCC or, if applicable, in the Canadian PPSA or the Australian PPSA (section 10).
Class” (a) when used with respect to Lenders, refers to whether such Lender has a Loan, Protective Advance or Commitment with respect to the North American Revolving Facility or the Swiss Revolving Facility, (b) when used with respect to Commitments, refers to whether such Commitments are the North American Revolving Commitments or the Swiss Revolving Commitments 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 North American Revolving Facility, Loans under the Swiss Revolving Facility or Protective Advances under the North American Revolving Facility or the Swiss Revolving Facility.

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Closing Date” shall mean September 27, 2019.
Closing Date Extension Amount” shall mean (a) to the extent that any real property located in New York State is included in the U.S. Borrowing Base, $3,840,000 and (b) otherwise, $0.
Closing Date Mortgaged Properties” shall have the meaning assigned to such term in the definition of the term “Mortgaged Properties”.
Closing Date Refinancing” shall mean the repayment in full and termination of all outstanding loans and commitments and termination and release of any guarantees in connection therewith under that certain Credit Agreement, dated as of March 25, 2016, as amended, supplemented, restated, amended and restated, extended or otherwise modified from time to time, by and among the Lead Borrower, the other borrowers and guarantors party thereto, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders from time to time party thereto.
Co-Syndication Agents” shall mean Bank of America, N.A., Bank of Montreal and Wells Fargo Bank, National Association, in their capacities as co-syndication agents under this Agreement.
Code” shall mean the U.S. Internal Revenue Code of 1986, as amended from time to time.
Collateral” shall mean, collectively, the U.S. Collateral and the Foreign Collateral.
Collateral Agent” shall mean JPMCB, in its capacity as Collateral Agent for the Secured Parties, and, where the context requires, shall include JPMCB in its capacity as Australian Security Trustee, and shall include its branch offices and affiliates in any applicable jurisdiction and any successor to the Collateral Agent appointed pursuant to Section 12.10.
Collateral and Guarantee Requirement” shall mean the requirement that (in each case, subject to the last two paragraphs of Section 9.10, and subject to Schedule 9.12 (as may be updated pursuant to Section 13.12 of this Agreement) (which, for the avoidance of doubt, shall override the applicable clauses of this definition of “Collateral and Guarantee Requirement”)):
(a)    on the Closing Date, the Collateral Agent shall have received:
(i)    from (A) each U.S. Loan Party and (B) each other Loan Party that owns Equity Interests of a person incorporated or organized under the law of the United States, any state thereof, or the District of Columbia (other than Excluded Securities) (provided that the grant by any such other Loan Party under the Initial U.S. Security Agreement shall be solely with respect to such Equity Interests and related rights and assets as expressly set forth in the Initial U.S. Security Agreement), a counterpart of the Initial U.S. Security Agreement,
(ii)    from each Loan Party, a counterpart of the Guarantee Agreement, in each case duly executed and delivered on behalf of such person,
(iii)    from each Australian Loan Party, each Initial Australian Security Agreement to which it is a party,
(iv)    from the Lead Borrower, the Initial Australian Security Agreement in paragraph (c) of the definition thereof,

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(v)    from each Swiss Loan Party, each Initial Dutch Security Agreement and each Initial Swiss Security Agreement to which it is a party, and
(vi)    from each Swiss Loan Party, a valid and enforceable first ranking security interest (subject to any Liens permitted under Section 10.02(d) or (n)(i) of this Agreement, solely to the extent such Liens arise by operation of law and either (x) such Liens are permitted by the related Deposit Account Control Agreement or (y) the Administrative Agent has established a Reserve in its Permitted Discretion for liabilities secured by such Liens) over each of its Collection Accounts governed by the laws of the jurisdiction where the relevant Collection Account is located (including the Initial UK Security Agreement);
(b)    on the Closing Date, (i)(A) all outstanding Equity Interests directly owned by the Loan Parties, other than Excluded Securities, and (B) all Indebtedness owing to any Loan Party, other than Excluded Securities, shall have been pledged or assigned for security purposes pursuant to the Security Documents, (ii) the Collateral Agent shall have received certificates, updated share registers (where necessary under the laws of any applicable jurisdiction in order to create a perfected security interest in such Equity Interests) or other instruments (if any) representing such Equity Interests and any notes or other instruments required to be delivered pursuant to the applicable Security Documents, together with stock powers, note powers, stock transfer forms or other instruments of transfer with respect thereto (as applicable) endorsed in blank and appropriate authorities to complete and date same and certified copy share registers and (iii) the Collateral Agent shall have received with respect to each Mortgaged Property located in the United States of America or any State thereof as of the Closing Date, the Flood Documentation; provided that to the extent any such Flood Documentation cannot be delivered on or prior to the Closing Date after the Borrowers’ use of commercially reasonable efforts to do so and without undue burden and expense, then the provision of such Flood Documentation may be delivered within ninety (90) days after the Closing Date (or such longer period as agreed to by the Administrative Agent in its sole discretion) but in any event, prior to the delivery of the related Mortgage for such Real Property;
(c)    in the case of any Person that becomes a Borrower or a Guarantor after the Closing Date, the Collateral Agent shall have received (i) a supplement to the Guarantee Agreement, (ii) a supplement to the applicable Security Document referred to in clause (a) above and any other Security Documents, if applicable, in the form specified therefor or otherwise reasonably acceptable to the Administrative Agent, in each case, duly executed and delivered on behalf of such Borrower or Guarantor and (iii) if requested by the Collateral Agent, such documents, certificates and opinions with respect to such Person of the type described in Section 6.01;
(d)    after the Closing Date (x) all outstanding Equity Interests of any person that becomes a Borrower or Guarantor after the Closing Date and that are held by a Loan Party and (y) all Equity Interests directly acquired by a Loan Party, and Indebtedness owing to a Loan Party after the Closing Date, in each case other than Excluded Securities, shall have been pledged pursuant to the Security Documents, together with stock powers, stock transfer forms or other instruments of transfer with respect thereto (as applicable) endorsed in blank;
(e)    as of the Closing Date, except as otherwise contemplated by this Agreement or any Security Document, all documents and instruments, including Uniform Commercial Code, Australian PPSA and Canadian PPSA financing statements, and filings with the United States Copyright Office, the United States Patent and Trademark Office and all other actions reasonably requested by the Collateral Agent (including those required by applicable Requirements of Law) to be delivered, filed, registered or

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recorded to create the Liens purported to be created by the Security Documents (in each case, including any supplements thereto) and perfect such Liens to the extent required by the Security Documents, shall have been delivered, filed, registered or recorded or delivered to the Collateral Agent for filing, registration or the recording substantially concurrently with, or promptly following, the execution and delivery of each such Security Document;
(f)    as of the Closing Date, evidence of the insurance (if any) required by the terms of Section 9.02 hereof shall have been received by the Collateral Agent;
(g)    after the Closing Date, the Collateral Agent shall have received such other Security Documents as may be required to be delivered pursuant to Section 9.10 or the Security Documents;
(h)    (x) within ninety (90) days after the Closing Date with respect to each Closing Date Mortgaged Property set forth on Schedule 1.01(B) (or on such later date as the Administrative Agent may agree in its reasonable discretion) and (y) the time periods set forth in Section 9.10 with respect to Mortgaged Properties encumbered pursuant to such Section 9.10, the Collateral Agent shall have received:
(A)    counterparts of each Mortgage to be entered into with respect to each such Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property and suitable for recording, registering or filing (together with any other forms or undertakings that are required or customary to effect such recording, registration or filing) in all filing, registration or recording offices that the Collateral Agent may reasonably deem necessary or desirable in order to create a valid and enforceable Lien subject to no other Liens except Permitted Liens, at the time of filing, registration or recordation thereof, and
(B)    with respect to the Mortgage encumbering each such Mortgaged Property, opinions of local counsel regarding the due authorization, execution and delivery, the enforceability, and perfection of the Mortgages and such other matters customarily covered in real estate mortgage counsel opinions as the Collateral Agent may reasonably request, if and to the extent, and in such form, as local counsel customarily provides such opinions as to such other matters;
provided that, notwithstanding the foregoing, it is hereby understood and agreed that no Real Property may constitute “Eligible Real Property” until the Collateral Agent’s receipt of the items described in clauses (A) and (B) above; and
(i)    within (x) ninety (90) days after the Closing Date (or on such later date as the Collateral Agent may agree in its reasonable discretion) with respect to each Closing Date Mortgaged Property set forth on Schedule 1.01(B) located in the United States and (y) the time periods set forth in Section 9.10 with respect to Mortgaged Properties located in the United States and encumbered pursuant to said Section 9.10, the Collateral Agent shall have received:
(A)    a Mortgage Policy, and
(B)    an ALTA Survey of each Mortgaged Property (including all improvements, easements and other customary matters thereon reasonably required by the Collateral Agent), as applicable, for which all necessary fees (where applicable) have been paid with respect to properties located in the United States; provided, however, that,

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so long as the Title Insurer shall accept the same to eliminate the standard survey exceptions from such policy or policies and issue such survey-related endorsements as the Administrative Agent shall reasonably require and to issue a “same as survey” endorsement, in lieu of a new or revised ALTA Survey, the Borrowers may provide a “no material change” affidavit with respect to any prior survey for the respective Mortgaged Property (which prior survey otherwise substantially complies with the foregoing survey requirements);
provided that, notwithstanding the foregoing, it is hereby understood and agreed that no real property may constitute “Eligible Real Property” until the Collateral Agent’s receipt of the items described in clauses (A) and (B) above.
Notwithstanding anything to the contrary in this Agreement or in the other Loan Documents, but subject to the provisos set forth at the end of clauses (h) and (i) above, it is understood that to the extent any Collateral (other than Collateral with respect to which a lien may be perfected by (A) the filing of a Uniform Commercial Code, Canadian PPSA or Australian PPSA financing statement, (B) delivery and taking possession of stock or share certificates of the Subsidiaries of the Lead Borrower or (C) the filing of a short form security agreement with the United States Patent and Trademark Office or the United States Copyright Office) is not or cannot be provided or the security interest of the Collateral Agent therein is not or cannot be perfected on the Closing Date after the use of commercially reasonable efforts by the Borrowers to do so and without undue burden and expense, then the provision and/or perfection of the security interest in such Collateral shall not constitute a condition precedent to the Closing Date or any Credit Event on or within ninety (90) days after the Closing Date and shall instead be required to be delivered and perfected within ninety (90) days after the Closing Date (subject to extension by the Administrative Agent in its sole discretion).
Collection Account” has the meaning given to that term in Section 9.18(e)(i).
Collections” has the meaning given to that term in Section 9.18(e)(i).
Commitment” shall mean, with respect to any Lender, such Lender’s Revolving Commitment, North American LC Commitment, Swiss LC Commitment or Swingline Commitment, or any Extended Revolving Loan Commitment.
Commodity Account” shall have the meaning assigned to such term in Article 9 of the UCC or, if applicable, a futures account as defined in the Canadian PPSA.
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.
Compliance Certificate” shall mean a certificate of the Responsible Officer of the Lead Borrower substantially in the form of Exhibit J hereto.
Consolidated Fixed Charge Coverage Ratio” shall mean, for any period of four consecutive fiscal quarters for which Financial Statements were required to have been delivered, the ratio of (a) EBITDA of the Lead Borrower and its Subsidiaries for such period minus the sum of (x) Capital Expenditures of the Lead Borrower and its Subsidiaries paid in cash (excluding the proceeds of any Indebtedness (other than Indebtedness hereunder)) for such period, (y) the amount of cash payments made during such period (net of cash refunds received during such period) by the Lead Borrower and its Subsidiaries in respect of federal, state, local and foreign income taxes during such period and (z)

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Dividends permitted by Section 10.06(d), (g), (h), (j) or (l) paid in cash for such period (provided, however, that, for purposes of calculating the amount to be subtracted under this clause (z) for any period that includes a fiscal quarter (or portion thereof) prior to the Closing Date, such amount shall be calculated from the period from the Closing Date to the date of determination divided by the number of days in such period and multiplied by 365) to (b) Consolidated Fixed Charges for such period.
Consolidated Fixed Charges” shall mean, for any period of four consecutive fiscal quarters for which Financial Statements were required to have been delivered, for the Lead Borrower and its Subsidiaries on a consolidated basis, the sum, without duplication, calculated on a Pro Forma Basis, of (a) Consolidated Interest Expense for such period to the extent paid in cash (or accrued and payable on a current basis in cash), (b) the aggregate amount of scheduled amortization payments of principal made during such period in respect of long-term Consolidated Indebtedness (excluding any scheduled payment at maturity, including the scheduled payment at maturity of the Senior Notes) and (c) the aggregate amount by which the U.S. Fixed Asset Advance has been reduced due to each decrease in the Equipment Amortization Factor, the Real Property Amortization Factor and the Trademark Amortization Factor during such period. Notwithstanding the foregoing, for purposes of calculating Consolidated Fixed Charges for any period that includes a fiscal quarter (or portion thereof) prior to the Closing Date, Consolidated Fixed Charges shall be calculated from the period from the Closing Date to the date of determination divided by the number of days in such period and multiplied by 365.
Consolidated Indebtedness” shall mean, at any time, the sum of (without duplication) (i) all Capitalized Lease Obligations of the Lead Borrower and its Subsidiaries, (ii) all Indebtedness of the Lead Borrower and its Subsidiaries of the type described in clause (a) of the definition of “Indebtedness” and (iii) all contingent obligations of the Lead Borrower and its Subsidiaries in respect of Indebtedness of any third Person of the type referred to in the preceding clauses (i) and (ii), in each case, determined on a consolidated basis in accordance with GAAP and calculated on a Pro Forma Basis.
Consolidated Interest Expense” shall mean, for any period, without duplication, the sum of (a) total interest expense (including interest expense attributable to Capital Lease Obligations in accordance with GAAP) of the Lead Borrower and its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness of the Lead Borrower and its Subsidiaries, including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, all as determined on a consolidated basis for the Lead Borrower and its consolidated Subsidiaries in accordance with GAAP; and (b) to the extent not included in clause (a), the consolidated yield or discount accrued during such period on the aggregate amount of all investments or claims held at any time by all purchasers, assignees or transferees of (or of interests in) or holders of obligations that are supported or secured by accounts receivable, lease receivables and other rights to payment in connection with each Qualified Securitization Transaction. For purposes hereof, “Consolidated Interest Expense” shall be calculated on a Pro Forma Basis, including to give pro forma effect to each Permitted Acquisition (including any Indebtedness assumed by the Lead Borrower or any of its Subsidiaries in connection with such Permitted Acquisition and related interest expense) and each disposition of any Subsidiary or of any business or division of a Subsidiary or all or substantially all of the assets of any Subsidiary or of any business or division of a Subsidiary or of greater than 50% of the capital stock, partnership interests, membership interests or equity of any Subsidiary (including any Indebtedness repaid in connection therewith and related interest expense), in each case that occurred during the applicable Test Period as if such Permitted Acquisition or disposition had occurred at the inception of such Test Period.
Consolidated Net Income” shall mean, for any period, the aggregate of the net income (or net loss) of the Lead Borrower and its Subsidiaries for such period, determined in accordance with GAAP on

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a consolidated basis; provided that the net income of any other Person which is not a Subsidiary of the Lead Borrower shall be included in the Consolidated Net Income of the Lead Borrower only to the extent of the amount of cash dividends or distributions paid to the Lead Borrower or to a consolidated Subsidiary of the Lead Borrower.
Consolidated Total Assets” shall mean, as of any date of determination, the total assets of the Lead Borrower and the Subsidiaries, determined on a consolidated basis in accordance with GAAP, as set forth on the consolidated balance sheet of the Lead Borrower as of the last day of the Test Period ending immediately prior to such date for which financial statements of the Lead Borrower have been delivered (or were required to be delivered) pursuant to Section 9.04(a) or 9.04(b), as applicable. Consolidated Total Assets shall be determined on a Pro Forma Basis.
Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person, whether through the ownership of voting securities, by contract or otherwise, and “Controls,” “Controlled” and “Controlling” shall have meanings correlative thereto.
Cost” shall mean, as reasonably determined by the Administrative Agent in good faith, with respect to Inventory, the lower of (a) cost computed on a specific identification or first in first out basis or (b) market value, provided that for purposes of the calculation of a Borrowing Base, the cost of Inventory shall not include (A) the portion of the cost of Inventory equal to the profit earned by any Affiliate on the sale thereof to any Borrower, or (B) write ups or write downs in cost with respect to currency exchange rates.
Covenant Transaction” shall have the meaning assigned to such term in Section 1.09(b).
Covered Entity” shall mean any of the following:
(i)    a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii)    a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii)    a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
Covered Party” shall have the meaning assigned to such term in Section 13.21.
CRD IV” 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 or any laws, rules or guidance by which CRD IV is implemented.
Credit Event” shall mean the making of any Loan.
Credit Extension” shall mean, as the context may require, (i) a Credit Event or (ii) the issuance, amendment to increase the face amount or extend the expiry date, extension or renewal of any Letter of

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Credit by any Issuing Bank; provided that “Credit Extensions” shall not include conversions and continuations of outstanding Loans.
Debtor Relief Laws” shall mean the Bankruptcy Code of the United States, the Australian Corporations Act, the Dutch Bankruptcy Act (Faillissementswet) and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, administration, examinership, moratorium, rearrangement, arrangement, receivership, insolvency, judicial management, reorganization or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect including any proceeding under corporate law or other law of any jurisdiction whereby a corporation or other Person seeks a stay or a compromise of the claims of its creditors against it, each as now and hereafter in effect, any successors to such statutes and any other applicable insolvency or other similar law of any jurisdiction.
Default” shall mean any event, act or condition which with notice or lapse of time, or both, would constitute an Event of Default.
Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
Defaulting Lender” shall mean, any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days after the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Lead Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuing Bank, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two (2) Business Days after the date when due, (b) has notified the Lead Borrower or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Lead Borrower, to confirm in writing to the Administrative Agent and the Lead Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Lead Borrower), or (d) has, or has a direct or indirect parent company that has other than via an Undisclosed Administration, (i) become the subject of (A) a proceeding under any Debtor Relief Law or (B) a Bail-In Action, or (ii) had appointed for it a receiver, interim receiver, custodian, conservator, trustee, monitor, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state, federal or foreign regulatory authority acting in such a capacity; provided further that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or Canada or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a

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Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent demonstrable error, and such Lender shall be deemed to be a Defaulting Lender of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Lead Borrower and each other Lender promptly following such determination.
Delaware Divided LLC” shall mean any Delaware LLC which has been formed upon consummation of a Delaware LLC Division.
Delaware LLC” shall mean any limited liability company organized or formed under the laws of the State of Delaware.
Delaware LLC Division” shall mean the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.
Deposit Account” shall have the meaning assigned to such term in Article 9 of the UCC (and/or with respect to any Deposit Account located outside of the United States, any bank account with a deposit function) and shall include an Australian ADI Account.
Deposit Account Control Agreement” shall mean a Deposit Account control agreement to be executed by each institution maintaining a Deposit Account (other than an Excluded Account) for any Loan Party, in each case as required by and in accordance with the terms of Section 9.18 (or any similar agreements, documentation or requirement necessary, including notice to and acknowledgement from the relevant institution maintaining a Deposit Account as determined by the Administrative Agent in its Permitted Discretion, to perfect the security interest of the Collateral Agent and/or effect control over the relevant Deposit Accounts).
Designated Jurisdiction” shall mean any country, region or territory to the extent that such country, region or territory itself is the subject of any Sanctions (on the date of this Agreement, the Crimea region of the Ukraine, Cuba, Iran, North Korea and Syria).
Dilution Factors” shall mean, without duplication, with respect to any period, the aggregate amount of all deductions, credit memos, returns, adjustments, allowances, bad debt write-offs and other non-cash credits which are recorded to reduce accounts receivable in a manner consistent with current accounting practices of the Loan Parties.
Dilution Ratio” shall mean, at any date, the amount (expressed as a percentage) equal to (a) the aggregate amount of the applicable Dilution Factors for the twelve (12) most recently ended fiscal months divided by (b) total gross sales for the twelve (12) most recently ended fiscal months.
Dilution Reserve” shall mean, at any date, the applicable Dilution Ratio multiplied by the Eligible Accounts.
Disclosure Exceptions” shall have the meaning assigned to such term in Section 9.04(h).
Disinterested Director” shall mean, with respect to any person and transaction, a member of the Board of Directors of such person who does not have any material direct or indirect financial interest in or with respect to such transaction.

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Dispose” or “Disposed of” shall mean to convey, sell, lease, sell and lease-back, assign, farm-out, transfer or otherwise dispose of (other than, in each of the foregoing cases, for security purposes) any property, business or asset (including any disposition of any property, business or asset to a Delaware Divided LLC pursuant to a Delaware LLC Division). The term “Disposition” shall have a correlative meaning to the foregoing.
Disqualified Institutions” shall mean, collectively, (a) those entities identified by the Lead Borrower to the Administrative Agent via electronic mail submitted to JPMDQ_Contact@jpmorgan.com from time to time on three (3) Business Days’ prior written notice, as competitors of the Lead Borrower and/or one or more of its Subsidiaries and any Affiliates of such entities clearly identifiable solely by similarity of name to such entities other than bona fide debt funds and (b) those banks, financial institutions and other institutional lenders separately identified in writing by the Lead Borrower to the Lenders and the Administrative Agent prior to the Closing Date and any Affiliates of such entities clearly identifiable solely by similarity of name to such entities; provided that in no event shall any update to the list of Disqualified Institutions apply retroactively to disqualify any persons that have (x) previously acquired an assignment or participation interest under this Agreement (solely with respect to those previously acquired interests) or (y) previously entered into a trade to acquire an assignment or participation interest under this Agreement (solely with respect to such trade). Delivery of the list of Disqualified Institutions or any supplement thereto, in each case, to the Administrative Agent shall only be deemed to be received and effective if such list and each such supplement thereto is delivered to the following email address: JPMDQ_Contact@jpmorgan.com.
Disqualified Stock” shall mean, with respect to any person, any Equity Interests of such person that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable, in each case, at the option of the holder thereof), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests of the Lead Borrower), pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests of the Lead Borrower), in whole or in part, or (c) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Stock, in the case of each of the foregoing clauses (a), (b) and (c), prior to the date that is ninety-one (91) days after the Maturity Date in effect at the time of issuance thereof and except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment (or offer to repay) in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments (provided that only the portion of the Equity Interests that so mature or are mandatorily redeemable, are so convertible or exchangeable or are so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock). Notwithstanding the foregoing: (i) any Equity Interests issued to any employee or to any plan for the benefit of employees of the Lead Borrower or the Subsidiaries or by any such plan to such employees shall not constitute Disqualified Stock solely because they may be required to be repurchased by the Lead Borrower in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability and (ii) any class of Equity Interests of such person that by its terms authorizes such person to satisfy its obligations thereunder by delivery of Equity Interests that are not Disqualified Stock shall not be deemed to be Disqualified Stock.
Disregarded Entity” shall mean an entity that is disregarded as separate from its owner for U.S. federal income tax purposes.

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Dividend” shall mean, with respect to any Person, that such Person has paid a dividend, distribution or returned any equity capital to its stockholders, partners or members or authorized or made any other payment or delivery of property (other than common equity of such Person) to its stockholders, partners or members as such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for a consideration any shares of any class of its capital stock or any partnership or membership interests outstanding on or after the Closing Date (or any options or warrants issued by such Person with respect to its Equity Interests).
Documentation Agent” shall mean U.S. Bank National Association, in its capacity as documentation agent for this Agreement.
Dollar Equivalent” shall mean, at the time of determination thereof, (a) if such amount is expressed in U.S. Dollars, such amount, (b) if such amount is expressed in an Alternative Currency, the equivalent of such amount in U.S. Dollars determined by using the rate of exchange for the purchase of the U.S. Dollars with the Alternative Currency in the London foreign exchange market at or about 11:00 a.m. London time (or New York time, as applicable) on a particular day as displayed by ICE Data Services as the “ask price”, or as displayed on such other information service which publishes that rate of exchange from time to time in place of ICE Data Services (or if such service ceases to be available, the equivalent of such amount in U.S. Dollars as reasonably determined by the Administrative Agent using any method of determination it deems reasonably appropriate) and (c) if such amount is denominated in any other currency, the equivalent of such amount in U.S. Dollars as reasonably determined by the Administrative Agent using any reasonable method of determination it deems reasonably appropriate.
Dominion Account” shall mean a special concentration account established by the Lead Borrower in the United States, at JPMCB, an affiliate thereof, another Lender or any affiliate or branch thereof, over which the Administrative Agent has exclusive control for withdrawal purposes pursuant to the terms and provisions of this Agreement and the other Loan Documents.
Dutch Collateral” shall mean all property (whether real, personal or otherwise) with respect to which any security interests have been granted (or purported to be granted) pursuant to any Dutch Security Document (including any Additional Security Documents) or will be granted in accordance with requirements set forth in Section 9.12, including, without limitation, all collateral as described in the Dutch Movables Pledge. For the avoidance of doubt, in no event shall Dutch Collateral include Excluded Property.
Dutch Movables Pledge” shall mean the Dutch law governed pledge of movables assets entered into on or about the date of this Agreement by and among the Swiss Borrower, as pledgor, and the Collateral Agent, as pledgee.
Dutch Security Documents” shall mean the Dutch Movables Pledge and, after the execution and delivery thereof, each Additional Security Document governed by Dutch law, together with any other applicable security documents governed by Dutch law from time to time in favor of the Collateral Agent for the benefit of the Secured Parties.
EBITDA” shall mean, for any period, for the Lead Borrower and its Subsidiaries on a consolidated basis, determined in accordance with GAAP, the sum of
(a)    Consolidated Net Income for such period; plus (without duplication)
(b)    to the extent deducted in the determination of such Consolidated Net Income:

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(i)    Consolidated Interest Expense;
(ii)    federal, state, provincial, local and foreign income Taxes (including franchise Taxes based upon income, gross receipts type Taxes imposed in lieu of income Taxes, commercial activity Taxes imposed in lieu of income Taxes and similar Taxes in the nature of income Taxes);
(iii)    depreciation and amortization;
(iv)    any non-cash losses, expenses or charges or non-cash recurring or unusual fees, costs, expenses, charges or losses (including goodwill impairments, but excluding any contra-revenue accrued in the ordinary course of business);
(v)    any other non-recurring or unusual fees, costs, expenses, charges or losses (including, without limitation, fees, costs, expenses, charges and losses arising from restructurings and discontinued operations);
(vi)    out of pocket fees, costs and expenses incurred during such period in connection with (A) any issuance, incurrence, repayment or satisfaction of Indebtedness or equity or any Qualified Securitization Transactions or Qualified Receivables Facilities, (B) any Acquisition permitted hereunder, (C) any divestiture, (D) the credit facility evidenced by this Agreement, (E) Investments permitted by this Agreement, (F) litigation, arbitration and/or other legal disputes (including, without limitation, awards and settlement payments made in respect thereof) and (G) pension funding requirements;
(vii)    solely with respect to the four consecutive fiscal quarter periods ending on or about September 29, 2019, December 31, 2019 and March 31, 2020, such non-recurring cash charges as have been specifically disclosed by reference to this clause to the Lenders on or prior to the date of this Agreement in an aggregate amount not to exceed $30,587,000 (for the period ending September 29, 2019), $19,957,000 (for the period ending on or about December 31, 2019) and $7,687,000 (for the period ending on or about March 31, 2020) (it being understood and agreed that, for the avoidance of doubt, such amounts may not be added back for any period ending after March 31, 2020);
(viii)    costs, expenses, charges and losses arising from liability or casualty and condemnation events, takings under power of eminent domain and similar events or business interruption, restructurings and discontinued operations, but solely to the extent covered by insurance and actually reimbursed or with respect to which the Lead Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer, and only to the extent that such amount is (1) not denied by the applicable carrier in writing within 180 days (with a deduction for any amount so added back and then denied within such 180-day period) and (2) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days); plus
(ix)    any cost or expense for performance share units and/or performance units awarded pursuant to the Briggs & Stratton Corporation 2017 Omnibus Incentive Plan, as the same may be amended, restated, replaced, supplemented and/or otherwise modified from time to time; minus (without duplication)

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(c)    to the extent included in the determination of such Consolidated Net Income, (i) non-cash gains and non-cash non-recurring or unusual gains, but excluding (A) accrual of revenue in the ordinary course, (B) any non-cash gains or other items increasing EBITDA which represent the reversal of any accrual of, or reserve for, anticipated cash changes in any prior period that reduced EBITDA in an earlier period and (C) any items for which cash was received in any prior period plus (ii) any non-cash charges, losses, costs or expenses described in item (b)(iv) above that were added back in the determination of EBITDA for a prior period, to the extent such items have become cash charges during the current period;
in each case, on a consolidated basis and determined in accordance with GAAP; provided, however, that (A) the amounts added pursuant to item (b)(v) above during any consecutive four (4) fiscal quarter period shall not exceed in the aggregate the greater of (1) $25,000,000 and (2) 15% of EBITDA (before giving effect to item (b)(v) above) during such consecutive four (4) fiscal quarter period and (B) the aggregate amount added pursuant to subclauses (F) and (G) of item (b)(vi) above shall not exceed $10,000,000 during the term of this Agreement.
For purposes hereof, “EBITDA” shall be calculated on a Pro Forma Basis, including to give pro forma effect to each Acquisition (including any related Acquisition Debt and related interest expense)) and each disposition of any Subsidiary or of any business or division of a Subsidiary or of all or substantially all of the assets of any Subsidiary or of any business or division of a Subsidiary or of greater than 50% of the capital stock, partnership interests, membership interests or equity of any Subsidiary (including any Indebtedness repaid in connection therewith and related interest expense), in each case that occurred during the applicable Test Period as if such Acquisition or disposition had occurred at the inception of such Test Period.
EEA Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority” shall mean any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Effective Yield” shall mean, as to any Revolving Loans or other Indebtedness, the effective yield on such Revolving Loans or other Indebtedness as mutually determined by the Administrative Agent and the Lead Borrower in good faith, taking into account the applicable interest rate margins, any interest rate floors or similar devices and all fees, including upfront or similar fees or original issue discount (amortized over the shorter of (x) the Weighted Average Life to Maturity of such Loans or other Indebtedness and (y) the four years following the date of incurrence thereof) payable generally to lenders providing such Loans or other Indebtedness, but excluding any arrangement, structuring, commitment, underwriting or other fees payable in connection therewith that are not generally shared with the relevant lenders and customary consent fees paid generally to consenting lenders. Each mutual determination of the “Effective Yield” by the Administrative Agent and the Lead Borrower shall be conclusive and binding on all Lenders absent demonstrable error.

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Eligible Accounts” shall mean, on any date of determination of any Borrowing Base, all of the Accounts owned by all applicable Loan Parties and reflected in the most recent Borrowing Base Certificate delivered by the Lead Borrower to the Administrative Agent, except any Account to which any of the exclusionary criteria set forth below applies. In addition, the Administrative Agent reserves the right, at any time and from time to time after the Closing Date, to adjust on no less than three (3) Business Days’ prior written notice to the Lead Borrower (unless the exigencies of the circumstance are such that such additional notice cannot be given, in which case the Administrative Agent shall provide written notice to the Lead Borrower substantially concurrently with such change or as expeditiously thereafter as commercially practicable) any of the criteria set forth below, to establish new criteria with respect to Eligible Accounts and to adjust the advance rates, in each case, in its Permitted Discretion, subject to the approval of the Supermajority Lenders, as the case may be, in the case of adjustments, new criteria or increases in advance rates which, in each case, have the effect of making more credit available than would have been available if the standards in effect on the Closing Date had continued to be in effect. Eligible Accounts shall not include any of the following Accounts:
(i)    any Account in which the Collateral Agent, on behalf of the Secured Parties, does not have a valid and enforceable first priority (subject to (x) Permitted Borrowing Base Liens which do not have priority over the Lien in favor of the Collateral Agent or (y) any other Permitted Lien for which the Administrative Agent has established a Reserve in its Permitted Discretion for liabilities secured by such Permitted Lien (including, without limitation, Liens securing the NMTC Financing, to the extent of the NMTC Reserve)) perfected (or equivalent in any foreign jurisdiction) Lien governed by the laws of each applicable jurisdiction or any Account that is subject to any other Lien of any nature whatsoever (except as set forth in the first parenthetical of this clause (i));
(ii)    any Account that is not owned by a Loan Party;
(iii)    any Account due from (A) an Account Debtor that is not domiciled in the United States, Canada, an Eligible Asian Jurisdiction or an Eligible European Jurisdiction and (if not a natural person) organized or incorporated under the laws of the United States, Canada, an Eligible Asian Jurisdiction or an Eligible European Jurisdiction, (B) with respect to the Australian Borrowing Base, an Account Debtor that is not domiciled in an Eligible Asian Jurisdiction and (if not a natural person) organized or incorporated under the laws of Eligible Asian Jurisdiction or (C) with respect to the Swiss Borrowing Base, an Account Debtor that is not domiciled in an Eligible European Jurisdiction or the United States and (if not a natural person) organized or incorporated under the laws of Eligible European Jurisdiction or the United States, unless, in each case, such Account is backed by credit insurance satisfactory to the Administrative Agent or a letter of credit acceptable to the Administrative Agent which is in the possession of, is directly drawable by the Administrative Agent and with respect to which the Administrative Agent has “control” as defined in Section 9-107 of the UCC; provided that (x) so long as Husqvarna AB has an Investment Grade Rating, any Account in respect of which such Person (or its subsidiaries) is an Account Debtor shall not be excluded from “Eligible Accounts” pursuant to this clause and (y) up to $12,500,000 of Accounts in respect of which Ningbo Daye Machinery Co. (or its subsidiaries) is an Account Debtor shall not be excluded from “Eligible Accounts” pursuant to this clause;
(iv)    any Account that is payable in any currency other than U.S. Dollars, Australian Dollars, Canadian Dollars, Pound Sterling, Euros or Swiss Francs;
(v)    any Account that does not arise from the sale of goods or the performance of services by such Loan Party in the ordinary course of its business;

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(vi)    any Account that does not comply in all material respects with all applicable legal requirements, including, without limitation, all laws, rules, regulations and orders of any relevant Governmental Authority;
(vii)    any Account (A) as to which a Loan Party’s right to receive payment is contingent upon the fulfillment of any condition whatsoever unless such condition is satisfied, (B) as to which a Loan Party is not able to bring suit or otherwise enforce its remedies against the Account Debtor through judicial or administrative process, (C) that represents a progress or milestone billing consisting of an invoice for goods sold or used or services rendered pursuant to a contract under which the Account Debtor’s obligation to pay that invoice is subject to a Loan Party’s completion of further performance under such contract or is subject to the equitable lien of a surety bond issuer or (D) that arises with respect to goods that are delivered on a bill-and-hold, cash-on-delivery basis or placed on consignment, guaranteed sale or other terms by reason of which the payment by the Account Debtor is or may be conditional;
(viii)    to the extent that any defense, counterclaim or dispute arises, or any accrued rebate or sales commission payable exists or is owed, or the Account is, or is reasonably likely to become, subject to any right of recoupment, chargeback or set-off by the Account Debtor, for customer deposits or otherwise, to the extent of the amount of such dispute, defense, counterclaim, rebate, sales commission, recoupment, chargeback or set-off, it being understood that the remaining balance of the Account shall be eligible;
(ix)    any Account that is subject to any netting or similar arrangement;
(x)    any Account that 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;
(xi)    any Account with respect to which an invoice or other electronic transmission constituting a request for payment, reasonably acceptable to the Administrative Agent in form and substance (it being acknowledged and agreed that the Loan Parties’ manner of invoicing and/or requesting payment as of the Closing Date is so acceptable to the Administrative Agent), has not been sent on a timely basis to the applicable Account Debtor according to the normal invoicing and timing procedures of the Loan Parties or that represents a partial payment on a delivered invoice;
(xii)    any Account that arises from a sale to any director, officer, other employee or Affiliate of a Loan Party; provided that up to $5,000,000 of Accounts with respect to which Power Distributors, LLC is the Account Debtor shall not be deemed ineligible by virtue of this clause (xii);
(xiii)    any Account that is in default; provided that, without limiting the generality of the foregoing, an Account shall be deemed in default at any time upon the occurrence of any of the following; provided further, that, in calculating delinquent portions of Accounts under clause (xiii)(A)(x) below, credit balances will be excluded:
(A)    such Account (x) is not paid and more than one-hundred twenty (120) days after the date of the original invoice therefor have elapsed, (y) such Account has dated terms of more than one-hundred twenty (120) days from the invoice date or (z) such Account has been written off the books of the Loan Parties or otherwise designated as uncollectible or has been sent to a collection agency; or

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(B)    the Account Debtor obligated upon such Account suspends business, makes a general assignment for the benefit of creditors, fails to pay its debts generally as they come due, or is classified by the Lead Borrower and its Subsidiaries as “cash only, bad check,” as determined by the Lead Borrower and its Subsidiaries in the ordinary course of business consistent with past-practice; or
(C)    a petition or other proceeding is filed by or against any Account Debtor obligated upon such Account under any Debtor Relief Law; provided that so long as an order exists permitting payment of trade creditors specifically with respect to such Account Debtor and such Account Debtor has obtained adequate post-petition financing to pay such Accounts, the Accounts of such Account Debtor shall not be deemed ineligible under the provisions of this clause (C) to the extent the order permitting such financing allows the payment of the applicable Account;
(xiv)    any Account that is the obligation of an Account Debtor (other than an individual) if 50% or more of the Dollar Equivalent of all Accounts owing by such Account Debtor are ineligible under the criteria set forth in clause (xiii) above;
(xv)    any Account as to which any of the representations or warranties in the Loan Documents are untrue in any material respect (to the extent such materiality relates to the amount owing on such Account);
(xvi)    any Account which is evidenced by a judgment, Instrument (as defined in the applicable Security Document) or Chattel Paper (as defined in the applicable Security Document) and such Instrument or Chattel Paper is not pledged and delivered to the Administrative Agent in accordance with the Security Documents;
(xvii)    any Account on which the Account Debtor is a Governmental Authority, unless the applicable Loan Party has assigned its rights to payment of such Account to the Administrative Agent pursuant to the Assignment of Claims Act of 1940, as amended, in the case of a U.S. federal Governmental Authority, and pursuant to applicable law, if any, in the case of any other Governmental Authority, and such assignment has been accepted and acknowledged by the appropriate government officers to the extent required under such law for a valid assignment of such Account;
(xviii)    any Account arising on account of a supplier rebate, unless the Loan Parties have received a waiver of offset from the supplier in form and substance reasonably satisfactory to the Administrative Agent;
(xix)    any Account which is owing by an Account Debtor to the extent the aggregate amount of Accounts owing from such Account Debtor and its Affiliates to the Loan Parties exceeds, in the case of (A) an Account Debtor with an Investment Grade Rating, 25% of the aggregate Eligible Accounts of all Loan Parties, (B) in the case of an Account Debtor that does not have an Investment Grade Rating, 15% of the aggregate Eligible Accounts of all Loan Parties and (C) in the case of an Account Debtor listed on Schedule 1.01(A), the percentage set forth on such schedule opposite such Account Debtor’s name (which Schedule 1.01(A) may be updated from time to time solely with the consent of the Administrative Agent, such consent to be granted or withheld in its Permitted Discretion, and the Lead Borrower) of the aggregate Eligible Accounts of all Loan Parties;
(xx)    any Account which the goods giving rise to such Account have not been shipped to the Account Debtor (or which is accounted for as deferred revenue following the shipment thereof until the

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risk of loss has passed to the Account Debtor) or for which the services giving rise to such Account have not been performed by such Loan Party;
(xxi)    any Account which is owing in respect of interest and late charges or fees in respect of Indebtedness;
(xxii)    any Account which is acquired by a Loan Party after the Closing Date in an acquisition or other bulk purchase of assets (other than from another Loan Party) and would constitute, taken together with all other assets acquired in such acquisition or bulk purchase after the Closing Date and to become eligible pursuant to this clause (xxii) or clause (xii) of the definition of “Eligible Inventory,” more than 15% of the applicable Borrowing Base, unless and until such time as the Administrative Agent shall have received or conducted a field examination, from an examiner reasonably satisfactory to the Administrative Agent, of such Accounts acquired in such acquisition or other bulk purchase of assets and such other customary due diligence as the Administrative Agent may reasonably require in its Permitted Discretion in order to determine the appropriate Reserves against such Accounts, all of the results of the foregoing to be reasonably satisfactory to the Administrative Agent (the receipt or completion of such field examination and completion of such due diligence, with results reasonably satisfactory to the Administrative Agent, are collectively referred to herein as the “Applicable Account Diligence”); provided that, notwithstanding the foregoing provisions of this clause (xxii), if the Applicable Account Diligence has not been completed with respect to any such acquired or purchased Account within ninety (90) days following such acquisition or purchase, such Account shall not constitute an “Eligible Account”;
(xxiii)    any Account as to which the contract or agreement underlying such Account is governed by (or, if no governing law is expressed therein, is deemed to be governed by) the laws of any jurisdiction other than (A) in the case of the U.S. Borrowing Base, the United States, any state thereof, the District of Columbia, any Eligible Asian Jurisdiction or any Eligible European Jurisdiction, (B) in the case of the Australian Borrowing Base, any Eligible Asian Jurisdiction, (C) in the case of the Swiss Borrowing Base, any Eligible European Jurisdiction or (D) such other jurisdiction as may be consented to by the Administrative Agent in its Permitted Discretion (such consent not to be unreasonably withheld, delayed or conditioned); provided that up to $12,500,000 of Accounts in respect of which Ningbo Daye Machinery Co. (or its subsidiaries) is an Account Debtor shall not be excluded from “Eligible Accounts” pursuant to this clause, so long as the contract or agreement underlying such Account is governed by the laws of the United States, any state thereof or the District of Columbia or Germany;
(xxiv)    any Account which is subject to any limitation on assignment or other restriction (whether arising by operation of law, by agreement or otherwise) which would, under the local governing law of the contract creating such Account, have the effect of restricting the assignment for or by way of security or the creation of security over such Account generally, in each case unless the Administrative Agent has reasonably determined that such limitation is not enforceable. Each Loan Party shall use its reasonable endeavors to remove any such restrictions from the underlying contracts evidencing its Accounts or to obtain consents to the granting of security over the Accounts from the relevant Account Debtors;
(xxv)    any Account which is excluded from the scope of any Security Document by virtue of the definition of “Excluded Property” (or equivalent terminology in any such Security Document);
(xxvi)    any Account (A) the contract or related documentation (such as invoices or purchase orders) for which contains extended or extendible retention of title rights in favor of the vendor or

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supplier thereof or (B) on which, under applicable governing laws, extended or extendible retention of title may be imposed unilaterally by the vendor or supplier thereof;
(xxvii)    any Account that is accounted for as deferred revenue, including Accounts arising under extended warranty contracts;
(xxviii)    any Account arising under a contract for which a Loan Party has posted a performance bond, up to the bond amount;
(xxix)    any Account that is represented in the accounting of any Loan Party as unapplied cash, unreconciled difference, debit memos or credit memos, customer returns, adjustments or customer reserves;
(xxx)    any Account due from an Account Debtor that is a Sanctioned Person; or
(xxxi)    any Account arising out of public procurement contracts.
Eligible Asian Jurisdiction” shall mean any of Australia, Singapore, Hong Kong and New Zealand.
Eligible Cash” shall mean, with respect to any Loan Party, unrestricted cash of such Loan Party that is on deposit in a Deposit Account maintained at a Lead Arranger or any of its Affiliates and that is subject to a Deposit Account Control Agreement and a valid and enforceable first ranking security interest (subject to any Liens permitted under Section 10.02(d) or (n)(i) of this Agreement, solely to the extent such Liens arise by operation of law and either (x) such Liens are permitted by the related Deposit Account Control Agreement or (y) the Administrative Agent has established a Reserve in its Permitted Discretion for liabilities secured by such Liens) governed by the laws of the jurisdiction where the relevant Deposit Account is located in favor of the Collateral Agent.
Eligible Equipment” shall mean, on any date of determination of any Borrowing Base, all of the Equipment owned by all applicable Loan Parties and reflected in the most recent Borrowing Base Certificate delivered by the Lead Borrower to the Administrative Agent, except any Equipment that does not meet the criteria set forth below. In addition, the Administrative Agent reserves the right, at any time and from time to time after the Closing Date, to adjust on no less than three (3) Business Days’ prior written notice to the Lead Borrower (unless the exigencies of the circumstance are such that such advance notice cannot be given, in which case the Administrative Agent shall provide written notice to the Lead Borrower substantially concurrently with such change or as expeditiously thereafter as commercially practicable) any of the criteria set forth below, to establish new criteria with respect to Eligible Equipment and to adjust the advance rates, in each case, in its Permitted Discretion, subject to the approval of the Supermajority Lenders, as the case may be, in the case of adjustments, new criteria or increases in advance rates which, in each case, have the effect of making more credit available than would have been available if the standards in effect on the Closing Date had continued to be in effect. Eligible Equipment shall not include any Equipment of a Loan Party that does not meet each of the following requirements:
(i)    an appraisal report has been delivered to the Administrative Agent in form, scope and substance reasonably satisfactory to the Administrative Agent;
(ii)    such Loan Party has good title to such Equipment;

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(iii)    such Equipment is subject to a first priority perfected Lien (subject to (x) Permitted Borrowing Base Liens which do not have priority over the Lien in favor of the Collateral Agent or (y) any other Permitted Lien for which the Administrative Agent has established a Reserve in its Permitted Discretion for liabilities secured by such Permitted Lien (including, without limitation, Liens securing the NMTC Financing, to the extent of the NMTC Reserve)) in favor of the Collateral Agent, for the benefit of the Secured Parties, governed by the laws of each applicable jurisdiction and is free and clear of all other Liens of any nature whatsoever (except as set forth in the immediately preceding parenthetical);
(iv)    the full purchase price for such Equipment has been paid by such Loan Party;
(v)    such Equipment is located on premises (A) owned by such Loan Party, which premises are subject to a first priority perfected Lien (subject to Permitted Liens) in favor of the Administrative Agent, unless (x) such Loan Party shall have delivered to the Administrative Agent a mortgage waiver in form and substance reasonably satisfactory to the Administrative Agent or (y) such premises are owned by such Loan Party in fee title free and clear of any Liens (other than Permitted Liens), or (B) leased by such Loan Party where (x) the lessor has delivered to the Administrative Agent a collateral access agreement or (y) a Reserve for rent, charges, and other amounts due or to become due with respect to such facility has been established by the Administrative Agent in its Permitted Discretion;
(vi)    such Equipment is in good working order and condition (ordinary wear and tear excepted) and is used or held for use by such Loan Party in the ordinary course of business of such Loan Party;
(vii)    except for the Loan Documents and documentation governing other Indebtedness permitted by this Agreement, such Equipment is not subject to any agreement which materially restricts the ability of such Loan Party to use, sell, transport or dispose of such Equipment or which restricts the Administrative Agent’s ability to take possession of, sell or otherwise dispose of such Equipment;
(viii)    such Equipment does not constitute “Fixtures” under the applicable laws of the jurisdiction in which such Equipment is located; and
(ix)    such Equipment does not constitute Equipment located in the Netherlands on the premises of such Loan Party subject to or liable for Taxes imposed by the Netherlands and that is to be considered a movable asset apparently intended to durably serve such premises (for purposes of Sections 22(3) and 22bis of the Dutch 1990 Tax Collection Act (Invorderingswet 1990).
Eligible European Jurisdiction” shall mean any of the United Kingdom, Belgium, France, Germany, Ireland, Italy, Netherlands, Spain, Switzerland, Norway, Denmark, Sweden, Finland, Austria, Portugal and Luxembourg.
Eligible In-Transit Inventory” shall mean Inventory in an aggregate amount not to exceed $15,000,000 that is owned by a U.S. Loan Party or an Australian Loan Party that would meet all of the criteria of “Eligible Inventory” if it were not in transit (solely to a location in the U.S. or Australia that would otherwise be acceptable pursuant to the other clauses of this definition). In addition, no Inventory shall be Eligible In-Transit Inventory unless (a) it is subject to a negotiable document of title, showing the Administrative Agent (or, with the consent of the Administrative Agent in its Permitted Discretion, the applicable U.S. Loan Party or Australian Loan Party) as consignee and the Administrative Agent has control over such documents of title (including by delivery of customs broker or freight forwarder agreements in a form and substance reasonably acceptable to the Administrative Agent); (b) such Inventory is insured in accordance with the provisions of this Agreement and the other Loan Documents,

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including, without limitation, to the extent applicable, marine cargo insurance; (c) such Inventory has been identified to the applicable sales contract and title has passed to the applicable U.S. Loan Party or Australian Loan Party; (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; (e) such Inventory is shipped by a common carrier that is not affiliated with the vendor and has not been acquired from a Person that is (x) currently the subject or target of any Sanctions or (y) a Sanctioned Person; (f) it is being handled by a customs broker, freight-forwarder or other handler that has delivered a customary lien waiver; and (g) such Inventory is in transit for sixty (60) or fewer total consecutive days.
Eligible Inventory” shall mean, subject to adjustment as set forth below, items of Inventory of any applicable Loan Party held for sale in the ordinary course. Eligible Inventory shall exclude any Inventory to which any of the exclusionary criteria set forth below apply. The Administrative Agent shall have the right to establish, modify or eliminate Reserves against Eligible Inventory from time to time in its Permitted Discretion (subject to the terms and conditions of the definition of “Reserves”). In addition, the Administrative Agent reserves the right, at any time and from time to time after the Closing Date, to adjust on no less than three (3) Business Days’ prior written notice to the Lead Borrower (unless the exigencies of the circumstance are such that such advance notice cannot be given, in which case the Administrative Agent shall provide written notice to the Lead Borrower substantially concurrently with such change or as expeditiously thereafter as commercially practicable) any of the criteria set forth below, to establish new criteria with respect to Eligible Inventory and to adjust advance rates, in each case, in its Permitted Discretion, subject to the approval of the Supermajority Lenders, in the case of adjustments, new criteria or increases in the advance rates, in each case, which have the effect of making more credit available than would have been available if the standards in effect on the Closing Date had continued to be in effect. Eligible Inventory shall not include any Inventory of the Loan Parties that:
(i)    is not solely owned by a Loan Party (or a combination of Loan Parties), or is leased by or is on consignment to a Loan Party, or the Loan Parties do not have title thereto (it being understood that the existence of any retention of title rights of the types described in clause (xv) below shall not cause ineligibility under this clause (i), but shall be subject to such clause (xv));
(ii)    the Collateral Agent, on behalf of the Secured Parties, does not have a valid and enforceable first priority (subject to (x) Permitted Borrowing Base Liens which do not have priority over the Lien in favor of the Collateral Agent or (y) any other Permitted Lien for which the Administrative Agent has established a Reserve in its Permitted Discretion for liabilities secured by such Permitted Lien (including, without limitation, Liens securing the NMTC Financing, to the extent of the NMTC Reserve)) perfected (or equivalent in any foreign jurisdiction) Lien in respect of such Inventory governed by the laws of each applicable jurisdiction or that is subject to any other Lien of any nature whatsoever (except as set forth in the immediately preceding parenthetical); provided that the existence of any retention of title rights of the types described in clause (xv) below shall not cause ineligibility under this clause (ii), but shall be subject to such clause (xv);
(iii)    (A) is stored at a location leased by a Loan Party unless (x) the Administrative Agent has given its prior consent thereto, (y) a reasonably satisfactory Landlord Lien Waiver and Access Agreement has been delivered to the Administrative Agent or (z) Landlord Lien Reserves reasonably satisfactory to the Administrative Agent have been established with respect thereto, or (B) is stored with a bailee or warehouseman unless either (x) a reasonably satisfactory acknowledged bailee waiver letter has been received by the Administrative Agent or (y) Landlord Lien Reserves reasonably satisfactory to the Administrative Agent have been established with respect thereto;

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(iv)    (A) is placed on consignment, unless a valid consignment agreement which is reasonably satisfactory to the Administrative Agent is in place with respect to such Inventory or (B) is in transit (except Eligible In-Transit Inventory);
(v)    is covered by a negotiable document of title, unless such document has been delivered to the Administrative Agent with all necessary endorsements, free and clear of all Liens except Liens in favor of landlords, carriers, bailees and warehousemen if clause (iii) above has been complied with;
(vi)    is unsalable, shopworn, seconds, damaged, obsolete, distressed, has been written off or is unfit for sale, in each case, as determined in the ordinary course of business by the Loan Parties;
(vii)    consists of display items or packing or shipping materials or manufacturing supplies;
(viii)    is not of a type generally held for sale in the ordinary course of the Loan Parties’, as applicable, business;
(ix)    except as otherwise agreed by the Administrative Agent, does not conform in all material respects to the representations or warranties pertaining to Inventory set forth in the Loan Documents;
(x)    is subject to any licensing arrangement or any other Intellectual Property or other proprietary rights of any Person, the effect of which would be to limit the ability of the Administrative Agent, or any Person selling the Inventory on behalf of the Administrative Agent, to sell such Inventory in enforcement of the Administrative Agent’s Liens without further consent or payment to the licensor or such other Person (unless such consent has then been obtained);
(xi)    is not covered by casualty insurance maintained as required by Section 9.02;
(xii)    is acquired by a Loan Party after the Closing Date in an acquisition or other bulk purchase of assets (other than from another Loan Party) and would constitute, taken together with all other assets acquired in such acquisition or bulk purchase after the Closing Date and to become eligible pursuant to this clause (xii) or clause (xxii) of the definition of “Eligible Accounts,” more than 15% of the Aggregate Borrowing Base, unless and until such time as the Administrative Agent shall have received or conducted an appraisal, from an appraiser reasonably satisfactory to the Administrative Agent, of such Inventory acquired in such acquisition or other bulk purchase of assets and such other customary due diligence as the Administrative Agent may reasonably require in its Permitted Discretion order to determine the appropriate Reserves against such Inventory, all of the results of the foregoing to be reasonably satisfactory to the Administrative Agent (the receipt or completion of such appraisal and completion of such due diligence, with results reasonably satisfactory to the Administrative Agent, are collectively referred to herein as the “Applicable Inventory Diligence”); provided that, notwithstanding the foregoing provisions of this clause (xii), (A) if the Applicable Inventory Diligence has not been completed with respect to any such acquired or purchased Inventory within ninety (90) days following such acquisition or purchase, such Inventory shall not constitute “Eligible Inventory” and (B) prior to the completion of the Applicable Inventory Diligence with respect to any Inventory that otherwise constituted “Eligible Inventory,” such Inventory shall be included in the “U.S. Borrowing Base,” the “Australian Borrowing Base” or the “Swiss Borrowing Base,” as applicable, pursuant to clause (c)(i) of the definition thereof (without giving effect to clause (c)(ii) thereof);
(xiii)    is located at any location where the aggregate value of all Eligible Inventory of the Loan Parties at such location is less than $100,000;

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(xiv)    is Inventory of another type deemed ineligible per the initial inventory appraisal;
(xv)    is Inventory in relation to which (i) any contract or related documentation (such as invoices or purchase orders) relating to such Inventory includes retention of title rights in favor of the vendor or supplier thereof, or (ii) under applicable governing laws, retention of title may be imposed unilaterally by the vendor or supplier thereof; provided that Inventory which may be subject to any rights of retention of title shall not be excluded from Eligible Inventory solely pursuant to this sub-paragraph (xv) in the event that (A) the Administrative Agent shall have received evidence satisfactory to it that the full purchase price of such Inventory has, or will have, been paid prior, or upon the delivery of, such Inventory to the relevant Loan Party or (B) a Letter of Credit has been issued under and in accordance with the terms of this Agreement for the purchase of such Inventory;
(xvi)    is stored at a location not in the United States, Canada, the Netherlands or Australia;
(xvii)    has been returned by a customer or is in the process of being reworked or retooled;
(xviii)    is not finished goods, work-in-process or raw materials or which constitutes spare or replacement parts, subassemblies, packaging and shipping material, manufacturing supplies, samples, prototypes, displays or display items, bill-and-hold or ship-in-place goods, goods that are returned or marked for return, repossessed goods, defective or damaged goods, goods held on consignment, or goods which are not of a type held for sale in the ordinary course of business;
(xix)    is held for use by an outside processor or subcontractor;
(xx)    is of a type generally sold and delivered by the Loan Parties on a “drop-ship” basis;
(xxi)    is represented in the accounting of any Loan Party as inventory adjustment, variance, reclassification, warranty reserve, write-off, inventory valuation or unreconciled difference; or
(xxii)    has been acquired from any Sanctioned Person.
Eligible Real Property” shall mean, on any date of determination of any Borrowing Base, the Real Property of any Loan Party that satisfies the eligibility criteria set forth below. In addition, the Administrative Agent reserves the right, at any time and from time to time after the Closing Date, to adjust on no less than three (3) Business Days’ prior written notice to the Lead Borrower (unless the exigencies of the circumstance are such that such advance notice cannot be given, in which case the Administrative Agent shall provide written notice to the Lead Borrower substantially concurrently with such change or as expeditiously thereafter as commercially practicable) the criteria set forth below, to establish new criteria with respect to Eligible Real Property and to adjust the advance rates, in each case, in its Permitted Discretion, subject to the approval of the Supermajority Lenders, as the case may be, in the case of adjustments, new criteria or increases in advance rates which, in each case, have the effect of making more credit available than would have been available if the standards in effect on the Closing Date had continued to be in effect. Eligible Real Property shall not include any Real Property of a Loan Party that does not meet each of the following requirements:
(i)    an appraisal report has been delivered to the Administrative Agent in form, scope and substance reasonably satisfactory to the Administrative Agent;

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(ii)    evidence of zoning compliance has been delivered to the Administrative Agent in the form of an industry standard zoning report issued by a reputable national provider of zoning services or other form of report reasonably acceptable to the Administrative Agent;
(iii)    the Administrative Agent is reasonably satisfied that all actions necessary or desirable (including, without limitation, the filing and recording of Mortgages) in order to create a perfected first priority Lien (subject to (x) Permitted Borrowing Base Liens which do not have priority over the Lien in favor of the Collateral Agent or (y) any other Permitted Lien for which the Administrative Agent has established a Reserve in its Permitted Discretion for liabilities secured by such Permitted Lien (including, without limitation, Liens securing the NMTC Financing, to the extent of the NMTC Reserve)) in favor of the Collateral Agent, on behalf of the Secured Parties, on such Real Property have been taken under the laws of each applicable jurisdiction and such Real Property is free and clear of all other Liens of any nature whatsoever (except as set forth in the immediately preceding parenthetical);
(iv)    it is adequately protected by a Mortgage;
(v)    a Phase I Environmental Assessment has been completed and delivered;
(vi)    an ALTA Survey has been delivered for which all necessary fees have been paid;
(vii)    to the extent reasonably required by the Administrative Agent, (A) a local counsel opinion has been delivered and (B) the applicable Loan Party shall have obtained (i) estoppel certificates and subordination agreements executed by all material tenants of such Real Property and (ii) such other consents, agreements and confirmations of lessors and third parties as the Administrative Agent may reasonably deem necessary or desirable, together with evidence that all other actions that the Administrative Agent may reasonably deem necessary or desirable in order to create perfected first priority Liens (subject to Permitted Liens) on the property described in the Mortgages have been taken;
(viii)    the Administrative Agent shall have received all Flood Documentation;
(ix)    such Real Property is located in the United States; and
(x)    to the extent reasonably requested and requested at a commercially reasonable time, the Administrative Agent shall have received such other reports, mortgage tax affidavits and declarations and other similar information and related certifications as are usual and customary for similar credit facilities and in form and substance reasonably acceptable to the Administrative Agent.
Eligible Trademarks” shall mean, on any date of determination of any Borrowing Base, all of the Trademarks owned by all applicable Loan Parties and reflected in the most recent Borrowing Base Certificate delivered by the Lead Borrower to the Administrative Agent, except any Trademark that does not meet the criteria set forth below. In addition, the Administrative Agent reserves the right, at any time and from time to time after the Closing Date, to adjust on no less than three (3) Business Days’ prior written notice to the Lead Borrower (unless the exigencies of the circumstance are such that such advance notice cannot be given, in which case the Administrative Agent shall provide written notice to the Lead Borrower substantially concurrently with such change or as expeditiously thereafter as commercially practicable) any of the criteria set forth below, to establish new criteria with respect to Eligible Trademark and to adjust the advance rates, in each case, in its Permitted Discretion, subject to the approval of the Supermajority Lenders, as the case may be, in the case of adjustments, new criteria or increases in advance rates which, in each case, have the effect of making more credit available than would have been

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available if the standards in effect on the Closing Date had continued to be in effect. Eligible Trademark shall not include any Trademark of a Loan Party that does not meet each of the following requirements:
(i)    an appraisal report has been delivered to the Administrative Agent in form, scope and substance reasonably satisfactory to the Administrative Agent;
(ii)    such Loan Party has good title to such Trademark; and
(iii)    such Trademark is subject to a first priority perfected (or the equivalent thereof in any foreign jurisdiction) Lien (subject to (x) Permitted Borrowing Base Liens which do not have priority over the Lien in favor of the Collateral Agent or (y) any other Permitted Lien for which the Administrative Agent has established a Reserve in its Permitted Discretion for liabilities secured by such Permitted Lien) in favor of the Collateral Agent, on behalf of the Secured Parties, governed by the laws of each applicable jurisdiction and is free and clear of all other Liens of any nature whatsoever (except as set forth in the immediately preceding parenthetical).
Eligible Transferee” shall mean and include any existing Lender, any Approved Fund or any commercial bank, an insurance company, a finance company, a financial institution, any fund that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act) but in any event excluding (i) any natural person or any holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person, (ii) a Defaulting Lender or its subsidiaries, and (iii) each Borrower and its respective subsidiaries and Affiliates.
Environment” shall mean ambient and indoor air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata, natural resources such as flora and fauna or as otherwise defined in any Environmental Law.
Environmental Claims” shall mean any and all administrative, regulatory or judicial actions, suits, demands, demand letters, directives, claims, liens, notices of noncompliance or violation, investigations and/or proceedings relating in any way to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law, including, without limitation, (a) any and all Environmental Claims 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) any and all Environmental Claims 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, safety or the Environment, in each case due to the presence of Hazardous Materials, including any Release or threat of Release of any Hazardous Materials.
Environmental Laws” shall mean all applicable laws (including common law), rules, regulations, codes, ordinances, orders, binding agreements, technical standards, decrees or judgments, promulgated or entered into by or with any Governmental Authority, relating in any way to the Environment, preservation or reclamation of natural resources, any Hazardous Materials or to public or employee health and safety matters (to the extent relating to the Environment or Hazardous Materials).
Environmental Permits” shall have the meaning assigned to such term in Section 8.16.
Equipment” shall mean all “equipment”, as such term is defined in the UCC as in effect on the date hereof in the State of New York or, if applicable, in the Canadian PPSA, wherever located, in which any Person now or hereafter has rights.

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Equipment Amortization Factor” shall mean, with respect to any Equipment on any date of determination, 1 minus a fraction, the numerator of which is the number of full fiscal quarters of the Lead Borrower elapsed as of such date (including any such fiscal quarter ending on such date) since December 31, 2019 (or, if later, the date of the Administrative Agent’s receipt of the results of the most recent completed appraisal of such Equipment conducted pursuant to Section 9.07) and the denominator of which is 28.
Equity Interests” of any person shall mean any and all shares, interests, equity quotas, rights to purchase or otherwise acquire, warrants, options, participations or other equivalents of or interests in (however designated) equity or ownership of such person, including any preferred stock (including any preferred equity certificates (and any other similar instruments)), any limited or general partnership interest and any limited liability company membership interest, and any securities or other rights or interests convertible into or exchangeable for any of the foregoing.
ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time and any final regulations promulgated and the rulings issued thereunder.
ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together with the Lead Borrower, any other Borrower or any Subsidiary, is treated as a single employer under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
ERISA Event” shall mean (a) any Reportable Event or the requirements of Section 4043(b) of ERISA apply with respect to a Plan; (b) with respect to any Plan, the failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA, whether or not waived; (c) a determination that any Plan is, or is expected to be, in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (d) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Plan or the failure to make by its due date any required contribution to a Multiemployer Plan; (e) the incurrence by the Lead Borrower, any other Borrower, a Subsidiary or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan or Multiemployer Plan; (f) the receipt by the Lead Borrower, any other Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan; (g) the incurrence by the Lead Borrower, any other Borrower, a Subsidiary or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (h) the receipt by the Lead Borrower, any other Borrower, a Subsidiary or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Lead Borrower, any other Borrower, any Subsidiary or any ERISA Affiliate of any notice, concerning the impending imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, or in “endangered” or “critical” status, within the meaning of Section 432 of the Code or Section 305 of ERISA; (i) the conditions for imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Plan; or (j) the withdrawal of any of the Lead Borrower, any other Borrower, a Subsidiary or any ERISA Affiliate from a Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA.

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EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
Euro” or “” shall mean the single currency of the Participating Member States.
Event of Default” shall have the meaning assigned to such term in Section 11.
Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
Excluded Account” shall mean a Deposit Account, Securities Account or Commodity Account (i) which is used for the sole purpose of making payroll and withholding tax payments related thereto and other employee wage and benefit payments and accrued and unpaid employee compensation payments (including salaries, wages, benefits and expense reimbursements, 401(k) and other retirement plans and employee benefits, including rabbi trusts for deferred compensation and health care benefits), (ii) which is used for the sole purpose of paying taxes, including sales taxes, (iii) which is used as an escrow account or as a fiduciary or trust account or is otherwise held exclusively for the benefit of an unaffiliated third party, (iv) which is a zero balance Deposit Account, Securities Account or Commodity Account, unless, in the case of a zero balance Deposit Account of a Foreign Loan Party, such zero balance Deposit Account is used for purposes of the collection of Accounts, (v) which constitutes a reserve account or disbursing account pledged as collateral under the NMTC Financing or (vi) which is not otherwise subject to the provisions of this definition and, in the case of each Foreign Loan Party, is not used for the purposes of collection of Accounts and together with any other Deposit Accounts, Securities Accounts or Commodity Accounts that are excluded pursuant to this clause (vi), has an average daily balance for any fiscal month of less than $2,000,000.
Excluded Property” shall have the meaning assigned to such term in Section 9.10.
Excluded Securities” shall mean any of the following:
(a)    any Equity Interests or Indebtedness with respect to which the Collateral Agent and the Lead Borrower reasonably agree that the cost or other consequences (including Tax consequences) of pledging such Equity Interests or Indebtedness in favor of the Secured Parties under the Security Documents are likely to be excessive in relation to the value to be afforded thereby;
(b)    any Equity Interests or Indebtedness to the extent, and for so long as, the pledge thereof is prohibited by any Requirement of Law (in each case, except to the extent such prohibition is unenforceable after giving effect to applicable provisions of the Uniform Commercial Code, the Specified Foreign Laws and other applicable law);
(c)    any Equity Interests of any person that is not a Wholly Owned Subsidiary to the extent (A) that a pledge thereof to secure the Obligations is prohibited by (i) any applicable organizational documents, constitutional documents, joint venture agreement, shareholder agreement, or similar agreement or (ii) any other contractual obligation (not created in contemplation of the consummation of the Transactions) with an unaffiliated third party not in violation of Section 10.09 that was existing on the Closing Date or at the time of the acquisition of such Person and was not created in contemplation of such acquisition, (B) any organizational documents, constitutional documents, joint venture agreement, shareholder agreement, or similar agreement (or other contractual obligation referred to in subclause (A)(ii) above) prohibits such a pledge without the consent of any other party; provided that this clause (B) shall not apply if (1) such other party is a Loan Party or a Wholly Owned Subsidiary or (2) consent has been obtained to consummate such pledge (it being understood that the foregoing shall not be deemed to

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obligate the Lead Borrower or any Subsidiary to obtain any such consent) and for so long as such organizational documents, constitutional documents, joint venture agreement, shareholder agreement or similar agreement (or other contractual obligation referred to in subclause (A)(ii) above) or replacement or renewal thereof is in effect, or (C) a pledge thereof to secure the Obligations would give any other party (other than a Loan Party or a Wholly Owned Subsidiary) to any organizational documents, constitutional documents, joint venture agreement, shareholder agreement or similar agreement governing such Equity Interests the right to terminate its obligations thereunder;
(d)    any Equity Interests of any (A) Unrestricted Subsidiary, (B) any Receivables Entity (to the extent they are restricted from being pledged by the applicable Qualified Receivables Facility) or (C) any Securitization Entity (to the extent they are restricted from being pledged by the applicable Qualified Securitization Transaction);
(e)    any Equity Interests of any Immaterial Subsidiary;
(f)    any Margin Stock; and
(g)    solely with respect to the U.S. Obligations, voting Equity Interests (and any other interests constituting “voting stock” within the meaning of U.S. Treasury Regulation Section 1.956-2(c)(2)) in (A) any Foreign Subsidiary of the Lead Borrower that is a CFC or (B) any FSHCO, in each case, in excess of 65% of all such voting Equity Interests.
Notwithstanding anything to the contrary herein, in no event shall any asset included in any Borrowing Base constitute Excluded Securities.
Excluded Subsidiary” shall mean any of the following:
(i)    each Immaterial Subsidiary,
(ii)    each Subsidiary that is not a Wholly Owned Subsidiary (for so long as such Subsidiary remains a non-Wholly Owned Subsidiary),
(iii)    each Subsidiary that is prohibited from Guaranteeing or granting Liens to secure the Obligations by any Requirement of Law or that would require consent, approval, license or authorization of a Governmental Authority to Guarantee or grant Liens to secure the Obligations (unless such consent, approval, license or authorization has been received),
(iv)    each Subsidiary that is prohibited by any applicable contractual requirement (not created in contemplation of the consummation of the Transactions) from Guaranteeing or granting Liens to secure the Obligations on the Closing Date or at the time such Subsidiary becomes a Subsidiary not in violation of Section 10.09 (and for so long as such restriction or any replacement or renewal thereof is in effect),
(v)    any Receivables Entity,
(vi)    any Foreign Subsidiary (other than any Foreign Subsidiary that is organized or incorporated in a Specified Jurisdiction and, solely with respect to the North American Revolving Facility, is not (A) a Foreign Subsidiary of the Lead Borrower that is a CFC or (B) a FSHCO),
(vii)    solely with respect to the North American Revolving Facility, any U.S. Subsidiary (i) that is a FSHCO or (ii) that is a Subsidiary of a Foreign Subsidiary of the Lead Borrower that is a CFC,

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(viii)    any other Subsidiary with respect to which the Administrative Agent and the Lead Borrower reasonably agree that the cost or other consequences (including, without limitation, Tax consequences) of providing a Guarantee of or granting Liens to secure the Obligations are excessive in relation to the value to be afforded thereby,
(ix)    each Unrestricted Subsidiary,
(x)    each Insurance Subsidiary,
(xi)    each Not-for-Profit Subsidiary, and
(xii)    each Securitization Entity.
Notwithstanding anything to the contrary herein, no Borrower shall be an Excluded Subsidiary.
Excluded Swap Obligation” shall mean, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal 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) by virtue of (a) such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder or (b) in the case of a Swap Obligation subject to a clearing requirement pursuant to Section 2(h) of the Commodity Exchange Act (or any successor provision thereto), because such Guarantor is a “financial entity,” as defined in Section 2(h)(7)(C)(i) of the Commodity Exchange Act (or any successor provision thereto), in each case at the time the Guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation, unless otherwise agreed between the Administrative Agent and the Lead Borrower. 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 swaps for which such Guarantee or security interest is or becomes illegal.
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 Loan Party hereunder or under any other Loan Document (a “Recipient”), (i) Taxes imposed on or measured by its net income (however denominated, and including, for the avoidance of doubt, franchise and similar Taxes imposed on it in lieu of net income Taxes) and branch profits Taxes, in each case, imposed by a jurisdiction (including any political subdivision thereof) as a result of such Recipient being organized in, having its principal office in, being engaged in a trade or business in for tax purposes, or in the case of any Lender, having its applicable lending office in, such jurisdiction, or as a result of any other present or former connection with such jurisdiction (other than any such connection arising solely from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received, perfected or enforced a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan, Letter of Credit or Loan Document), (ii) solely with respect to the North American Revolving Facility, U.S. federal withholding Tax imposed on any payment by or on account of any obligation of any Loan Party hereunder or under any other Loan Document to a Lender (other than to the extent such Lender is an assignee pursuant to a request by a Borrower under Section 3.04) pursuant to laws in force at the time such Lender becomes a party hereto as a Lender in respect of the North American Revolving Facility (or designates a new lending office in respect of the North American Revolving Facility), except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new lending office (or

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assignment), to receive additional amounts or indemnification payments from any Loan Party with respect to such withholding Tax pursuant to Article 5, (iii) any withholding Tax imposed on any payment by or on account of any obligation of any Loan Party hereunder that is attributable to such Recipient’s failure to comply with Section 5.01(e) or (iv) any withholding Tax imposed under FATCA.
Existing Credit Agreement” shall mean the Amended and Restated Multicurrency Credit Agreement, dated as of March 25, 2016, among the Lead Borrower, the Swiss Borrower, the other subsidiary borrowers from time to time party thereto, the lenders from time to time party thereto, JPMCB, as administrative agent, U.S. Bank National Asssoication, as syndication agent, and BMO Harris Bank, N.A., Bank of America, N.A., Wells Fargo Bank, National Association and PNC Bank, National Association, as documentation agents, as amended, supplemented or otherwise modified from time to time prior to the Closing Date.
Existing Letter of Credit” shall mean each letter of credit that is listed on Schedule 1.01(C) hereto.
Existing Revolving Loans” has the meaning assigned to such term in Section 2.19.
Extended Revolving Loan Commitments” shall mean one or more commitments hereunder to convert Existing Revolving Loans to Extended Revolving Loans of a given Extension Series pursuant to an Extension Amendment.
Extended Revolving Loans” shall have the meaning assigned to such term in Section 2.19.
Extending Lender” shall have the meaning assigned to such term in Section 2.19(c).
Extension Amendment” shall have the meaning assigned to such term in Section 2.19(d).
Extension Election” shall have the meaning assigned to such term in Section 2.19(c).
Extension Request” shall have the meaning assigned to such term in Section 2.19(a).
Extension Series” shall have the meaning assigned to such term in Section 2.19(a).
Facility” shall mean the North American Revolving Facility or the Swiss Revolving Facility.
Fair Market Value” shall mean, with respect to any asset or property, the price that could be negotiated in an arms’-length transaction between a willing seller and a willing buyer, neither of whom is under undue pressure or compulsion to complete the transaction (as determined in good faith by the management of the Lead Borrower), including reliance on the most recent real property tax bill or assessment in the case of Real Property.
FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official administrative interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
FCCR Test Amount” shall have the meaning assigned to such term in Section 10.10.

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Federal Funds Rate” shall mean, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate; provided that, if the above rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
Fee Letter” shall mean the Fee Letter, dated August 13, 2019, by and among JPMCB and the Lead Borrower.
Fees” shall mean all amounts payable pursuant to or referred to in Section 2.05.
Financial Officer” of any person shall mean the Chief Financial Officer, principal accounting officer, Treasurer, Assistant Treasurer, Controller, Assistant Controller or other executive responsible for the financial affairs of such person.
Financial Statements” shall mean the annual and quarterly financial statements required to be delivered pursuant to Sections 9.04(a) and (b).
Fixtures” shall mean “fixtures” as such term is defined in the UCC as in effect on the date hereof in the State of New York and shall, for the purpose of Equipment located in the Netherlands, include Equipment that is located in the Netherlands and that is to be considered an immovable asset (onroerende zaak) by reason of apparent destination to remain at its location or otherwise (for purposes of Section 3:3(1) of the Dutch Civil Code) or a constituent part (bestanddeel) of an immovable asset due to affixation or in accordance with generally accepted practice (for purposes of Section 3:4 of the Dutch Civil Code).
Flood Documentation” shall mean with respect to each Mortgaged Property located in the United States of America or any territory thereof, (i) a completed “life-of-loan” Federal Emergency Management Agency standard flood hazard determination (and to the extent a Mortgaged Property is located in a Special Flood Hazard Area, a notice about Special Flood Hazard Area status and flood disaster assistance duly executed by the Lead Borrower) and (ii) a copy of, or a certificate as to coverage under, and a declaration page relating to, the insurance policies, along with a copy of the underlying policies (if requested by the Administrative Agent) required by Section 9.02(c) hereof and the applicable provisions of the Security Documents, 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 Parties, as additional insured and lender’s 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 Collateral Agent and each of the Lenders, subject to the provisions of Sections 9.02(a), 9.02(b) and 9.02(c).
Flood Insurance Laws” shall mean, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statute thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (v) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
Foreign Collateral” shall mean all Australian Collateral, Canadian Collateral and Dutch Collateral.

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Foreign Loan Parties” shall mean, collectively, the Australian Loan Parties and the Swiss Loan Parties.
Foreign Obligations” shall mean all Obligations of (a) the Foreign Subsidiaries and (b) each U.S. Subsidiary that constitutes either (i) a FSHCO or (ii) a Subsidiary of a Foreign Subsidiary of the Lead Borrower that is a CFC.
Foreign Subsidiary” shall mean any Subsidiary that is not incorporated or organized under the laws of the United States of America, any state thereof or the District of Columbia.
Fronting Exposure” shall mean a Defaulting Lender’s Pro Rata Share 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 assigned to such term in Section 2.05(c).
FSHCO” shall mean any U.S. Subsidiary that owns no material assets (directly or through subsidiaries) other than the Equity Interests of one or more Foreign Subsidiaries of the Lead Borrower that are CFCs.
GAAP” shall mean generally accepted accounting principles in effect from time to time in the United States of America subject to the provisions of Section 1.02.
Governmental Authority” shall mean the government of the United States of America, Australia, Canada, the Netherlands, Switzerland or any other country, including any political subdivision of any of the foregoing (including state, provincial, territorial, municipal, local or otherwise), the European Central Bank, the Council of Ministers of the European Union, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity (including any European supranational body) exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
Guarantee” of or by any person (the “guarantor”) shall mean, without duplication, (a) any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation payable or performable by another person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof (net of the fair market value of the property, securities or services required to be purchased, as determined by the Lead Borrower in good faith), (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (iv) entered into for the purpose of assuring in any other manner the holders of such Indebtedness or other obligation of the payment thereof or to protect such holders against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of the guarantor securing any Indebtedness or other obligation (or any existing right, contingent or otherwise, of the holder of Indebtedness or other obligation to be secured by such a Lien) of any other person, whether or not such Indebtedness or other obligation is assumed by the guarantor (other than Liens on Equity Interests of Unrestricted Subsidiaries securing Indebtedness of such Unrestricted Subsidiaries); provided, however, that the term “Guarantee” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or Disposition of assets permitted by this

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Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness or other obligation in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by such person in good faith. The amount of the Indebtedness or other obligation subject to any Guarantee provided by any person for purposes of clause (b) above shall (except to the extent the applicable Indebtedness has been assumed by such person or is otherwise recourse to such person) be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness or other obligation and (B) the Fair Market Value of the property encumbered thereby.
Guarantee Agreement” shall mean the Guarantee Agreement executed by each Loan Party and the Collateral Agent.
Guaranteed Creditors” shall mean and include (x) each of the Administrative Agent, the Collateral Agent, the Lenders, each Issuing Bank and the Swingline Lender and (y) any Secured Bank Product Provider or any Person that was a Secured Bank Product Provider on the Closing Date or at the time of entry into a particular Secured Bank Product Obligation.
Guarantor” shall mean and include each Borrower (with respect to the Obligations of each other Borrower) and each Subsidiary of the Lead Borrower (other than the Borrowers) that is or becomes a party to the Guarantee Agreement, whether existing on the Closing Date or established, created or acquired after the Closing Date, unless and until such time as such Subsidiary is released from its obligations under the Guarantee Agreement in accordance with the terms and provisions hereof or thereof.
Hazardous Materials” shall mean all pollutants, contaminants, wastes, chemicals, materials, substances and constituents, including, without limitation, explosive or radioactive substances or petroleum by products or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas or pesticides, fungicides, fertilizers or other agricultural chemicals, of any nature subject to regulation or which can give rise to liability under any Environmental Law.
Hedging Agreement” shall mean any agreement with respect to any swap, forward, future or derivative transaction, or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value, or credit spread transaction, repurchase transaction, reserve repurchase transaction, securities lending transaction, weather index transaction, spot contracts, fixed price physical delivery contracts, or any similar transaction or any combination of these transactions, in each case of the foregoing, whether or not exchange traded; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Lead Borrower or any of the Subsidiaries shall be a Hedging Agreement.
Immaterial Subsidiary” shall mean any Subsidiary that (a) did not, as of the last day of the fiscal quarter of the Lead Borrower most recently ended for which financial statements have been (or were required to be) delivered pursuant to Section 9.04(a) or 9.04(b), have assets (after elimination of intercompany assets) with a value in excess of 2.5% of the Consolidated Total Assets or revenues representing in excess of 2.5% of total revenues of the Lead Borrower and the Subsidiaries on a consolidated basis as of such date, and (b) taken together with all such Subsidiaries as of such date (excluding Subsidiaries that constitute Excluded Subsidiaries other than by virtue of being Immaterial Subsidiaries), did not have assets (after elimination of intercompany assets) with a value in excess of

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5.0% of Consolidated Total Assets as of such date or revenues (after elimination of intercompany revenues) representing in excess of 5.0% of total revenues of the Lead Borrower and the Subsidiaries on a consolidated basis for the immediately preceding period of four fiscal quarters; provided that no Borrower shall be an Immaterial Subsidiary.
Impacted Interest Period” shall have the meaning assigned to such term in the definition of “LIBO Rate.
Increase Date” shall have the meaning assigned to such term in Section 2.15(b).
Increase Loan Lender” shall have the meaning assigned to such term in Section 2.15(b).
Incremental Revolving Commitment Agreement” shall have the meaning assigned to such term in Section 2.15(d).
Indebtedness” of any person shall mean, without duplication,
(a)    all obligations of such person for borrowed money,
(b)    all obligations of such person evidenced by bonds, debentures, notes or similar instruments (except any such obligation issued in the ordinary course of business with a maturity date of no more than six months in a transaction intended to extend payment terms of trade payables or similar obligations to trade creditors incurred in the ordinary course of business),
(c)    all obligations of such person under conditional sale or other title retention agreements relating to property or assets purchased by such person (except any such obligation that constitutes a trade payable or similar obligation to a trade creditor incurred in the ordinary course of business),
(d)    all obligations of such person issued or assumed as the deferred purchase price of property or services (except (i) any such balance that constitutes a trade payable or similar obligation to a trade creditor incurred in the ordinary course of business, (ii) any earn-out obligations until such obligation becomes a liability on the balance sheet of such person in accordance with GAAP and is probable to be paid and reasonably calculable and (iii) liabilities accrued in the ordinary course of business; it being understood that, for the avoidance of doubt, obligations owed to banks and other financial institutions in connection with any arrangement whereby a bank or other institution purchases payables described in clause (i) above owed by the Lead Borrower or its Subsidiaries shall not constitute Indebtedness) which purchase price is due more than six months after the date of placing the property in service or taking delivery and title thereto,
(e)    all Guarantees by such person of Indebtedness of others,
(f)    all Capitalized Lease Obligations of such person,
(g)    net payment or other settlement obligations under any Hedging Agreements,
(h)    the principal component of all non-contingent reimbursement or payment obligations of such person as an account party in respect of letters of credit,
(i)    the principal component of all obligations of such person in respect of bankers’ acceptances,

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(j)    the amount of all obligations of such person with respect to the redemption, repayment or other repurchase of any Disqualified Stock (excluding accrued dividends that have not increased the liquidation preference of such Disqualified Stock),
(k)    all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such person (other than Liens on Equity Interests of Unrestricted Subsidiaries securing Indebtedness of such Unrestricted Subsidiaries), whether or not the Indebtedness secured thereby has been assumed, and
(l)    all Attributable Receivables Indebtedness with respect to Qualified Receivables Facilities and the outstanding principal amount in respect of Qualified Securitization Transactions,
if and to the extent any of the preceding items (other than letters of credit) would appear as a liability upon a balance sheet of such person prepared in accordance with GAAP; provided that, notwithstanding the foregoing, (i) contingent obligations incurred in the ordinary course of business or consistent with past practice, (ii) any balance that constitutes a trade payable, accrued expense or similar obligation to a trade creditor, in each case incurred in the ordinary course of business, (iii) intercompany liabilities that would be eliminated on the consolidated balance sheet of the Lead Borrower and its Subsidiaries, (iv) prepaid or deferred revenue arising in the ordinary course of business, (v) in connection with the purchase by the Lead Borrower or any Subsidiary of any business, assets, Equity Interests or Person, any post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing; provided, however, that, at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid in a timely manner, (vi) obligations, to the extent such obligations would otherwise constitute Indebtedness, under any agreement that have been irrevocably defeased or irrevocably satisfied and discharged pursuant to the terms of such agreement or (vii) for the avoidance of doubt, any obligations in respect of workers’ compensation claims, early retirement or termination obligations, deferred compensatory or employee or director equity plans pension fund obligations or contributions or similar claims, obligations or contributions or social security or wage taxes, in each case, shall be deemed not to constitute Indebtedness. The amount of Indebtedness of any person for purposes of clause (k) above shall (unless such Indebtedness has been assumed by such person) be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness and (B) the Fair Market Value of the property encumbered thereby. Notwithstanding anything in this Agreement to the contrary, Indebtedness shall not include, and shall be calculated without giving effect to, (A) the effects of Financial Accounting Standards Board Accounting Standards Codification 825 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 and any such amounts that would have constituted Indebtedness under this Agreement but for the application of this sentence shall not be deemed an incurrence of Indebtedness under this Agreement and (B) interest, fees, make-whole amounts, premiums, charges or expenses, if any, relating to the principal amount of Indebtedness. For all purposes of this Agreement, the amount of Indebtedness of the Lead Borrower and its Subsidiaries shall be calculated without duplication of guaranty obligations of the Lead Borrower or any Subsidiary in respect thereof.
Indemnified Person” shall have the meaning assigned to such term in Section 13.01(a).

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Indemnified Taxes” shall mean all Taxes imposed on or with respect to any payment by or on account of any obligation of any Loan Party hereunder or under any other Loan Document other than (a) Excluded Taxes and (b) Other Taxes.
"Information Memorandum” shall mean the Confidential Information Memorandum dated August 2019, as modified or supplemented prior to the Closing Date.
Initial Australian Security Agreement” shall mean:
(a)    the Australian Specific Security Deed dated on or about the date of this Agreement granted by the Australian Loan Parties in favor of the Security Trustee over all the Australian Collateral;
(b)    the Australian Featherweight Security Deed dated on or about the date of this Agreement granted by the Australian Loan Parties in favor of the Security Trustee;
(c)    the Australian Specific Security Deed (Marketable Securities) dated on or about the date of this Agreement granted by the Lead Borrower in favor of the Security Trustee over all Equity Interests it owns in the Australian Loan Parties; and
(d)    each Deposit Account Control Agreement over each Deposit Account held by the Australian Loan Parties.
Initial Dutch Security Agreement” shall mean the Dutch Movables Pledge.
Initial Field Work” shall mean a field examination and inventory, equipment, real property and trademark appraisal of the Loan Parties completed by examiners and appraisers reasonably acceptable to the Administrative Agent, delivered pursuant to Section 6.01(p).
Initial Security Agreements” shall mean the Initial U.S. Security Agreement, the Initial Australian Security Agreement, the Initial Dutch Security Agreement, the Initial Swiss Security Agreements and the Initial UK Security Agreement.
Initial Swiss Security Agreements” shall mean the Swiss Claims Assignment Agreement and the Swiss Share Pledge Agreement.
Initial U.S. Security Agreement” shall mean the U.S. Collateral Agreement substantially in the form of Exhibit I dated as of the Closing Date, among each U.S. Loan Party, each other Loan Party that owns Equity Interests of a person incorporated or organized under the law of the United States, any state thereof, or the District of Columbia (other than Excluded Securities) (provided that the grant by any such other Loan Party under such U.S. Collateral Agreement shall be solely with respect to such Equity Interests and related rights and assets as expressly set forth in such U.S. Collateral Agreement) and the Collateral Agent, as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
Initial UK Security Agreement” shall mean the English law-governed Book Debts and Account Charge by the Swiss Borrower, as chargor, and the Collateral Agent.
Insurance Subsidiary” shall have the meaning assigned to such term in Section 10.04(y).

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Intellectual Property” shall mean all intellectual property rights, including the following intellectual property rights, and both statutory and common law rights, if applicable: (a) copyrights, registrations and applications for registration thereof, (b) Trademarks, (c) patents and industrial designs, together with any registered or unregistered rights in designs in the United Kingdom, as well as any reissued and reexamined patents and industrial designs and extensions corresponding to the patents and industrial designs and any patent and industrial design applications, as well as any related continuation, continuation in part and divisional applications and patents issuing therefrom and (d) trade secrets and confidential information, including ideas, designs, concepts, compilations of information, methods, techniques, procedures, processes and other know-how, whether or not patentable.
Intercreditor Agreement” shall have the meaning assigned to such term in Section 12.11.
Interest Period” shall mean, as to any Borrowing of a LIBO 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 one week thereafter or 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, six, or, if agreed to by all Lenders under the applicable Facility, twelve (12) months or less than one month thereafter, as the Lead Borrower may elect, or the date any Borrowing of a LIBO Rate Loan is converted to a Borrowing of a 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.
Interpolated Rate” shall mean, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent demonstrable error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period for which the LIBO Screen Rate is available) that is shorter than the Impacted Interest Period; and (b) the LIBO Screen Rate for the shortest period (for which that LIBO Screen Rate is available) that exceeds the Impacted Interest Period, in each case, at such time.
Inventory” shall mean all “inventory” (including parts, work-in-process, raw materials, and finished goods), as such term is defined in the UCC as in effect on the date hereof in the State of New York or, if applicable, in the Canadian PPSA or the Australian PPSA, wherever located, in which any Person now or hereafter has rights.
Inventory Reserves” shall mean reserves established by the Administrative Agent in its Permitted Discretion to reflect factors that may reasonably be expected to negatively impact the value of Eligible Inventory including change in salability, obsolescence, seasonality, theft, shrinkage, imbalance, change in composition or mix, markdowns, marked to market and vendor chargebacks.
Investment” shall have the meaning assigned to such term in Section 10.04.
Investment Grade Rating” shall mean, at any time of determination with respect to any Person, that such Person has at such time a corporate credit rating of BBB- or better by S&P and a corporate family rating of Baa3 or better by Moody’s (or comparable ratings by any other rating agency).
IRS” shall mean the U.S. Internal Revenue Service.

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Issuing Banks” shall mean the North American Issuing Banks and the Swiss Issuing Banks, collectively.
JPMCB” shall have the meaning assigned to such term in the preamble hereto.
Junior Debt Restricted Payment” shall mean, any payment or other distribution (whether in cash, securities or other property), directly or indirectly made by the Lead Borrower or any if its Subsidiaries, of or in respect of principal on any Senior Notes (or any Indebtedness incurred as Permitted Refinancing Indebtedness in respect thereof) or Indebtedness (other than intercompany Indebtedness) that is (x) by its terms subordinated in right of payment to the Loan Obligations, (y) not secured by a Lien or (z) secured by a Lien that ranks junior in priority to the Lien securing the Obligations (each of the foregoing, a “Junior Financing”); provided that the following shall not constitute a Junior Debt Restricted Payment:
(a)    Refinancings with any Permitted Refinancing Indebtedness permitted to be incurred under Section 10.01;
(b)    payments of regularly-scheduled interest and fees due thereunder, other non-principal payments thereunder, any mandatory prepayments of principal, interest and fees thereunder, scheduled payments thereon necessary to avoid the Junior Financing from constituting “applicable high yield discount obligations” within the meaning of Section 163(i)(l) of the Code, and, to the extent this Agreement is then in effect, principal on the scheduled maturity date of any Junior Financing;
(c)    payments or distributions in respect of all or any portion of the Junior Financing with the proceeds from the issuance, sale or exchange by the Lead Borrower of Qualified Equity Interests within eighteen months prior thereto; or
(d)    the conversion of any Junior Financing to Qualified Equity Interests of the Lead Borrower.
Junior Financing” shall have the meaning assigned to such term in the definition of the term “Junior Debt Restricted Payment.
Junior Liens” shall mean Liens on the Collateral that are junior to the Liens thereon securing the Obligations pursuant to a Permitted Junior Intercreditor Agreement (it being understood that Junior Liens are not required to rank equally and ratably with other Junior Liens, and that Indebtedness secured by Junior Liens may be secured by Liens that are senior in priority to, or rank equally and ratably with, or junior in priority to, other Liens constituting Junior Liens), which Permitted Junior Intercreditor Agreement (together with such amendments to the Security Documents and any other Intercreditor Agreements, if any, as are reasonably necessary or advisable (and reasonably acceptable to the Collateral Agent) to give effect to such Liens) shall be entered into in connection with a permitted incurrence of any such Liens (unless a Permitted Junior Intercreditor Agreement and/or Security Documents (as applicable) covering such Liens are already in effect).
Landlord Lien Reserve” shall mean an amount equal to three months’ rent (or, if less, the balance of the term of the lease) for all of the leased locations of the Borrowers at which Eligible Inventory is stored, other than leased locations with respect to which the Administrative Agent has received a Landlord Lien Waiver and Access Agreement.
Landlord Lien Waiver and Access Agreement” shall mean a Landlord Lien Waiver and Access Agreement, in a form reasonably approved by the Administrative Agent.

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Latest Maturity Date” shall mean, at any date of determination, the latest maturity date applicable to any Loan or Commitment under any Facility 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 Administrative Agent for the benefit of the Secured Parties, in accordance with the provisions of Section 2.13.
LC Disbursements” shall mean the North American LC Disbursements and/or the Swiss LC Disbursements.
LC Documents” shall mean all documents, instruments and agreements delivered by any Borrower or any Subsidiary of any Borrower that is a co-applicant in respect of any Letter of Credit to any Issuing Bank or the Administrative Agent in respect of any Letter of Credit.
LC Exposure” shall mean the North American LC Exposure and/or the Swiss LC Exposure.
LC Obligations” shall mean the North American LC Obligations and/or the Swiss LC Obligations.
LC Participation Fee” shall have the meaning assigned to such term in Section 2.05(c)(i).
LC Request” shall mean a request in accordance with the terms of Section 2.13(b) in form and substance satisfactory to the Issuing Banks.
LC Sublimit” shall have the meaning assigned to such term in Section 2.13(b).
Lead Arrangers” shall mean JPMorgan Chase Bank, N.A, Bank of America, N.A., Bank of Montreal and Wells Fargo Bank, National Association, in their capacities as joint lead arrangers and bookrunners for this Agreement.
Lead Borrower” shall have the meaning assigned to such term in the preamble hereto.
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 13.04(b), and, as the context requires, includes the Swingline Lender.
Lender Loss Sharing Agreement” shall mean that certain 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 or otherwise after the Closing Date.
Letter of Credit” shall mean a North American Letter of Credit and/or a Swiss Letter of Credit, as applicable.
Letter of Credit Expiration Date” shall mean the date which is five (5) Business Days prior to the Maturity Date.
LIBO Rate” shall mean, with respect to (a) any LIBO Rate Loan denominated in any LIBOR Quoted Currency and for any applicable Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for such LIBOR Quoted Currency for a period equal in length to such Interest Period as

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displayed on pages LIBOR01 or LIBOR02 of the Reuters screen or, in the event such rate does not appear on either of such Reuters pages, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion (consistent with any such selection by the Administrative Agent generally under substantially similar credit facilities for which it acts as administrative agent) (in each case the “LIBO Screen Rate”) at approximately 11:00 a.m., London time, on the Quotation Day for such LIBOR Quoted Currency and Interest Period; provided that, if the LIBO Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement and (b) any LIBO Rate Borrowing denominated in Australian Dollars and for any applicable Interest Period, the AUD Screen Rate for Australian Dollars on the Quotation Day for Australian Dollars and Interest Period; provided that, if the AUD Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement; provided, further, that if a LIBO Screen Rate or the AUD Screen Rate, as applicable, shall not be available at such time for such Interest Period (the “Impacted Interest Period”), then the LIBO Screen Rate or AUD Screen Rate, as applicable, for such currency and such Interest Period shall be the Interpolated Rate; provided that, if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. It is understood and agreed that all of the terms and conditions of this definition of “LIBO Rate” shall be subject to Section 3.01.
LIBO Rate Loan” shall mean a Loan made by the Lenders to the Borrowers which bears interest at a rate based on the LIBO Rate (other than pursuant to clause (c) of the definition of “Base Rate”). LIBO Rate Loans may be denominated in U.S. Dollars or in an applicable Alternative Currency.
LIBO Screen Rate” has the meaning assigned to such term in the definition of “LIBO Rate”.
LIBOR Quoted Currency” shall mean each of (i) U.S. Dollars, (ii) Euros, (iii) Pound Sterling and (iv) Swiss Francs.
Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, hypothecation, pledge, charge, security interest or similar monetary encumbrance in or on such asset (including, without limitation, any “security interest” as defined in Sections 12(1) and 12(2) of the Australian PPSA) and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; provided that in no event shall an operating lease or an agreement to sell be deemed to constitute a Lien.
Line Cap” shall mean an amount equal to the lesser of (a) the Aggregate Commitments and (b) the then applicable Aggregate Borrowing Base.
Liquidity Event” shall mean the occurrence of a date when (a) Aggregate Availability shall have been less than the greater of (i) 12.5% of the Line Cap and (ii) $50,000,000, in either case for five (5) consecutive Business Days, until such date as (b) Aggregate Availability shall have been at least equal to the greater of (i) 12.5% of the Line Cap and (ii) $50,000,000 for thirty (30) consecutive calendar days.
Liquidity Notice” shall mean a written notice delivered by the Administrative Agent at any time during a Liquidity Period to any bank or other depository at which any Deposit Account (other than any Excluded Account) is maintained directing such bank or other depository (a) to remit all funds in such Deposit Account to, in the case of a U.S. Loan Party, a Dominion Account or, in the case of a Deposit Account of a Foreign Loan Party, to the Administrative Agent on a daily basis, (b) to cease following directions or instructions given to such bank or other depository by any Loan Party regarding the

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disbursement of funds from such Deposit Account (other than any Excluded Account), and (c) to follow all directions and instructions given to such bank or other depository by the Administrative Agent in each case, pursuant to the terms of any Deposit Account Control Agreement in place.
Liquidity Period” shall mean any period throughout which (a) a Liquidity Event has occurred and is continuing or (b) an Event of Default has occurred and is continuing.
Loan Documents” shall mean this Agreement, and, after the execution and delivery thereof pursuant to the terms of this Agreement, each Note, the Guarantee Agreement, each Security Document, each Intercreditor Agreement, each Receivables Intercreditor Agreement, each Securitization Intercreditor Agreement, each Incremental Revolving Commitment Agreement and each Extension Amendment.
Loan Obligations” shall mean all now existing or hereafter arising debts, obligations, covenants, and duties of payment or performance by any Loan Party of every kind, matured or unmatured, direct or contingent, owing, arising, due, or payable to any Lender, Issuing Bank, Agent or Indemnified Person by any Loan Party arising out of this Agreement or any other Loan Document, including, without limitation, all obligations to repay principal or interest (including interest, fees and other amounts accruing during any proceeding under any Debtor Relief Laws, regardless of whether allowed or allowable in such proceeding) on the Loans, Letters of Credit or any other Obligations, and to pay interest, fees, costs, charges, expenses, professional fees, and all sums chargeable to any Loan Party or for which any Loan Party is liable as indemnitor under the Loan Documents, whether or not evidenced by any note or other instrument.
Loan Party” shall mean the Borrowers and the Guarantors.
Loans” shall mean advances made to or at the instructions of the Lead Borrower pursuant to Article 2 hereof and may constitute Revolving Loans, Swingline Loans or Overadvance Loans.
Local Time” shall mean (i) New York City time in the case of a Loan, Borrowing or LC Disbursement denominated in U.S. Dollars and (ii) London time in the case of a Loan, Borrowing or LC Disbursement denominated in Pound Sterling, Euros, Australian Dollars or Swiss Francs.
Margin Stock” shall have the meaning assigned to such term in Regulation U.
Material Adverse Effect” shall mean a material adverse effect on the business, property, operations or financial condition of the Lead Borrower and its Subsidiaries, taken as a whole, the validity or enforceability of any of the Loan Documents against a Loan Party or the rights and remedies of the Administrative Agent, the Collateral Agent, the Issuing Banks, the Swingline Lender and the Lenders against a Loan Party thereunder.
Material Indebtedness” shall mean Indebtedness (other than Loans) of any one or more of the Lead Borrower or any Subsidiary in an aggregate principal amount exceeding $50,000,000; provided that in no event shall any Qualified Receivables Facility be considered Material Indebtedness.
Material Real Property” shall mean any parcel of Real Property or group of parcels of Real Property that are adjacent, contiguous or located in close proximity as an integrated operation located in the United States having a Fair Market Value (on a per-property basis) greater than or equal to $5,000,000 as of (x) the Closing Date, for Real Property then owned or (y) the date of acquisition, for Real Property acquired after the Closing Date, in each case as determined by the Lead Borrower in good faith; provided that (i) “Material Real Property” shall exclude all leasehold interests in Real Property and (ii) the Lead

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Borrower may elect in its discretion to treat any such Real Property as a “Material Real Property” (subject to the requirements of this Agreement relating to Material Real Properties) even if its Fair Market Value is less than the foregoing threshold.
Material Subsidiary” shall mean any Subsidiary, other than an Immaterial Subsidiary.
Maturity Date” shall mean the date that is five (5) years after the Closing Date; provided that, if, on the date (the “Springing Maturity Date”) that is ninety-one (91) days prior to the maturity date of the Senior Notes, any Senior Notes remain outstanding, the Maturity Date shall be the Springing Maturity Date; provided further that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
Notwithstanding the foregoing, the Springing Maturity Date shall not constitute the Maturity Date if, prior to the Springing Maturity Date, the Lead Borrower delivers to the Administrative Agent a certificate of a Financial Officer (i) to the effect that the Loan Parties intend to repay the aggregate outstanding amount in respect of the Senior Notes pursuant to the terms of this definition and (ii) certifying that, as of the date such certificate is delivered to the Administrative Agent, both before and immediately after giving effect to such repayment (assuming removal of the related Reserve as contemplated below), the Payment Conditions have been satisfied (and setting forth in such certificate a reasonably detailed calculation thereof). Upon receipt of such certificate, the Administrative Agent shall establish a Reserve against the U.S. Borrowing Base in an amount equal to 103% of the aggregate outstanding principal amount of the Senior Notes. Thereafter, such Reserve shall remain in effect until satisfaction of the following conditions:
(1) the Lead Borrower shall irrevocably request a Revolving Borrowing in an amount not less than the aggregate outstanding principal amount of the Senior Notes plus accrued and unpaid interest thereon (or, if less, the amount necessary to repay the Senior Notes in full, including after taking into account other available cash) and shall specify that the proceeds of such Borrowing (together with other available cash, as applicable) shall be used on such date to repay the Senior Notes in full; and
(2) immediately upon giving effect to the removal of such Reserve, the conditions set forth in Section 6.02 will be satisfied.
Moody’s” shall mean Moody’s Investors Service, Inc. (or an applicable foreign Affiliate thereof).
Mortgage Policy” shall mean an ALTA title insurance policy (or its equivalent in non-ALTA jurisdictions) with respect to the applicable real property naming the Administrative Agent as insured party for the benefit of the applicable Lenders, insuring that the Mortgage creates a valid and enforceable first priority mortgage lien (subject to (x) Permitted Borrowing Base Liens which do not have priority over the Lien in favor of the Collateral Agent or (y) any other Permitted Lien for which the Administrative Agent has established a Reserve in its Permitted Discretion for liabilities secured by such Permitted Lien (including, without limitation, Liens securing the NMTC Financing, to the extent of the NMTC Reserve)) on the applicable parcel of real property, free and clear of all Liens, defects and encumbrances (except as set forth in the immediately preceding parenthetical), which Mortgage Policies shall (A) be in an amount no greater than the value of such parcel of real property, as determined by the appraisal report to be delivered pursuant to clause (a) of the definition of Eligible Real Property (provided, however, that, if such Eligible Real Property is located in a mortgage or recording tax jurisdiction and the Administrative Agent limits its recovery under the applicable Mortgage, the insured amount shall be equal to 120% of such appraised value), (B) be from a nationally recognized title insurance company reasonably acceptable to the Administrative Agent (“Title Insurer”), (C) include such

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endorsements and reinsurance as the Administrative Agent may reasonably require and (D) otherwise satisfy the reasonable title insurance requirements of the Administrative Agent.
Mortgaged Properties” shall mean the Material Real Properties that are identified on Schedule 1.01(B) on the Closing Date (the “Closing Date Mortgaged Properties”) and each additional Material Real Property encumbered by a Mortgage after the Closing Date pursuant to Section 9.10.
Mortgages” shall mean, collectively, the mortgages, trust deeds, deeds of trust, deeds to secure debt, assignments of leases and rents, debentures, deeds of hypothec and other security documents (including amendments to any of the foregoing) executed and delivered with respect to Mortgaged Properties (either as stand-alone documents or forming part of other Security Documents), each in form and substance reasonably satisfactory to the Collateral Agent and the Lead Borrower, in each case, as amended, supplemented or otherwise modified from time to time. For the avoidance of doubt, upon the expiration or termination of any such agreement or instrument in accordance with its terms (including, without limitation, in connection with the release of a Loan Party in accordance with the Loan Documents), such document shall cease to constitute a “Mortgage”.
Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which the Lead Borrower or any Subsidiary or any ERISA Affiliate (other than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414) is making or accruing an obligation to make contributions, or has within any of the preceding six plan years made or accrued an obligation to make contributions.
Net Proceeds” shall mean, with respect to any event, (a) the cash proceeds actually received by the Lead Borrower or any Subsidiary in respect of such event including any cash received in respect of any non-cash proceeds (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but excluding any interest payments), but only as and when received, minus (b) the sum of (i) the out-of-pocket fees and expenses actually incurred by the Lead Borrower or any Subsidiary (other than those paid to Affiliates) in connection with such event, (ii) in the case of a Disposition of an asset (including pursuant to a sale leaseback transaction or a casualty or a condemnation or similar proceeding), the amount of all payments required to be made as a result of such event to repay Indebtedness (other than Loans) or other obligations related to and secured by such asset or otherwise subject to mandatory prepayment as a result of such event and (iii) the amount of all taxes paid (or reasonably estimated to be payable) and the amount of any reserves established in accordance with GAAP against any adjustment to the sale price or any liabilities and that are related to such asset or to such event (as determined reasonably and in good faith by a Financial Officer of the Lead Borrower); provided that, upon the reversal (without the satisfaction of any applicable adjustment to the sale price or liabilities in cash in a corresponding amount) of all or any portion of any reserve described in clause (b)(iii) above or if such adjustment to the sale price or liabilities have not been satisfied in cash and such reserve is not reversed within 365 days after such event, then, without duplication, the amount of any such reversal of such reserve shall be deemed to be “Net Proceeds” of such event received at the time of such reversal, and any such reserve remaining outstanding on such 365th day shall be deemed to be “Net Proceeds” of such event received on such 365th day, as applicable; provided further that any proceeds held in escrow pending a purchase price, net working capital or other similar adjustment and/or for the duration of any indemnity period shall not constitute Net Proceeds until released from escrow to the Lead Borrower or applicable Subsidiary.


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NMTC Financing” shall mean (a) the financing transaction contemplated by that certain Loan Agreement dated as of August 16, 2017 among ST CDE XXXVIII, LLC, a Georgia limited liability company, DVCI CDE XXXIV, LLC, a Delaware limited liability company, MUNISTRATEGIES SUB-CDE#24, LLC, a Mississippi limited liability company, and the Lead Borrower, as borrower, relating to the financing of the facilities located at 46 Holland Industrial Park, Statesboro, Georgia 30461 and 7251 Zell Miller Parkway, Statesboro, Georgia 30458 and (b) any Permitted Refinancing Indebtedness in respect of such financing.

NMTC Reserve” shall mean a reserve established by the Administrative Agent in the exercise of its Permitted Discretion in respect of liabilities of the Lead Borrower and/or its Subsidiaries under the NMTC Financing, to the extent secured by a Lien on any assets of the Lead Borrower and/or its Subsidiaries.

NOLV Percentage” shall mean the fraction, expressed as a percentage, (a) the numerator of which is the amount equal to the blended recovery on the aggregate amount of Eligible Equipment, Eligible Inventory or Eligible Trademarks at such time on a “net orderly liquidation value” basis as set forth in the most recent appraisal of inventory, equipment and/or trademarks received by the Administrative Agent in accordance with Section 9.07(b), net of operating expenses, liquidation expenses and commissions reasonably anticipated in the disposition of such assets, and (b) the denominator of which is (i) in the case of Eligible Equipment, the market value of the aggregate amount of Eligible Equipment, as set forth in the most recent appraisal of equipment received by the Administrative Agent in accordance with Section 9.07(b), (ii) in the case of Eligible Inventory, the original Cost of the aggregate amount of Eligible Inventory subject to appraisal and (iii) in the case of Eligible Trademarks, the market value of the aggregate amount of Eligible Trademarks, as set forth in the most recent appraisal of trademarks received by the Administrative Agent in accordance with Section 9.07(b).

Non-Defaulting Lender” shall mean and include each Lender other than a Defaulting Lender.
Non-Loan Party Investment Cap” shall have the meaning assigned to such term in the definition of “Permitted Acquisition.
Non-U.S. Lender” shall mean a Lender that is neither a U.S. Person nor a Disregarded Entity that is treated for U.S. federal income Tax purposes as having a U.S. Person as its sole owner.
Non-U.S. Security Documents” shall mean the Australian Security Documents, the Swiss Security Documents, the Dutch Security Documents and the Initial UK Security Agreement.
North American Issuing Bank” shall mean, as the context may require, (a) JPMCB, with respect to Letters of Credit issued by it, Bank of America, N.A., with respect to Letters of Credit issued by it, Bank of Montreal, with respect to Letters of Credit issued by it and Wells Fargo Bank, National Association, with respect to Letters of Credit issued by it, and (b) any other Lender that may become a North American Issuing Bank pursuant to Sections 2.13(i) and 2.13(k), with respect to Letters of Credit issued by such Lender; or (c) collectively, all of the foregoing. Each North American Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by affiliates or branches of such North American Issuing Bank (including without limitation with respect to Letters of Credit with a co-Applicant that is not a Foreign Loan Party), in which case the term “North American Issuing Bank” shall include any such affiliate or branch with respect to Letters of Credit issued by such affiliate or branch.

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North American Issuing Bank Sublimit” shall mean (i) with respect to JPMCB, $10,500,000, (ii) with respect to Bank of America, N.A., $12,500,000, (iii) with respect to Bank of Montreal, $12,500,000, (iv) with respect to Wells Fargo Bank, National Association, $12,500,000 and (v) with respect to each other North American Issuing Bank, such amount as may be agreed among the Lead Borrower and such other North American Issuing Bank (and notified to the Administrative Agent) at the time such other North American Issuing Bank becomes a North American Issuing Bank. The North American Issuing Bank Sublimit of any North American Issuing Bank may be increased or decreased as agreed by such North American Issuing Bank and the Lead Borrower (each acting in their sole discretion) and notified in a writing executed by such North American Issuing Bank and the Lead Borrower.
North American LC Commitment” shall mean the commitment of each North American Issuing Bank to issue Letters of Credit under the North American Revolving Facility pursuant to Section 2.13.
North American LC Disbursement” shall mean a payment or disbursement made by any North American Issuing Bank pursuant to a North American Letter of Credit under the North American Revolving Facility.
North American LC Exposure” shall mean at any time the sum of (a) the aggregate undrawn amount of all outstanding North American Letters of Credit at such time plus (b) the aggregate principal amount of all North American LC Disbursements that have not yet been reimbursed at such time. The North American LC Exposure of any Lender at any time shall mean its Pro Rata Percentage (with respect to the North American Revolving Facility) of the aggregate North American LC Exposure at such time.
North American LC Obligations” shall mean the sum (without duplication) of (a) all amounts owing by the Borrowers for any drawings under North American Letters of Credit (including any bankers’ acceptances or other payment obligations arising therefrom); and (b) the stated amount of all outstanding North American Letters of Credit.
North American LC Sublimit” shall have the meaning assigned to such term in Section 2.13(b).
North American Letter of Credit” shall mean any letters of credit issued or to be issued by any North American Issuing Bank under the North American Revolving Facility for the account of any U.S. Borrower (or any Subsidiary of such Borrower, with such Borrower as a co-applicant thereof) pursuant to Section 2.13, including any standby letter of credit, time, or documentary letter of credit or any functional equivalent in the form of an indemnity, or bank guarantee or similar form of credit support issued by the Administrative Agent or a North American Issuing Bank for the benefit of a U.S. Borrower.
North American Protective Advance” shall have the meaning assigned to such term in Section 2.18.
North American Revolving Borrowing” shall mean a Borrowing comprised of North American Revolving Loans.
North American Revolving Commitment” shall mean, with respect to each Lender, the commitment, if any, of such Lender to make North American Revolving Loans hereunder up to the amount set forth and opposite such Lender’s name on Schedule 2.01 under the caption “North American Revolving Commitment,” or in the Assignment and Assumption pursuant to which such Lender assumed its North American Revolving Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.07, (b) increased from time to time pursuant to Section 2.15 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 13.04. The

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aggregate amount of the Lenders’ North American Revolving Commitments on the Closing Date is $585,000,000.
North American Revolving Exposure” shall mean, with respect to any Lender at any time, the aggregate principal amount at such time of all outstanding North American Revolving Loans of such Lender, plus the aggregate amount of such Lender’s Swingline Exposure under the North American Revolving Facility, plus the aggregate amount of such Lender’s North American LC Exposure in respect of Letters of Credit issued for a U.S. Borrower.
North American Revolving Facility” shall mean the North American Revolving Commitments of the Lenders and the Loans and Letters of Credit pursuant to those North American Revolving Commitments in accordance with the terms hereof.
North American Revolving Lenders” shall mean each Lender that has a North American Revolving Commitment or North American Revolving Loans at such time.
North American Revolving Loans” shall mean advances made pursuant to Article 2 hereof under the North American Revolving Facility (including, for the avoidance of doubt, any North American Swingline Loans).
North American Swingline Loans” shall have the meaning assigned to such term in Section 2.12(a).
Not-for-Profit Subsidiary” shall mean an entity, including entities qualifying under Section 501(c)(3) of the Code, that uses surplus revenue to achieve its goals rather than distributing them as profit or dividends.
Note” shall mean each revolving note substantially in the form of Exhibit B hereto.
Notice of Borrowing” shall mean a notice substantially in the form of the relevant notice attached as Exhibit A-1 hereto or, in the case of a Swingline Borrowing, Exhibit A-2 hereto.
Notice of Conversion/Continuation” shall mean a notice substantially in the form of Exhibit A-3 hereto.
Notice Office” shall mean JPMorgan Chase Bank, N.A., 10 S. Dearborn Street, Chicago, Illinois 60603, Telephone Number: (312) 732-8111, Fax Number: (312) 548-1943, Email: john.morrone@jpmorgan.com, Attn: John Morrone or, in each case, such other offices or persons as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.
Noticed Hedge” shall mean any Secured Bank Product Obligations arising under a Swap Contract with respect to which the Lead Borrower and the Secured Bank Product Provider thereof have notified the Administrative Agent of the intent to include such Secured Bank Product Obligations as a Noticed Hedge hereunder and with respect to which the Administrative Agent, in its Permitted Discretion, has established a Bank Products Reserve in the maximum amount thereof.
NYFRB” shall mean the Federal Reserve Bank of New York.
NYFRB Rate” shall mean, for any day, the greater of (a) the Federal Funds Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a

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Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” shall mean the rate for a federal funds transaction quoted at 11:00 a.m. on such day received to the Administrative Agent from a federal funds broker of recognized standing selected by it; provided further that, if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
Obligations” shall mean (x) the Loan Obligations and (y) all Secured Bank Product Obligations (with respect to any Loan Party, other than any Excluded Swap Obligation of such Loan Party) entered into by the Lead Borrower or any of its Subsidiaries, whether now in existence or hereafter arising. Notwithstanding anything to the contrary contained above, other than in connection with any application of proceeds pursuant to Section 11.02, (x) obligations of any Loan Party under any Secured Bank Product Obligations shall be secured and guaranteed pursuant to the Loan Documents only to the extent that, and for so long as, the Loan 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.
Other Taxes” shall mean all present or future stamp or documentary Taxes or any other excise, transfer, sales, property, intangible, mortgage recording or similar Taxes arising from any payment made hereunder or under any other Loan Document or from the execution, registration, delivery or enforcement of, consummation or administration of, from the receipt or perfection of security interest under, or otherwise with respect to, any Loan Document or Letter of Credit, except any such Taxes that are imposed with respect to an assignment (other than an assignment made pursuant to Section 3.04) as a result of any present or former connection between the Recipient and the jurisdiction imposing such Tax (other than any such connection arising solely from such Recipient having executed, delivered, become party to, performed its obligations under, received payments under, received, perfected or enforced a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan, Letter of Credit or Loan Document).
Outstanding Amount” shall mean, 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 Loans occurring on such date.
Overadvance” shall have the meaning assigned to such term in Section 2.17.
Overadvance Loan” shall mean a Base Rate Loan or a LIBO Rate Loan made when an Overadvance exists or is caused by the funding thereof.
Overnight Bank Funding Rate” shall mean, for any day, the rate comprised of both overnight federal funds and overnight LIBO Rate borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate).
Overnight LIBO Rate” shall mean, with respect to any Overnight LIBO Rate Loan on any day, a rate per annum equal to the London interbank offered rate as administered by the ICE Benchmark Administration Limited (or any other Person that takes over the administration of such rate) for overnight deposits of an Alternative Currency (other than Australian Dollars) as displayed on the applicable Thomson Reuters screen page (LIBOR01 or LIBOR02) (or, in the event such rate does not appear on a page of the Thomson Reuters screen, on the appropriate page of such other information service that

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publishes such rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion (consistent with any such selection by the Administrative Agent generally under substantially similar credit facilities for which it acts as administrative agent)) at approximately 11:00 a.m., London time, on such day; provided that, if the Overnight LIBO Rate shall be less than zero, such rate shall be deemed to be zero for all purposes of this Agreement.
Overnight LIBO Rate Loan” shall mean a Loan made by the Swingline Lender or any other Lenders to any Borrower which bears interest at a rate based on the Overnight LIBO Rate. Overnight LIBO Rate Loans may be denominated in U.S. Dollars or in an Alternative Currency (other than Australian Dollars). All Swingline Loans (other than North American Swingline Loans) shall be Overnight LIBO Rate Loans or Loans with such other rate as may be agreed by the applicable Borrower and the Swingline Lender in its sole discretion.
Parallel Debt Obligation” and “Parallel Debt Obligations” shall have the meanings assigned to such term in Section 12.15.
Participant” shall have the meaning assigned to such term in Section 13.04(c).
Participant Register” shall have the meaning assigned to such term in Section 13.04(c).
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.
Patriot Act” shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107 56 (signed into law October 26, 2001)).
Payment Conditions” shall mean, as to any proposed relevant action to be taken on any date:
(a)    no Default or Event of Default has then occurred and is continuing or would result from such action; and
(b)    either:
(i)    (x) Aggregate Availability on a pro forma basis immediately after giving effect to such action would be at least equal to the greater of 20.0% of the Line Cap and $80,000,000 and (y) over the thirty (30) consecutive days prior to consummation of such action, Aggregate Availability averaged no less than the greater of 20.0% of the Line Cap and $80,000,000 on a pro forma basis for such action; or
(ii)    (x) Aggregate Availability on a pro forma basis immediately after giving effect to such action would be at least equal to the greater of 15.0% of the Line Cap and $60,000,000, (y) over the thirty (30) consecutive days prior to consummation of such action, Aggregate Availability averaged no less than the greater of 15.0% of the Line Cap and $60,000,000 on a pro forma basis for such action and (z) the Consolidated Fixed Charge Coverage Ratio as of the applicable Test Period would be at least 1.10 to 1.00 on a Pro Forma Basis for such action.

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Payment Office” shall mean the office of the Administrative Agent located at 10 South Dearborn Street, Floor L2, Chicago, Illinois 60603, or such other office as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.
PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.
Perfection Certificate” shall mean the Perfection Certificate with respect to the Borrowers and the other Loan Parties substantially in the form attached hereto as Exhibit G, or such other form as is reasonably satisfactory to the Administrative Agent, as the same may be supplemented from time to time to the extent required by Section 9.04(f).
Permitted Acquisition” shall mean any acquisition by the Lead Borrower or a Subsidiary of all or substantially all the assets or business of, or all or substantially all the Equity Interests (other than directors’ qualifying shares) not previously held by the Lead Borrower and its Subsidiaries in, or merger, consolidation or amalgamation with, a person or business unit or division or line of business of a person (or any subsequent investment made in a person or business unit or division or line of business previously acquired in a Permitted Acquisition), if:
(i)    at the time such acquisition is made and immediately after giving effect thereto, the Payment Conditions are satisfied;
(ii)    any acquired or newly formed Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by Section 10.01;
(iii)    to the extent required by Section 9.10, any person acquired in such acquisition shall be merged into or amalgamated with a Loan Party or become upon consummation of such acquisition (or by the deadline contemplated by Section 9.10) a Guarantor; and
(iv)    the aggregate cash consideration in respect of all such acquisitions and investments in assets that are not owned by the Loan Parties or in Equity Interests in persons that are not Guarantors or do not become Guarantors, in each case upon consummation of such acquisition (together with Investments by Loan Parties in Subsidiaries that are not Loan Parties pursuant to Section 10.04(b)(v)), shall not exceed during the term of this Agreement the sum of (X) the greater of $75,000,000 and 5.0% of Consolidated Total Assets when made (the “Non-Loan Party Investment Cap”), plus (Y) (A) an amount equal to any returns (in the form of dividends or other distributions or net sale proceeds) received by any Loan Party in respect of any assets not owned directly by Loan Parties or Equity Interests in persons that are not Guarantors or do not become Guarantors that were acquired in such Permitted Acquisitions in reliance on the basket in clause (X) above (excluding any such returns in excess of the amount originally invested) and (B) any amounts in excess thereof that can be, and are, permitted as Investments (and treated as Investments) made under a clause of Section 10.04 (other than clause (k) thereof).
Permitted Bond Hedge Transaction” shall mean any bond hedge, capped call or similar option transaction entered into in connection with the issuance of Permitted Convertible Indebtedness.
Permitted Borrowing Base Liens” shall mean Liens on the Collateral permitted by Sections 10.02(d), (e), and (oo) (in the case of clauses (e) and (oo), subject to compliance with clause (iii) of the definition of “Eligible Inventory” and, in each case, solely to the extent any such Lien set forth in clause (d), (e) or (oo) arises by operation of law).

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Permitted Business” shall mean any business, service or activity that is the same as, or reasonably related, incidental, ancillary, complementary or similar to, or that is a reasonable extension or development of, any of the businesses, services or activities in which the Lead Borrower and its Subsidiaries are engaged on the Closing Date.
Permitted Convertible Indebtedness” shall mean any notes, bonds, debentures or similar instruments issued by the Lead Borrower or one of its Subsidiaries that are convertible into or exchangeable for (x) cash, (y) shares of the Lead Borrower’s common stock or preferred stock or other Equity Interests other than Disqualified Stock or (z) a combination thereof.
Notwithstanding any other provision contained herein, in the case of any Permitted Convertible Indebtedness for which the embedded conversion obligation must be settled by paying solely cash, so long as substantially concurrently with the offering of such Permitted Convertible Indebtedness, the Lead Borrower or a Subsidiary enters into a cash-settled Permitted Bond Hedge Transaction relating to such Permitted Convertible Indebtedness, notwithstanding any other provision contained herein, for so long as such Permitted Bond Hedge Transaction (or a portion thereof corresponding to the amount of outstanding Permitted Convertible Indebtedness) remains in effect, all computations of amounts and ratios referred to herein shall be made as if the amount of Indebtedness represented by such Permitted Convertible Indebtedness were equal to the face principal amount thereof without regard to any mark-to-market derivative accounting for such Indebtedness.
Permitted Discretion” shall mean reasonable (from the perspective of a secured asset-based lender) credit judgment exercised in good faith in accordance with customary business practices of the Administrative Agent for comparable asset-based lending transactions, and as it relates to the establishment of reserves or the imposition of exclusionary criteria shall require that (a) the contributing factors to the imposition of any reserves shall not duplicate (i) the exclusionary criteria set forth in the definitions of Eligible Accounts, Eligible Cash, Eligible Equipment, Eligible Inventory, Eligible Real Property or Eligible Trademarks, as applicable, and vice versa or (ii) any reserves deducted in computing book value and (b) the amount of any such reserve so established or the effect of any adjustment or imposition of exclusionary criteria be a reasonable quantification of the incremental dilution of the Borrowing Base attributable to such contributing factors.
Permitted Investments” shall mean:
(a)    direct obligations of the United States of America, Canada, Switzerland, the United Kingdom (and any nation thereof) or any member of the European Union or any agency thereof or obligations guaranteed by the United States of America, Canada, Switzerland, the United Kingdom (and any nation thereof) or any member of the European Union or any agency thereof, in each case with maturities not exceeding two years from the date of acquisition thereof;
(b)    time deposit accounts, certificates of deposit, guaranteed investment certificates, money market deposits, banker’s acceptances and other bank deposits maturing within 180 days of the date of acquisition thereof issued by a bank or trust company having capital, surplus and undivided profits in excess of $250,000,000 and whose long-term debt, or whose parent holding company’s long-term debt, is rated at least A by S&P or A2 by Moody’s (or such similar equivalent rating or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act));
(c)    repurchase obligations with a term of not more than 180 days for underlying securities of the types described in clause (a) above entered into with a bank meeting the qualifications described in clause (b) above;

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(d)    commercial paper, maturing not more than one year after the date of acquisition, issued by a corporation (other than an Affiliate of the Lead Borrower) with a rating at the time as of which any investment therein is made of P-1 (or higher) according to Moody’s, or A-1 (or higher) according to S&P (or such similar equivalent rating or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act));
(e)    securities with maturities of two years or less from the date of acquisition, issued or fully guaranteed by any State of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least A by S&P or A by Moody’s (or such similar equivalent rating or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act));
(f)    shares of mutual funds whose investment guidelines restrict 95% of such funds’ investments to those satisfying the provisions of clauses (a) through (e) above;
(g)    money market funds that (i) comply with the criteria set forth in Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P or Aaa by Moody’s and (iii) have portfolio assets of at least $1,000,000,000;
(h)    time deposit accounts, certificates of deposit, guaranteed investment certificates, money market deposits, banker’s acceptances and other bank deposits in an aggregate face amount not in excess of 0.5% of the total assets of the Lead Borrower and the Subsidiaries, on a consolidated basis, as of the end of the Lead Borrower’s most recently completed fiscal year; and
(i)    instruments equivalent to those referred to in clauses (a) through (h) above denominated in any foreign currency comparable in credit quality and tenor to those referred to above and commonly used by corporations for cash management purposes in any jurisdiction outside the United States of America to the extent reasonably required in connection with any business conducted by the Lead Borrower or any Subsidiary organized/incorporated in such jurisdiction.
Permitted Junior Intercreditor Agreement” shall mean, with respect to any Liens on Collateral that are intended to be junior to any Liens securing the Loan Obligations, one or more customary intercreditor agreements, each of which shall be in form and substance reasonably satisfactory to the Administrative Agent.
Permitted Liens” shall have the meaning assigned to such term in Section 10.02.
Permitted Receivables Facility Assets” shall mean (i) Receivables Assets (whether now existing or arising in the future) of the Lead Borrower and any Subsidiary which are transferred, sold and/or pledged to a Receivables Entity or a bank, other financial institution or a commercial paper conduit or other conduit facility established and maintained by a bank or other financial institution, pursuant to a Qualified Receivables Facility and any related Permitted Receivables Related Assets which are also so transferred, sold and/or pledged to such Receivables Entity, bank, other financial institution or commercial paper conduit or other conduit facility, and all proceeds thereof and (ii) loans to the Lead Borrower or any of its Subsidiaries secured by Receivables Assets (whether now existing or arising in the future) and any Permitted Receivables Related Assets of the Lead Borrower and any Subsidiary which are made pursuant to a Qualified Receivables Facility; provided that in no event shall Permitted Receivables Facility Assets include any assets included in any Borrowing Base.

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Permitted Receivables Facility Documents” shall mean each of the documents and agreements entered into in connection with any Qualified Receivables Facility, including all documents and agreements relating to the issuance, funding and/or purchase of certificates and purchased interests or the incurrence of loans, as applicable, in each case as such documents and agreements may be amended, modified, supplemented, refinanced or replaced from time to time so long as the relevant Qualified Receivables Facility would still meet the requirements of the definition thereof after giving effect to such amendment, modification, supplement, refinancing or replacement.
Permitted Receivables Jurisdiction Subsidiaries” shall mean the Subsidiaries organized in jurisdictions that are not Qualified Jurisdictions in respect thereof.
Permitted Receivables Related Assets” shall mean any other assets that are customarily transferred, sold and/or pledged or in respect of which security interests are customarily granted in connection with asset securitization transactions involving receivables similar to Receivables Assets and any collections or proceeds of any of the foregoing (including, without limitation, lock-boxes, deposit accounts, records in respect of Receivables Assets and collections in respect of Receivables Assets).
Permitted Refinancing Indebtedness” shall mean any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, redeem, repurchase, retire, defease or refund (collectively, to “Refinance”), the Indebtedness being Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided that:
(a)    the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued interest and premium (including tender premiums) thereon and underwriting discounts, defeasance costs, fees, commissions and expenses),
(b)    except with respect to Section 10.01(i), (i) the final maturity date of such Permitted Refinancing Indebtedness is on or after the earlier of (x) the final maturity date of the Indebtedness being Refinanced and (y) the 91st day following the Maturity Date in effect at the time of incurrence thereof and (ii) the Weighted Average Life to Maturity of such Permitted Refinancing Indebtedness is greater than or equal to the Weighted Average Life to Maturity of the Indebtedness being Refinanced,
(c)    if the Indebtedness being Refinanced is by its terms subordinated in right of payment to any Obligations, such Permitted Refinancing Indebtedness shall be subordinated in right of payment to such Obligations on terms in the aggregate not materially less favorable to the Lenders than those contained in the documentation governing the Indebtedness being Refinanced (as determined by the Lead Borrower in good faith),
(d)    no Permitted Refinancing Indebtedness shall have obligors that are not (or would not have been required to become) obligors with respect to the Indebtedness being so Refinanced (except that (i) one or more Loan Parties may be added as additional guarantors and (ii) to the extent the Indebtedness being so Refinanced was Indebtedness of a Subsidiary which was not a Loan Party, Refinancing Indebtedness incurred in respect thereof may be incurred or guaranteed by any Subsidiary which is not a Loan Party),
(e)    such Permitted Refinancing Indebtedness may be secured (i) in the case of any Indebtedness being so Refinanced that is secured, by Liens having the same (or junior) priority on the same (or any subset of the) assets plus improvements and accessions to, such property or proceeds or distributions thereof, as secured (or would have been required to secure) the Indebtedness being

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Refinanced, on terms in the aggregate that are no less favorable to the Secured Parties than, the Indebtedness being refinanced or on terms otherwise permitted by Section 10.02 (as determined by the Lead Borrower in good faith) or (ii) in the case of any Indebtedness being so Refinanced that is unsecured, by Junior Liens, and
(f)    if the Indebtedness being Refinanced was subject to a Permitted Junior Intercreditor Agreement or an Intercreditor Agreement, and if the respective Permitted Refinancing Indebtedness is to be secured by the Collateral, the Permitted Refinancing Indebtedness shall likewise be subject to a Permitted Junior Intercreditor Agreement and/or an Intercreditor Agreement, as applicable.
Person” shall mean any natural person, corporation, business trust, joint venture, association, company, partnership, limited liability company, unlimited liability company or government, individual or family trusts, or any agency or political subdivision thereof.
Phase I Environmental Assessment” shall mean a Phase I environmental assessment, consistent with the ASTM Phase I standard in effect at the time performed, from an environmental consultant reasonably acceptable to the Administrative Agent, dated as of a date reasonably acceptable to the Administrative Agent and indicating that, as of such date, no recognized environmental conditions (as defined by ASTM) or other adverse environmental conditions (in each case, other than conditions acceptable to the Administrative Agent in its Permitted Discretion) are present in, on, under or exist with respect to the applicable parcel of real property and any improvements thereon.
Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) that is (i) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, (ii) sponsored or maintained (at the time of determination or at any time within the five years prior thereto) by the Lead Borrower, any other Borrower, any Subsidiary or any ERISA Affiliate, and (iii) in respect of which the Lead Borrower, any other Borrower, any Subsidiary or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
Plan Asset Regulations” shall mean 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.
Platform” shall mean Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system.
Pledged Collateral” shall have the meaning assigned to such term in the Initial U.S. Security Agreement.
Pound Sterling” or “£” shall mean the lawful currency of the United Kingdom.
primary obligor” shall have the meaning assigned to such term in the definition of the term “Guarantee.
Prime Rate” shall mean the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as reasonably and in good faith determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as reasonably and in good faith determined by the Administrative

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Agent); provided that, if any such rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
Priority Payables Reserve” shall mean reserves for amounts which rank or are capable of ranking in priority to, or pari passu with, the Liens granted to the Collateral Agent under the Security Documents and/or for amounts which may represent costs relating to the enforcement of the Collateral Agent’s Liens, including without limitation, in the Permitted Discretion of the Administrative Agent, any such amounts due and not paid for wages, vacation and/or holiday pay, severance pay, employee deductions, income tax, amounts due and not paid under any legislation relating to workers’ compensation or to employment insurance, amounts currently or past due and not paid for taxes and pension obligations and/or contributions.
Proceeds of Crime Act” shall mean the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), as amended from time to time, and including all regulations thereunder.
Process Agent” shall have the meaning assigned to such term in Section 13.08(d).
Pro Forma Basis” shall mean, as to any person, for any events as described below that occur subsequent to the commencement of a period for which the financial effect of such events is being calculated, and giving effect to the events for which such calculation is being made, such calculation as will give pro forma effect to such events as if such events occurred on the first day of the most recent Test Period ended on or before the occurrence of such event (the “Reference Period”):
(i)    the Transactions, any Asset Sale, any asset acquisition or Investment (or series of related Investments), in each case, in excess of $10,000,000, merger, amalgamation, consolidation (or any similar transaction or transactions), any dividend, distribution or other similar payment;
(ii)    the designation of any Subsidiary as an Unrestricted Subsidiary or of any Unrestricted Subsidiary as a Subsidiary; and
(iii)    any incurrence, repayment, repurchase or redemption of Indebtedness (or any issuance, repurchase or redemption of Disqualified Stock or preferred stock), other than fluctuations in revolving borrowings in the ordinary course of business (and not resulting from a transaction as described in clause (i) above).
Pro forma calculations made pursuant to this definition shall be determined in good faith by a Responsible Officer of the Lead Borrower.
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 the date on which the relevant calculation is being made had been the applicable rate for the entire period (taking into account any hedging obligations applicable to such Indebtedness if such hedging obligation has a remaining term in excess of twelve (12) months). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a Financial Officer of the Lead Borrower 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 computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period, except to the extent the outstandings thereunder are reasonably expected to increase as a result of any transactions described in clause (i) of the first paragraph of this definition of “Pro Forma

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Basis” which occurred during the respective period or thereafter and on or prior to the date of determination. 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 applicable optional rate as the Lead Borrower may designate.
In the event that any financial ratio is being calculated for purposes of determining whether Indebtedness or any lien relating thereto may be incurred, the Lead Borrower may elect, pursuant to a certificate of a Responsible Officer delivered to the Administrative Agent, to treat all or any portion of the commitment relating thereto as being incurred at the time of such commitment (consistently applied for all purposes under this Agreement), in which case Indebtedness in an amount equal to such commitment shall be deemed to be outstanding for all financial calculations until such commitment is terminated, but any subsequent incurrence of Indebtedness under such commitment shall not be deemed, for purposes of this calculation, to be an incurrence at such subsequent time.
Projections” shall mean the projections of the Lead Borrower and the Subsidiaries included in the Information Memorandum and any other projections and any forward-looking statements (including statements with respect to booked business) of such entities furnished to the Lenders or the Administrative Agent by or on behalf of the Lead Borrower or any of the Subsidiaries prior to the Closing Date.
Properly Contested” with respect to any obligation of a Loan Party, (a) the obligation is subject to a bona fide dispute regarding amount or the Loan Party’s liability to pay; (b) the obligation is being properly contested in good faith by appropriate action; (c) appropriate reserves have been established in accordance with GAAP; (d) non-payment would not reasonably be expected to have a Material Adverse Effect, nor result in forfeiture or sale of any assets of the Loan Party; (e) no Lien is imposed with respect thereto on assets of the Loan Party, unless bonded and stayed to the reasonable satisfaction of the Administrative Agent; and (f) if the obligation results from entry of a judgment or other order, such judgment or order is stayed pending appeal or other judicial review.
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 North American Revolving Commitments represented by such Lender’s North American Revolving Commitment or (iii) the percentage of the total Swiss Revolving Commitments represented by such Lender’s Swiss Revolving Commitment, as applicable.
Pro Rata Share” shall mean, with respect to each Lender at any time, either (i) a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Aggregate Exposure of such Lender at such time and the denominator of which is the aggregate amount of all Aggregate Exposures at such time, (ii) a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the North American Revolving Exposure of such Lender at such time and the denominator of which is the aggregate amount of all North American Revolving Exposures at such time or (iii) a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Swiss Revolving Exposure of such Lender at such time and the denominator of which is the aggregate amount of all Swiss Revolving Exposures at such time, as applicable.
Protective Advances” shall have the meaning assigned to such term in Section 2.18.

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PTE” shall mean a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
Public-Sider” shall mean a Lender whose representatives may trade in securities of the Lead Borrower or its Controlling person or any of its subsidiaries while in possession of the financial statements provided by the Lead Borrower under the terms of this Agreement.
Purchase Money Note” shall mean a promissory note of a Securitization Entity evidencing a line of credit, which may be irrevocable, from the Lead Borrower or any of its Subsidiaries to a Securitization Entity in connection with a Qualified Securitization Transaction, which note is intended to finance that portion of the purchase price that is not paid by cash or a contribution of equity.
Qualified Equity Interests” shall mean any Equity Interest other than Disqualified Stock.
Qualified Jurisdiction” shall mean the United States, any state thereof, the District of Columbia, Australia and Switzerland.
Qualified Receivables Facility” shall mean any receivables or factoring facility or facilities created under the Permitted Receivables Facility Documents and which is designated as a “Qualified Receivables Facility” (as provided below), providing for the transfer, sale and/or pledge by the Lead Borrower, any Subsidiary and/or one or more other Receivables Sellers of Permitted Receivables Facility Assets (thereby providing financing to the Lead Borrower, such Subsidiary and/or the Receivables Sellers) to (i) a Receivables Entity (either directly or through another Receivables Seller), which in turn shall transfer, sell and/or pledge interests in the respective Permitted Receivables Facility Assets to third-party lenders or investors pursuant to the Permitted Receivables Facility Documents in return for the cash used by such Receivables Entity to acquire the Permitted Receivables Facility Assets from the Lead Borrower, such Subsidiary and/or the respective Receivables Sellers or (ii) a bank or other financial institution, which in turn shall finance the acquisition of the Permitted Receivables Facility Assets through a commercial paper conduit or other conduit facility, or directly to a commercial paper conduit or other conduit facility established and maintained by a bank or other financial institution that will finance the acquisition of the Permitted Receivables Facility Assets through the commercial paper conduit or other conduit facility, in each case, either directly or through another Receivables Seller, so long as, in the case of each of clause (i) and clause (ii) above, (A) no portion of the Indebtedness or any other obligations (contingent or otherwise) under such receivables facility or facilities (x) is guaranteed by the Lead Borrower or any Subsidiary (excluding guarantees of obligations pursuant to Standard Securitization Undertakings and Guarantees by any Receivables Entity), (y) is recourse to or obligates the Lead Borrower or any Subsidiary in any way (other than pursuant to Standard Securitization Undertakings and other than recourse to, and obligations of, Receivables Entities) or (z) subjects any property or asset (other than Permitted Receivables Facility Assets, Permitted Receivables Related Assets or the Equity Interests of any Receivables Entity) of the Lead Borrower or any Subsidiary (other than a Receivables Entity), directly or indirectly, contingently or otherwise, to the satisfaction thereof (other than pursuant to Standard Securitization Undertakings) and (B) subject to Section 9.12, upon reasonable request by the Administrative Agent, the applicable lender, investor, bank or other financial institution shall have entered into an intercreditor agreement with the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent (with the Administrative Agent’s approval of such intercreditor agreement not to be unreasonably withheld, conditioned or delayed), with respect to the applicable Permitted Receivables Facility Assets (each, a “Receivables Intercreditor Agreement”). Any such designation shall be evidenced to the Administrative Agent by filing with the Administrative Agent a certificate signed by a Financial Officer of the Lead Borrower certifying that, to the best of such officer’s

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knowledge and belief after consultation with counsel, such designation complied with the foregoing conditions.
Qualified Securitization Transaction” shall mean any Securitization Transaction of a Securitization Entity that meets the following conditions:
(1)    the Board of Directors of the Lead Borrower shall have determined in good faith that such Qualified Securitization Transaction (including financing terms, covenants, termination events or other provisions) is in the aggregate economically fair and reasonable to the Lead Borrower and the Securitization Entity;
(2)    all sales of accounts receivable and related assets to the Securitization Entity are made at Fair Market Value (as determined in good faith by the Lead Borrower, and which may include any discounts customary for a Securitization Transaction) and may include Standard Securitization Undertakings;
(3)    the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by the Lead Borrower) and may include Standard Securitization Undertakings; and
(4)    subject to Section 9.12, upon reasonable request by the Administrative Agent, the applicable counterparty shall have entered into an intercreditor agreement with the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent (with the Administrative Agent’s approval of such intercreditor agreement not to be unreasonably withheld, conditioned or delayed), with respect to the applicable Securitization Assets (each, a “Securitization Intercreditor Agreement”).
Notwithstanding anything to the contrary, for the avoidance of doubt, the grant of a security interest in any Receivables Assets of the Borrowers or any of their Subsidiaries (other than a Securitization Entity) to secure the Obligations shall not be deemed a Qualified Securitization Transaction.
QFC” shall have the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
QFC Credit Support” shall have the meaning assigned to such term in Section 13.21.
Quotation Day” shall mean, with respect to any LIBO Rate Loan and any Interest Period, the Business Day that is generally treated as the rate fixing day by market practice in the applicable interbank market, as reasonably determined by the Administrative Agent.
Real Property” shall mean, collectively, all right, title and interest (including any leasehold estate) in and to any and all parcels of or interests in real property owned in fee simple or leased by any Loan Party, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, incidental to the ownership, lease or operation thereof.
Real Property Amortization Factor” shall mean, with respect to any Eligible Real Property on any date of determination, 1 minus a fraction, the numerator of which is the number of full fiscal quarters

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of the Lead Borrower elapsed as of such date (including any such fiscal quarter ending on such date) since December 31, 2019 and the denominator of which is 60.
Receivables Assets” shall mean any right to payment created by or arising from sales of goods, lease of goods or the rendition of services rendered no matter how evidenced whether or not earned by performance (whether constituting accounts, general intangibles, chattel paper or otherwise).
Receivables Entity” shall mean any direct or indirect wholly owned Subsidiary of the Lead Borrower which (x) is not a Loan Party and (y) engages in no activities other than in connection with the financing of Receivables Assets of the Receivables Sellers and which is designated (as provided below) as a “Receivables Entity” (a) with which neither the Lead Borrower nor any of its Subsidiaries has any contract, agreement, arrangement or understanding (other than pursuant to the Permitted Receivables Facility Documents (including with respect to fees payable in the ordinary course of business in connection with the servicing of accounts receivable and related assets)) on terms less favorable to the Lead Borrower or such Subsidiary than those that might be obtained at the time from persons that are not Affiliates of the Lead Borrower (as determined by the Lead Borrower in good faith) and (b) to which neither the Lead Borrower nor any Subsidiary has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results (other than pursuant to Standard Securitization Undertakings). Any such designation shall be evidenced to the Administrative Agent by filing with the Administrative Agent an officer’s certificate of the Lead Borrower certifying that, to the best of such officer’s knowledge and belief after consultation with counsel, such designation complied with the foregoing conditions.
Receivables Intercreditor Agreement” shall have the meaning assigned to such term in the definition of “Qualified Receivables Facility”.
Receivables Seller” shall mean any Permitted Receivables Jurisdiction Subsidiary that is a party to the Permitted Receivables Facility Documents (other than any Receivables Entity).
Recipient” shall have the meaning assigned to such term in the definition of “Excluded Taxes”.
Reference Period” shall have the meaning assigned to such term in the definition of the term “Pro Forma Basis”.
Refinance” shall have the meaning assigned to such term in the definition of the term “Permitted Refinancing Indebtedness,” and “Refinanced” and “Refinancing” shall have meanings correlative thereto.
Register” shall have the meaning assigned to such term in Section 13.04(b)(iv).
Regulation” shall have the meaning assigned to such term in Section 8.27.
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 as from time to time in effect and all official rulings and interpretations thereunder or thereof.
Regulation U” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

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Regulation X” shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
Related Party” shall mean with respect to any Agent, such Agent’s Affiliates and the respective directors, officers, employees, agents and advisors of such Agent and such Agent’s Affiliates.
Release” shall mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, emanating or migrating in, into, onto or through the Environment.
Replaced Lender” shall have the meaning assigned to such term in Section 3.04.
Replacement Lender” shall have the meaning assigned to such term in Section 3.04.
Reportable Event” shall mean any reportable event as defined in Section 4043(c) of ERISA or the regulations issued thereunder, other than those events as to which the 30-day notice period referred to in Section 4043(c) of ERISA has been waived, with respect to a Plan (other than a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code).
Required Facility Lenders” shall mean, with respect to any Facility, Non-Defaulting Lenders, the sum of whose outstanding principal of Commitments under such Facility as of any date of determination represents greater than 50% of the sum of all outstanding principal of Commitments under such Facility of Non-Defaulting Lenders at such time.
Required Lenders” shall mean Non-Defaulting Lenders, the sum of whose outstanding principal of Commitments as of any date of determination represents greater than 50% of the sum of all outstanding principal of Commitments of Non-Defaulting Lenders at such time.
Requirement of Law” shall mean, as to any person, any law, treaty, rule, regulation, statute, order, ordinance, decree, judgment, consent decree, writ, injunction, settlement agreement or governmental requirement enacted, promulgated or imposed or entered into or agreed by any Governmental Authority, in each case applicable to or binding upon such person or any of its property or assets or to which such person or any of its property or assets is subject.
Reserves” shall mean, without duplication of any items that are otherwise addressed or excluded through eligibility criteria, such reserves as the Administrative Agent, from time to time determines in its Permitted Discretion, including but not limited to Dilution Reserves, Inventory Reserves, the Canadian Unpaid Supplier Reserve, Landlord Lien Reserves, NMTC Reserves and any Bank Product Reserves and, with respect to the Australian Borrowing Base and the Swiss Borrowing Base, the Priority Payables Reserves and/or the Australian Priority Payables Reserve (as applicable) and reserves for VAT.
Notwithstanding anything to the contrary in this Agreement, (i) such Reserves shall not be established or changed except upon not less than three (3) Business Days’ prior written notice to the Lead Borrower, which notice shall include a reasonably detailed description of such Reserve being established (during which period (a) the Administrative Agent shall, if requested, discuss any such Reserve or change with the Lead Borrower, (b) the Lead Borrower may take such action as may be required so that the event, condition or matter that is the basis for such Reserve or change thereto no longer exists or exists in a manner that would result in the establishment of a lower Reserve or result in a lesser change thereto, in a manner and to the extent reasonably satisfactory to the Administrative Agent and (c) no Credit Extensions

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shall be made to the Borrowers if after giving effect to such Credit Extension the Availability Conditions would not be met after taking into account such Reserves); provided that no Reserves with respect to any failure to deliver Deposit Account Control Agreements in accordance with Section 9.18 may be established prior to the date that is ninety (90) days after the Closing Date (solely with respect to Deposit Accounts existing on the Closing Date), (ii) the amount of any Reserve established by the Administrative Agent, and any change in the amount of any Reserve, shall have a reasonable relationship to the event, condition or other matter that is the basis for such Reserve or such change and (iii) no reserves or changes shall be duplicative of reserves or changes already accounted for through eligibility criteria. Notwithstanding clause (i) of the preceding sentence, changes to the Reserves solely for purposes of correcting mathematical or clerical errors shall not be subject to such notice period.
Responsible Officer” shall mean, with respect to any Person, its chief financial officer, chief executive officer, president, or any vice president, managing director, member of the management board, director, company secretary, treasurer, controller or other officer of such Person having substantially the same authority and responsibility and, solely for purposes of notices given pursuant to Article 2, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent; provided that, with respect to compliance with financial covenants, “Responsible Officer” shall mean the chief financial officer, treasurer or controller of the Lead Borrower, or any other officer of the Lead Borrower having substantially the same authority and responsibility.
Restricted Obligations” shall have the meaning assigned to such term in Article 4.
Restricted Payments” shall have the meaning assigned to such term in Section 10.06. The amount of any Restricted Payment made other than in the form of cash or cash equivalents shall be the Fair Market Value thereof.
Revaluation Date” shall mean (a) with respect to any Loan, each of the following: (i) each date of a Borrowing of a LIBO Rate Loan, denominated in an Alternative Currency, (ii) each date of a continuation of a LIBO Rate Loan denominated in an Alternative Currency pursuant to Section 2.02, (iii) for purposes of calculating the Unused Line Fee, the last day of any fiscal quarter and (iv) such additional dates as the Administrative Agent shall determine or require in its Permitted Discretion; (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (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 applicable Issuing Bank under any Letter of Credit denominated in an Alternative Currency and (iv) for purposes of calculating the Unused Line Fee, the LC Participation Fee and the Fronting Fee, the last day of any fiscal quarter; or (c) with respect to the Swiss Revolving Facility, if required by the Administrative Agent or the Required Facility Lenders, any date on which the Dollar Equivalent of the Outstanding Amount in respect of the Swiss Revolving Facility, as recalculated based on the exchange rate therefor quoted in the Wall Street Journal on the respective date of determination pursuant to this exception, would result in an increase in the Dollar Equivalent of such Outstanding Amount by 5.0% or more since the most recent prior Revaluation Date.
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.

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Revolving Borrowing” shall mean a North American Revolving Borrowing and/or a Swiss Revolving Borrowing.
Revolving Commitment” shall mean the North American Revolving Commitment and/or the Swiss Revolving Commitment.
Revolving Commitment Increase” shall have the meaning assigned to such term in Section 2.15(a).
Revolving Commitment Increase Notice” shall have the meaning assigned to such term in Section 2.15(b).
Revolving Exposure” shall mean the North American Revolving Exposure and/or the Swiss Revolving Exposure.
Revolving Loans” shall mean the North American Revolving Loans, the Swiss Revolving Loans, Protective Advances and/or Overadvance Loans.
S&P” shall mean S&P Global Ratings (or an applicable foreign Affiliate thereof) or any successor thereto.
Sanctioned Person” shall mean, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by an authority, institution or agency identified in the definition of “Sanctions”, (b) any Person operating, organized or resident in a Designated Jurisdiction, in each case to the extent such Person is a target of Sanctions or (c) any Person more than 50% owned or controlled by any such Person or Persons described in the foregoing clause (a) or (b) or the government of a Designated Jurisdiction.
Sanctions” shall mean any international economic sanctions administered or enforced by (a) the U.S. government, including those administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control or the U.S. Department of State, (b) the United Nations Security Council, (c) the European Union or any European Union member state, (d) the governmental institutions and agencies of the United Kingdom, including without limitation, Her Majesty’s Treasury (UK), (e) the federal government of Canada, including pursuant to Canadian Economic Sanctions and Export Control Laws, or (f) any other relevant sanctions authority with jurisdiction over any Loan Party.
Secured Bank Product Obligations” shall mean Bank Product Debt owing to a Secured Bank Product Provider or any Person that was a Secured Bank Product Provider on the Closing Date or at the time it entered into a Bank Product with a Borrower or its Subsidiary, up to the maximum amount (in the case of any Secured Bank Product Provider other than JPMCB and its Affiliates and branches) specified by such provider in writing to the Administrative Agent and the Lead Borrower, which amount may be established or increased (by further written notice by the Lead Borrower or such provider to the Administrative Agent and the Lead Borrower from time to time) as long as no Default or Event of Default then exists and no Overadvance would result from establishment of a Bank Product Reserve for such amount and all other Secured Bank Product Obligations.
Secured Bank Product Provider” shall mean, at the time of entry into a Bank Product with a Borrower or its Subsidiary (or, if such Bank Product exists on the Closing Date, as of the Closing Date) the Administrative Agent, any Lender or any of their respective Affiliates that is providing a Bank Product; provided that such provider (other than JPMCB or its Affiliates or branches) delivers written

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notice to the Administrative Agent, substantially in the form of Exhibit D hereto (i) describing the Bank Product and setting forth the maximum amount to be secured by the Collateral, and (ii) agreeing to be bound by Section 12.12.
Secured Parties” shall mean, collectively, the Administrative Agent, the Collateral Agent, the Australian Security Trustee, each Lender, each Issuing Bank, each Secured Bank Product Provider that is owed Secured Bank Product Obligations and each sub-agent appointed pursuant to Section 12.01 by the Administrative Agent with respect to matters relating to the Loan Documents or by the Collateral Agent with respect to matters relating to any Security Document.
Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
Securities Account” shall have the meaning assigned to such term in Article 8 of the UCC or, if applicable, in the Canadian PPSA.
Securitization Assets” shall mean (a) any Receivables Assets, real estate assets, mortgage receivables or related assets and the proceeds thereof subject to a Qualified Securitization Transaction and the proceeds thereof and (b) all collateral securing such Receivables Assets, receivable or asset, all contracts and contract rights, guarantees or other obligations in respect of such receivable or asset, lockbox accounts and records with respect to such accounts and all records with respect to such account or asset and any other assets customarily transferred (or in respect of which security interests are customarily granted), together with accounts or assets in each case subject to a Qualified Securitization Transaction; provided that in no event shall Securitization Assets include any assets included in any Borrowing Base.
Securitization Entity” shall mean a Wholly Owned Subsidiary of the Lead Borrower (or another person formed for the purposes of engaging in a Qualified Securitization Transaction with the Lead Borrower in which the Lead Borrower or any of its Permitted Receivables Jurisdiction Subsidiaries makes an Investment and to which the Lead Borrower or any Subsidiary of the Lead Borrower transfers Receivables Assets and related assets) which is designated by the Board of Directors of the Lead Borrower (as provided below) as a Securitization Entity and engages in no activities other than in connection with the financing of Receivables Assets and other Securitization Assets of the Lead Borrower and its Permitted Receivables Jurisdiction Subsidiaries, all proceeds thereof and all rights (contractual or other), collateral and other assets relating thereto, and any business or activities incidental or related to such business and:
(i)    no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (a) is guaranteed by the Lead Borrower or any of its Subsidiaries (other than any Securitization Entities) (excluding guarantees of obligations pursuant to Standard Securitization Undertakings), (b) is recourse to or obligates the Lead Borrower or any of its Subsidiaries (other than any Securitization Entities) in any way other than pursuant to Standard Securitization Undertakings or (c) subjects any asset of the Lead Borrower or any of its Subsidiaries (other than any Securitization Entities), directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings;
(ii)    with which neither the Lead Borrower nor any of its Subsidiaries has any material contract, agreement, arrangement or understanding other than on terms no less favorable to the Lead Borrower or such Subsidiary than those that might be obtained at the time from Persons that are not

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Affiliates of the Lead Borrower (except in respect of the transfer of Securitization Assets to the Securitization Entity and the Standard Securitization Undertakings); and
(iii)    to which neither the Lead Borrower nor any of its Subsidiaries has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.
Any designation by the Board of Directors of the Lead Borrower shall be evidenced to the Administrative Agent by delivering a certified copy of the resolutions of the Board of Directors of the Lead Borrower giving effect to such designation and an officer’s certificate executed by a Responsible Officer of the Lead Borrower certifying that such designation complied with the foregoing conditions.
Securitization Fees” shall mean distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a person that is not a Subsidiary of the Lead Borrower or any of its Subsidiaries in connection with, a Qualified Securitization Transaction.
Securitization Intercreditor Agreement” shall have the meaning assigned to such term in the definition of “Qualified Securitization Transaction”.
Securitization Repurchase Obligation” shall mean any obligation of a seller of Receivables Assets in a Qualified Securitization Transaction to repurchase Receivables Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of any Receivables Assets or portion thereof becoming subject to any asserted defense, dispute, off-set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
Securitization Transaction” shall mean any transaction or series of transactions that may be entered into by the Lead Borrower, any of its Subsidiaries or a Securitization Entity pursuant to which the Lead Borrower, such Subsidiary or such Securitization Entity may sell, convey or otherwise transfer to, or grant a security interest in for the benefit of, (1) a Securitization Entity, the Lead Borrower or any of its Subsidiaries which subsequently transfers to a Securitization Entity (in the case of a transfer by the Lead Borrower or such Subsidiary) and (2) any other Person (in the case of transfer by a Securitization Entity), any Receivables Assets (whether now existing or arising or acquired in the future) of the Lead Borrower or any of its Subsidiaries which arose in the ordinary course of business of the Lead Borrower or such Subsidiary, and any assets related thereto, including, without limitation, all collateral securing such Receivables Assets, all contracts and contract rights and all guarantees or other obligations in respect of such Receivables Assets, proceeds of such Receivables Assets and other assets (including contract rights) which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving Receivables Assets.
Security Document” shall mean and include each U.S. Security Document and each Non-U.S. Security Document. For the avoidance of doubt, upon the expiration or termination of any such U.S. Security Document or Non-U.S. Security Document in accordance with its terms (including, without limitation, in connection with the release of a Loan Party in accordance with the Loan Documents), such document shall cease to constitute a “Security Document”.
Senior Notes” shall mean the 6 7/8% senior unsecured notes due 2020 issued on December 20, 2010 in an initial aggregate principal amount of $225,000,000.

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Senior Notes Indenture” shall mean the indenture, dated as of December 20, 2010, between the Lead Borrower and Wells Fargo Bank, National Association, as trustee, governing the Senior Notes, as supplemented by the first supplemental indenture, dated as of December 20, 2010, among the Lead Borrower, Briggs & Stratton Power Products Group, LLC, as guarantor, and Wells Fargo Bank, National Association.
Settlement Date” shall have the meaning assigned to such term in Section 2.14(b).
Similar Business” shall mean (i) any business the majority of whose revenues are derived from business or activities conducted by the Lead Borrower and its Subsidiaries on the Closing Date, (ii) any business that is a natural outgrowth or reasonable extension, development or expansion of any such business or any business similar, reasonably related, incidental, complementary or ancillary to any of the foregoing or (iii) any business that in the Lead Borrower’s good faith business judgment constitutes a reasonable diversification of businesses conducted by the Lead Borrower and its Subsidiaries.
Special Flood Hazard Area” shall have the meaning assigned to such term in Section 9.02(c).
Specified Foreign Laws” shall mean the laws of any Specified Jurisdiction.
Specified Foreign Receivables” shall mean Receivables Assets with respect to which the related Account Debtor is not domiciled in the United States, Canada, an Eligible Asian Jurisdiction or an Eligible European Jurisdiction.
Specified Jurisdiction” shall mean each of the United States, any State thereof or the District of Columbia, Australia, Canada (including any province or territory thereof), the Netherlands, Switzerland and each jurisdiction of a Foreign Subsidiary that has become a Guarantor pursuant to clause (ii) of Section 9.10(d).
Spot Rate” shall mean the exchange rate, as reasonably determined by the Administrative Agent, 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 reasonably 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 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.
Springing Maturity Date” shall have the meaning assigned to such term in the definition of “Maturity Date.
Standard Securitization Undertakings” shall mean representations, warranties, covenants and indemnities entered into by the Lead Borrower or any Subsidiary thereof in connection with a Securitization Transaction or Qualified Receivables Facility which are reasonably customary (as determined in good faith by the Lead Borrower) in a Receivables Assets financing transaction in the commercial paper, term securitization or structured lending market.
subsidiary” shall mean, with respect to any person (referred to in this definition as the “parent”), any corporation, limited liability company, partnership, association or other business entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, directly or indirectly, owned, Controlled or held, or (b) that is, at the time

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any determination is made, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. In addition, any joint venture owned by any person which is consolidated with such person pursuant to GAAP shall be a “subsidiary” of such person.
Subsidiary” shall mean, unless the context otherwise requires, a subsidiary of the Lead Borrower. Notwithstanding the foregoing (and except for purposes of the definition of “Unrestricted Subsidiary” contained herein) an Unrestricted Subsidiary shall be deemed not to be a Subsidiary of the Lead Borrower or any of its Subsidiaries for purposes of this Agreement.
Subsidiary Borrower” shall mean, subject to Section 9.10(g) and Section 13.18(b)(2), each U.S. Subsidiary Borrower and the Swiss Borrower.
Subsidiary Redesignation” shall have the meaning assigned to such term in the definition of “Unrestricted Subsidiary”.
Successor Borrower” shall have the meaning assigned to such term in Section 10.05(n)(B).
Supermajority Lenders” shall mean Non-Defaulting Lenders, the sum of whose outstanding principal of Commitments as of any date of determination represents greater than 66 2/3% of the sum of all outstanding principal of Commitments of Non-Defaulting Lenders at such time.
Supply Chain Financing” shall mean any agreement to provide to the Lead Borrower or any Subsidiary letters of credit, guarantees or other credit support provided in respect of trade payables of the Lead Borrower or any Subsidiary, in each case issued for the benefit of any bank, financial institution or other person that has acquired such trade payables pursuant to “supply chain” or other similar financing for vendors and suppliers, including tooling vendors, of the Lead Borrower or any Subsidiaries, so long as (i) other than pursuant to this Agreement and the Security Documents, such Indebtedness is unsecured, (ii) the terms of such trade payables shall not have been extended in connection with the Supply Chain Financing and (iii) such Indebtedness represents amounts not in excess of those which the Lead Borrower or any of its Subsidiaries would otherwise have been obligated to pay to its vendor or supplier in respect of the applicable trade payables.
Supported QFC” shall have the meaning assigned to such term in Section 13.21.
Swap Contract” shall mean (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

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Swap Obligation” shall mean, with respect to any Guarantor, 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.
Swingline Borrowing” shall mean a borrowing of a Swingline Loan.
Swingline Commitment” shall mean the commitment of the Swingline Lender to make loans pursuant to Section 2.12, as the same may be reduced from time to time pursuant to Section 2.07 or Section 2.12.
Swingline Exposure” shall mean at any time the aggregate principal amount at such time of all outstanding Swingline Loans. The Swingline Exposure of any Lender at any time shall equal its Pro Rata Percentage (with respect to the applicable Facility) of the aggregate Swingline Exposure at such time.
Swingline Lender” shall mean JPMCB, in its capacity as lender of Swingline Loans, and shall include its branch offices and affiliates in any applicable jurisdiction and any successor to the Swingline Lender appointed pursuant to Section 12.10.
Swingline Loans” shall have the meaning assigned to such term in Section 2.12(a).
Swiss Borrower” shall mean, subject to Section 9.10(g) and Section 13.18(b)(2), Briggs & Stratton AG, a Swiss corporation, and, if different, for purposes of Swiss Withholding Tax, a Loan Party that is organized under the laws of Switzerland or which is treated as resident in Switzerland for Swiss Withholding Tax purposes.
Swiss Borrowing Base” shall mean, at any time of calculation, an amount equal to the sum of, without duplication:
(a)    Eligible Cash of the Swiss Borrower; plus
(b)    (i) the book value of all Eligible Accounts of the Swiss Borrower owing by an Account Debtor that has an Investment Grade Rating multiplied by the advance rate of 90% (or, for the period commencing on the first day of the fiscal month commencing on or about December 1 of each calendar year and ending on the last day of the fiscal month ending on or about the last day of February the following calendar year, 95%) plus (ii) the book value of all other Eligible Accounts of the Swiss Borrower multiplied by the advance rate of 85% (or, for the period commencing on the first day of the fiscal month commencing on or about December 1 of each calendar year and ending on the last day of the fiscal month ending on or about the last day of February the following calendar year, 90%); plus
(c)    the lesser of (i) the Cost of Eligible Inventory of the Swiss Borrower multiplied by the advance rate of 75% and (ii) the Cost of Eligible Inventory of the Swiss Borrower multiplied by the appraised NOLV Percentage of Eligible Inventory of the Swiss Borrower multiplied by the advance rate of 85% (or, for the period commencing on the first day of the fiscal month commencing on or about December 1 of each calendar year and ending on the last day of the fiscal month ending on or about the last day of February the following calendar year, 90%); minus
(d)    any Reserves pertaining to the Swiss Borrower established from time to time by the Administrative Agent in accordance herewith (without duplication of any Reserves deducted in the calculation of any other Borrowing Base);

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provided that in no event shall the aggregate amount of Eligible Cash included in all the Borrowing Bases exceed $35,000,000 at any time.
Swiss Claims Assignment Agreement” shall mean the Swiss law governed assignment of receivables for security purposes (Sicherungszession) of the Swiss Borrower entered into on or about the date of this Agreement by and among Swiss Borrower as assignor and the Collateral Agent.
Swiss Federal Tax Administration” shall mean the tax authorities referred to in article 34 of the Swiss Federal Act on Withholding Tax for purposes of any tax imposed pursuant to the Swiss Federal Act on Withholding Tax (Bundesgesetz über die Verrechnungssteuer vom 13. Oktober 1965, SR 642.21), as amended from time to time, together with the related ordinances, regulations and guidelines.
Swiss Francs” shall mean the lawful currency of Switzerland.
Swiss Guarantor” shall mean any Guarantor organized under the laws of Switzerland or, if different, deemed resident in Switzerland for Swiss Withholding Tax purposes.
Swiss Guarantor Obligations” shall have the meaning assigned to such term in Article 4.
Swiss Guaranty Limitations” shall have the meaning assigned to such term in Article 4.
Swiss Guidelines” shall mean, together, the guidelines S-02.123 in relation to interbank loans of 22 September 1986 as issued by the Swiss Federal Tax Administration (Merkblatt S-02.123 vom 22 September 1986 betreffend Zinsen von Bankguthaben, deren Gläubiger Banken sind Interbankguthaben)), S-02.130.1 in relation to money market instruments and accounts receivable of April 1999 (Merkblatt S-02.130.1 vom April 1999 “Geldmarktpapiere und Buchforderungen inländischer Schuldner”), the circular letter No. 15 (1-015-DVS-2017) of 3 October 2017 in relation to bonds and derivative financial instruments as subject matter of taxation of Swiss federal income tax, Swiss withholding tax and Swiss stamp taxes (Kreisschreiben Nr. 15 “Obligationen und derivative Finanzinstrumente als Gegenstand der direkten Bundessteuer, der Verrechnungssteuer und der Stempelabgaben” vom 3. Oktober 2017) and the circular letter No. 34 of 26 July 2011 (1-034-V-2011) in relation to customer credit balances (Kreisschreiben Nr. 34 “Kundenguthaben” vom 26. Juli 2011) and the practice note 010-DVS-2019 dated 5 February 2019 published by the Swiss Federal Tax Administration regarding Swiss Withholding Tax in the Group (Mitteilung-010-DVS-2019-d vom 5. Februar 2019 - Verrechnungssteuer: Guthaben im Konzern), the circular letter No. 46 of 24 July 2019 (1-046-VS-2019) in relation to syndicated credit facilities, promissory note loans, bills of exchange and subparticipations (Kreisschreiben Nr. 46 vom 24. Juli 2019 betreffend “Steuerliche Behandlung von Konsortialdarlehen, Schuldscheindarlehen, Wechseln und Unterbeteiligungen”) and the circular letter No. 47 of 25 July 2019 (1-047-V-2019) in relation to bonds (Kreisschreiben Nr. 47 vom 25. Juli 2019 betreffend “Obligationen”) as issued, and as amended or replaced from time to time by the Swiss Federal Tax Administration, or as applied in accordance with a tax ruling (if any) issued by the Swiss Federal Tax Administration, or as substituted or superseded and overruled by any law, statute, ordinance, regulation, court decision or the like as in force from time to time.
Swiss Issuing Bank” shall mean, as the context may require, (a) JPMCB, with respect to Letters of Credit issued by it, Bank of America, N.A., with respect to Letters of Credit issued by it, Bank of Montreal, with respect to Letters of Credit issued by it and Wells Fargo Bank, National Association, with respect to Letters of Credit issued by it, and (b) any other Lender that may become a Swiss Issuing Bank pursuant to Sections 2.13(i) and 2.13(k), with respect to Letters of Credit issued by such Lender; or (c) collectively, all of the foregoing. Each Swiss Issuing Bank may, in its discretion, arrange for one or more

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Letters of Credit to be issued by affiliates or branches of such Swiss Issuing Bank (including without limitation with respect to Letters of Credit with a co-Applicant that is not a Foreign Loan Party), in which case the term “Swiss Issuing Bank” shall include any such affiliate or branch with respect to Letters of Credit issued by such affiliate or branch.
Swiss Issuing Bank Sublimit” shall mean (i) with respect to JPMCB, $2,000,000, (ii) with respect to Bank of America, N.A., $0, (iii) with respect to Bank of Montreal, $0, (iv) with respect to Wells Fargo Bank, National Association, $0 and (v) with respect to each other Swiss Issuing Bank, such amount as may be agreed among the Lead Borrower and such other Swiss Issuing Bank (and notified to the Administrative Agent) at the time such other Swiss Issuing Bank becomes a Swiss Issuing Bank. The Swiss Issuing Bank Sublimit of any Swiss Issuing Bank may be increased or decreased as agreed by such Swiss Issuing Bank and the Lead Borrower (each acting in their sole discretion) and notified in a writing executed by such Swiss Issuing Bank and the Lead Borrower.
Swiss LC Commitment” shall mean the commitment of each Swiss Issuing Bank to issue Letters of Credit under the Swiss Revolving Facility pursuant to Section 2.13.
Swiss LC Disbursement” shall mean a payment or disbursement made by any Swiss Issuing Bank pursuant to a Swiss Letter of Credit under the Swiss Revolving Facility.
Swiss LC Exposure” shall mean at any time the sum of (a) the aggregate undrawn amount of all outstanding Swiss Letters of Credit at such time plus (b) the aggregate principal amount of all Swiss LC Disbursements that have not yet been reimbursed at such time. The Swiss LC Exposure of any Lender at any time shall mean its Pro Rata Percentage (with respect to the Swiss Revolving Facility) of the aggregate Swiss LC Exposure at such time.
Swiss LC Obligations” shall mean the sum (without duplication) of (a) all amounts owing by the Borrowers for any drawings under Swiss Letters of Credit (including any bankers’ acceptances or other payment obligations arising therefrom); and (b) the stated amount of all outstanding Swiss Letters of Credit.
Swiss LC Sublimit” shall have the meaning assigned to such term in Section 2.13(b).
Swiss Letter of Credit” shall mean any letters of credit issued or to be issued by any Swiss Issuing Bank under the Swiss Revolving Facility for the account of the Swiss Borrower (or any Subsidiary of the Swiss Borrower, with the Swiss Borrower as a co-applicant thereof) pursuant to Section 2.13, including any standby letter of credit, time, or documentary letter of credit or any functional equivalent in the form of an indemnity, or bank guarantee or similar form of credit support issued by the Administrative Agent or a Swiss Issuing Bank for the benefit of the Swiss Borrower.
Swiss Loan Parties” shall mean, individually and collectively, the Swiss Borrower and each Swiss Subsidiary that is a Swiss Guarantor.
Swiss Non-Bank Rules” shall mean together the Swiss Twenty Non-Bank Rule and the Swiss Ten Non-Bank Rule.
Swiss Non-Qualifying Lender” shall mean a person which does not qualify as a Swiss Qualifying Lender.
Swiss Protective Advance” shall have the meaning assigned to such term in Section 2.18.

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Swiss Qualifying Lender” shall mean (i) a bank as defined in the Swiss Federal Code for Banks and Savings Banks dated 8 November 1934 (Bundesgesetz über die Banken und Sparkassen) as amended from time to time or (ii) a person or entity which effectively conducts banking activities with its own infrastructure and staff as its principal business purpose and which has a banking license in full force and effect issued in accordance with the banking laws in force in its jurisdiction of incorporation, or if acting through a branch, issued in accordance with the banking laws in the jurisdiction of such branch, all and in each case in accordance with the Swiss Guidelines.
Swiss Revolving Borrowing” shall mean a Borrowing comprised of Swiss Revolving Loans.
Swiss Revolving Commitment” shall mean, with respect to each Lender, the commitment, if any, of such Lender to make Swiss Revolving Loans hereunder up to the amount set forth and opposite such Lender’s name on Schedule 2.01 under the caption “Swiss Revolving Commitment,” or in the Assignment and Assumption pursuant to which such Lender assumed its Swiss Revolving Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.07, (b) increased from time to time pursuant to Section 2.15 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 13.04. The aggregate amount of the Lenders’ Swiss Revolving Commitments on the Closing Date is $40,000,000.
Swiss Revolving Exposure” shall mean, with respect to any Lender at any time, the aggregate principal amount at such time of all outstanding Swiss Revolving Loans of such Lender, plus the aggregate amount of such Lender’s Swingline Exposure under the Swiss Revolving Facility, plus the aggregate amount of such Lender’s Swiss LC Exposure in respect of Letters of Credit issued for the Swiss Borrower.
Swiss Revolving Facility” shall mean the Swiss Revolving Commitments of the Lenders and the Loans and Letters of Credit pursuant to those Swiss Revolving Commitments in accordance with the terms hereof.
Swiss Revolving Lenders” shall mean each Lender that has a Swiss Revolving Commitment or Swiss Revolving Loans at such time.
Swiss Revolving Loans” shall mean advances made pursuant to Article 2 hereof under the Swiss Revolving Facility (including, for the avoidance of doubt, any Swiss Swingline Loans).
Swiss Security Documents” shall mean the Initial Swiss Security Agreements and, after the execution and delivery thereof, each Additional Security Document governed by Swiss law, together with any other applicable security documents governed by Swiss law from time to time in favor of the Collateral Agent for the benefit of the Secured Parties.
Swiss Share Pledge Agreement” shall mean the Swiss law governed share pledge agreement over the shares of the Swiss Borrower (other than to the extent constituting Excluded Securities) entered into on or about the date of this Agreement by and among the Lead Borrower as pledgor and the Collateral Agent.
Swiss Subsidiary” shall mean any Subsidiary of the Lead Borrower that is organized under the laws of Switzerland.
Swiss Swingline Loans” shall have the meaning assigned to such term in Section 2.12(a).

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Swiss Ten Non-Bank Rule” shall mean the rule that the aggregate number of Lenders other than Swiss Qualifying Lenders of a Swiss Borrower under this Agreement must not at any time exceed ten (10); in each case in accordance with the meaning of the Swiss Guidelines or the applicable legislation or explanatory notes addressing the same issues that are in force at such time.
Swiss Twenty Non-Bank Rule” shall mean the rule that (without duplication) the aggregate number of creditors other than Swiss Qualifying Lenders of a Swiss Borrower under all its outstanding debts relevant for the classification as debentures (Kassenobligation) (including debt arising under this Agreement, intragroup loans (if and to the extent intragroup loans are not exempt in accordance with art. 14a Swiss Federal Ordinance on withholding tax), facilities and/or private placements), must not at any time exceed twenty (20), in each case in accordance with the meaning of the Swiss Guidelines or the applicable legislation or explanatory notes addressing the same issues that are in force at such time.
Swiss Withholding Tax” shall mean any Taxes levied pursuant to the Swiss Federal Act on Withholding Tax (Bundesgesetz über die Verrechnungssteuer vom 13. Oktober 1965, SR 642.21), as amended from time to time together with the related ordinances, regulations and guidelines.
TARGET2” shall mean the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on 19 November 2007.
Taxes” shall mean all present or future taxes, duties, levies, imposts, assessments, deductions, withholdings (including backup withholdings), value added taxes, or any other goods and services, use or sales taxes, or other similar fees or charges, imposed by any Governmental Authority, whether computed on a separate, consolidated, unitary, combined or other basis and any interest, fines, penalties or additions to tax with respect to the foregoing.
Termination Date” shall mean the date on which (a) all Aggregate Commitments shall have been terminated, (b) all Letters of Credit shall have expired or terminated or been Cash Collateralized and (c) the principal of and interest on each Loan, all Obligations, fees and all other expenses or amounts shall have been paid in full in cash (other than in respect of contingent indemnification and expense reimbursement claims not then due, Cash Collateralized Letters of Credit and Secured Bank Product Obligations except to the extent then due and payable and then entitled to payment in accordance with Section 11.02).
Test Period” shall mean, on any date of determination, the period of four consecutive fiscal quarters of the Lead Borrower then most recently ended (taken as one accounting period) for which financial statements have been (or were required to be) delivered pursuant to Section 9.04(a) or 9.04(b); provided that prior to the first date financial statements have been delivered pursuant to Section 9.04(a) or 9.04(b), the Test Period in effect shall be the most recently ended full four fiscal quarter period prior to the Closing Date for which financial statements would have been required to be delivered hereunder had the Closing Date occurred prior to the end of such period.
Third Party Funds” shall mean any accounts or funds, or any portion thereof, received by the Lead Borrower or any Subsidiary as agent on behalf of third parties in accordance with a written agreement that imposes a duty upon the Lead Borrower or one or more of Subsidiaries to collect and remit those funds to such third parties.
Title Insurer” shall have the meaning assigned to such term in the definition of the term “Mortgage Policy”.

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Trade Date” shall have the meaning assigned to such term in Section 13.04(d)(i).
Trademark Amortization Factor” shall mean, with respect to any Eligible Trademarks on any date of determination, 1 minus a fraction, the numerator of which is the number of full fiscal quarters of the Lead Borrower elapsed as of such date (including any such fiscal quarter ending on such date) since December 31, 2019 and the denominator of which is 20.
Trademarks” shall mean all of the following: (a) all trademarks, trade names, corporate names, business names, trade styles, service marks, logos, other source or business identifiers, prints and labels on which any of the foregoing have appeared or appear, designs and general intangibles of like nature (whether registered or unregistered), all registrations and recordings thereof, and all applications in connection therewith, including registrations, recordings and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any state or territory thereof, or any other country or any political subdivision thereof; (b) all reissues, extensions or renewals thereof; and (c) all goodwill associated with or symbolized by any of the foregoing.
Transaction Expenses” shall have the meaning assigned to such term in the definition of “Transactions.
Transactions” shall mean, collectively, (i) the consummation of the Closing Date Refinancing on the Closing Date, (ii) the entering into of the Loan Documents, the initial borrowing under this Agreement (if any) and the issuance of the initial Letters of Credit (if any) on the Closing Date and (iii) the payment of fees and expenses and other costs incurred in connection with the foregoing (the “Transaction Expenses”).
Type” shall mean the type of Loan determined with regard to the interest option applicable thereto, i.e., whether a Base Rate Loan or a LIBO Rate Loan.
Undisclosed Administration” shall mean, in relation to a Lender or its direct or indirect parent company, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or such parent company is subject to home jurisdiction supervision if applicable law requires that such appointment is not to be publicly disclosed.
Uniform Commercial Code” or “UCC” shall mean the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.
United States” and “U.S.” shall each mean the United States of America.
Unrestricted Subsidiary” shall mean (1) any Subsidiary of the Lead Borrower (other than a Borrower), whether now owned or acquired or created after the Closing Date, that is designated on or after the Closing Date by the Lead Borrower as an Unrestricted Subsidiary hereunder by written notice to the Administrative Agent; provided that the Lead Borrower shall only be permitted to so designate a new Unrestricted Subsidiary after the Closing Date so long as (a) no Default or Event of Default has occurred and is continuing or would result therefrom, (b) all Investments in such Unrestricted Subsidiary at the time of designation (as contemplated by the immediately following sentence) are permitted in accordance with the relevant requirements of Section 10.04 and (c) such Subsidiary being designated as an “Unrestricted Subsidiary” shall also, concurrently with such designation and thereafter, constitute an

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“unrestricted subsidiary” under any Material Indebtedness issued or incurred on or after the Closing Date; and (2) any subsidiary of an Unrestricted Subsidiary (unless transferred to such Unrestricted Subsidiary or any of its subsidiaries by the Lead Borrower or one or more of its Subsidiaries after the date of the designation of the parent entity as an “Unrestricted Subsidiary” hereunder, in which case the subsidiary so transferred would be required to be independently designated in accordance with preceding clause (1)). The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Lead Borrower (or its Subsidiaries) therein at the date of designation in an amount equal to the Fair Market Value of the Lead Borrower’s (or its Subsidiaries’) Investments therein, which shall be required to be permitted on such date in accordance with Section 10.04 (and not as an Investment permitted thereby in a Subsidiary). The Lead Borrower may designate any Unrestricted Subsidiary to be a Subsidiary for purposes of this Agreement (each, a “Subsidiary Redesignation”); provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom (after giving effect to the provisions of the immediately succeeding sentence) and (ii) the Lead Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by a Responsible Officer of the Lead Borrower, certifying to the best of such officer’s knowledge, compliance with the requirements of preceding clause (i). The designation of any Unrestricted Subsidiary as a Subsidiary after the Closing Date shall constitute (i) the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time and (ii) a return on any Investment by the applicable Loan Party (or its relevant Subsidiaries) in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the Fair Market Value at the date of such designation of such Loan Party’s (or its relevant Subsidiaries’) Investment in such Subsidiary. Notwithstanding anything to the contrary herein, the Lead Borrower shall not be permitted to designate any Borrower as an Unrestricted Subsidiary.
Unused Line Fee” shall have the meaning assigned to such term in Section 2.05(a).
Unused Line Fee Rate” shall mean, with respect to any Facility, 0.250% per annum on the average daily amount by which the Commitments under such Facility exceed the Revolving Exposure of all Lenders under such Facility, in each case, calculated based upon the actual number of days elapsed over a 360-day year payable quarterly in arrears.
U.S. Borrowers” shall mean (i) the Lead Borrower and (ii) any U.S. Subsidiary Borrower.
U.S. Borrowing Base” shall mean, at any time of calculation, an amount equal to the sum of, without duplication:
(a)    Eligible Cash of the U.S. Loan Parties; plus
(b)    (i) the book value of all Eligible Accounts of the U.S. Loan Parties owing by an Account Debtor that has an Investment Grade Rating multiplied by the advance rate of 90% (or, for the period commencing on the first day of the fiscal month commencing on or about December 1 of each calendar year and ending on the last day of the fiscal month ending on or about the last day of February the following calendar year, 95%) plus (ii) the book value of all other Eligible Accounts of the U.S. Loan Parties multiplied by the advance rate of 85% (or, for the period commencing on the first day of the fiscal month commencing on or about December 1 of each calendar year and ending on the last day of the fiscal month ending on or about the last day of February the following calendar year, 90%); plus
(c)    the lesser of (i) the Cost of Eligible Inventory of the U.S. Loan Parties multiplied by the advance rate of 75% and (ii) the Cost of Eligible Inventory of the U.S. Loan Parties multiplied by the appraised NOLV Percentage of Eligible Inventory of the U.S. Loan Parties multiplied by the advance rate of 85% (or, for the period commencing on the first day of the fiscal month commencing on or about

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December 1 of each calendar year and ending on the last day of the fiscal month ending on or about the last day of February the following calendar year, 90%); plus
(d)    the U.S. Fixed Asset Advance; minus
(e)    any Reserves pertaining to the U.S. Loan Parties established from time to time by the Administrative Agent in accordance herewith (without duplication of any Reserves deducted in the calculation of any other Borrowing Base);
provided that in no event shall (x) the U.S. Fixed Asset Advance exceed $150,000,000 at any time, (y) the aggregate amount of Eligible Cash included in all the Borrowing Bases exceed $35,000,000 at any time or (z) the amount described in clause (iii) of the definition of “U.S. Fixed Asset Advance” exceed 10% of the Aggregate Commitments.
U.S. Collateral” shall mean all property (whether real, personal or otherwise) with respect to which any security interests have been granted (or purported to be granted) pursuant to any U.S. Security Document (including any Additional Security Documents but excluding the Non-U.S. Security Documents) or will be granted in accordance with requirements set forth in Section 9.12, including, without limitation, all collateral as described in the U.S. Security Agreement and all Mortgaged Properties. For the avoidance of doubt, in no event shall U.S. Collateral include Excluded Property.
U.S. Dollars” and the sign “$” shall each mean freely transferable lawful money (expressed in dollars) of the United States.
U.S. Fixed Asset Advance” shall mean, at any time of calculation, an amount equal to the sum of, without duplication:
(i)    the applicable Equipment Amortization Factor for Eligible Equipment of the U.S. Loan Parties multiplied by 85% of the NOLV Percentage of such Eligible Equipment; plus
(ii)    the applicable Real Property Amortization Factor for Eligible Real Property of the U.S. Loan Parties multiplied by 75% of the fair market value of such Eligible Real Property, determined based on the most recent real estate appraisal completed by the Administrative Agent in accordance with Section 9.07(b); plus
(iii)    the applicable Trademark Amortization Factor for Eligible Trademarks of the U.S. Loan Parties and the Australian Loan Parties multiplied by 50% of the NOLV Percentage of such Eligible Trademarks.
U.S. Lender” shall mean a Lender that is not a Non-U.S. Lender.
U.S. Loan Party” shall mean each U.S. Borrower and each Guarantor that is a U.S. Subsidiary.
U.S. Obligations” shall mean all Obligations (other than Foreign Obligations).
U.S. Person” shall mean any person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
U.S. Pledged Collateral” shall have the meaning assigned to such term in the Initial U.S. Security Agreement.

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U.S. Security Documents” shall mean the Initial U.S. Security Agreement, each Deposit Account Control Agreement of a U.S. Loan Party or governed by U.S. law, each Mortgage and, after the execution and delivery thereof, each Additional Security Document of a U.S. Loan Party, together with any other applicable security documents governed by U.S. law from time to time in favor of the Collateral Agent for the benefit of the Secured Parties.
U.S. Special Resolution Regime” shall have the meaning assigned to such term in Section 13.21.
U.S. Subsidiary” shall mean, as to any Person, any Subsidiary of such Person that is incorporated, formed or otherwise organized under the laws of the United States, any state thereof or the District of Columbia.
U.S. Subsidiary Borrower” shall mean, subject to Section 9.10(g) and Section 13.18(b)(2), each U.S. Subsidiary of the Lead Borrower that is on the Closing Date, or which becomes, a party to this Agreement in accordance with the requirements of this Agreement.
U.S. Tax Compliance Certificate” shall have the meaning assigned to such term in Section 5.01(e)(ii)(3).
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 (including, without limitation, Australian GST) and any tax imposed in compliance with the Swiss Federal Act on Value Added Tax of 12 June 2009 as amended from time to time.
Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.
Wholly Owned Subsidiary” of any person shall mean a subsidiary of such person, all of the Equity Interests of which (other than directors’ qualifying shares or nominee or other similar shares required pursuant to applicable law) are owned by such person or another Wholly Owned Subsidiary of such person. Unless the context otherwise requires, “Wholly Owned Subsidiary” shall mean a Subsidiary of the Lead Borrower that is a Wholly Owned Subsidiary of the Lead Borrower.
Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
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.
Section 1.02    Terms Generally and Certain Interpretive Provisions. The definitions set forth or referred to in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined.

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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.” All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Except as otherwise expressly provided herein, any reference in this Agreement to any Loan Document shall mean such document as amended, restated, amended and restated, supplemented or otherwise modified from time to time. Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document in any Loan Document shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented and/or otherwise modified (subject to any restrictions on such amendments, restatements, supplements or modifications set forth in the Loan Documents), (b) any definition of or reference to any statute, rule or regulation in any Loan Document shall be construed as referring thereto as from time to time amended, supplemented and/or otherwise modified (including by succession of comparable successor laws), (c) any reference in any Loan Document to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignment set forth in the Loan Documents) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof and (d) 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 hereof. Except as otherwise expressly provided herein (including, for the avoidance of doubt, the proviso in the definition of “Capitalized Lease Obligations”), all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if, at any time, any change in GAAP or in the application thereof would affect the computation of any financial ratio or requirement in the Loan Documents and the Lead Borrower notifies the Administrative Agent that the Borrowers request an amendment (or if the Administrative Agent notifies the Lead Borrower that the Required Lenders request an amendment), the Administrative Agent, the Lenders and the Borrowers shall, at no cost to the Borrowers, negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP or in the application thereof (subject to the approval of the Required Lenders), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, and such financial ratio or requirement shall be interpreted on the basis of GAAP without giving effect to such change until such provision is amended in accordance herewith. Notwithstanding any other provision contained herein, 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 (i) without giving effect to any election under Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Lead Borrower or any Subsidiary at “fair value,” as defined therein, (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof, (iii) for the avoidance of doubt, except as provided in the definition of “Consolidated Net Income,” without giving effect to the financial condition, results and performance of the Unrestricted Subsidiaries, (iv) without giving effect to any change to, or modification of, GAAP (including any future phase-in of changes to GAAP that have been approved as of December 1, 2018) which would require the capitalization of leases characterized as “operating leases” as of December 1, 2018 (it being understood and agreed, for the avoidance of doubt, financial statements delivered pursuant hereto shall be prepared without giving effect to this clause) and (v) without giving effect to the one-time adjustment to implement Accounting Standards Update 2016-13, Measurement of Credit Losses on Financial Instruments. For purposes of any Collateral located in the Province of Quebec or charged by any deed of hypothec (or any

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other Loan Document) and for all other purposes pursuant to which the interpretation or construction of a Loan Document may be subject to the laws of the Province of Quebec or a court or tribunal exercising jurisdiction in the Province of Quebec, (i) “personal property” shall be deemed to include “movable property”, (ii) “real property” shall be deemed to include “immovable property”, (iii) “tangible property” shall be deemed to include “corporeal property”, (iv) “intangible property” shall be deemed to include “incorporeal property”, (v) “security interest”, “mortgage” and “lien” shall be deemed to include a “hypothec,” “prior claim” and a “resolutory clause”, (vi) all references to filing, registering or recording under the UCC or the Canadian PPSA shall be deemed to include publication under the Civil Code of Quebec, (vii) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to the “opposability” of such Liens to third parties, (viii) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (ix) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (x) an “agent” shall be deemed to include a “mandatary”, (xi) “construction liens” shall be deemed to include “legal hypothecs”, (xii) “joint and several” shall be deemed to include “solidary”, (xiii) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”, (xiv) “beneficial ownership” shall be deemed to include “ownership on behalf of another as mandatary”, (xv) “easement” shall be deemed to include “servitude”, (xvi) “priority” shall be deemed to include “prior claim”, (xvii) “survey” shall be deemed to include “certificate of location and plan”, (xviii) “fee simple title” shall be deemed to include “absolute ownership”, and (xix) “foreclosure” shall be deemed to include “the exercise of a hypothecary right”.
Section 1.03    Exchange Rates; Currency Equivalent. All references in the Loan Documents to Loans, Letters of Credit, Obligations, Borrowing Base components and other amounts shall be denominated in U.S. Dollars, unless expressly provided otherwise. The Dollar Equivalent of any amounts denominated or reported under a Loan Document in a currency other than U.S. Dollars shall be determined by the Administrative Agent on a daily basis, based on the current Spot Rate. The Lead Borrower shall report value and other Borrowing Base components to the Administrative Agent in the currency invoiced by the Lead Borrower or shown in the Lead Borrower’s financial records, and unless expressly provided otherwise, shall deliver financial statements and calculate financial covenants in U.S. Dollars. Notwithstanding anything herein to the contrary, if any Obligation is funded and expressly denominated in a currency other than U.S. Dollars, the Borrowers shall repay such Obligation in such other currency.
Section 1.04    Additional Alternative Currencies.
(a)    The Borrowers may from time to time request that Loans be made and/or Letters of Credit be issued in a currency other than those specifically listed in the definition of “Alternative Currency”; provided that such requested currency is a lawful currency (other than U.S. Dollars) that is readily available and freely transferable and convertible into U.S. Dollars. In the case of any such request with respect to the making of Loans, such request shall be subject to the approval of the Administrative Agent and the Lenders with Commitments in respect of the Facility under which such additional Alternative Currency is being requested; 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 applicable Issuing Bank.
(b)    Any such request shall be made to the Administrative Agent not later than 11:00 a.m., twenty (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 applicable Issuing Bank, in its or their sole discretion). In the case of any such request

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pertaining to Loans, the Administrative Agent shall promptly notify each applicable Lender thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the applicable Issuing Bank thereof. Each applicable Lender (in the case of any such request pertaining to Loans) or the applicable 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., ten (10) Business Days after receipt of such request whether it consents, in its sole discretion, to the making of Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.
(c)    Any failure by a Lender or the applicable 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 applicable Issuing Bank, as the case may be, to permit Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the Lenders with Commitments in respect of the Facility under which such additional Alternative Currency is being requested consent to making Loans in such requested currency, the Administrative Agent shall so notify such Borrower and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Borrowings of Loans; and if the Administrative Agent and the applicable Issuing Bank consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify such Borrower 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 1.04, the Administrative Agent shall promptly so notify such Borrower.
Section 1.05    Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.
Section 1.06    Effectuation of Transactions. Each of the representations and warranties of the Borrowers contained in this Agreement (and all corresponding definitions) and applicable on the Closing Date and thereafter, are made after giving effect to the Transactions, unless the context otherwise requires.
Section 1.07    Timing of Payment or Performance. Except as otherwise expressly provided herein, when the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day.
Section 1.08    Joint and Several Liability. To the fullest extent permitted by law the liability of each Borrower for the obligations under this Agreement and the other Loan Documents of the other applicable Borrowers with whom it has joint and several liability (as set forth in Section 2.01(b) and (c)) shall be absolute, unconditional and irrevocable, without regard to (i) the validity or enforceability of this Agreement or any other Loan Document, any of the obligations hereunder or thereunder or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any applicable Secured Party, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance hereunder; provided that no Borrower hereby waives any suit for breach of a contractual provision of any of the Loan Documents) which may at any time be available to or be asserted by such other applicable Borrower or any other Person against any Secured Party or (iii) any other circumstance whatsoever (with or without notice to or knowledge of such other applicable Borrower or

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such Borrower) which constitutes, or might be construed to constitute, an equitable or legal discharge of such other applicable Borrower for the obligations hereunder or under any other Loan Document, or of such Borrower under this Section 1.09, in bankruptcy or in any other instance.
Section 1.09    Exchange Rates; Currency Equivalents; Basket Calculations.
(a)    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 LIBO Rate or with respect to any rate that is an alternative or replacement for or successor to any such rate (including, without limitation, any alternate rate implemented pursuant to Section 3.01(a)) or the effect of any of the foregoing, or of any related changes made to this Agreement pursuant to Section 3.01(a) (other than, for the avoidance of doubt, with respect to its obligation to apply the definition of such rate in accordance with its terms and comply with its express obligations in Article 3 (including Section 3.01)).
(b)    Notwithstanding the foregoing, for purposes of determining compliance with any covenant in Article 10, (i) with respect to any amount of cash on deposit, Indebtedness, Investment, Restricted Payment, Lien, Disposition or Attributable Receivables Indebtedness (each, a “Covenant Transaction”) in a currency other than U.S. 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 Covenant Transaction is incurred or made, and (ii) with respect to any Covenant Transaction incurred or made in reliance on a provision that makes reference to a percentage of Consolidated Total Assets, no Default or Event of Default shall be deemed to have occurred solely as a result of changes in the amount of Consolidated Total Assets occurring after the time such Covenant Transaction is incurred or made in reliance on such provision.
(c)    For purposes of determining compliance with any covenant in Article 10, with respect to the amount of any Covenant Transaction in a currency other than U.S. Dollars, such amount (i) if incurred or made in reliance on a fixed Dollar basket, will be converted into U.S. Dollars based on the relevant currency exchange rate in effect on the Closing Date, and (ii) if incurred in reliance on a percentage or ratio basket, will be converted into U.S. Dollars based on the relevant currency exchange rate in effect on the date such Covenant Transaction is incurred or made and such percentage or ratio basket will be measured at the time such Covenant Transaction is incurred or made.
Section 1.10    Interpretation (Australia) and Code of Banking Practice (Australia).
(a)    Without prejudice to the generality of any provision of this Agreement, in this Agreement where it relates to Australian Loan Party, a reference in this Agreement to:
(i)    Account” also includes any “account” as defined in section 10 of the Australian PPSA;
(ii)    Affiliate” has the meaning given to it in section 50AA of the Australian Corporations Act;
(iii)    Controller”, “receiver” or “receiver manager” has the meaning given to it in section 9 of the Australian Corporations Act;
(iv)    Account Debtor” also includes any “account debtor” as defined in section 10 of the Australian PPSA;

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(v)    Inventory” has the meaning provided in section 10 of the Australian PPSA; and
(vi)    Subsidiary” shall mean a subsidiary within the meaning given in Part 1.2 Division 6 of the Australian Corporations Act.
(b)    The parties agree that the Australian Banking Association Banking Code of Practice does not apply to the Loan Documents nor the transactions under them.
ARTICLE 2
AMOUNT AND TERMS OF CREDIT
Section 2.01    The Commitments.
(a)    Subject to the terms and conditions and relying upon the representations and warranties herein set forth:
(i)    each North American Revolving Lender agrees, severally and not jointly, to make North American Revolving Loans to the U.S. Borrowers in U.S. Dollars or in one or more Alternative Currencies, if any, at any time and from time to time on and after the Closing Date until the earlier of one (1) Business Day prior to the Maturity Date and the termination of the North American Revolving Commitment of such Lender in accordance with the terms hereof, in an aggregate principal amount at any time outstanding that will not result in the Availability Conditions not being met; and
(ii)    each Swiss Revolving Lender agrees, severally and not jointly, to make Swiss Revolving Loans to the Swiss Borrower in U.S. Dollars or in one or more Alternative Currencies, at any time and from time to time on and after the Closing Date until the earlier of one (1) Business Day prior to the Maturity Date and the termination of the Swiss Revolving Commitment of such Lender in accordance with the terms hereof, in an aggregate principal amount at any time outstanding that will not result in the Availability Conditions not being met.
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 Facility.
(b)    Subject to the Swiss Guaranty Limitations, all Foreign Loan Parties shall be jointly and severally liable for all Revolving Loans made to the Swiss Borrower.
(c)    All U.S. Loan Parties shall be jointly and severally liable for all Revolving Loans regardless of which Borrower received the proceeds thereof.
(d)    Notwithstanding any provision hereof or any other Loan Document to the contrary and, in the case of any Swiss Loan Party, subject to the limitations set forth in Article 4 of this Agreement, (i) no Foreign Loan Party (other than any Foreign Loan Party that (A) is organized or incorporated in a Specified Jurisdiction and (B) is not a CFC or a FSHCO) shall have any joint and several liability under any Loan Document for, or any Guarantee obligation under any Loan Document with respect to, and (ii) no assets of any Foreign Loan Party (other than any Foreign Loan Party that (A) is organized or incorporated in a Specified Jurisdiction and (B) is not a CFC or a FSHCO) or any Equity Interests of any Foreign Loan Party that constitute Excluded Securities shall constitute Collateral under any Loan Document for, in the case of each of the foregoing clauses (i) and (ii), the U.S. Obligations.

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Section 2.02    Loans.
(a)    (i) Each North American Revolving Loan shall be made as part of a Borrowing consisting of North American Revolving Loans made by the Lenders ratably in accordance with their applicable North American Revolving Commitments and (ii) each Swiss Revolving Loan shall be made as part of a Borrowing consisting of Swiss Revolving Loans made by the Lenders ratably in accordance with their Swiss 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) comprising any Borrowing shall be in an aggregate principal amount that is (i) in the case of Base Rate Loans equal to the amount requested by the applicable Borrower and (ii) in the case of LIBO Rate Loans, (A) an integral multiple of the Dollar Equivalent of $250,000 and not less than the Dollar Equivalent of $1,000,000 (or, if such Borrowing is denominated in an Alternative Currency, 1,000,000 units of such Alternative Currency), or (B) equal to the remaining available balance of the Revolving Commitments under the applicable Facility.
(b)    Subject to Section 3.01, (i) each Borrowing by a U.S. Borrower shall be comprised entirely of LIBO Rate Loans (or, in the case of Borrowings denominated in U.S. Dollars, Base Rate Loans or LIBO Rate Loans) and (ii) each Borrowing by the Swiss Borrower shall be comprised entirely of LIBO Rate Loans, in each case, as the applicable Borrower may request pursuant to Section 2.03. Each North American Swingline Loan made to the U.S. Borrower shall be in U.S. Dollars and shall be a Base Rate Loan unless otherwise agreed by the applicable Borrower and the Swingline Lender in its sole discretion. Each Swiss Swingline Loan made to the Swiss Borrower shall be in Swiss Francs and shall be Overnight LIBO Loans unless otherwise agreed by the applicable Borrower and the Swingline Lender in its sole discretion. Each Lender may at its option make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrowers to repay such Loan 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 (x) the Lead Borrower having more than ten (10) LIBO Rate Loans outstanding hereunder at any one time, (y) Briggs & Stratton AG, a Swiss corporation, as the Swiss Borrower, having more than ten (10) LIBO Rate Loans outstanding hereunder at any one time and (z) for any other Person that becomes a Borrower pursuant to the terms hereof after the Closing Date, an amount of LIBO Rate Loans outstanding hereunder at any one time to be mutually agreed by the Lead Borrower and the Administrative Agent. For purposes of the foregoing, Borrowings having different Interest Periods, regardless of whether they commence on the same date, shall be considered separate Borrowings.
(c)    Except with respect to Loans made pursuant to Section 2.02(f), each Lender shall make each Loan (other than Swingline Loans) to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds to such account as the Administrative Agent may designate (i) in New York City, in the case of Loans to a U.S. Borrower not later than 3:00 p.m. New York time and (ii) in London, in the case of Loans to the Swiss Borrower, not later than the Applicable Time specified by the Administrative Agent in the case of any Loans to the Swiss Borrower, and the Administrative Agent shall promptly credit the amounts so received to an account as directed by the Lead 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.

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(d)    Unless the Administrative Agent shall have received notice from a Lender prior to the time 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 applicable 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 Lead 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 the applicable Borrowers, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such Lender, a rate reasonably determined by the Administrative Agent to represent its cost of overnight or short-term funds (which determination shall be conclusive absent demonstrable error). If such Lender shall repay to the Administrative Agent such corresponding amount, such amount shall constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement.
(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 requested with respect thereto would end after the Maturity Date.
(f)    If an Issuing Bank shall not have received from the applicable Borrowers 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 Lender of such LC Disbursement and its Pro Rata Percentage thereof. Each such Lender shall pay by wire transfer of immediately available funds to the Administrative Agent on such date (or, if such Lender shall have received such notice later than 12:00 (noon), New York City time, on any day, not later than 11:00 a.m., New York City time on the immediately following Business Day), an amount equal to such Lender’s Pro Rata Percentage of such LC Disbursement (it being understood that such amount shall be deemed to constitute a Base Rate Loan (for LC Disbursements denominated in U.S. Dollars), or a LIBO Rate Loan with an Interest Period of one month (for LC Disbursements denominated in an Alternative Currency) 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 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 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 Lenders that shall have made such payments and to the applicable Issuing Bank, as their interests may appear. If any Lender under the applicable Facility shall not have made its Pro Rata Percentage of such LC Disbursement available to the Administrative Agent as provided above, such Lender and the applicable Borrowers 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 Lead Borrower, a rate per annum equal to the interest rate applicable to Revolving Loans pursuant to Section 2.06, and (ii) in the case of such Lender, at the Base Rate (for U.S. Dollars) or the LIBO Rate with an Interest Period of one month for all Alternative Currencies.

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Section 2.03    Borrowing Procedure. To request a Revolving Borrowing, the Lead Borrower shall notify the Administrative Agent of such request by telecopy or electronic transmission (if arrangements for doing so have been approved by the Administrative Agent, which approval shall not be unreasonably withheld, conditioned or delayed) or (other than in the case of requests for LIBO Rate Loans) telephone (promptly confirmed by telecopy or electronic transmission) (i) in the case of a Borrowing by any U.S. Borrower of LIBO Rate Loans under the North American Revolving Facility, not later than 1:00 p.m., New York City time, three (3) Business Days before the date of the proposed Borrowing to the Administrative Agent’s New York office, (ii) in the case of a Borrowing of LIBO Rate Loans under the Swiss Revolving Facility, not later than 11:00 a.m., London time, four (4) Business Days before the date of the proposed Borrowing to the Administrative Agent’s New York office and (iii) in the case of a Borrowing of Base Rate Loans, not later than 1:00 p.m., New York City time, on the Business Day of the proposed Borrowing to the Administrative Agent’s New York office. Each such telephonic Notice of Borrowing shall be irrevocable, subject to Sections 2.09 and 3.01, and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Notice of Borrowing in a form approved by the Administrative Agent and signed by the Lead Borrower. Each such telephonic and written Notice of Borrowing shall specify the following information in compliance with Section 2.02:
(a)    the name of the Borrower;
(b)    the aggregate amount of such Borrowing;
(c)    the date of such Borrowing, which shall be a Business Day;
(d)    whether such Borrowing is to be a Borrowing of Base Rate Loans or a Borrowing of LIBO Rate Loans;
(e)    in the case of a Borrowing of LIBO Rate Loans, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”;
(f)    the location and number of the account to which funds are to be disbursed, which shall comply with the requirements of Section 2.02;
(g)    the Facility under which the Loans are to be borrowed;
(h)    the currency of the Borrowing;
(i)    the amount of Eligible Cash as of the close of business on the Business Day prior to the date of such notice and the remaining Aggregate Availability after adjusting for the proposed Borrowing; and
(j)    that the applicable conditions set forth in Article 6 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 (x) in the case of a Borrowing in U.S. Dollars by a U.S. Borrower, a Borrowing of Base Rate Loans and (y) in the case of any other Borrowing, a Borrowing of LIBO Rate Loans with an Interest Period of one month. If no Interest Period is specified with respect to any requested Borrowing of LIBO Rate Loans, then the Lead Borrower shall be deemed to have selected an Interest Period of one month’s duration. If no currency is specified, then the requested Borrowing shall be made in U.S. Dollars. Promptly following receipt of a Notice of Borrowing in accordance with this Section 2.03, the Administrative Agent shall

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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.
This Section 2.03 shall not apply to Swingline Loans, the borrowing of which shall be in accordance with Section 2.12.
Section 2.04    Evidence of Debt; Repayment of Loans.
(a)    Each U.S. Borrower, jointly and severally, hereby unconditionally promises to pay to the Administrative Agent the then unpaid principal amount of each Loan made to any Borrower on the Maturity Date. Subject to the Swiss Guaranty Limitations, the Swiss Borrower hereby unconditionally promises to pay to the Administrative Agent the then unpaid principal amount of each Loan made to the Swiss Borrower on the Maturity Date.
(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 Lead Borrower 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 Class and Type thereof, the currency thereof and the Interest 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. Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrowers to such Lender. The Lead Borrower 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 demonstrable 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 thereunder be evidenced by a promissory note. In such event, the applicable Borrower 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.
Section 2.05    Fees.
(a)    Unused Line Fee. With respect to each Facility, the U.S. Borrowers or the Swiss Borrower, as applicable, shall pay to the Administrative Agent, for the pro rata benefit of the Lenders (other than any Defaulting Lender), under each Facility, a fee in U.S. Dollars equal to the Unused Line Fee Rate multiplied by the amount by which the Revolving Commitments (other than Revolving Commitments of a Defaulting Lender) under such Facility exceed the average daily balance of outstanding Revolving Loans under such Facility and stated amount of outstanding Letters of Credit under such Facility during any fiscal quarter (such fee, the “Unused Line Fee”). Such fee shall accrue

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commencing on the Closing Date, and will be payable in arrears, on the first Business Day of each fiscal quarter, commencing on or about October 1, 2019.
(b)    Administrative Agent Fees. The Lead Borrower agrees to pay to the Administrative Agent, for its own account, the fees set forth in the Fee Letter or such other fees payable in the amounts and at the times separately agreed upon between the Lead Borrower and the Administrative Agent (the “Administrative Agent Fees”).
(c)    LC and Fronting Fees. With respect to the North American Revolving Facility, the U.S. Borrowers, jointly and severally, agree to pay (i) to the Administrative Agent for the account of each North American Revolving Lender a participation fee (“North American LC Participation Fee”) in U.S. Dollars with respect to its participations in North American Letters of Credit, which shall accrue at a rate equal to the Applicable Margin from time to time used to determine the interest rate on LIBO Rate Loans pursuant to Section 2.06, on the average daily amount of such North American Revolving Lender’s North American LC Exposure (excluding any portion thereof attributable to unreimbursed North American LC Disbursements) during the period from and including the Closing Date to but excluding the later of the date on which such North American Revolving Lender’s North American Revolving Commitment terminates and the date on which such North American Revolving Lender ceases to have any North American LC Exposure and (ii) to each North American Issuing Bank a fronting fee (“North American Fronting Fee”) in U.S. Dollars, which shall accrue at the rate of 0.125% per annum on the average daily amount of the North American LC Exposure (excluding any portion thereof attributable to unreimbursed North American LC Disbursements) during the period from and including the Closing Date to but excluding the later of the date of termination of the North American Revolving Commitments and the date on which there ceases to be any North American LC Exposure, as well as each North American Issuing Bank’s standard and reasonable fees with respect to the issuance, amendment, renewal or extension of any North American Letter of Credit or processing of drawings thereunder as agreed among the Lead Borrower and such North American Issuing Bank from time to time. With respect to the Swiss Revolving Facility, the Swiss Borrower agrees to pay (i) to the Administrative Agent for the account of each Swiss Revolving Lender a participation fee (together with the North American LC Participation Fee, the “LC Participation Fees”) in the same currency of the denomination of the Swiss Letters of Credit issued with respect to its participations in Swiss Letters of Credit, which shall accrue at a rate equal to the Applicable Margin from time to time used to determine the interest rate on LIBO Rate Loans pursuant to Section 2.06, on the average daily amount of such Swiss Revolving Lender’s Swiss LC Exposure (excluding any portion thereof attributable to unreimbursed Swiss LC Disbursements) during the period from and including the Closing Date to but excluding the later of the date on which such Swiss Revolving Lender’s Swiss Revolving Commitment terminates and the date on which such Swiss Revolving Lender ceases to have any Swiss LC Exposure, and (ii) to each Swiss Issuing Bank a fronting fee (together with the North American Fronting Fee, the “Fronting Fees”) in Pound Sterling, Euros, Australian Dollars or Swiss Francs, which shall accrue at the rate of 0.125% per annum on the average daily amount of the Swiss LC Exposure (excluding any portion thereof attributable to unreimbursed Swiss LC Disbursements) during the period from and including the Closing Date to but excluding the later of the date of termination of the Swiss Revolving Commitments and the date on which there ceases to be any Swiss LC Exposure, as well as each Swiss Issuing Bank’s standard and reasonable fees with respect to the issuance, amendment, renewal or extension of any Swiss Letter of Credit or processing of drawings thereunder as agreed among the Lead Borrower and such Swiss Issuing Bank from time to time. LC Participation Fees and Fronting Fees accrued to but excluding the last day of March, June, September and December of each year shall be payable on the first Business Day following such last day, commencing on the first such date to occur after the Closing Date; 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

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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 within ten (10) days after written 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 and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
(d)    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 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.
Section 2.06    Interest on Loans.
(a)    (i)    Subject to the provisions of Section 2.06(b), the Loans comprising each Borrowing of Base Rate Loans shall bear interest at a rate per annum equal to the Base Rate plus the Applicable Margin in effect from time to time.
(ii)    Subject to the provisions of Section 2.06(b), the Loans comprising each Borrowing of LIBO Rate Loans shall bear interest at a rate per annum equal to the LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin in effect from time to time.
(iii)    Subject to the provisions of Section 2.06(b), (A) the Loans comprising each Borrowing of North American Swingline Loans in U.S. Dollars shall bear interest at a rate per annum equal to the Base Rate plus the Applicable Margin in effect from time to time (or such other rate as may be agreed upon by the applicable Borrower and the Swingline Lender in its sole discretion) and (B) the Loans comprising each Borrowing of Swiss Swingline Loans shall bear interest at a rate per annum equal to the Overnight LIBO Rate plus the Applicable Margin in effect from time to time (or such other rate as may be agreed upon by the applicable Borrower and the Swingline Lender in its sole discretion).
(b)    Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee payable by any Borrower 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 any Loan, 2% plus the rate otherwise applicable to such Loan or (ii) in the case of any interest or fee, 2% plus the rate applicable to Base Rate Loans.
(c)    Accrued interest on each Loan shall be payable (i) in the case of Base Rate Loans, on each Adjustment Date, commencing with October 1, 2019, in arrears for such Base Rate Loans, (ii) in the case of Overnight LIBO Rate Loans, on the first Business Day of each month, in arrears for such Overnight LIBO Rate Loans, (iii) in the case of LIBO Rate Loans, at the end of the current Interest Period therefor and, in the case of an Interest Period in excess of three months, on each date occurring at three-month intervals after the first day of such Interest Period and (iv) in the case of all Revolving Loans, upon termination of the Revolving Commitments; provided that (x) interest accrued pursuant to paragraph (b) of this Section 2.06 shall be payable on demand and, absent demand, on each Adjustment Date, at the end of the current Interest Period and upon termination of the Revolving Commitments, as applicable, (y) in the event of any repayment or prepayment of any Loan (other than a prepayment of a Base Rate 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 (z) in the event of any

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conversion of any LIBO Rate Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.
(d)    All interest hereunder shall be computed on the basis of a year of 360 days, except that interest (i) computed by reference to the Base Rate at times when the Base Rate is based on the Prime Rate and (ii) for Borrowings denominated in Australian Dollars or Pound 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 (including the first day but excluding the last day). The applicable Base Rate or LIBO Rate shall be determined by the Administrative Agent in accordance with the provisions of this Agreement, and such determination shall be conclusive absent demonstrable error.
(e)    Interest Act (Canada). For purposes of disclosure pursuant to the Interest Act (Canada), the annual rates of interest or fees to which the rates of interest or fees provided in this Agreement and the other Loan Documents (and stated herein or therein, as applicable, to be computed on the basis of 360 days or any other period of time less than a calendar year) are equivalent are the rates so determined multiplied by the actual number of days in the applicable calendar year and divided by 360 or such other period of time, respectively.
(f)    Limitation on Interest. If any provision of this Agreement or of any of the other Loan Documents would obligate any Loan Party to make any payment of interest or other amount payable to the Lenders in an amount or calculated at a rate which would be prohibited by law or would result in a receipt by the Lenders of interest at a criminal rate (as such terms are construed under the Criminal Code (Canada)) then, notwithstanding such provisions, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by law or so result in a receipt by the Lenders of interest at a criminal rate, such adjustment to be effected, to the extent necessary, as follows: (1) first, by reducing the amount or rate of interest required to be paid to the Lenders under this Section 2.06, and (2) second, by reducing any fees, commissions, premiums and other amounts required to be paid to the Lenders which would constitute “interest” for purposes of Section 347 of the Criminal Code (Canada). Notwithstanding the foregoing, and after giving effect to all adjustments contemplated thereby, if the Lenders shall have received an amount in excess of the maximum permitted by that section of the Criminal Code (Canada), the Loan Parties shall be entitled, by notice in writing to the Administrative Agent, to obtain reimbursement from the Lenders in an amount equal to such excess and, pending such reimbursement, such amount shall be deemed to be an amount payable by the Lenders to the Borrowers. Any amount or rate of interest referred to in this Section 2.06 shall be determined in accordance with generally accepted actuarial practices and principles as an effective annual rate of interest over the term that the applicable Loan remains outstanding on the assumption that any charges, fees or expenses that fall within the meaning of “interest” (as defined in the Criminal Code (Canada)) shall, if they relate to a specific period of time, be pro-rated over that period of time and otherwise be pro-rated over the period from the Closing Date to the Maturity Date and, in the event of a dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by the Administrative Agent shall be conclusive for the purposes of such determination.
(g)    Swiss Minimum Interest. By entering into this Agreement, the parties to this Agreement have assumed in bona fide that the interest payable hereunder is not and will not become subject to any tax deduction on account of Swiss Withholding Tax. Nevertheless, if a tax deduction is required by Swiss law to be made by a Loan Party in respect of any interest payable under a Loan Document and should it be unlawful for the relevant Loan Party to comply with Section 5.01 (Net Payments) for any reason (where this would otherwise be required by the terms of Section 5.01 (Net Payments)) then:

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(i)    the applicable interest rate in relation to that interest payment shall be:
(1)    the interest rate which would have applied to that interest payment (as provided for in this Section 2.06 (Interest on Loans) or otherwise in this Agreement in the absence of this Section 2.06 (g) (Swiss Minimum interest)); divided by:
(2)    one minus the rate at which the relevant tax deduction for Swiss Withholding Tax is required to be made (where the rate at which such tax deduction is required to be made is for this purpose expressed as a fraction of one rather than as a percentage); and
(ii)    the relevant Loan Party shall be obliged:
(1)    to pay the relevant interest at the adjusted rate in accordance with paragraph (i) above; and
(2)    to make the tax deduction for Swiss Withholding Tax on the interest so recalculated; and
all references to a rate of interest in Section 2.06 (Interest on Loans) or otherwise in this Agreement shall be construed accordingly.
(iii)    To the extent that any interest payable by a Loan Party under this Agreement becomes subject to Swiss Withholding Tax, each relevant party to this Agreement and the relevant Loan Party shall promptly co-operate in completing any procedural formalities (including submitting forms and documents required by the appropriate Tax authority) to allow the parties under this Agreement to prepare claims for the refund of any Swiss Withholding Tax so deducted.
(iv)    If a party to this Agreement receives a refund in respect of Swiss Withholding Tax, that party shall pay an amount to the Loan Party in respect of which the Swiss Withholding Tax relates, which that party determines will leave it, after that payment, in the same after-Tax position as it would have been in had that Swiss Withholding Tax not been required to be paid.
(v)    A Loan Party is not required to make an increased payment to a particular Lender (but, for the avoidance of doubt, shall remain required to make an increased payment to all other Lenders) under paragraph (g) above by reason of a tax deduction arising as a result of that Lender (i) making an incorrect declaration of its status as to whether or not it is a Swiss Qualifying Lender or a single Swiss Non-Qualifying Lender, (ii) breaching the restrictions regarding transfers, assignments, participations, sub-participation and exposure transfers set forth in Section 13.04 or (iii) ceasing to be a Swiss Qualifying Lender other than as a result of any change after the date it became a Lender or Participant under this Agreement in (or in the interpretation, administration or application of) any law or double taxation treaty, or any published practice or published concession of any relevant taxing authority.
Section 2.07    Termination and Reduction of Commitments.
(a)    The Revolving Commitments, the Swingline Commitment, the North American LC Commitment and the Swiss LC Commitment shall automatically terminate on the Maturity Date.

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(b)    The Lead Borrower may at any time terminate, or from time to time reduce, the Revolving Commitments of any Class; provided that (i) any such reduction shall be in an amount that is (x) an integral multiple of $1,000,000 or (y) the entire remaining Revolving Commitments of such Class, (ii) the Revolving Commitments under any Facility shall not be terminated or reduced if, after giving effect to any concurrent prepayment of the Revolving Loans under such Facility in accordance with Section 2.09, the Revolving Exposures under such Facility would exceed the Commitments under such Facility and (iii) the Revolving Commitments shall not be terminated or reduced if, after giving effect to such termination or reduction, the Revolving Commitments would be less than the Closing Date Extension Amount but greater than $0.
(c)    The Lead Borrower shall notify the Administrative Agent of any election to terminate or reduce the Revolving Commitments of any Facility under paragraph (b) of this Section 2.07 at least three (3) Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the relevant Lenders of the contents thereof. Each notice delivered by the Lead Borrower pursuant to this Section 2.07 shall be irrevocable except that, to the extent delivered in connection with a refinancing of the applicable Obligations or other transaction, such notice shall not be irrevocable until such refinancing is closed and funded or other transaction is closed. Any effectuated termination or reduction of the Revolving Commitments of any Facility shall be permanent. Each reduction of the Revolving Commitments of any Facility shall be made ratably among the relevant Lenders in accordance with their respective Revolving Commitments.
Section 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 LIBO Rate Loans, shall have an initial Interest Period as specified in such Notice of Borrowing. Thereafter, the Lead Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Borrowing of LIBO Rate Loans, may elect Interest Periods therefor, all as provided in this Section 2.08. The Lead 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.
(b)    To make an election pursuant to this Section 2.08, the Lead Borrower shall notify the Administrative Agent of such election by telephone (other than in relation to a Swiss Revolving Loan) or electronic transmission (if arrangements for doing so have been approved by the Administrative Agent, which approval shall not be unreasonably withheld, delayed or conditioned) by the time that a Notice of Borrowing would be required under Section 2.03 if the Lead Borrower was requesting a Revolving Borrowing of the Type resulting from such election to be made on the effective date of such election, subject to Section 3.05. Each such telephonic Notice of Conversion/Continuation shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Notice of Conversion/Continuation substantially in the form of Exhibit A-3, unless otherwise agreed to by the Administrative Agent and the Lead Borrower.
(c)    Each telephonic and 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

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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 Base Rate Loans or LIBO Rate Loans;
(iv)    the currency of the resulting Borrowing; and
(v)    if the resulting Borrowing is a Borrowing of LIBO Rate Loans, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period.
If any such Notice of Conversion/Continuation requests a Borrowing of LIBO Rate Loans but does not specify an Interest Period, then the Lead Borrower shall be deemed to have selected an Interest 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 LIBO Rate Loans denominated in U.S. Dollars under the North American Revolving Facility 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 Base Rate Loans; provided, however, that, if (i) approved by the Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed) and (ii) the applicable Borrower shall have delivered to the Administrative Agent its customary standard (if applicable) documentation pre-authorizing automatic continuations, such Borrowing shall automatically continue with an Interest Period of one month. If a Notice of Conversion/Continuation with respect to a Borrowing under the Swiss Revolving Facility 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 LIBO Rate Borrowing with an Interest Period of one month. 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 Lead Borrower, 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 LIBO Rate Loans and (ii) unless repaid, each Borrowing of LIBO Rate Loans shall be converted to or continued as a Borrowing of LIBO Rate Loans with an Interest Period of one month at the end of the Interest Period applicable thereto.
Section 2.09    Optional and Mandatory Prepayments of Loans.
(a)    Optional Prepayments. The Borrowers shall have the right at any time and from time to time to prepay, without premium or penalty, any Borrowing, in whole or in part, subject to the requirements of this Section 2.09; provided further that each partial prepayment shall be in an amount that is an integral multiple of $100,000.

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(b)    Revolving Loan Prepayments.
(i)    In the event of the termination of all the Revolving Commitments of any Facility in accordance with the terms of this Agreement, the applicable Borrowers shall, on the date of such termination, (x) repay or prepay all the outstanding Revolving Borrowings and all outstanding Swingline Loans under such Facility and (y) Cash Collateralize the LC Exposure in respect of such Facility in accordance with Section 2.13(j).
(ii)    In the event of any partial reduction of the Revolving Commitments under any Facility in accordance with the terms of this Agreement, then (A) at or prior to the effective date of such reduction, the Administrative Agent shall notify the Lead Borrower and the Lenders of the Aggregate Exposures after giving effect thereto and (B) if the Availability Conditions would not be satisfied upon giving effect to such reduction, then the Borrowers shall, on the date of such reduction (or, if such failure to satisfy the Availability Conditions is due to the imposition of new Reserves, a change in the methodology of calculating existing Reserves, a change in eligibility standards or the occurrence of a Revaluation Date, in each case in accordance with the terms of this Agreement, within (5) five Business Days following receipt of written notice that complies with the terms of this Agreement), first, repay or prepay all 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 an amount sufficient to comply with the Availability Conditions.
(iii)    In the event that the Availability Conditions are not satisfied at any time, the Borrowers shall, immediately after demand (or, if such failure to satisfy the Availability Conditions is due to the imposition of new Reserves, a change in the methodology of calculating existing Reserves, a change in eligibility standards or the occurrence of a Revaluation Date, in each case in accordance with the terms of this Agreement, within five (5) Business Days following receipt of written notice that complies with the terms of this Agreement), first, repay or prepay all 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 an amount sufficient to comply with the Availability Conditions. Notwithstanding the foregoing, if the Availability Conditions are not satisfied solely as a result of the fluctuation of currency exchange rates, then the foregoing requirements shall only apply if the Aggregate Exposures exceed 103% of the amount that would comply with the Availability Conditions.
(iv)    In the event that (1) the aggregate LC Exposure exceeds the LC Sublimit then in effect, the Lead Borrower shall, without notice or demand, immediately replace or Cash Collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section 2.13(j), in an amount sufficient to eliminate such excess, (2) the aggregate North American LC Exposure exceeds the North American LC Sublimit then in effect, the Lead Borrower shall, without notice or demand, immediately replace or Cash Collateralize outstanding North American Letters of Credit in accordance with the procedures set forth in Section 2.13(j), in an amount sufficient to eliminate such excess or (3) the aggregate Swiss LC Exposure exceeds the Swiss LC Sublimit then in effect, the Swiss Borrower shall, without notice or demand, immediately replace or Cash Collateralize outstanding Swiss Letters of Credit in accordance with the procedures set forth in Section 2.13(j), in an amount sufficient to eliminate such excess.

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(v)    In the event and on each occasion that any Net Proceeds are received by or on behalf of any Loan Party in respect of any Disposition of Real Property included in the U.S. Borrowing Base pursuant to a sale leaseback transaction, the Borrowers shall, promptly after such Net Proceeds are received by a Loan Party, prepay the Obligations in an aggregate amount equal to 100% of such Net Proceeds.
Notwithstanding the foregoing, if any of the foregoing conditions described in subclauses (ii), (iii) or (iv) of this Section 2.09(b) arises solely as a result of the fluctuation of currency exchange rates, then the foregoing requirements set forth in subclauses (ii), (iii) or (iv) of this Section 2.09(b) shall only apply if the LC Exposure, North American LC Exposure or Swiss LC Exposure, as the case may be, exceeds 105% of the maximum amount that would not give rise to any of the foregoing conditions.
(c)    Application of Prepayments.
(i)    Prior to any optional or mandatory prepayment of Borrowings hereunder, the Lead Borrower shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment pursuant to this paragraph (i) of Section 2.09(c). Unless during a Liquidity Period, except as provided in Section 2.09(b)(iii) hereof, all mandatory prepayments shall be applied as follows: first, to fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to the Loan Documents; second, to interest then due and payable on the Borrowers’ Swingline Loans; third, to the principal balance of the Swingline Loans outstanding until the same has been prepaid in full; fourth, to interest then due and payable on the Revolving Loans and other amounts due pursuant to Sections 3.02 and 5.01 in respect of the applicable Facility subject to such mandatory prepayment; fifth, to the principal balance of the Revolving Loans in respect of the applicable Facility subject to such mandatory prepayment until the same have been prepaid in full; sixth, to Cash Collateralize all LC Exposure in respect of the applicable Facility subject to such mandatory prepayment plus any accrued and unpaid interest thereon (to be held and applied in accordance with Section 2.13(j) hereof); seventh, to all other Obligations pro rata in accordance with the amounts that such Lender certifies is outstanding; and eighth, as required by any Intercreditor Agreement or, in the absence of any such requirement, returned to the Lead Borrower or to such party as otherwise required by law.
(ii)    Amounts to be applied pursuant to this Section 2.09 to the prepayment of Revolving Loans shall be applied first to reduce outstanding Base Rate Loans. Any amounts remaining after each such application shall be applied to prepay LIBO Rate Loans. Notwithstanding the foregoing, if the amount of any prepayment of Loans required under this Section 2.09 shall be in excess of the amount of the Base Rate Loans 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 shall be immediately prepaid and, at the election of the applicable Borrower, the balance of such required prepayment shall be either (A) deposited in the LC Collateral Account and applied to the prepayment of LIBO Rate Loans on the last day of the then next-expiring Interest Period for LIBO Rate Loans (with all interest accruing thereon for the account of the applicable Borrowers) 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.

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(d)    Notice of Prepayment. The Lead Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (other than in the case of the requests in relation to Swiss Revolving Loans and Swingline Loans) (confirmed by telecopy) of any prepayment hereunder (i) in the case of prepayment of a Borrowing of LIBO Rate Loan, not later than 1:00 p.m., Local Time, three (3) Business Days before the date of prepayment, (ii) in the case of prepayment of a Borrowing of Base Rate Loans, not later than 1:00 p.m., Local Time, on the date of prepayment and (iii) in the case of prepayment of a Swingline Loan, not later than 1:00 p.m., Local Time, on the date of prepayment. Each such notice shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment. Each notice of prepayment pursuant to this Section shall be irrevocable, except that the Lead Borrower may, by subsequent notice to the Administrative Agent, revoke any such notice of prepayment if such notice of revocation is received not later than 10:00 a.m. (New York City time) on the day on which such prepayment is scheduled to occur and, provided that (i) the Lead Borrower reimburses each Lender pursuant to Section 3.02 for any funding losses within five (5) Business Days after receiving written demand therefor and (ii) the amount of Loans as to which such revocation applies shall be deemed converted to (or continued as, as applicable) Base Rate Loans (denominated in U.S. Dollars), LIBO Rate Loans (not denominated in U.S. Dollars) with an Interest Period of one month, in accordance with the provisions of Section 2.08 as of the date of notice of revocation (subject to subsequent conversion in accordance with the provisions of this Agreement). 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 ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.06.
(e)    Closing Date Extension Amount. Notwithstanding anything to the contrary in this Section 2.09, no Borrower may or shall prepay any Borrowing of North American Revolving Loans if, after giving effect to such prepayment, both the North American Revolving Exposure would be less than the Closing Date Extension Amount and the Revolving Commitments would be greater than $0.
Section 2.10    Payments Generally; Pro Rata Treatment; Sharing of Set‑offs.
(a)    Each Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Sections 3.01, 3.02, and 5.01 or otherwise) at or before the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to (x) 3:00 p.m., New York City time or (y) other Applicable Time specified by the Administrative Agent), on the date when due, in immediately available funds, without set-off 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 Lenders to which such payment is owed, at the Administrative Agent’s applicable office in such Alternative Currency and in same day funds not later than the Applicable Time specified by the Administrative Agent on the dates specified herein. Without limiting the generality of the foregoing, the Administrative Agent may require that any payments due under this Agreement be made in the United States. If, for any reason, any Borrower is prohibited by any law from making any required payment hereunder in an Alternative Currency, such Borrower shall make such payment in U.S. Dollars in the Dollar Equivalent of the Alternative Currency payment amount. Any amounts received after such 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 Swingline Lender as expressly provided herein and except that payments pursuant to Sections 3.01, 3.02, 5.01 and 13.01 shall be made to the Administrative Agent for the benefit of to the Persons entitled thereto and payments pursuant to other Loan 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 Loan 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 11.02 hereof, as applicable, ratably among the parties entitled thereto.
(c)    If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender under such Facility, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans and participations in LC Disbursements and Swingline Loans of other Lenders under such Facility to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Loans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Lead Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Lead Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Loan Parties rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of a Loan Party in the amount of such participation.
(d)    Unless the Administrative Agent shall have received, prior to any date on which any payment is due to the Administrative Agent for the account of the Lenders or an Issuing Bank pursuant to the terms hereof or any other Loan Document (including the date that is fixed for prepayment by notice from the Lead Borrower to the Administrative Agent pursuant to Section 2.09(d)), notice from any Borrower that such Borrower will not make such payment or prepayment, the Administrative Agent may assume that such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if such Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks under the applicable Facility, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
(e)    If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.02(c), 2.02(f), 2.10(d), 2.12(d) or 2.13(d), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Section 2.11    Defaulting Lenders.
(a)    Reallocation of Pro Rata Share; Amendments. For purposes of determining the Lenders’ obligations to fund or acquire participations in Loans or Letters of Credit, the Administrative Agent may exclude the Commitments and Loans of any Defaulting Lender(s) from the calculation of Pro Rata Shares. A Defaulting Lender shall have no right to vote on any amendment, waiver or other modification of a Loan Document, except as provided in Section 13.12; provided that when a Defaulting Lender shall exist, any such Defaulting Lender’s Revolving Commitment shall be disregarded in any of such calculations to the extent that disregarding the applicable Revolving Commitments would not cause the Revolving Exposure of any Lender under any Facility to exceed the amount of such Lender’s Revolving Commitment under such Facility.
(b)    Payments; Fees. The Administrative Agent may, in its discretion, receive and retain any amounts payable to a Defaulting Lender under the Loan Documents, and a Defaulting Lender shall be deemed to have assigned to the Administrative Agent such amounts until all Obligations owing to the Administrative Agent, Non-Defaulting Lenders and other Secured Parties have been paid in full. The Administrative Agent may apply such amounts to the Defaulting Lender’s defaulted obligations, use the funds to Cash Collateralize such Lender’s Fronting Exposure, or readvance the amounts to the Borrowers hereunder. A Lender shall not be entitled to receive any fees accruing hereunder during the period in which it is a Defaulting Lender, and the unfunded portion of its Commitment shall be disregarded for purposes of calculating the Unused Line Fee under Section 2.05(a). To the extent any LC Exposure attributable to a Defaulting Lender is reallocated to other Lenders, LC Participation Fees attributable to such LC Exposure under Section 2.05(c) shall be paid to such other Lenders. If all or any portion of the LC Exposure attributable to a Defaulting Lender is neither reallocated to other Lenders nor Cash Collateralized, then LC Participation Fees attributable to such LC Exposure shall be payable to the respective Issuing Banks until, and to the extent that, such LC Exposure is reallocated and/or Cash Collateralized.
(c)    Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of a Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 11 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 13.02 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 such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or Swingline Lender hereunder; third, to Cash Collateralize the Issuing Banks’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.11; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a 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 the Issuing Banks’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.11; sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Banks or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in LC Obligations and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments without giving effect to clause (iv) below. 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 this Section shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(d)    Cure. The Lead Borrower, Administrative Agent and applicable Issuing Bank may reasonably agree in writing that a Lender is no longer a Defaulting Lender. At such time, Pro Rata Shares 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 Shares. Unless expressly agreed by the Lead Borrower, 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.
Section 2.12    Swingline Loans.
(a)    Swingline Commitment. Subject to the terms and conditions set forth herein, the Swingline Lender may, but shall not be obligated to, (i) make Swingline Loans (“North American Swingline Loans”) in U.S. Dollars to the U.S. Borrowers on behalf of the North American Revolving Lenders in an aggregate amount not to exceed $58,500,000 and (ii) make Swingline Loans (“Swiss Swingline Loans”; the North American Swingline Loans and the Swiss Swingline Loans are collectively referred to herein as the “Swingline Loans”) in Swiss Francs or any Alternative Currency to any Borrower on behalf of the Swiss Revolving Lenders in an aggregate amount not to exceed $4,000,000, in each case, from time to time during the Revolving Availability Period so long as the making of any such Swingline Loans will not result in (x) the Dollar Equivalent of the aggregate principal amount of outstanding Swingline Loans exceeding 10% of the Aggregate Commitment or (y) the failure to satisfy the Availability Conditions; provided that the Swingline Lender shall not 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, the Lead Borrower may borrow, repay and reborrow Swingline Loans.
(b)    Swingline Loans. To request a Swingline Loan, the applicable Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 Noon, Local Time, on the day of (or, in the case of a proposed Swingline Loan in Australian Dollars or Swiss Francs, one Business Day prior to) a proposed Swingline Loan. Each such notice shall be irrevocable and specify (i) the requested date (which shall be a Business Day), (ii) the Borrower requesting such Swingline Loan, (iii) the requested currency of such Swingline Loans and (iv) amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from any Borrower. Each North American Swingline Loan made in U.S. Dollars shall be a Base Rate Loan. Each Swiss Swingline Loan shall be an Overnight LIBO Rate Loan. The Swingline Lender shall make each Swingline Loan available to the applicable Borrower by means of a credit to the general deposit account of such Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.13(e), by remittance to the applicable Issuing Bank) by 5:00 p.m., Local Time, on the requested date of such Swingline Loan. No Borrower may request a Swingline Loan if at the time of and immediately after giving effect to such request a Default has occurred and is continuing. Swingline Loans shall be made in minimum amounts of $100,000 or the Dollar Equivalent amount thereof.
(c)    Prepayment. The applicable Borrowers 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 written or telecopy notice (or telephone notice promptly confirmed by written, or telecopy notice) to the Swingline Lender and to the Administrative Agent before 4:00 p.m., London time on (or, in the case of any Swingline Loan denominated in Australian Dollars or Swiss Francs, one Business Day prior to) the date of repayment at the Swingline Lender’s address for notices specified in the Swingline Lender’s Administrative Questionnaire. All principal payments of Swingline Loans shall be accompanied by accrued interest on the principal amount being repaid to the date of payment.
(d)    Participations. The Swingline Lender may by written notice given to the Administrative Agent not later than 12:00 p.m., Local Time, on (or, in the case of any Swingline Loan denominated in Australian Dollars or Swiss Francs, one Business Day prior to) any Business Day require the Lenders under the applicable Facility to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding under such Facility. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to such Lender, specifying in such notice such Lender’s Pro Rata Percentage (with respect to the applicable Facility) of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Pro Rata Percentage (with respect to the applicable Facility) of such Swingline Loan or Loans. Each 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 Aggregate 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 Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.14 with respect to Loans made by such Lender (and Section 2.02 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Lead Borrower of any participations in any 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 the Swingline Lender. Any amounts received by the Swingline Lender from the Lead Borrower (or other party on behalf of the Lead Borrower) in respect of a Swingline Loan after receipt by the 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 Lenders that shall have made their payments pursuant to this paragraph and to the 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.
(e)    If the Maturity Date shall have occurred at a time when Extended Revolving Loan 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 Loan Commitments so that the respective outstanding Swingline Loans could be incurred pursuant to the Extended Revolving Loan 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 Loan Commitments and such Swingline Loans shall not be so required to be repaid in full on the Maturity Date.
Section 2.13    Letters of Credit.
(a)    General. Subject to the terms and conditions set forth herein, (x) the Lead Borrower may request the issuance of North American Letters of Credit in U.S. Dollars or in one or more applicable Alternative Currencies (if any) for any U.S. Borrower’s account or the account of a Subsidiary of the Lead Borrower in a form reasonably acceptable to the Administrative Agent and the applicable North American Issuing Bank, at any time and from time to time during the Revolving Availability Period; provided that the Lead Borrower shall be a co-applicant with respect to each North American Letter of Credit issued for the account of or in favor of any Subsidiary that is not a U.S. Borrower and (y) the Swiss Borrower may request the issuance of Swiss Letters of Credit in Swiss Francs or in one or more applicable Alternative Currencies (if any) for the Swiss Borrower’s account or the account of a Subsidiary of the Swiss Borrower in a form reasonably acceptable to the Administrative Agent and the applicable Swiss Issuing Bank, at any time and from time to time during the Revolving Availability Period; provided that, with respect to each Letter of Credit issued for the account of or in favor of any Subsidiary that is not the Swiss Borrower but is a Subsidiary of the Swiss Borrower, the Swiss Borrower shall be a co-applicant. 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 a Borrower to, or entered into by any Borrower with, the applicable Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. Notwithstanding anything to the contrary in this Agreement, each Existing Letter of Credit shall be deemed issued under this Agreement from and after the Closing Date and shall be a North American Letter of Credit for purposes of this Agreement. If the Borrowers request any Issuing Bank to issue a Letter of Credit for an affiliated or unaffiliated third party (including a Subsidiary) (an “Account Party”), (i) such Account Party shall have no rights against such Issuing Bank; (ii) the Borrowers shall be responsible for the application and obligations under this Agreement; and (iii) communications (including notices) related to the respective Letter of Credit shall be among such Issuing Bank, the Administrative Agent and the Borrowers.
(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, a Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the applicable Issuing Bank) an LC Request to the applicable Issuing Bank and the Administrative Agent not later than the Applicable Time specified by the Administrative Agent on the third 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) whether such Letter of Credit shall be a North American Letter of Credit or a Swiss Letter of Credit; (iii) the amount and currency thereof; (iv) the expiry date thereof; (v) the name and address of the beneficiary thereof; (vi) the documents to be presented by such beneficiary in case of any drawing thereunder; (vii) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (viii) such other matters as the applicable Issuing Bank may reasonably require and shall attach the agreed form of the Letter of Credit. 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 applicable 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 applicable 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) the LC Exposure shall not exceed $50,000,000 (the “LC Sublimit”), (B) the North American LC Exposure shall not exceed $48,000,000 (the “North American LC Sublimit”), (C) the Swiss LC Exposure shall not exceed $2,000,000 (the “Swiss LC Sublimit”), (D) the Availability Conditions are satisfied, (E) the North American LC Exposure attributable to North American Letters of Credit issued by any North American Issuing Bank shall not exceed the Dollar Equivalent of such North American Issuing Bank’s North American Issuing Bank Sublimit, (F) the Swiss LC Exposure attributable to Swiss Letters of Credit issued by any Swiss Issuing Bank shall not exceed the Dollar Equivalent of such Swiss Issuing Bank’s Swiss Issuing Bank Sublimit and (G) if a Defaulting Lender exists, either such Lender or the Lead Borrower has entered into arrangements satisfactory to the Administrative Agent and the applicable Issuing Bank to eliminate any Fronting Exposure associated with such Lender.
(c)    Expiration Date. Each Letter of Credit shall expire at or prior to the close of business on the earlier of (x) 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 and, in the case of any renewal or extension thereof, one (1) year after such renewal or extension) and, (y) unless Cash Collateralized or otherwise credit supported or agreed to the reasonable satisfaction of the Administrative Agent and the applicable Issuing Bank (in which case the expiry may extend no longer than twelve (12) months after the Letter of Credit Expiration Date) the Letter of Credit Expiration Date. Each Letter of Credit may, upon the request of the Lead Borrower, include a provision whereby such Letter of Credit shall be renewed automatically for additional consecutive periods of twelve (12) months or less (but, subject to the foregoing, not beyond the date that is after the Letter of Credit Expiration Date) unless the applicable Issuing Bank notifies the beneficiary thereof at least thirty (30) days prior to the then-applicable expiration date that such Letter of Credit will not be renewed.
(d)    Participations.
(i)    By the issuance of a North American Letter of Credit (or an amendment to a North American Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable North American Issuing Bank or the North American Revolving Lenders, the applicable North American Issuing Bank hereby grants to each North American Revolving Lender, and each such North American Revolving Lender hereby acquires from such North American Issuing Bank, a participation in such North American Letter of Credit equal to such North American Revolving Lender’s Pro Rata Percentage of the aggregate amount available to be drawn under such North American Letter of Credit. In consideration and in furtherance of the foregoing, each North American Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable North American Issuing Bank, such North American Revolving Lender’s Pro Rata Percentage of each North American LC Disbursement made by the applicable North American Issuing Bank and not reimbursed by the U.S. Borrowers 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 U.S. Borrowers for any reason. Each applicable Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of North American Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any North American Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Aggregate 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.
(ii)    By the issuance of a Swiss Letter of Credit (or an amendment to a Swiss Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Swiss Issuing Bank or the Swiss Revolving Lenders, the applicable Swiss Issuing Bank hereby grants to each Swiss Revolving Lender, and each such Swiss Revolving Lender hereby acquires from such Swiss Issuing Bank, a participation in such Swiss Letter of Credit equal to such Swiss Revolving Lender’s Pro Rata Percentage of the aggregate amount available to be drawn under such Swiss Letter of Credit. In consideration and in furtherance of the foregoing, each Swiss Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Swiss Issuing Bank, such Swiss Revolving Lender’s Pro Rata Percentage of each Swiss LC Disbursement made by the applicable Swiss Issuing Bank and not reimbursed by the Swiss 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 Swiss Borrower for any reason. Each applicable Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Swiss Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Swiss Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Aggregate 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.
(i)    If any North American Issuing Bank shall make any North American LC Disbursement in respect of a North American Letter of Credit, the U.S. Borrowers shall reimburse such North American LC Disbursement by paying to the applicable North American Issuing Bank an amount equal to such North American LC Disbursement not later than (x) in the case of reimbursement in U.S. Dollars, 2:00 p.m., New York City time, on the Business Day after receiving notice from such North American Issuing Bank of such North American LC Disbursement or (y) in the case of reimbursement in an Alternative Currency, the Applicable Time specified by the Administrative Agent on the Business Day after receiving notice from such North American Issuing Bank of such North American LC Disbursement; provided that, whether or not the Lead Borrower submits a Notice of Borrowing, the applicable U.S. Borrower shall be deemed to have requested (except to the extent such U.S. Borrower makes payment to reimburse such North American LC Disbursement when due) a Borrowing of Base Rate Loans (with respect to North American Letters of Credit in U.S. Dollars) or LIBO Rate Loans under the North American Revolving Facility with an Interest Period of one month (with respect to North American Letters of Credit in a currency other than U.S. Dollars) in an amount necessary to reimburse such North American LC Disbursement. If such U.S. Borrower fails to make such payment when due, the applicable North American Issuing Bank shall notify the Administrative Agent and the Administrative Agent shall notify each North American Revolving Lender of the applicable North American LC Disbursement, the payment then due from such U.S. Borrower in respect thereof and such North American Revolving Lender’s Pro Rata Percentage thereof. Promptly following receipt of such notice, each such North American Revolving Lender shall pay to the Administrative Agent its Pro Rata Percentage of the unreimbursed North American LC Disbursement (in U.S. Dollars, if the applicable North American Letter of Credit was denominated in U.S. Dollars, or in the applicable Alternative Currency, if the applicable North American Letter of Credit was denominated in an Alternative Currency) in the same manner as provided in Section 2.02(f) with respect to Loans made by such North American Revolving Lender, and the Administrative Agent shall promptly pay to the applicable North American Issuing Bank the amounts so received by it from such North American Revolving Lenders. In the case of a North American Letter of Credit denominated in an Alternative Currency, the applicable U.S. Borrower shall reimburse the applicable North American Issuing Bank in such Alternative Currency, unless (A) such North American Issuing Bank (at its option) shall have specified in such notice that it will require reimbursement in U.S. Dollars, or (B) in the absence of any such requirement for reimbursement in U.S. Dollars, the applicable U.S. Borrower shall have notified such North American Issuing Bank promptly following receipt of the notice of drawing that such U.S. Borrower will reimburse such North American Issuing Bank in U.S. Dollars. In the case of any such reimbursement in U.S. Dollars of a drawing under a North American Letter of Credit denominated in an Alternative Currency, the applicable North American Issuing Bank shall notify the applicable U.S. 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 the U.S. Borrowers pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable North American Issuing Bank. Any payment made by a North American Revolving Lender pursuant to this paragraph to reimburse a North American Issuing Bank for any North American LC Disbursement (other than the funding of Base Rate Loans or LIBO Rate Loans as contemplated above) shall not constitute a North American Revolving Loan and shall not relieve any U.S. Borrower of its obligation to reimburse such North American LC Disbursement. In the event that (A) a drawing denominated in an Alternative Currency is to be reimbursed in U.S. Dollars pursuant to the third sentence in this Section 2.13(e)(i) and (B) the U.S. Dollar amount paid by the U.S. Borrowers shall not be adequate on the date of that payment to purchase in accordance with normal banking procedures a sum denominated in the Alternative Currency equal to the drawing, the U.S. Borrowers agree, as a separate and independent obligation, to indemnify the applicable North American Issuing Bank for the loss resulting from its inability on that date to purchase the Alternative Currency in the full amount of the drawing.
(ii)    If any Swiss Issuing Bank shall make any Swiss LC Disbursement in respect of a Swiss Letter of Credit, the Swiss Borrower shall reimburse such Swiss LC Disbursement by paying to the applicable Swiss Issuing Bank an amount equal to such Swiss LC Disbursement not later than the Applicable Time specified by the Administrative Agent on the Business Day after receiving notice from such Swiss Issuing Bank of such Swiss LC Disbursement; provided that, whether or not the Swiss Borrower submits a Notice of Borrowing, the Swiss Borrower shall be deemed to have requested (except to the extent the Swiss Borrower makes payment to reimburse such Swiss LC Disbursement when due) a Borrowing of LIBO Rate Loans under the Swiss Revolving Facility of the Swiss Borrower with an Interest Period of one month in an amount necessary to reimburse such Swiss LC Disbursement. If the Swiss Borrower fails to make such payment when due, the applicable Swiss Issuing Bank shall notify the Administrative Agent and the Administrative Agent shall notify each Swiss Revolving Lender of the applicable Swiss LC Disbursement, the payment then due from the Swiss Borrower in respect thereof and such Swiss Revolving Lender’s Pro Rata Percentage thereof. Promptly following receipt of such notice, each such Swiss Revolving Lender shall pay to the Administrative Agent its Pro Rata Percentage of the unreimbursed Swiss LC Disbursement in the applicable Alternative Currency in the same manner as provided in Section 2.02(f) with respect to Loans made by such Swiss Revolving Lender, and the Administrative Agent shall promptly pay to the applicable Swiss Issuing Bank the amounts so received by it from such Swiss Revolving Lenders. The Swiss Borrower shall reimburse the applicable Swiss Issuing Bank in such Alternative Currency, unless (A) such Swiss Issuing Bank (at its option) shall have specified in such notice that it will require reimbursement in U.S. Dollars or a different Alternative Currency, or (B) in the absence of any such requirement for reimbursement in U.S. Dollars or a different Alternative Currency, the Swiss Borrower shall have notified such Swiss Issuing Bank promptly following receipt of the notice of drawing that the Swiss Borrower will reimburse such Swiss Issuing Bank in Alternative Currency. In the case of any such reimbursement in an Alternative Currency of a drawing under a Swiss Letter of Credit denominated in Swiss Francs, the applicable Swiss Issuing Bank shall notify the Swiss 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 the Swiss Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Swiss Issuing Bank. Any payment made by a Swiss Revolving Lender pursuant to this paragraph to reimburse a Swiss Issuing Bank for any Swiss LC Disbursement (other than the funding of LIBO Rate Loans as contemplated above) shall not constitute a Swiss Revolving Loan and shall not relieve the Swiss Borrower of its obligation to reimburse such Swiss LC Disbursement. In the event that (A) a drawing denominated in an Alternative Currency is to be reimbursed in U.S. Dollars or a different Alternative Currency pursuant to the third sentence in this Section 2.13(e)(iii) and (B) the amount paid by the Swiss Borrower shall not be adequate on the date of that payment to purchase in accordance with normal banking procedures a sum denominated in Swiss Francs equal to the drawing, the Swiss Borrower agrees, as a separate and independent obligation, to indemnify the applicable Swiss Issuing Bank for the loss resulting from its inability on that date to purchase Swiss Francs in the full amount of the drawing.
(f)    Obligations Absolute.
(i)    Subject to the limitations set forth below, the obligation of the Borrowers to reimburse LC Disbursements as provided in paragraph (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 the relevant Alternative Currency to any Borrower 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(f), constitute a legal or equitable discharge of, or provide a right of setoff against, the obligations of the Borrowers hereunder. None of the Administrative Agent, the Lenders or any Issuing Bank, or any of their respective 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 special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by each Borrower to the extent permitted by applicable 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, willful misconduct, or bad faith on the part of any Issuing Bank (as finally determined by a court of competent jurisdiction in a final non-appealable judgment), such 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 substantial compliance with the terms of a Letter of Credit, each Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(ii)    No Issuing Bank assumes any responsibility for any failure or delay in performance or any breach by any Borrower or other Person of any obligations under any LC Document. No Issuing Bank makes to the Lenders any express or implied warranty, representation or guaranty with respect to the Collateral, such documents or any Loan 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 Loan Party.
(iii)    No Issuing Bank or any of its Affiliates, and their respective officers, directors, employees, agents and investment advisors shall be liable to any Lender or other Person for any action taken or omitted to be taken in connection with any LC Documents except as a result of its actual gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final non-appealable judgment. No Issuing Bank shall have any liability to any Lender if such Issuing Bank refrains from any action under any Letter of Credit or such LC Documents until it receives written instructions from the Required Lenders.
(g)    Disbursement Procedures. Each Issuing Bank shall, within the period stipulated by the terms and conditions of a Letter of Credit, following its receipt thereof, examine all documents purporting to represent a demand for payment under such Letter of Credit. Promptly after such examination, such Issuing Bank shall notify the Administrative Agent and the Lead Borrower or the Swiss Borrower by telephone (confirmed by telecopy and/or electronically) of such demand for payment and whether such Issuing Bank has made or will make an 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 Lenders 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 applicable 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 such Borrower reimburses such LC Disbursement, at the rate per annum then applicable to Base Rate Loans; provided that, if such Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section 2.13, then Section 2.06(b) 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 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 any Issuing Bank. Any Issuing Bank may resign as Issuing Bank hereunder at any time upon at least thirty (30) days’ prior written notice to the Lenders, the Administrative Agent and the Lead Borrower. Any Issuing Bank may be replaced at any time by agreement between the Lead Borrower and the Administrative Agent; provided that so long as no Event of Default has occurred and is continuing under Section 11.01(b), 11.01(c), 11.01(h), 11.01(i) or 11.01(j), such successor Issuing Bank shall be reasonably acceptable to the Lead Borrower. One or more Lenders may be appointed as additional Issuing Banks in accordance with paragraph (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 Lead Borrower 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 Lead Borrower may, in its discretion, select which Issuing Bank is to issue any particular Letter of Credit.
(j)    Cash Collateralization.
(i)    If any Event of Default shall occur and be continuing, on the Business Day that the Lead Borrower receives notice from the Administrative Agent (acting at the request of the Required Lenders) demanding the deposit of Cash Collateral pursuant to this paragraph, the Lead Borrower shall deposit in the LC Collateral Account, in the name of the Administrative Agent and for the benefit of the Secured Parties, an amount in cash equal to 103% (or, in the case of Letters of Credit issued in any currency other than U.S. Dollars, 105%) of the LC Exposure as of such date. Each such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Lead Borrower under this Agreement, but shall be immediately released and returned to the Lead Borrower (in no event later than two (2) Business Days) once all Events of Default are cured or waived. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments shall be made only in Cash Equivalents and at the direction of the Lead Borrower and at the Lead Borrower’s risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys 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 Lead Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with LC Exposure representing greater than 50% of the total LC Exposure), be applied to satisfy other Obligations of the Lead Borrower.
(ii)    The Lead Borrower shall, on demand by an Issuing Bank or the Administrative Agent from time to time, Cash Collateralize the Fronting Exposure associated with any Defaulting Lender.
(k)    Additional Issuing Banks. The Lead Borrower 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 North American Revolving Lenders or Swiss Revolving Lenders to act as a North American Issuing Bank or a Swiss Issuing Bank, respectively, under the terms of this Agreement. Any Lender designated as an issuing bank pursuant to this paragraph (k) shall be deemed (in addition to being a Lender) to be an Issuing Bank with respect to Letters of Credit issued or to be issued by such Lender, and all references herein and in the other Loan Documents to the term “Issuing Bank”, “North American Issuing Bank” and/or “Swiss Issuing Bank”, as applicable, shall, with respect to such Letters of Credit, be deemed to refer to such Lender in its capacity as Issuing Bank, North American Issuing Bank and/or Swiss 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 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, if later, the date it became an Issuing Bank), or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date (or, if later, the date it became an Issuing Bank) 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 generally applicable policies or procedures 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 Lead Borrower LC Collateral Account” (or such sub-accounts as the Administrative Agent may require for purposes of administration or collateral separation or otherwise). Each Loan 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